No. 14662 INTHE SUPREME COURT OF THE STATE OF MONTANA 19 79

THE STATE OF MONTANA, Plaintiff,

-vsLEV1CAMPBELL, Pro Se,Defendant.

ORIGINAL PROCEEDING:

Counselof Record: For Defendant: LeviCampbell, Pro Se, DeerLodge, Montana For Plaintiff: Hon. Mike Greely, Attorney General, Helena, Montana HaroldHanser, CountyAttorney, Billings, Montana

Submitted: July 10, 1979 Decided:

### JG; 

# 11

## 1979 Filed: 

### .... , ,

ClerkMr. 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 representedby 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 I11were dismissed. Petitionerwas sentenced to 10years imprisonment which he ispresently 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 findingsof fact, conclusions of law,and an orderdenying the petition. The gist of the District Court's denial was that the rule announced by this CourqState 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 Courtfor 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 ofmisdemeanorassault. Petitioner contends this constitutes a denial of due processmandated by Section 1 of the FourteenthAmendment of the United States Constitution. This Court granted petitioner'smotion to file and proceed in forma pauperis and ordered theAttorney 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 chargewith him, the evidence against him, informed him generally that an element of the chargewas serious injury with a weapon or the threat thereof, and that he understood the circumstances inwhich 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 chargewas 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 againsthim; 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 disagreementwith that recom-mendation. The presiding judge accepted petitioner's plea of guilty as voluntary. Based on this record we hold thatpetitioner, at the time he entered his plea of guilty,understood the true nature of the charge of aggravated assault, The focusof the present petition, however, is that petitioner was not advised and did not understandythedifference 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 onmerits. Statev. Doty (1977), Mont

# . , 566 P.2d 1388, 34 St.Rep. Statev. 731;/Casaras (1937), 104Mont. 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 (19471,120Mont. 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 courtmust determineat the outset that a guilty plea isvoluntary with an understanding of the charge. Section 46-12-204MCA. Any time before or during trial,

a plea of guiltymay be accepted by the trial court after the court has advised the defendant of the consequencesof his plea and themaximum penalty provided by law. At any time before or after judgment upon good cause shown, a plea of guilty may be withdrawn. Section 46-16-105MCA. Here the record shows trial court compliedwith the statutory mandates then in effect. Additionally, the guidelinesset forth in Statev. Griffin (1975),167Mont. 11, 535 P.2d 498,were followed. Petitioner contends that Jonesv. Montana, supra, requires that at the time of plea defendantmust know and understand the difference between the crime charged and a lesser included offensewhere his plea of guilty is not voluntary. Jones isdistinguishable on the facts. There the defendant was chargedwith 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 differencebetween the two

was neither known by or explained to the defendant. His plea of quilty was the resultof a fundamentalmistake and hence involuntary. Here,petitioner knew at the time of entry of his plea of guilty that seriousbodily injury to the victimwith a weapon

or the threat thereofwas 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 assaultwas 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 convictionafter a jury trial and his counsel had advised him that he would probably be convicted. Petitioner, with full knowledgeof these facts, entered a plea of guilty. Unlike Jones, there was no fundamental mistake here. Finally, petitioner contends that our decision inAzure 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 himguilty. The District Court's findingsof 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 jurywould in all probability have been instructed as to lesser included offenses such asmisdemeanor 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 samemanner as he testified at the time of this hearing, the probability is that the trial judgewould 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 onwhich litigants have relied, or it must decide an issue of first impression, the resolutionof 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 courtmust advise the defendant ofmatters 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 applicationof this rulewould seriously retard its operation. Litigants have a right to rely on the law in effectat the time. The administrationof 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 rulespertaining to guilty pleas in effect at the time the

. guilty plea was entered and to determine voluntarinesson the basis of such law. Our ruling inAzure does not implicate "the integrity of the factfindingprocess." 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 Carolinav. Alfred (1970),400U.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, 148Mont. 10, 416 P.2d 540. The United States Supreme Court has denied retroactive application in the following cases: Johnsonv. New Jersey (1966), 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 848; Linkletterv. Walker (1965), 381U.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, 84ALR2d 933. Other state court decisions denying retroactivity include: Peoplev. 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), 87Wash.2d 501, 554 P.2d 1032; State

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

### v. Warden (1975), 91Nev. 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 aswell as the decisions heretofore cited. For these reasonswe hold that the rule announced in State

### v. Azure, supra, shall not be retroactively applied. Thepetition is denied.

Chief Justice