No. 94-330 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. FILPO 

RUSSELL R. MODDISON, OCT "'8 1996 

Defendant and Appellant. c'e' ::'~nifh et:;!ltA~~ 'f~3~fAWit1R1 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Margaret Johnson, Judge presiding. 

COUNSEL OF RECORD: 

Filed: 

For Appellant: 

William F. Hooks, Appellate Defender Office, 

Helena, Montana 

For Respondent: 

Joseph P. Mazurek, Attorney General, Jennifer 

Anders, Assistant Attorney General i Brant Light, 

Cascade County Attorney, Great Falls, Montana 

Submitted on Briefs: August I, 1996 

Decided: October 18, 1996 

Cl'erk 
Justice William E. Hunt/ Sr. delivered the Opinion of the Court. 

Russell R. Moddison (Moddison) was charged by information 

filed in the Eighth Judicial District Court/ Cascade County/ with 

sexual intercourse without consent/ a felony/ and obstructing a 

peace officer/ a misdemeanor. Moddison pled guilty to the felony 

charge as part of a plea ~greement/ then subsequently moved the 

District Court to withdraw his guilty plea. The District Court 

denied Moddison's motion. Moddison appeals. 

We affirm. 

The issue for our review is whether the District Court abused 

its discretion when it denied Moddison's motion to withdraw his 

guilty plea. 

FACTS 

The charges filed against Moddison resulted from an incident 

which occurred in February 1992 in the vicinity of Great Falls/ 

Montana. Moddison/ Robert Gould/ Ian Johnson/ Jordan Mattfeld/ 

Tammy Archer/ and Janetta Jo Clark had been drinking for a few 

hours at the Black Eagle Country Club when they all decided to go 

to the residence of Johnson and Mattfeld. At the residence/ Clark 

and Mattfeld had a drinking contest which led to Clark drinking 

nearly half of a bottle of whiskey. Clark had already had nine 

drinks at the Black Eagle Country Club. 

Clark soon "passed out" in one of the bedrooms. Moddison/ 

Gould/ and Johnson then had sex with Clark individually. All three 

men claimed that Clark consented. 

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About two hours later' Moddison returned to the bedroom to 

check on Clark and discovered that she was cold to the touch and 

had no discernable pulse. The coroner later determined that Clark 

had died at 4:30 a.m., and at the time of death had a blood alcohol 

level of 0,42 gm/dl. The cause of Clark's death was asphyxia, 

prompted by the extraordinarily high level of alcohol in her body. 

Moddison and Gould left the residence in Moddison's truck, but 

soon abandoned the truck and ran when they saw a Cascade County 

Sheriff's vehicle. Moddison was later found by authorities in the 

basement of his mother's house. Moddison, Gould, and Johnson were 

ultimately charged in a joint information with sexual intercourse 

without consent, or, alternatively, attempted sexual intercourse 

without consent. Moddison and Gould were also charged with the 

misdemeanor offense of obstructing a peace officer. The 

information was later amended to delete the alternative charge of 

attempted sexual intercourse without consent, 

Each defendant was appointed separate counsel and each 

defendant pled "not guilty" to the charges. Counsel believed that 

a joint defense would be in their clients' best interests because 

each defendant admitted to having sex with Clark but claimed that 

she had consented to the acts. Later, after a review of the 

evidence and a discussion with the Cascade County Attorney's 

Office, counsel concluded that it would be in their clients' best 

interests to enter into a plea agreement deal. Counsel were 

particularly concerned that evidence of Clark's extreme 

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intoxication would prevent a jury from finding that she consented 

to intercourse with the three defendants. 

The plea agreement offered by the State required Moddison and 

Gould to plead guilty to the charge of sexual intercourse without 

consent, and required Johnson to plead guilty to an amended charge 

of obstructing a peace officer. In return, the State agreed to 

drop the misdemeanor charges against Moddison and Gould, and 

recommend to the court that Moddison and Gould each receive a ten 

year sentence with five years suspended. However, the State 

refused to stipulate during plea negotiations that Moddison and 

Gould would not have to undergo sexual offender treatment, despite 

the defendants' adamant belief that the treatment was not 

appropriate for them. 

binding plea agreement 

The parties eventually entered into a nonin which the issue of sexual offender 

treatment was left to the court's discretion. 

The record reveals that the plea agreement was attractive to 

counsel because counsel believed that the State's leniency toward 

Johnson would effectively prevent the court from punishing Moddison 

and Gould too harshly. Counsel also believed that the non-binding 

nature of the plea agreement would allow them to recommend a lesser 

prison term than the State would recommend. Further, Moddison's 

attorney hoped that if his recommendation of a suspended prison 

term was accepted by the court, then the sexual offender treatment 

program, if it were imposed, could be completed by Moddison in a 

local community program. 

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" 

The record also revea:ls that Moddison' s attorney informed 

Moddison of the possibility that he might be sentenced to prison 

and ordered to undergo a sexual offender program there. Moddison' s 

attorney testified that he explained to Moddison that his admission 

that he committed a sexual crime was required before he could 

successfully complete the program. Moddison steadfastly refused to 

make that admission, and according to Moddison's attorney said "if 

he had to [admit to the crime] he would sit at the prison until he 

was discharged." Moddison intended to enter an Alford plea of 

guilty, in which he could concede· the strength of the State's case 

against him without admitting that he committed a crime. See North 

Carolina v. Alford (1970), ,400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 

162. 

Moddison's attorney apparently realized the potential dilemma 

Moddison would face if, after he entered his Alford plea, the court 

sentenced him to a prison term and ordered him to undergo sexual 

offender treatment there: by refusing to admit to his crime, 

Moddison would be unable to complete the program and thus would 

likely be ineligible for parole. Moddison's attorney therefore 

advised Moddison that if such a sentence were imposed, he could 

choose from among three remedies: appeal the sentence, seek 

sentence review, or withdraw the plea. 

At the October 18, 1993 change of plea hearing, Gould fired 

his attorney, withdrew from the plea agreement, and announced his 

intention to go to trial. Gould was later convicted of sexual 

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intercourse without consent, and this Court affirmed his 

conviction. State v. Gould (1995), 273 Mont. 207, 902 P.2d 532. 

Moddison and Johnson conformed to the plea agreement, and 

Moddison entered an Alford plea of guilty to the charge of sexual 

intercourse without consent. Moddison had previously signed the 

plea agreement and an "Acknowledgment of Waiver of Rights by Plea 

of Guilty," and at the hearihg Moddison's attorney went through the 

waiver of rights and the plea agreement to confirm that Moddison 

understood their terms. Moddison testified that: he understood 

that the issue of a sexual offender program was left to the 

discretion of the court; he understood that the court did not have 

to abide by the plea agreement; he understood that the court could 

impose the maximum penalty provided by law; he understood that if 

the court did not abide by the plea agreement he could not then 

withdraw his guilty plea; he understood that the court could 

designate him a dangerous offender as well as limit his eligibility 

for parole; he understood that he had the option of going to trial; 

he voluntarily signed the plea agreement; he was satisfied with the 

services of his attorney; and, he believed he would be convicted of 

the charge if he went to trial. 

Moddison's plea was accepted by the court and sentencing was 

set for a later date. In the meantime, the court ordered Moddison 

to undergo a sexual offender evaluation in Missoula, Montana. 

Moddison missed three appointments with the Missoula evaluator, 

claiming that he did not have the money to purchase bus fare from 

Great Falls to Missoula. Because Moddison had not undergone the 

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evaluation, and because ad¢itional offenses were brought to the 

court's attention which did not appear in the presentence 

investigation, the sentencing hearing was continued to May 19, 

1994. At the May hearing, the court sentenced Moddison to a ten 

year prison term with five years suspended. The court also ordered 

Moddison to complete sexual offender treatment and a chemical 

dependency program at the prison before being considered for 

release. 

Moddison arrived at the Montana State Prison on May 25, 1994. 

He soon learned that the sexual offender treatment program had an 

extensive waiting list and that the program itself took at least 

three years to complete. On June 9, 1994, Moddison filed two pro 

se motions, entitled "Notice for Appointment of Counsel" and 

"Notice of Appeal," with the District Court. After the District 

Court failed to act on Moddison's motions, Moddison filed a motion 

and brief with this Court. We ordered the District Court to 

conduct a hearing regarding Moddison' s appointment of counsel 

motion. The court appointed counsel from the Montana Appellate 

Defender's Office to represent Moddison. This Court again remanded 

Moddison's case to the District Court after we determined that 

Moddison's pro se motions were an attempt to withdraw his guilty 

plea. After an October 24, 1995 hearing on Moddison's request to 

withdraw his guilty plea, the court denied Moddison' s request. 

