No. 14662 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 79 

THE STATE OF MONTANA, 

Plaintiff, 

-vsLEV1 CAMPBELL, Pro Se, 

Defendant. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Defendant: 

Levi Campbell, Pro Se, Deer Lodge, Montana 

For Plaintiff: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Harold Hanser, County Attorney, Billings, Montana 

Submitted: July 10, 1979 

Decided: JG; 1 1 1979 

Filed: .... 

, , 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

This is an original proceeding for habeas corpus by 

Levi Campbell, an inmate of the Montana State Prison serving 

a 10-year sentence for aggravated assault. 

On September 11, 1976, petitioner was charged with 

three counts of aggravated assault in violation of section 

94-5-202 (1) (ar, . (b) , (c) , R.C.M. 1947 as amended, now section 

45-5-202 (.a), (b) , (c) . MCA, in the District Court of Yellowstone County. The incident forming the basis of the charges 

involved a fight in a bar on the south side of Billings, 

Montana, wherein petitioner allegedly cut and injured one 

Robert Haworth with a broken beer glass. 

Petitioner was represented by court-appointed counsel 

at all stages of proceedings. 

Petitioner initially entered a plea of not guilty to 

the charges. On October 26, 1976, the day his jury trial was 

to begin, petitioner pleaded guilty to Count I, and Counts I1 

and I11 were dismissed. Petitioner was sentenced to 10 years 

imprisonment which he is presently serving. 

Prior to the petition now before us, petitioner filed 

a petition for habeas corpus in the District Court of Yellowstone County. An evidentiary hearing was held thereon, and on 

January 8, 1979, the District Court entered findings of fact, 

conclusions of law, and an order denying the petition. The gist 

of the District Court's denial was that the rule announced by 

this Courq State v. Azure (1977), Mont . , 573 P.2d 179, 

34 St.Rep. 1569, should not be applied retroactively. 

Petitioner thereafter filed the present petition in 

this Court seeking to have his guilty plea, conviction and 

sentence vacated, and the cause remanded to the District Court 
for a new trial. The grounds alleged are that his quilty plea 

was not voluntary because he did not understand the true nature 

of the charge of aggravated assault and he did not understand 

the difference between aggravated assault and the lesser included 

offense of misdemeanor assault. Petitioner contends this constitutes a denial of due process mandated by Section 1 of the 

Fourteenth Amendment of the United States Constitution. 

This Court granted petitioner's motion to file and 

proceed in forma pauperis and ordered the Attorney General to 

file a written response to the petition and brief. This has 

been done, and the matter has been submitted to us for decision. 

Petitioner first contends that at the time he entered 

his plea of guilty to the charge of aggravated assault he did 

not understand the true nature of the charge. The record belies 

this contention. Petitioner was given a copy of the Information 

specifying the charge. He was represented by counsel who discussed the charge with him, the evidence against him, informed 

him generally that an element of the charge was serious injury 

with a weapon or the threat thereof, and that he understood the 

circumstances in which he stood and that he very probably would 

be convicted. 

The presiding judge carefully questioned petitioner 

concerning his guilty plea. Petitioner stated to the presiding 

judge that the charge was true; that he understood the possible 

penalty on the charge; that he had received no promises for 

pleading guilty; that he would be giving up his right to a jury 

trial; his right to call witnesses in his behalf; his right to 

cross-examine witnesses against him; and his right to remain 

silent. The presiding judge explained that the county attorney's 

office had indicated that they would recommend a 10-year sentence 

and that he had not indicated any disagreement with that recom- 
mendation. The presiding judge accepted petitioner's plea of 

guilty as voluntary. Based on this record we hold that petitioner, at the time he entered his plea of guilty, understood 

the true nature of the charge of aggravated assault, 

The focus of the present petition, however, is that 

petitioner was not advised and did not understandythe difference between aggravated assault and the lesser included offense 

of misdemeanor assault and, therefore, his plea of guilty was 

not voluntary. Petitioner principally relies upon Azure, supra 

and Jones v. Montana (1964), 235 F.Supp. 673, in support of 

his contention. 

Doubt as to whether a plea of guilty was voluntarily 

or knowing should be resolved in favor of trial on merits. 

State v. Doty (1977), Mont . , 566 P.2d 1388, 34 St.Rep. 

State v. 731;/Casaras (1937), 104 Mont. 404, 66 P.2d 774. Denial of a 

motion to withdraw a guilty plea is addressed to the sound discretion of the trial court which will not be disturbed absent a 

showing of abuse of that discretion. State v. Lewis (.l978), 

Mont . , 582 P.2d 346, 35 St.Rep. 1089; State v. Nance 

(19471, 120 Mont. 152, 184 P.2d 554. Specific statutory requirements in effect at the time of petitioner's plea of guilty 

were and are that the trial court must determine at the outset 

that a guilty plea is voluntary with an understanding of the 

charge. Section 46-12-204 MCA. Any time before or during trial, 

a plea of guilty may be accepted by the trial court after the 

court has advised the defendant of the consequences of his plea 

and the maximum penalty provided by law. At any time before or 

after judgment upon good cause shown, a plea of guilty may be 

withdrawn. Section 46-16-105 MCA. 

Here the record shows trial court complied with the 

statutory mandates then in effect. Additionally, the guidelines 
set forth in State v. Griffin (1975), 167 Mont. 11, 535 P.2d 

498, were followed. 

