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 

burglary before the District Court of the Fourth Judicial District, 

Missoula County, on April 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 to withdraw his 

plea of guilty. 

Between the hours of 5 p.m. on November 21, 1989, and 6:20 

a.m. on November 22, 1989, 2Jts Produce in Missoula was unlawfully 

entered. Once inside 2J's Produce, the individuals gained entrance 

to an adjacent business, A & I Distributing. Various items, 

including a VCR 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. 

On November 22, 1989, a confidential informant gave the police 

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. He 
identified one of the participants as an individual recently 

released from the Montana State Prison, known to him 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 individual was identified as Dan 

Gochanour by the police. 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. 

Police checked with personnel at the Life Skills Center in Missoula 

who indicated that Brad Eisenman was known to them as Big Brad and 

that he fit the description given by the informant. The informant 

did not know the identity of the third individual involved. 

Information by this informant also led the police to an 

individual named Monte Anderson. On November 28, 1989, the police 

interviewed Anderson. He recounted that a day or so before 

Thanksgiving he was staying over at his 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 Probation and Parole photograph of defendant Radi, 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 Poultry eggs, three pounds of Darigold unsalted butter with 

2J1s stickers, seven packages of Montana Legend meat, and several 

bags of coffee. These food items matched the description of items 

stolen from 2J1s Produce. 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 

appeared with counsel and requested that he be allowed to withdraw 

his plea of not guilty. The District Court then accepted 

defendant's guilty plea and ordered the matter set for sentencing. 

Following a pre-sentencing investigation on 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 appeared pro se and filed a motion to withdraw his 

guilty plea in the Missoula County District Court. This motion 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 several witnesses 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 guilty plea 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 court may 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 guilty may be accepted when: 

(a) the defendant enters a plea 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 law which may be imposed upon acceptance of 

such plea. 

(2) At any time before or after iudment the court mav, 

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 a 
motion 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 to withdraw 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 to withdraw a guilty plea 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 

rights waived, it is a well-settled legal principle that a guilty 

plea must be a voluntary, knowing, and intelligent choice 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 the merits." Huttinser, 

595 P.2d at 367. "The fundamental purpose of allowing the 
withdrawal 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 in which a defendant 

attempts to withdraw a guilty plea: 

1. The adequacy of the District Court's interrogation at the 

time the plea was entered as to the defendant's understanding of 

the plea; 

2. The promptness of the motion 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 after defendant's trial, and that the State's 

agreement with Gochanour would have been withdrawn if he 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 have 
been forced to implicate Gochanour in the crime. By so doing, she 

would have subjected defendant and his son, who is currently 

incarcerated in the Montana State Prison, to potential 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 

testify without 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 State v. 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, or he was unduly and improperly 

influenced either by hope or by fear in making the plea, 

or if it appears the plea was entered under some mistake 

or misapprehension. 

Mesler, 682 P.2d at 716. Defendant urges that this case falls 

within the class of cases described in Mesler in which a change of 

plea should be permitted. 

The usual basis on which to attack the denial of a motion to 

withdraw a guilty plea is that at the time the plea 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 Cause No, 9037, the State 

of Montana against Gay E. Radi, and the record should show that 

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 twenty minutes 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 

called by the state, vou have the riqht to 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 anyone made any promise of leniency, 

told you things would go easy with you if you were to do 

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: Is this vour own free and voluntarv act after 

havinq discussed the matter fullv with vour attorney? 

THE DEFENDANT: Yes, sir. [Emphasis Added.] 

The trial court then explained to defendant that the court 

would not be bound by the plea 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 

consequences of 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 witness by 

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 

he would be sentenced to prison for the maximum possible term. The 

State counters that Gochanourrs plea 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, butthe now deceased Monte Anderson. Without attempting 

to discuss the trustworthiness or timing of the present 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 State did 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 Court has stated many times that it will 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 decision denying his 

motion to withdraw 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 understands what he is doing and is advised of 

the consequences of his plea, including the nature and 

extent of his punishment, has been adequately advised by 

counsel, and has been treated fairly at all stages of the 

prosecution against him, and that in fact the defendant 

states he is guilty 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 in place 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. 

Justice 
We concur: 
October 8, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

fallowing named: 

Gary E. Radi 

700 Conley Lake Rd. 

Deer Lodge, MT 59722 

Hon. Marc Racicot, Attorney General 

Jennifer Anders, Assistant 

Justice Bldg. 

Helena, MT 59620 

Robert Deschamps, 111, County Attorney 

Betty Wing, Deputy 

Courthouse 

Missoula, MT 59802 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA