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No. 99-478 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 144N 

STATE OF MONTANA, 

Plaintiff and Respondent,

v.

MICHAEL JOHN MARSHALL,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade,

The Honorable Kenneth Neill, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Rochelle D. Wilson, Attorney at Law, Great Falls, Montana

Chad Wright, Appellate Defender, Helena, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Pamela P. Collins,

Assistant Attorney General, Helena, Montana

Brant Light, Cascade County Attorney, Great Falls, Montana

Submitted on Briefs: April 12, 2001 

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Decided: August 3, 2001 

Filed:

__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating 

Rules, the following decision shall not be cited as precedent but shall be filed as a public 

document with the Clerk of the Supreme Court and shall be reported by case title, 

Supreme Court cause number and result to the State Reporter Publishing Company and to 

West Group in the quarterly table of noncitable cases issued by this Court.

¶2 The Appellant, Michael John Marshall, was charged by Information filed in the District 

Court for the Eighth Judicial District in Cascade County with aggravated burglary and 

intimidation. Pursuant to a plea agreement, Marshall plead guilty to both charges and was 

sentenced to 40 years in the Montana State Prison. Five years later Marshall filed a 

petition for postconviction relief in which he alleged that his guilty plea should be set 

aside for failure of the District Court to properly inform him of the potential sentence and 

failure of the State to honor the plea agreement. Following a hearing, the District Court 

denied Marshall's petition. Marshall now appeals from the order of the District Court 

which denied his petition for postconviction relief. We affirm the order of the District 

Court.

¶3 The following issues are presented on appeal:

¶4 1. Did the District Court err when it found that Marshall voluntarily entered into the 

plea agreement?

¶5 2. Did the District Court err when it found that the prosecutor did not violate the plea 

agreement?

¶6 3. Did the District Court err when it concluded that designation as a dangerous offender 

and restrictions on parole eligibility in the same sentence are not inconsistent?

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FACTUAL BACKGROUND

¶7 The Appellant, Michael John Marshall, was charged by Information filed in the District 

Court for the Eighth Judicial District in Cascade County with aggravated burglary and 

aggravated kidnapping, both felonies, in violation of §§ 45-6-204(2)(b) and 45-5-303(1(c), 

MCA, on November 14, 1991. At his arraignment, Marshall appeared with counsel and 

plead not guilty to the charges alleged in the Information. 

¶8 On March 27, 1992, Marshall requested a change of plea hearing pursuant to a plea 

agreement reached with the State. On May 12, 1992, the District Court held a change of 

plea hearing at which Marshall plead guilty to aggravated burglary and intimidation, 

felonies in violation of §§ 45-6-204(2)(b), MCA, and 45-5-203(1)(b), MCA, respectively. 

Concurrently, a plea agreement, an Acknowledgment and Waiver of Rights form signed 

by Marshall and his counsel, Julie Macek, and an order for a sentencing hearing were filed 

with the District Court. 

¶9 The State filed its sentencing recommendation on June 15, 1992. For aggravated 

burglary, the State recommended 40 years in the Montana State Prison, designation as a 

dangerous offender, and restricted parole eligibility for the first 30 years. The State further 

recommended a concurrent 10 year sentence for the intimidation charge.

¶10 The District Court held a sentencing hearing on June 16, 1992. Following the hearing, 

the District Court sentenced Marshall to 40 years in the Montana State Prison on Count I 

and a concurrent 10 year sentence on Count II. The District Court also designated 

Marshall a dangerous offender and ordered him ineligible for parole for the first 30 years 

of his sentence. Finally, the District Court required that Marshall complete sex offender 

treatment as a condition to parole eligibility. 

¶11 On June 16, 1997, Marshall filed a petition for postconviction relief. Marshall filed an 

amended petition on April 27, 1998. The District Court held an evidentiary hearing 

regarding Marshall's petition on October 1, 1998. On May 19, 1999, the District Court 

granted in part and denied in part Marshall's petition. The District Court amended 

Marshall's sentence to strike the requirement that he complete the sex offender program 

but otherwise affirmed the sentence previously imposed. Marshall now appeals from that 

portion of the District Court's order which denied his petition for postconviction relief. 

DISCUSSION

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ISSUE 1

¶12 Did the District Court err when it found that Marshall voluntarily entered into the plea 

agreement?

¶13 On appeal, Marshall contends that he was not aware that his parole eligibility could be 

restricted by the District Court and that his counsel was ineffective for failing to advise 

him of the State's sentencing recommendation. As a result, Marshall argues that his guilty 

plea was not entered voluntarily.