Moddison appealed. 

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STANDARD OF REVIEW 

We explained the applicable standard of review in State v. 

Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177: 

No set rule or standard exists under which a trial court 

addresses a request to withdraw a guilty plea; each case 

must be considered in light of its unique record. Our 

standard in reviewing a district court's denial of a 

motion to withdraw a guilty plea is whether the court 

abused its discretion. (Citations omitted.) 

DISCUSSION 

Did the District Court abuse its discretion when it denied 

Moddison's motion to withdraw his guilty plea? 

Moddison has four bases for his argument that the court abused 

its discretion: first, the court failed to inform him that his 

parole eligibility would be restricted by the requirement that he 

complete the sexual offender program; second, his request to 

withdraw was timely and was based on advice of counsel; third, his 

plea was an Alford plea that was part of a package plea deal; and 

fourth, his plea was based on the mistaken advice of his attorneys. 

Moddison's first three bases track the language of three factors 

which this Court will balance in determining whether a defendant 

has established the "good cause" required by § 46-16-105(2), MCA, 

which would allow him to withdraw a guilty plea: 

(1) the adequacy of the court's interrogation at the time 

the plea was entered regarding the defendant's 

understanding of the consequences of the plea; 

(2) the promptness with which the defendant attempts to 

withdraw the plea; and 

(3) the fact that the plea was the result of a plea 

bargain in which the guilty plea was given in exchange 

for dismissal of another charge. 

8 
Enoch, 887 P.2d at 177. 

With respect to factor (1), Moddison argues that the court's 

interrogation was inadequate because it failed to inform him that 

his parole eligibility could be restricted by his failure to 

complete the sexual offender program at the prison. Moddison 

contends that the interrogation should have specifically informed 

him of the conflict posed by his refusal to admit guilt and the 

likely sentencing condition that he admit guilt--the first step 

toward completing the sexual offender program--in order to gain 

parole eligibility. To support his argument, Moddison cites § 46-

12-210, MCA, which provides, in relevant part: 

(1) Before accepting a plea of guilty, the court shall 

determine that the defendant understands the following: 

(iii) the maximum penalty provided by law, including the 

effect of any penalty enhancement provision or special 

parole restrictionj 

Moddison also argues that the interrogation was inadequate because 

the court had little active involvementj Moddison's own attorney 

conducted the interrogation. 

That Moddison's attorney, rather than the court, conducted the 

interrogation in the presence of the court is not reversible error, 

in light of our determination that the interrogation achieved its 

fundamental purpose: the determination of Moddison's understanding 

of the consequences of entering his plea. The record reveals, as 

Moddison correctly points out, that the District Court was not 

actively involved in Moddison's interrogation at the change of plea 

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.. 

hearing. However, the record also reveals that Moddison's 

attorney, who conducted the interrogation, asked Moddison the same 

questions which we have held constitute an adequate interrogation. 

In State v. Allen (1994), 265 Mont. 293, 876 P.2d 639, where the 

court denied defendant's request to withdraw his Alford plea, we 

stated: 

The transcript of the.hearing following Allen's guilty 

plea shows that the court carefully questioned him 

concerning the sufficiency of his legal counsel, his 

feelings concerning his decision, his lack of alcohol or 

drug influence, his understanding of the nature of the 

mitigated deliberate homicide charge, the consequences to 

pleading guilty to this charge, the fact that the judge 

would not be bound by any recommendation from the 

parties, his understanding of the loss of his rights in 

a trial situation. The court also had Allen confirm the 

reason why he felt he was guilty of one count of 

mitigated deliberate homicide. Within the court's 

detailed questioning of Allen, the court explicitly 

informed Allen that the sentence carried a maximum 

sentence of 40 years. The judge then informed Allen that 

as the sentencing judge he could put any restrictions on 

a possible parole that he wished and that he would not be 

bound by any suggestions from anyone. Further, the court 

explained in great detail what a guilty plea meant to 

Allen in terms of foregoing rights such as confrontation 

of witnesses against him. 

