No. 91-046 IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Respondent,

-vsGaRY EUGENE RADI, Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD: For Appellant: Gary Eugene Radi, Pro Se, Deer Lodge,Montana. For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana; Jennifer Anders, Assistant Attorney General, Helena, Montana; Robert Descharnps, 111, County Attorney, Missoula, Montana; Betty Wing, Deputy County Attorney, Missoula Montana.

Filed: Submitted on briefs: June 28, 1991, Decided: October 8, 1991

Clerk

### Justice William 

### E. 

### Hunt, Sr., 

### delivered the opinion 

### of the Court. Defendant Gary Eugene Radi pled guilty to two counts of burglarybefore theDistrictCourt of the Fourth Judicial District, Missoula County, onApril 9,1990. On May 22, 1990, the Honorable Jack L. Green, District Court Judge, sentenced defendant to 20 years in the Montana State Prison on each count, the two terms to

run consecutively. Defendant, appearing pro se, made a motion before the District Court on October 3, 1990, to withdraw his guilty plea. Defendant appeals from the District Court's order of November 29, 1990,denying his motion to withdraw the guilty plea. We affirm. The sole issue before this Court on appeal 

### is whether the District Court erred in denying defendant's motion towithdraw his plea of guilty. Between the hours of 5 p.m. on November 21, 1989, and 6:20

a.m. on November 22, 1989,2JtsProduce inMissoula was unlawfully entered. Once inside 2J's Produce, the individuals gained entrance to an adjacent business, A & I Distributing. Various items, including aVCR recorder,a radio, a safe,a number of chain saws,

an acetylene cutting torch, a 2J's Produce van, 

### and a variety of food items, were stolen from both premises. OnNovember 22, 1989,a confidential informantgave thepolice information concerning the burglaries. The informant told the police that three individuals were involved in the burglaries and gave the police additional details concerning the crimes. Heidentified one of the participants as an individual recently released from the Montana State Prison,known tohim as "Dan." He gave police a description of the individual, as well as his address. With this information, and the assistance of the Adult Probation and Parole Office, the individualwas identified as Dan Gochanour by thepolice. The informant said the second individual involved was "Big Brad." He related that Big Brad was an ex-convict and gave police a detailed description of the man. Policecheckedwithpersonnel at theLife Skills Center inMissoula who indicated that Brad Eisenman was known to them as Big Brad and that he fit the description givenby the informant. The informant did not know the identity of the third individual involved. Information by this informant also led the police to an individualnamed Monte Anderson. On November 28, 1989, thepolice interviewed Anderson. He recounted that a day or so before Thanksgiving hewas staying over athis sister's apartment and had passed out on her couch in the evening. Around midnight, three individuals entered the apartment. Anderson overheard the individuals discussing 2J's Produce and a van, and saw the individuals bringing a number of food items and a chain saw into the apartment. Anderson identified the three individuals as Dan Gochanour, Brad Eisenman, and a man he did not know, named Gary. From a Probationand Parolephotograph of defendantRadi,Anderson identified him as the Gary he had seen on the night in question.The police obtained a search warrant for each of the residences of Radi, Eisenman, and Gochanour. Some of the stolen items were found at each residence. At the residence of the defendant the police found a chain saw,VCR recorder, and a roll of pennies with writing on it indicating it was the property of A & 

