NO. 84-137 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsXARVEY W. LAVERDURE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF Rl3CORD: 

For Appellant : 

John Keith, Great Falls, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, 

Montana 

---- 

Submitted on Briefs: June 28, 1984 

Decided: August 15, 1984 

iq.Jeti r -, '1984 

Filed: 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Defendant, Harvey W. Laverdure pled guilty to sexual 

assault charges in the District Court of the Eighth Judicial 

District on January 31, 1983. He was sentenced April 4, 

1983, to twenty years at Montana State Prison, designated. a 

nondangerous offender and ordered to make restitution to the 

victim for all psychological and medical treatment costs. 

Thereafter, defendant retained new counsel. A motion to 

withdraw the guilty plea was filed December 6, 1983, heard 

December 16, 1983, and orally denied. Defendant now appeals 

the written order of December 28, 1983, denying his motion. 

We affirm. 

The attorney representing defendant at the time the 

guilty plea was entered filed a motion for withdrawal of the 

plea April 12, 1983, as well as a notice of appeal June 3, 

1983. Although no further action was taken on either 

proceeding, the notice of appeal removed jurisdiction from 

the District Court. State v. Nicks (1957), 131 Mont. 567, 

569, 312 P.2d 519, 520. Therefore, the December 6, 1983, 

motion should have been a petition for post-conviction 

relief, as those petitions are civil proceedings independent 

of the underlying criminal matter. Coleman v. State (Mont. 

1981), 38 St.Rep. 1352, 1354, 633 P.2d 624, 627. Since the 

motion meets the requirements for post-conviction relief 

petitions set forth in sections 46-21-101, et seq., MCA, we 

will consider the motion to be such a petition. 

An information filed April 28, 1982, charged defendant 

with sexual assault in violation of section 45-5-502(1) and 

(3), MCA: 

" (1) A person who knowingly subjects another not 

his spouse to any sexual contact without consent 

commits the offense of sexual assault. 
'I (3) If the victim is less than 16 years old and 

the offender is 3 or more years older than the 

victim . . . he shall be imprisoned in the state 

prison for any term not to exceed 20 years and may 

be fined not more than $50,000." 

The deputy county attorney's affidavit in support of the 

motion to file the information contained a summary of a 

statement given Detective Robert Dykeman by the mother of 

A.K. Four-year old A.K. was left in the care of Harvey 

Laverdure's wife on April 19, 1982. Upon returning home, she 

reported to her mother, in the words of a four-year old, that 

defendant had taken her to his bedroom, taken both their 

pants down and placed his penis in the area of her rectum. 

Upon examining A.K., Dr. Jack Haling reported finding no 

trauma to or tearing of rectal or vaginal tissues. However, 

he believed something had happened to A.K. because of her 

vivid description of a burning sensation in the rectal area. 

Upon his arrest April 21, 1982, defendant denied having 

put his penis in A.K. but acknowledged having "rubbed off on 

her." He stated that he had rubbed his penis on A.K.'s 

vagina until climaxing into his shorts. Defendant's first 

attorney moved to suppress those statements June 7, 1982. A 

hearing on the motion to suppress was held August 30, 1982. 

Detective Dykeman testified at the hearing that he gave 

Miranda. warnings to defendant three times prior to 

defendant's incriminating statements: (1) upon arrest; 

(2) upon arrival at the police station; and (3) immediately 

prior to the tape recorded interview during which the 

statements were made. The motion to suppress was denied. 

Defendant had entered a plea of not guilty at his 

arraignment and trial was set for November 8, 1982. Pursuant 

to a stipulation, the victim's testimony was videotaped 

before the District Court and defendant on November 4, 1982. 
A.K. 's testimony was essentially the same as the details 

relayed to Detective Dykeman by A.K.'s mother. 

Defendant failed to appear for trial and a separate 

criminal action was initiated for felony bail-jumping. 

Subsequently, Randall Skorheim was appointed defendant's 

attorney and a new trial date was set. Upon reviewing the 

case and prior to the second trial date, Skorheim became 

concerned about defendant1 s chances at trial. After 

conferring with Skorheim, defendant decided to change his 

plea to guilty. Defendant signed an acknowledgement of 

waiver of rights by plea of guilty January 29, 1983, and 

appeared in District Court January 31, 1983, to change his 

plea. The bail-jumping charge was dropped. 

