No. 83-409 INTHE SUPREMECOURTOF THE STATEOF MONTANA 1984

STATEOF MONTANA, Plaintiffand Respondent,

-vsJAMES I. TJIESLER, Defendant andAppellant.

APPEAL FROM: District Courtof theEighth Judicial District, Inand for the County Cascade, The>HonorableR. D. McPhillips,Judgepresiding.

COUNSELOF RECORD: ForAppellant: Mark Bauer, Great Falls,Montana

For Respondent: Hon. Mike Greely,Attorney General,Belena,Montana J. Fred Bourdeau,CountyAttorney, GreatFalls,Montana

SubmittedonBriefs: March 9, 1984 Decided:

Filed:

ClerkMr. Justice 

### L. C. Gulbrandson delivered the Opinion of the Court.

This case comes on appeal from an order of the District Court, Eighth Judicial District, Cascade County, denying James I. Mesler's petition for post conviction relief. We affirm. On the morning of May 14, 1979,Mesler pointed a gun at a clerk in the Super America station in Great Falls and took less than $50 from the cash register. Within fifteen minutes of the robbery, Mesler was apprehended and taken back to the SuperAmerica station where the clerk identified him as the man who had robbed him at gunpoint. Mesler had been released from Idaho State Prison on parole eight days prior to the robbery. Subsequently, Mesler was charged by information with robbery. Prior to Mesler's trial, the defense counsel's motion to suppress a number of incriminating statements made by Mesler was denied. Following theDistrictCourt's denial ofMesler's motion for suppression of evidence, a plea bargain agreement was negotiated between Mesler, Mesler's counsel and the State. Theplea bargain was set forth in awritten agreement which

was signed by theparties and filedwith theDistrictCourt. Under the terms of the plea bargain agreement Mesler agreed to withdraw his plea of "not guilty" and to enter aplea of "guilty" to the charge of robbery. In exchange, the county attorney agreed to recommend that Mesler receive a sentence

no greater than ten years without parole and that he not be designated adangerous offender. An additional provision of the plea bargain permitted Mesler to withdraw his plea of guilty and to reinstate his plea of not guilty "in the eventthe district court [did] not concur in the terms and conditions of [the]agreement and imposea tenyear sentence without parole." The District Court complied with the plea bargain in all particulars and entered a ten year sentence without parole while designating Mesler a non-dangerous offender. Mesler sought sentence review and the sentence was left as originally imposed. Approximately nine months after he was imprisoned, Mesler filed a petition for a writ of habeas corpus with this Court. In that petition Mesler challenged the constitutionality of Section 46-18-202(2), MCA, which permits District Court judges to sentence persons convicted of felonies to imprisonment without parole or participation in the prisoner furlough program. This Court denied the petition. Cavanaugh and Mesler 

### v. Crist (Mont. 1980), 615 P.2d 890,37 St.Rep. 1461. On August 12, 1982, Mesler filed a motion for post-conviction relief with the District Court seeking relief from confinement in the close custody unit of the prison and asking the District Court to allow him to withdraw his guilty plea and to vacate his conviction. Mesler asserted the State had violated the plea bargain because he had been held in close custody for twenty-four months. According to the administrative rules regarding classification of inmates in effect at the Montana State Prison, Mesler's "without parole" designation was determinative of his custody classification and the period of time that Mesler was required to spend in close custody. Dangerous offenders and those sentenced without eligibilityfor parole had to serve twenty-four months in close custody and those classified as nondangerous were required to serve six months in close custody prior to being considered for transfer to lower custody levels. After a hearing on the matter, the District Court entered its findings of fact and conclusions of law on May 11, 1983, and held: (1)Mesler fully understood the plea bargain agreement when he entered his plea of guilty and knew what the trade-offs were as well as the potential sentence had he gone to trial and been convicted; (2)no misrepresentation was made to Mesler; (3)neither the counsel for the State, counsel for Mesler, Mesler himself

nor the District Court were aware of the prison regulations pertaining to close custody for inmates that were not eligible for parole; 

### (4)the prison could impose such rules and regulations as it deemed reasonable with respect to incarcerating inmates if it did not violate specific Montana statutes; (5) the statute governing the "non-dangerous" designation makes no reference toprison custody levels; and

(6)Meslerfsrequest was moot because Mesler had already served his time in close custody and was no longer in the unit. Accordingly the District Court denied Mesler's petition for post-conviction relief. From the order of the DistrictCourtMesler appeals. Appellant asserts the District Court should have allowed him towithdraw his original guilty plea because the Montana State Prison violated the terms and conditions of the plea bargain by keeping him in close custody for twenty-four months. Inaddition,appellant argueshe should at leastbe credited for the additional "good time"he couldhave received had he been placed in close custody for six months before reclassification rather than twenty-four months before reclassification. Appellant bases this argument on Section 53-30-105, MCA, which provides for a maximum good time allowance of ten days per month for inmates assigned toclose custodybut a maximum of thirteen days per month for those classified as medium two and minimum securityclassifications. A change of plea willbe 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 inmaking the plea, or if it appears the plea was entered under some mistake or misapprehension. Statev. McAllister (1934), 96 Mont. 348, 30 P.2d 821. Each casemust be examined on its own record. The motion rests within theDistrict Court's discretion and theexerciseof thatdiscretionwillnotbe disturbed absent