### I Distributing. Additionally, the police found six dozen Cascade Poultryeggs, threepounds of Darigoldunsalted butterwith 2J1sstickers, seven packages of Montana Legend meat, and several bags of coffee. These food itemsmatched the description of items stolen from 2J1sProduce. Similar quantities and types of food items were found at the Eisenman and Gochanour residences. On December 13, 1989, defendant was charged by information with two counts of burglary in violation of § 45-6-204, MCA. Charges were also filed against Gochanour and Eisenman. Defendant entered a plea of not guilty to the charges on December 21, 1989. On the morning his trial was to begin, April 9, 1990, defendant appearedwith counsel and requested thathe be allowed towithdraw his plea of not guilty. The District Court then accepted defendant's guiltyplea and ordered the matter set for sentencing. Followingapre-sentencing investigationon May 22, 1990,defendant was sentenced to 20 years in the Montana State Prison on each of the two counts, the terms to run consecutively. On October 3, 1990,defendant appearedpro seand filed amotion to withdraw his guiltyplea in theMissoula County District Court. Thismotion was denied on November 19, 1990.Defendant contends the District Court erred in not allowing him to withdraw his guilty plea. At trial, defendant was to rely upon severalwitnesses to establish alibi as a defense. Defendant alleges that action by the prosecutors for the State effectively prohibited him from calling these witnesses to establish his innocence,and that as a result his guiltyplea was not voluntary. Before discussing the particular details of defendant's contention, we first state some general principles governing the withdrawal of a guilty plea. Concerning pleas in general, 5 46-12-204,MCA states in part: 46-12-204. The plea

# - plea bargains. (1)The defendant shall enter a plea of guilty or not guilty to the indictment, information,or complaint. If the defendant refuses to plead to the indictment, information, or complaint,a plea of not guilty must be entered.

(2) The courtmay refuse to accept a plea of guilty and shall not accept the plea of guilty without first determining that the plea is voluntary with an understanding of the charge. Additionally, 5 46-16-105,MCA,provides that: 46-16-105. 

### Plea of

### guilty. (1) Before or during trial, a plea of guiltymay be accepted when:

(a) the defendant enters aplea of guilty in open court; and

(b) the court has informed the defendant of the consequences of his plea and of the maximum penalty provided by lawwhich may be imposed upon acceptance of such plea. (2) At any time before or after iudmentthe courtmav, for qood cause shown, permit the plea of quiltv to be withdrawn and a plea of not quiltv substituted.

[Emphasis added.] This Court has consistently stated that "[tlhere is no set rule or standard which can be relied on in any given case where amotion is made to withdraw a guilty plea." State v. Huttinger (1979), 182 Mont. 50, 55, 595 P.2d 363, 366. Each case involving a motion to withdraw a guilty plea must be considered in light of the specific record of the case. State v. Griffin (1975), 167 Mont. 11, 21, 535 P.2d 498, 503. Initially, the grant or denial of a motion towithdraw a plea of guilty is within the sound discretion of the trial court. Matter of Hardy (1980), 188 Mont. 506, 614 P.2d 528. "A denial of

a request towithdraw a guiltyplea is subject to review only when there has been an abuse of discretion by the trial court." State

v. Wilson (1982), 198 Mont. 305, 314, 645 P.2d 958, 963. The process of pleading guilty to a criminal charge involves

a waiver by the criminal defendant of numerous constitutionally based rights and protections. In light of the importance of the rightswaived, it is a well-settled legal principle that a guilty pleamustbe avoluntary,knowing,and intelligentchoice among the alternative courses of action open to the defendant. North Carolina v. Alford (1970), 400 U.S. 23, 91 S.Ct. 160, 27 L.Ed.2d 162. This concept is expressed in the Montana statutes governing pleas. Additionally, this Court has added if "there is any doubt that a plea is not voluntary, the doubt should be resolved in the defendant's favor. On application to change a plea, all doubts should be resolved in favor of a trial on themerits." Huttinser, 595 P.2d at 367. "The fundamental purpose of allowing thewithdrawal of 

### a guilty plea 

### is to prevent 

### the possibility of convicting an innocent 

### man." State v. Arledge (1987)

## , 228 Mont. 225, 232, 741 P.2d 781, 785. There are at least three factors which this Court has determined should be considered in every case inwhich a defendant attempts to withdraw a guilty plea: 1. The adequacyof theDistrictCourt's interrogationatthe time the plea was entered as to the defendant's understanding of the plea; 2. The promptness of themotion to withdraw the plea; and 3. The fact that the defendant's plea was apparently the result of a plea bargain in which the guilty plea was given 

