No. 81-269 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

STATE OF MONTANA, Plaintiff and Respondent,

-vsGEORGE ALLEN, Defendant and Appellant.

Appeal from: DistrictCourt of theEleventh 3udicial District, In and for the County of Flathead, The Honorable Robert C. Sykes, Judge presiding.

Counsel of Record: For Appellant: Sherlock & Nardi, Kalispell, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, 14onLana Ted 0. Lyrnpus, County Attorney, Kalispell, Montana

Submitted: March 16, 1982 Decided: 

## MAY

## 141982

Filed: 

## MAY

## 1 

## 41982

ClerkMr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. On December 30, 1981, we remanded thisappeal to the DistrictCourt for an evidentiary hearing on the terms of a plea bargain agreement and whether the prosecutor violated the agreement. Statev. Allen (1981), Mont

# . -1- P.2d 1 38 St.Rep. 2192. The evidentiaryhearing has been held; the District Court has certified its findings of fact, conclusions of 

### law, and order 

### to thisCourt; supplemental briefshave been filed by the parties; and the appeal 

### is now before us for final determination pursuant to our retention of jurisdiction. Although the facts

### were setout atlength inour previous opinion, supra, 

### we recount them briefly here. On July 14, 1980, defendantwas charged with sexual intercourse without consent involving a regular course of conduct with hisdaughter, age under 16, from 1977 through September, 1979. Atthe arraignment the next day, an amended information 

### was filed charging defendantwith sexual assault. Defendant pleaded guilty and 

### was released to theVeterans Hospital inSheridan, Wyoming. On November 3, 1980, atthe hearing in aggravation 

### or mitigation of punishment, defendant

### was sentenced to 20 years imprisonment. On January 7, 1981, the District Court entered

an order finding the prior sentence reasonable and left it unchanged. On January 12, defendant requested the District Court 

### to set the sentence aside or to be allowed 

### to withdraw hisplea because the county attorney allegedly failed 

### to fulfill hispromises made to the defendant in a pleabargain agreement dated July2, 1980, thereby denying defendant due process of 

### law. The purported agreement was contained in a letter from defendant's counsel to the prosecuting attorney and provided in pertinent part: "It

### is my understanding thatyour officewould be willing 

### to accept a plea to one count of sexual intercourse without consent from my clientand in returnwould recommend 

### to the -- court thatMr. Allen receive a sus~ended sen-tence fora period of ten 

### to fifteenyears and 

### --- that saidsuspension be conditional upon his attending and-completing a treatment 

### program at the Veterans Hospital inSheridan, Wyoming, for whatever 

### timeperiod theydeem appropriate and necessary. It is my understanding thatyour officewillnot present testimony in aggravation of sentencenor oppose a withdrawal of the guiltyplea should our agreement not be followed by the court. "If you have any additions 

### or corrections please don't hesitate to contact

### me atany time." (Emphasis added.) The prosecuting attorney acknowledged thathe made no written response 

### to this 

### letter. The District Court denied defendant's motion to set the sentence aside 

### or to withdraw the guiltyplea. Our firstconsideration of the case followed. We remanded with instructions 

### to the District Court to determine the 

### terms of the plea bargain agreement and whether the county attorney breached them. Although appellant raisesperipheral issues, the central issue here revolves around the county attorney's failure torecommend the suspended sentenceof 10to 15years. The District Court made the following finding of fact relating thereto: "19. The County Attorney did not agree to recommending a suspended Sentence. He did agree 

### tomake no opposition 

### to the request of the Defendant for a suspended sentence." The District courtmade the following finding regarding the presentation of the agreement to the court, which is uncontroverted by defense counsel: "14. Atthe January 7th hearing, the defense counsel presented to the Court for the first 

### timethe July letter of Mr. Nardi [defense counsel]

# . The Court atthat 

### timedisregarded the letter for any and 

### allpurposes.

"18. Until January 7, 1981, no mention was ever made by either the defense counsel nor the Defendant as

### to the recommended 15year suspended Sentenceby the County Attorney, nor anymention made asto a change of plea

# ." The following conclusions of law were entered with regard to the pleabargain itself: "1. The initialplea-bargain agreement between defense counsel and the prosecutor was that theDefendant would enter a plea of guilty to the offense of Sexual Intercourse without Consent, one count, a felony, and that in exchange for which plea the prosecutor would: not pursue the additional counts of the original charge; assent toand join in the Defendant's request thathe be sent to the Fort SheridanVeterans AdministrationHospital prior to imposition of Sentence, and, following his successful completion

### of the Fort Sheridan Veterans Administration Hospital treatment program and appropriatedischarge therefrom, not oppose the Defendantts proposition 

### to the Court thathe receive an extended suspended Sentence. "2. The Statedid not agree 

### to a£ firmatively recommending a suspended Sentence.

"7. The prosecutor did not oppose any suspended Sentence at any time." The issue now before us is whether the prosecuting attorney breached the 

### terms of the plea bargain, denying defendant due process of 

### law. The transcript of the hearing on remand reveals 

### two distinct versions of what the partiesbelieved the agreement 

### to be. Defendant's counsel stated they feltthe letter embodied the 

### terms of the agreement and so advised their client. The county attorney, on the other hand, repeatedly stated thathe never agreed to recommend a suspended sentence but thathe would not object to a suspended sentence. He feltthathisversion of the agreement 