an abuse of discretion. Statev. Haynie (1980), 186Mont. 374, 607 P.2d 1128. Statev. Nelson (1979), 184Mont. 491, 603P.2d 1050. In thepresent case, theDistrict Court did not abuse itsdiscretionindenying appellant'smotion towithdrawhis guiltyplea. Section 46-18-404, MCA, provides for the designation of a person as a non-dangerous offender and states, "[tlhe sentencing court shalldesignate an offender a non-dangerous offender for the purposes of eligibility for parole under part 2 of chapter 23." Section 46-23-201, MCA, statesthat prisoners sentenced under Section46-18-202(2), MCA, arenot eligible for parole consideration. Nothing is said abouthow prisoners are to be incarcerated when committed to the prison without parole and designated non-dangerous. The terms and conditions of the written plea bargain, which was signed by the appellant and his counsel,provided that the County Attorney agreed to recommend to theDistrict Court that the appellantwould receiveno sentence in excess 

### of ten years without parole. Nothing in the written plea bargain indicates there was apromise made to the appellant that certain conditions of incarcerationwould be adhered to in exchange for appellant's guilty plea. Nothing in the transcript of the August 30, 1979 hearing on the motion to change plea and impose sentence indicates appellant or his counsel believed or expected appellant was to be placed in close custody for sixmonths rather than twenty-four months. Thus, the State did not violate any terms of the agreement which was relied upon by the appellant in entering into the plea bargain and for which withdrawal of appellant's plea might have been appropriate. There are three important factors that should be considered when a defendant attempts to withdraw his 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 theplea; (2)the fact the plea resulted from plea bargaining; and (3)the promptness of the motion to withdraw the plea. Nelson, supra, 603 P.2d at 1053. Factors (1)and (3)arepertinent in this case: (1 The adequacy of theDistrict Court's interrogation. The record shows the District Court thoroughly interrogated the appellant regarding his understanding and expectations of the plea bargain agreement. The appellantexpressed his understanding of the agreement several times and neither the appellant nor his counsel expressed any

concerns or expectations about custody classification at the Montana State Prison. There is no question appellant was competent and satisfied with the competency of his defense counsel. (3)Thepromptness of themotion towithdraw theplea. Appellant was sentenced to the Montana State Prison on ~ugust 30, 1979. Thus,appellant waited approximately three years to request withdrawal of his guilty plea. Moreover, in appellant's May 27, 1980 application for writ of habeas corpus challenging the constitutionality of his sentence, nothing is mentioned concerning an alleged failure of the State to abide by the terms and conditions of the plea bargain agreement. The record reflects that appellant's

reasons for the omission in the May 27, 1980,writ of habeas corpus were "[e]xasperation, ignorance,oversight." Section 46-21-105,NCA provides: "What grounds for relief waived if not raised. All grounds for relief claimed by a petitioner under this chapter must be raised in his original or amended petition. Any grounds not so raised are waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition. When a petitioner has been afforded a direct appeal of his conviction, grounds for relief that could reasonably have been raised ondirect appeal may notbe raised inhis original or amended petition." The Commission Comments to Section 46-21-105, MCA indicate that the object of this section is to eliminate the unnecessary burden placed upon the courts by repetitious or specious petitions. Thus, the Commission Comments state,"[ilt is highly desirable that a petitioner be required to assert all his claims in onepetition. Unless good cause is shown why he did not assert all his claims in the original petition, his failure to assert them constitutes a waiver." Appellant has failed to demonstrate good cause why he did not assert in his petiton for habeas corpus the State's alleged failure to abideby theplea bargain agreement. Appellant argues he is entitled to additional good time because he should have been held in close custody for only six months and would have been earning threemore days of good time per month after that time. There is no guarantee that appellant would have been held in close custody for only six months even if the prison custody classification system would have been applied as appellant asserts it should have been applied. Prison officials take numerous factors into consideration before reclassification

occurs including: institutional misconduct, work record, criminal charges while incarcerated, involvement with drugs and alcohol, length of sentence and an inmate's physical and mental well being. We cannot now speculate as to what the prison officials decision may have been regarding the appellant's reclassification. Finally, appellant argues that the District Court erred in holding his petition moot based on the fact that the appellant is no longer in the close custody security unit of the Montana State Prison. Appellant bases this argument onhis assertion that the State hasdeprived him of the additional three daysper month good time he could have received had be been placed in close custody for six months rather than twenty-fourmonths prior to reclassification. Acase is "moot" when it no longer presents a justiciable controversy because issues involved have become academic or dead. Sigma Chi Fraternity v. Regents of University of Colorado (1966), 258 F.Supp. 515. Our previous discussion concerning appellant's alleged good time and the fact that appellant isno longer beingheld inclosecustody indicates theDistrictCourtdidnoterrinitsdecision. Affirmed. 

# /PL Justice

Weconcur: 

# 3-adz$f&4

Chief Justice