### in exchange for dismissal of another charge. State v. Long (1987), 227 Mont. 199, 201, 738 P.2d 487, 489. Defendant alleges that prior to trial he intended to rely on the testimony of his common-law wife Jeannie Roberts and co-defendant Dan Gochanour to establish the defense of alibi. Shortly before trial the State entered into 

### a plea agreement with co-defendant Gochanour. Defendant claims that Gochanour was not to be sentenced until afterdefendant's trial,and that the State's agreement with Gochanourwould have been withdrawn 

### ifhe had given evidence during the trial exonerating defendant. Additionally, defendant claims that Roberts was precluded from testifying 

### on his behalf. He argues that if Roberts had testified truthfully as to his whereabouts 

### on the night in question she would somehow havebeen forced to implicate Gochanour in the crime. By so doing, she would have subjected defendant and his son, who is currently incarcerated in theMontana State Prison,topotential retaliation for having assisted the authorities in convicting Gochanour. Defendant contends that upon realizing his two crucial witnesses had been placed in a situation in which they could not testifywithout retaliation from the State,he decided out of fear to change his plea from not guilty to guilty. Defendant quotes from this Court's opinion in Statev. Mesler (1984), 210 Mont. 92, 682 P.2d 714, wherein we stated that: A change of plea will be permitted only if it fairly appears the defendant was ignorant of his rights and the consequences of his act, orhe was unduly and improperly influenced eitherby hope or by fear in making the plea, or if it appears theplea was entered under somemistake or misapprehension. Mesler, 682 P.2d at 716. Defendant urges that this case falls within the class of cases described inMesler inwhich a change of plea should be permitted. The usual basis on which to attack the denial of a motion to withdraw a guiltyplea is that at the time theplea was entered the district court judge failed to adequately explain the significance of the guilty plea to the defendant. While the trial court's interrogation of defendant is not specifically attacked in this instance, it is helpful in determining if the plea was voluntary. At the time the plea was entered, the following discussion took place between the court and defendant:

### THE COURT: Now this 

### is Criminal CauseNo, 9037, theState ofMontanaagainstGayE.Radi, and therecord should showthat the defendant is personally present in court with his counsel, Public Defender Smith. State of Montana 

### is represented by Deputy County Attorney Wing. Now, Mr. Radi, you have been charged with two counts of burglary, felonies, and you have entered 

### a plea of not guilty,and this 

### is the 

### time set for trial of your cases. The jury is coming at this time. They're to be here by 10:OO o'clock,and it's twentyminutes until 10:OO. But I am informed that you wish to change you plea; is this correct? THE DEFENDANT: Yes, sir. THE COURT: And why do you wish to change your plea? THE DEFENDANT: I was involved in the crime. THE COURT: You realize that you have a right to a trial by jury on these charges. That in the event you go to trial, you have the riqht to cross-examine the witness calledby the state,vou have the riqhtto call witnesses in your own behalf, and the burden is on the State to prove your guilt beyond a reasonable doubt. THE DEFENDANT: Yes, sir. 

### THE COURT: You have the right to be confronted by your accusers, and you have the privilege against selfincrimination. THE DEFENDANT: Yes, 