### was established by the numerous contacts between the parties subsequent to the quoted 

### letter. Defendant's counsel relyheavily on Santobellov. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427. In that case the original prosecutor agreed to make no recommendation as to sentence inreturn for the defendant's pleading guilty to a lesser included offense

# . Seven months later, at the sentencing hearing, a different prosecutor recommended the maximum one-year sentence. The Supreme Court reversed the sentence and remanded the

case back to the 

### state districtcourt for further consideration, stating:

### "

# . .. when a plea rests in any significant degree on a promise 

### or agreement of the prosecutor, 

### so that it can be said to be part of the inducement 

### or consideration, such promise must be fulfilled." Santobello, supra, 404 U.S. at262, 92 S.Ct. at499, 30 L.Ed.2d at433. Its clear that the Santobello holding was based inpart on analoglies to contract law. However, there appears 

### to be a recent trend away from a strict contract characterization of a plea bargain agreement, at least before a contract is formed, and toward the reasonable expectations of the defendant's counsel. In Cooper v. U.S. (4th Cir. 1979), 594 F.2d 12, a plea bargain arrangement was offered by the prosecutor and accepted by the defendant. The defense counsel then made numerous unsuccessful attempts 

### to contact the prosecutor by telephone 

### to acknowledge acceptance and when contact 

### was finallymade, he 

### was informed the offerhad been withdrawn, 594 F.2d at 15. The court acknowledged thatby strict contract 

### law principlesno contract had arisenbut still concluded thatrelief must be given and enforced the plea proposal to the extent then possible. 

### More importantly, the Court described the 

### test to be applied and the sources of defendant's rights: "We hold instead that under appropriate circumstances--which 

### we find here--a constitutional right to enforcement of plea proposals may arise before any technical Icontract' has been formed. and on the basis alone of expec- & tationsreasonably formed inreliance -- upon the honor of theaovernment inmakina and abidinsbv 

# - -- 

# - - 

# - A itsproposals. Atwhat

## point thisright arises short of the struckbargain 

### or any tangible, objective 

### acts of reliance

### we need not attempt to sayhere as a matter of general rule.

"We begin by noting that two distinct sources of constitutional right 

### are involved here: most obviously and directly, the right to fundamental fairnessembraced within substantive due process guarantees; less directlyperhaps, but nonetheless importantly, the SixthAmendment right to effective assistanceof counsel." 594 F.2d at 18. (Emphasis added.) Several other courts have adopted the Cooper rationale. See --Enforcing Plea Bargains: A Step Beyond Contract Law, 40 Maryland Law Rev. 90, 114 (1981). Here the District Court accepted the county attorney's version of the agreement and rejected defense counsels9argument. There is substantial evidence inthe record to support thisdecision. The standard of review is whether findingsof fact and conclusions of law are clearlyerroneous: "Findinqs of fact shall not be 

### set aside unless - clearlyerroneous, and due regard shall be given tothe opportunity of the trial court to judge the credibilityof the witnesses." Rule 52(a), 3I.R.Civ.P. Neither Santobello nor Cooper require reversal in thiscase. Although defense counsel would have us believe that the July 2, 1980, 

### letter embodied the agreement, there is ample evidence that there 

### were subsequent negotiations between the parties to such an extent that the 

### terms of the letter should not have been relied upon by defendant's attorneys. For example, the letter states thatdefendant would plead guilty to the charge of sexual intercourse without consent. However, this

### term of the agreement was changed to a plea of guilty 

### to the charge of sexual assault. Thus the final plea entered did not 

### rest "in any significant degree on a promise oragreement of the prosecutor" to recommend a suspended sentence. Santobello, supra. Here the uncontroverted facts indicate that the defendant

was originally sentenced on November 3, 1980. The county attorney did not recommend a suspended sentence atthat 

### time. The firsttimethe quoted 

### letter

### or alleged plea bargain for a suspended sentencewas presented to the District Court was over twomonths later on January 7, 1981. If defendant and hiscounsel were induced to enter a guiltyplea on July 15, 1980, by the alleged promise of the county attorney 

### to recommend a suspended sentence, why did they wait until January 7, 1981, to inform the District Court of the quoted 

### letter and alleged promise of the county attorney? Are these uncontested factsconsistentwithexpectations reasonably formed in reliance upon the alleged pro

### mise of the county attorney to recommend a suspended sentence under the Cooper rationale? Not atall! Accordingly, 

### we hold that the defendant's substantive due process rights

### were not violated under the circumstances of this

case. The judgment of conviction and sentence 

### are a£firmed.

Chief Justice \

We concur:

### Mr. Justice Daniel J. Shea dissenting:

The real evil lies in the fact thatwe remanded this case for an evidentiary hearing before a district judge who had already held that a plea bargain did not exist and

was determined to be harsh as possible in sentencing. It

was a foregone conclusion that in the evidentiary hearing he would accept the county attorney's version ofwhat happened whichwould enable him to keep the sentence intact. This Court should have ordered an evidentiary hearing before a different district judge. The only fairway to handle this casewould be to order

a different district judge to determinewhether therewas a plea bargain. The original district judge already determined in his ownmind what shouldbe donewith the defendant.