Petitioner contends that Jones v. Montana, supra, 

requires that at the time of plea defendant must know and 

understand the difference between the crime charged and a 

lesser included offense where his plea of guilty is not voluntary. Jones is distinguishable on the facts. There the defendant was charged with nighttime burglary and consistently 

maintained the burglary had been committed in the daytime, a 

lesser offense. His conviction on a guilty plea to the offense 

charged was set aside because the difference between the two 

was neither known by or explained to the defendant. His plea 

of quilty was the result of a fundamental mistake and hence 

involuntary. 

Here, petitioner knew at the time of entry of his plea 

of guilty that serious bodily injury to the victim with a weapon 

or the threat thereof was a required element of the crime of 

aggravated assault. He knew that he was charged with purposely 

and knowingly committing the offense. Petitioner now claims the 

assault was accidental or negligent. His counsel, in effect, 

struck a plea bargain with the county attorney's office on a 

10-year sentence. Petitioner knew that he would be subject to 

a greater period of imprisonment upon conviction after a jury 

trial and his counsel had advised him that he would probably be 

convicted. Petitioner, with full knowledge of these facts, 

entered a plea of guilty. Unlike Jones, there was no fundamental mistake here. 

Finally, petitioner contends that our decision in Azure 

requires that the record of arraignment in the District Court 

must show that he was informed of the elements and effects of 

lesser included offenses of which a jury could possibly find him 
guilty. The District Court's findings of fact on the prior 

petition show that, at the time petitioner entered his plea of 

guilty, he was not advised that in the event he had a trial by 

jury on the charge that the jury would in all probability have 

been instructed as to lesser included offenses such as misdemeanor assault; or that, if the petitioner had a trial by jury 

and if he testified that the events at the time of the offense 

occurred in the same manner as he testified at the time of this 

hearing, the probability is that the trial judge would in fact 

instruct the jury as to the lesser included offense of misdemeanor assault. 

At the time of entry of petitioner's plea no such 

requirement as thereafter articulated in Azure was present in 

the law of Montana. We decline to give Azure retroactive 

effect. 

Recently we articulated a three part test to determine 

whether a decision should be applied retroactively: (1) the 

decision must establish a new principle of law overruling 

established precedent on which litigants have relied, or it 

must decide an issue of first impression, the resolution of 

which was not clearly foreshadowed; (2) the rule in question 

must be examined to determine whether its retroactive application will further or retard its operation; and (-3) the equity 

of retroactive application must be considered. State v, LaRoque 

(1978) t Mont . , 583 P.2d 1059, 35 St.Rep. 1281. 

Azure introduced a new procedural requirement that the 

trial court must advise the defendant of matters relating to 

lesser included offenses and that the record of the plea entry 

alone is to be examined to determine whether this has been done. 

Azure established a new principle of law not previously articulated. 
It should be obvious that retroactive application of 

this rule would seriously retard its operation. Litigants have 

a right to rely on the law in effect at the time. The administration of justice would be seriously hampered by requiring 

conformity to an as yet unannounced new procedural requirement. 

Law enforcement agencies and courts are entitled to rely on the 

rules pertaining to guilty pleas in effect at the time the . 

guilty plea was entered and to determine voluntariness on the 

basis of such law. 

Our ruling in Azure does not implicate "the integrity 

of the factfinding process." Rather, it goes to the issue of 

whether a guilty plea represents "a voluntary and intelligent 

choice among the alternative courses of action open to defendant." North Carolina v. Alfred (1970), 400 U.S. 25, 91 S.Ct. 

The following decisions of the Montana Supreme Court 

have denied retroactive effect to a subsequent decision altering 

the law of criminal procedure: State v. Chappel (1967), 149 

Mont. 114, 423 P.2d 47; Petition of Jones (19661, 148 Mont. 10, 

416 P.2d 540. The United States Supreme Court has denied retroactive application in the following cases: Johnson v. New 

Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 848; 

Linkletter v. Walker (1965), 381 U.S. 618, 85 S.Ct. 1731, 14 

L.Ed.2d 601; Griffin v. California (1965), 380 U.S. 609, 85 

S.Ct. 1229, 14 L.Ed.2d 106; Mapp v. Ohio (19611, 367 U.S. 643, 

81 S.Ct. 1684, 6 L.Ed.2d. 108, 84 ALR2d 933. Other state court 

decisions denying retroactivity include: People v. Gonzales 

(1977) I Colo. , 565 P.2d 945; State v. Pierson t1977), 

22 Ran. 498, 565 P.2d 270, cert.den. 434 U.S. 868, 98 S.Ct. 207, 

54 L.Ed.2d 145; Wood v. Morris (1976), 87 Wash.2d 501, 554 P.2d 

1032; State v. Stenrud (1976), 113 Ariz. 327, 553 P.2d 1201; 
King v. State (Okla. 1976), 553 P.2d 529; Hagenios v. Warden 

(1975), 91 Nev. 328, 535 P.2d 790. 

The equity of retroactive application indicates that 

it should not be applied. This conclusion is based on the facts 

of this case as well as the decisions heretofore cited. 

For these reasons we hold that the rule announced in 

State v. Azure, supra, shall not be retroactively applied. 

The petition is denied. 

Chief Justice