In the present case, the court specifically told 

Allen that he could be denied parole totally and as a 

consequence would have· to serve all 40 years, or that he 

could be labeled a dangerous offender and that if so 

designated he would have to serve 20 of the 40 years for 

the offense. The court clearly informed Allen that it 

was under no responsibility to accept the conditions of 

the plea agreement reached by the parties. We conclude 

that the District Court sufficiently interrogated and 

informed Allen of the ramifications of his guilty plea. 

Allen, 876 P.2d at 641. The extent of information covered in the 

Allen interrogation is almost exactly the same as that which was 

covered in Moddison's interrogation. Furthermore, § 46-12-210(2), 

MCA, provides that the interrogation requirements of subsection (1) 

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"may be accomplished by the defendant filing a written 

acknowledgment of the information contained in subsection (1)." 

Moddison signed an "Acknowledgment of Waiver of Rights by Plea of 

Guilty" which addressed all of the requirements of § 46-12-210(1), 

MeA, except one--that Moddison understood the court was not bound 

by any plea agreement. Moddison was well aware of the court's 

discretion, as evidenced by his answers at the interrogation and by 

the plea agreement, which he signed. 

Moddison argues, however, that because he was not questioned 

about the precise ramifications of his Alford plea in regard to the 

length of his sentence and limitation on parole, the interrogation 

was inadequate. We disagree. 

The record demonstrates that Moddison was aware that his 

admission that he committed a crime was a necessary element of 

successful completion of the sexual offender treatment program. 

Moddison's attorney testified that 

[Moddison] understood that to progress through a sexual 

offender program he would have to admit to the offense. 

He felt and I believe he took it as a matter of 

personal honor -- that he would not admit to the offense, 

and if he had to, he would sit at the prison until he was 

discharged. 

The record also demonstrates that Moddison was informed by his 

attorneys that the sentencing judge did not have to abide by the 

plea agreement, that Moddison could receive the maximum sentence of 

40 years imprisonment, and that Moddison could be ordered to 

undergo the sexual offender program. In addition, during the 

interrogation at the change of plea hearing Moddison stated that he 

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• 

understood that the judge did not have to abide by the plea 

agreement and that his eligibility for parole could be limited by 

the sentencing judge. As it turned out, Moddison's eligibility for 

parole was limited by the sentencing judge when he ordered that 

Moddison undergo the sexual offender program, a program which 

Moddison knew from the earliest plea discussions with his attorneys 

would be impossible to complete without his admission that he 

committed a crime. We conclude that, despite Moddison's statements 

to the contrary, he did know of the consequences of his Alford 

plea, specifically that his parole eligibility could be limited by 

the requirement that he complete the sexual offender program, and 

further limited by his decision not to admit that he committed a 

crime. Factor (1) weighs in favor of the court's denial of 

Moddison's request to withdraw his plea. 

As to the promptness factor, Moddison argues that the length 

of time between the entry of his Alford plea and his motion to 

withdraw his plea is within this Court's allowable time frame. 

Moddison moved to withdraw his plea on June 9, 1994, approximately 

eight months after he entered his Alford plea on October 18, 1993. 

We have held that a ten month period between entry of the plea and 

the request to withdraw the plea is relatively prompt. State v. 

Laverdure (1984), 212 Mont. 31, 34-35, 685 P.2d 375, 377. 

Alternatively, Maddison argues that his attempt to withdraw 

his plea was exceedingly prompt when measured from the time that he 

was sentenced. Moddison argues that the court's imposition of his 

sentence should be the measuring point for purposes of the 

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promptness factor because his counsel advised him that sentencing 

would trigger a plea withdrawal. The State has not addressed the 

promptness factor in its brief, and because Moddison's request to 

withdraw his plea was made within this Court's allowable time 

frame, we need not discuss the merits of his alternative argument. 

The promptness factor weighs in Moddison's favor. 

As to factor (3), Moddison argues that because his plea was a 

part of a "package" plea agreement, the court was under a duty to 

carefully examine the voluntariness of Moddison's plea. 

Essentially, Moddison argues that his decision to enter a plea was 

influenced by and conditioned on the deals struck with the other 

two defendants, Johnson in particular. Moddison cites United 

States v. Caro (9th Cir. 1993), 997 F.2d 657, 659, to support his 

contention that the voluntariness of a defendant's plea is at best 

questionable when his plea is a part of a "package deal" and 

conditioned on the pleas entered by the other participants in the 

deal. 