### sir. THE COURT: These axe rights you have. THE DEFENDANT: Yes. THE COURT: And if you do change your plea to a plea of guilty,you'll be giving up all of these rights. THE DEFENDANT: Yes, sir. THE COURT: You understand that. THE DEFENDANT: Yes.THE COURT: Now has anyonemade any promise of leniency, told you thingswould go easywith you if youwere todo this? THE DEFENDANT: No. THE COURT: Has the sheriff or anyone else used force or threats of force to cause you to do this? THE DEFENDANT: No. THE COURT: Isthisvour own freeandvoluntarv actafter havinq discussed the matter fullv with vour attorney? THE DEFENDANT: Yes, sir. [EmphasisAdded.] The trial court then explained to defendant that the court would not be bound by theplea agreement. The court then explained the maximum possible sentence which defendant could receive. Finally, before accepting defendant's guilty plea, the court repeated the discussion concerning defendant's rights and the consequencesof pleading guilty. The District Court's colloquy adequately apprised defendant that by pleading guilty his right to call witnesses on his behalf to present favorable testimony, or to cross-examine the witnesses called by the State,was waived. Co-defendant Gochanour could have been called as a witnessby defendant. Defendant contends that "it was made crystal clearrr that if Gochanour gave testimony exonerating defendant that Gochanour's plea agreement with the State would be rescinded and hewouldbe sentenced toprison for themaximumpossible term. The State counters that Gochanourrsplea agreement was in no way dependent upon his testifying either for or against defendant.

### Defendant has 

### now come 

### forward 

### with an affidavit written by 

### Gochanour after Gochanour accepted the 

### plea bargain and was sentenced to 

### a term in prison significantly shorter than the maximum possible sentence he 

### could have received. Gochanour now states that the third person involved in the crimes was not defendant,butthenowdeceasedMonteAnderson. Without attempting to 

### discuss the trustworthinessor timing of thepresent affidavit,

we conclude that the District Court did not abuse its discretion 

### when it found that defendant was not prohibited from calling Gochanour as a witness on 

### his behalf if he had chosen to do 

### so. Further, defendant's fear of retaliation for the testimony of Roberts has 

### not in 

### any way been 

### related to acts of 

### the State. We turn next to 

### the issue of 

### whether defendant's guilty plea

was the result 

### of a 

### plea bargain in which the State 

### agreed to 

### dismiss a charge in return for a plea of guilty. The Statedid not dismiss any charges, but did agree not to pursue a 

### persistent 

### felony offender designation which could have added 

### anywhere from five 

### to 100 

### years on each of defendant's convictions. The 

### State argues that this is comparable to having dismissed a 

### charge and thus weighs in favor of 

### allowing the plea bargain to stand. We agree. This 

### Courthas statedmany times that 

### itwill not lend its assistance to an accused criminal in escaping the obligations of his agreement after accepting the benefits thereof. 

### State v. 

### Koepplin (1984), 213 

### Mont. 55, 689 P.2d 921.Defendant has not brought forward evidence sufficient to convince this Court that the District Court's decisiondenying his motion towithdraw the guilty plea was an abuse of discretion. As

we have previously stated: Where a District Court has done all that it can to determine from the defendant 

### or otherwise, that the proposed plea of guilty is voluntarily made, the defendant understandswhathe is doing and is advised of the consequences of his plea, including the nature and extent of hispunishment, hasbeen adequately advised by counsel,andhasbeen treated fairlyat all stagesof the prosecution against him, and that in fact the defendant stateshe isguilty of the charges made, then this Court has a duty to support the District Court when it allows a plea of guilty to be entered inplace of a plea of not guilty.I8 State v. Long (1987), 227 Mont. 199, 202, 738 P.2d 487, 489; quoting from State v. Lewis (1978), 177 Mont. 474, 484, 582 P.2d

We hold that defendant's guilty plea was voluntary, knowing, and intelligent. The District Court did not abuse its discretion in denying defendant's motion to withdraw his guilty plea. Affirmed.

JusticeWe concur:October8, 

### 1991 CERTIFICATEOFSERVICE Iherebycertifythatthefollowingorderwas sentby United Statesmail,prepaid, tothe fallowingnamed: Gary

### E. Radi 700ConleyLakeRd. DeerLodge,

### MT 59722

Hon.

### MarcRacicot, AttorneyGeneral JenniferAnders,Assistant JusticeBldg. Helena,MT 59620 RobertDeschamps,111,CountyAttorney BettyWing,Deputy Courthouse Missoula,MT 59802 EDSMITH 

### CLERKOF

### THESUPREMECOURT 

### STATEOF

### MONTANA