No. 83-409 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJAMES I. TJIESLER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County Cascade, 

The >Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark Bauer, Great Falls, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Belena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Submitted on Briefs: March 9, 1984 

Decided : 

Filed: 

Clerk 
Mr. 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 Super America 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 the District Court's denial of Mesler's motion for 

suppression of evidence, a plea bargain agreement was 

negotiated between Mesler, Mesler's counsel and the State. 

The plea bargain was set forth in a written agreement which 

was signed by the parties and filed with the District Court. 

Under the terms of the plea bargain agreement Mesler agreed 

to withdraw his plea of "not guilty" and to enter a plea 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 a dangerous 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 event 
the district court [did] not concur in the terms and 

conditions of [the] agreement and impose a ten year 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 eligibility 
for 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 to prison custody levels; and 

(6) Meslerfs request 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 

District Court Mesler appeals. 

Appellant asserts the District Court should have 

allowed him to withdraw 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. In addition, appellant argues he should 

at least be credited for the additional "good time" he could 
have 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 to close custody but a maximum of thirteen 

days per month for those classified as medium two and 

minimum security classifications. 

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. State v. McAllister (1934), 96 Mont. 348, 

30 P.2d 821. Each case must be examined on its own record. 

The motion rests within the District Court's discretion and 

the exercise of that discretion will not be disturbed absent 

an abuse of discretion. State v. Haynie (1980), 186 Mont. 

374, 607 P.2d 1128. State v. Nelson (1979), 184 Mont. 491, 

603 P.2d 1050. 

In the present case, the District Court did not abuse 

its discretion in denying appellant's motion to withdraw his 

guilty plea. 

Section 46-18-404, MCA, provides for the designation 

of a person as a non-dangerous offender and states, "[tlhe 

sentencing court shall designate an offender a non-dangerous 

offender for the purposes of eligibility for parole under 

part 2 of chapter 23." Section 46-23-201, MCA, states that 

prisoners sentenced under Section 46-18-202(2), MCA, are not 

eligible for parole consideration. Nothing is said about 
how 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 the District 

Court that the appellant would receive no sentence in excess 

of ten years without parole. Nothing in the written plea 

bargain indicates there was a promise made to the appellant 

that certain conditions of incarceration would 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 six months 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 the plea; (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) are pertinent in this case: 

(1 The adequacy of the District Court's interrogation. The record shows the District Court thoroughly 

interrogated the appellant regarding his understanding and 

expectations of the plea bargain agreement. The appellant 
expressed 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) The promptness of the motion to withdraw the plea. 

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 on direct appeal may not be raised 

in his 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 one petition. 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 abide by the plea 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 three more 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 on his assertion that the State has deprived him of 

the additional three days per month good time he could have 

received had be been placed in close custody for six months 

rather than twenty-four months prior to reclassification. A 
case 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 is no longer being held in close custody indicates 

the District Court did not err in its decision. 

Affirmed. 

/PL 

Justice 

We concur: 

3-adz$f&4 

Chief Justice