Moddison's argument, however, misses some important points. 

First, Gould withdrew from the plea agreement on the day of the 

change of plea hearing, yet Moddison and "Johnson were allowed to go 

ahead with their pleas. Moddison's attorneys testified that they 

understood that when Gould withdrew, there was no longer a "package 

deal" and Moddison was free to do as he wished. The attorneys 

discussed this with Moddison, and he entered his Alford plea. 

Moddison's plea ultimately 'was not a part of a package deal with 

the other defendantsi his plea was not conditioned on their pleas. 

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.' 

Second, our review of the record shows that Moddison's 

decision to enter an Alford plea was due in large part to the 

overwhelming evidence against him. Moddison's attorneys informed 

him of their conclusion that proving consent would be next to 

impossible due to Clark's extreme intoxication at the time of 

sexual intercourse. In the "Acknowledgment of Waiver of Rights by 

Plea of Guilty", Moddison explained why he was entering an Alford 

plea: 

I admit to have sex with Janetta Jo Clark [sic]. I 

believed that she had consented. However, after reading 

police report [sic] and considering the evidense [sic] 

against me I believe that the State of Montana can prove 

my guilt. 

Therefore I am pleading guilty. 

Moddison was looking after his own interests when he decided to 

enter his plea, a plea that was not a part of a "package deal." 

Finally, we have stated that" [t]he third factor is intended 

to prohibit a criminal from 'escaping the obligations of his [or 

her] plea agreement after accepting the benefits thereof. '" State 

v. Milinovich (1994), 269 Mont. 68, 74, 887 P.2d 214, 217 

(citations omitted). The plea agreement here certainly conferred 

some benefits upon Moddison: the State dropped the charge of 

obstructing a peace officer; the State recommended a much lesser 

sentence than the maximum sentence provided by law; and, the State 

did not recommend sexual offender treatment, but left that issue to 

the court's discretion. We conclude that factor (3) weighs in 

favor of the court's denial of Moddison's request to withdraw his 

plea. 

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Moddison has raised another "good cause" indicator, one not 

specifically provided for by statute or within the three factors. 

Moddison contends that his ·guilty plea was based on the mistaken 

advice of his attorneys. Specifically, Moddison explains that his 

attorneys represented to him that if he were sentenced to prison 

and ordered to undergo the sexual offender program there, he would 

be able to get into the program quickly, due to his probable short 

term of imprisonment. This information turned out to be 

inaccurate, as Moddison discovered upon his arrival at the prison 

that he would be placed on a long waiting list for the program. 

Moddison also notes that his attorneys advised him that if he were 

sentenced and ordered to undergo the sexual offender program that 

he would have three remedies: he could appeal on constitutional 

grounds; he could pursue sefltence review; or he could withdraw his 

plea. Moddison argues that this advice was mistaken. 

While we can concede that some of this advice was inaccurate, 

we cannot conclude that this "good cause" factor tips the balance 

in Moddison's favor. The plea agreement, the "Acknowledgment of 

Waiver of Rights," and Moddison's responses to the interrogation 

clearly show that Moddison had a solid understanding that his 

sentence was ultimately subject to the court's unfettered 

discretion, Moddison understood that the court could impose any 

sentence within the range of the statutory minimum and maximum, 

that the court could restrict his eligibility for parole, and that 

the court could order him to. undergo sexual offender treatment. We 

cannot see how Moddison can reasonably argue that any inaccuracies 

15 
... .. 

in the advice described above mean that his decision to enter into 

a plea agreement was based on a misunderstanding so fundamental as 

to render that decision an uninformed one. The record shows that 

the evidence against Moddison was overwhelming and that this was 

the reason that his attorneys advised him to enter a plea. The 

record also shows that Moddison was always aware that his sentence 

was subject to the court's discretion. By advising Moddison as 

they did, the attorneys were merely explaining what they thought 

potential remedies were for one sentence out of many that Moddison 

could potentially have received. 

After weighing these factors, we conclude that Moddison did 

not establish the "good cause" necessary for withdrawal of a guilty 

plea as required by § 46-16-105(2), MCA, and as elaborated in Enoch 

and its predecessor cases. The District Court did not abuse its 

discretion when it denied Moddison's motion to withdraw his guilty 

plea. 

Affirmed. 

/ 

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