¶14 We review a district court's denial of a petition for postconviction relief to determine 

whether substantial evidence supports the findings and conclusions of the district court. 

State v. Roach, 1999 MT 38, ¶ 7, 293 Mont. 311, ¶ 7, 975 P.2d 817, ¶ 7. 

¶15 A district court may permit a guilty plea to be withdrawn whenever the defendant 

shows good cause. See § 46-16-105(2), MCA. We consider three factors when reviewing a 

district court's decision to disallow withdrawal of a guilty plea: 1) the adequacy of the 

interrogation at the time the plea was entered to inform the defendant of the consequences 

of the plea; 2) whether the plea was the result of a plea bargain in which the plea was 

given in exchange for dismissal of a charge; 3) the promptness with which the defendant 

attempted to withdraw the plea. State v. Keys, 1999 MT 10, ¶ 11, 293 Mont. 81,¶ 11, 973 

P.2d 812, ¶ 11. 

¶16 We conclude that substantial evidence supports the District Court's decision to deny 

Marshall's request to withdraw his guilty plea. The record establishes that Marshall was 

aware of the State's sentencing recommendation prior to pleading guilty. Marshall signed 

the plea agreement and the acknowledgment of rights form. Although the signed plea 

agreement did not contain the State's sentencing recommendation, Julie Macek stated in 

her affidavit and testified at the hearing that Marshall demanded as part of any plea 

agreement that the State's sentencing recommendation not be included. Furthermore, we 

have held in State v. Thomas (1997), 285 Mont. 112, 946 P.2d 140, that prior notification 

of discretionary parole restriction, such as provided in § 46-18-202(2), MCA (1991), is 

unnecessary. And, although designation as a dangerous offender pursuant to § 46-18-404, 

MCA (1991), is non-discretionary, Macek testified and the District Court found that she 

discussed with Marshall the State's intention that he be designated a dangerous offender 

which would restrict his parole eligibility. Finally, the plea agreement stated that the "State 

remains free to make any recommendation at sentencing" and that "all parties understand 

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that the County Attorney's recommendation may not be binding upon the Court." Marshall 

testified that he understood that the District Court was the sole sentencing authority and 

that his counsel and the District Court both informed him of the maximum potential 

penalty for each offense charged. In light of the substantial evidence contained in the 

record, we conclude that the District Court did not err when it concluded that Marshall's 

guilty plea was entered knowingly and voluntarily.

ISSUE 2

¶17 Did the District Court err when it found that the prosecutor did not violate the plea 

agreement?

¶18 Marshall next contends that the State violated the terms of the plea agreement when it 

offered testimony from the victim at the sentencing hearing concerning other offenses 

against the victim by Marshall. In the plea agreement, the State agreed that it would file no 

further charges based on conduct related to that victim. 

¶19 Substantial evidence supports the District Court's finding that the plea agreement was 

not violated. Although the State elicited testimony which showed that Marshall had 

previously committed a similar offense against the same victim, no new charges were filed 

as a result of that testimony. Consequently, there is no basis for Marshall's claim that the 

State violated the plea agreement. 

ISSUE 3

¶20 Did the District Court err when it concluded that designation as a dangerous offender 

and restrictions on parole eligibility in the same sentence are not inconsistent?

¶21 Marshall argues that the District Court's dangerous offender designation pursuant to § 

46-18-404(3), MCA (1991), and the restriction placed on his parole eligibility pursuant to 

§ 46-18-202(2), MCA (1991), are inconsistent. Therefore, according to Marshall, the 30 

year parole restriction must be vacated.

¶22 The District Court addressed a similar argument and noted that Marshall cited no 

authority to support his position. Consequently, the District Court concluded that nothing 

prevented the imposition of a sentence restricting Marshall's parole eligibility for 30 years 

rather than the 20 years provided pursuant to a dangerous offender designation.

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¶23 We agree with the conclusion of the District Court. Marshall provides no legal basis 

for vacating the 30 year parole restriction. We decline to address an issue when the 

appellant fails to cite supporting authority. See State v. Ellenburg, 2000 MT 232, ¶ 49, 301 

Mont. 289, ¶ 49, 8 P.3d 801, ¶ 49. Accordingly, the order of the District Court is affirmed.

/S/ TERRY N. TRIEWEILER

We Concur:

/S/ KARLA M. GRAY

/S/ JIM REGNIER

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

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