In his December 6, 1983 motion, defendant requested the 

trial court to allow withdrawal of his guilty plea because 

(1) at the time the plea was entered, "no factual basis for 

the crime was established from the Defendant", and (2) 

defendant entered the plea of guilty only because of 

assurances from his counsel that "due to the plea agreement 

defendant would not receive a jail term as part of his 

sentence." The trial court found insufficient evidence to 

support defendant's contentions and refused to allow 

withdrawal of the plea. 

We find no abuse of discretion by the trial court. The 

December 28, 1983, order denying defendant's motion is 

affirmed. 

Review of a motion to withdraw a guilty plea requires 

the consideration and balancing of at least three relevant 

factors: "(1) the adequacy of the interroga.tion by the 

District Court of the defendant at the entry of the guilty 

plea as to the defendant's understanding of the consequences 

of his plea, (2) the promptness with which the defendant 
attempts to withdraw the prior 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. Huttinger 

(1979), 182 Mont. 50, 54, 595 P.2d 363, 366. 

It is undisputed that defendant's attempt to withdraw 

his plea was relatively prompt and that the felony 

bail-jumping charge against defendant was dropped in exchange 

for his plea. Regarding factor one, however, defendant 

contends that the court's interrogation of him prior to the 

entry of his plea was insufficient because it failed to 

establish from defendant the factual basis for the charge 

against him. 

There is no set rule for when such an interrogation is 

sufficient. However, in State v. Lewis (1978), 177 Mont. 

474, 582 P.2d 346, we held an interrogation was sufficient 

where the trial judge "examines the defendant, finds him to 

be competent, and determines from him that his plea of guilty 

is voluntary, he understands the charge and his possible 

punishment, he is not acting under the influence of drugs or 

alcohol, he admits his counsel is competent and he has been 

well advised, and he declares in open court the facts upon 

which his guilt is based. . . . " 177 Mont. at 485, 582 P.2d 

at 352. 

In the instant case, defendant signed an acknowledgement 

of waiver of rights by plea of guilty which contained a 

recitation of the charge against him and its penalty; an 

enumeration of the constitutional rights waived when one 

pleads guilty; an acknowledgement of defendant's satisfaction 

with his counsel; a denial that defendant was under the 

influence of drugs or alcohol; and the following statement: 

"I believe I am guilty of this offense because . . . I did 
assault the girl." At the change of plea hearing, the trial 

judge reviewed the acknowledgement of waiver, discussed with 

defendant the constitutional rights he would be foregoing by 

pleading guilty and ascertained that defendant was aware of 

the maximum penalties involved. Under Lewis, this is an 

adequate interrogztion. 

Further, the statement "I did assault the girl", 

adequately illustrates, in this instance, that defendant was 

well aware of the factual basis of the charge against him. 

Defendant was apprised of the "facts" through the affidavit 

filed in support of the motion to file the information and 

the testimony of the victim. In addition, defendant, upon 

his arrest, confessed to having committed acts which 

constitute sexual abuse. 

Defendant's second contention was refuted by his own 

lawyer following defendant's waiver of the attorney-client 

privilege. Defendant testified and still alleqes that 

Randall Skorheim promised that if he pled guilty, he would 

receive no jail sentence. Skorheim initially testified at 

the motion to withdraw hearing that the deputy county 

attorney had promised to recommend no jail sentence if 

defendant pled guilty. However, during a recess, Skorheim 

reviewed his notes in the Laverdure file and discovered that 

the promise had been to not recommend a specific time to be 

spent in jail. The deputy county attorney testified that she 

had promised only to not recommend a specific amount of time, 

not no jail sentence at all. No specific jail time was 

recommended. 

Since the plea agreement was oral, the content of the 

plea agreement was a factual question to be determined by the 

trial judge. "Sitting without a jury, the trial judge, as 

finder of fact, is as fully entitled to believe or disbelieve 
a defendant's assertions as a jury would be. " In the Matter 

of Hardy (Mont. 1980), 37 St.Rep. 1358, 1360, 614 P.2d 528, 

530. There is certainly substantial credible evidence to 

support his determination that the defendant was not promised 

freedom from jail time in exchange for his guilty plea. 

The order of the District Court denying defendant's 

motion to withdraw his plea of g 

We concur: