No. 81-273 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

MIKE WELLING, 

Defendant and Appellant. 

Appeal from; District Court of the Ninth Judicial District, 

In and for the County of Glacier, The Honorable 

R. D. McPhillips, Judge presiding, 

Counsel of Record: 

For Appellant: 

Charles L. JacobsonT Conrad, Montanq 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, 

Montana 

James C. Nelson, County Attorney, Cut Bank, 

Montana 

.,.. 

Submitted on Briefs: February 4, 1982 

Decided; July 8, 1982 

Filed : 

JUL. 8 - 1982 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Defendant appeals from a Glacier County District Court 

judgment of conviction for burglary and from a finding at 

sentencing that he was a persistent felony offender. 

First, he claims that an instruction impermissibly allowed 

the jury to infer that he acted with a criminal intent. (The 

jury was permitted to infer that he intended to commit a theft 

by the fact that he was apprehended while unlawfully in a bar 

after it had closed.) Second, he claims that the prosecutor 

unfairly prejudiced the jury against him by asking a witness, 

who was a lawyer, if he had ever defended the defendant. Third, 

he claims that because he chose to go to trial rather than plead 

guilty, the trial judge was vindictive in imposing a 13 year 

sentence. Fourth, he claims that we should order a resentencing 

because the State had not properly notified him after trial of 

its intent to have him declared a persistent felony offender. 

We affirm on all the issues except the last; we remand for 

resentencing. 

At approximately 3:00 a.m. on September 7, 1980, the 

defendant was arrested in the Wagon Wheel Bar in Cut Bank, 

Montana, after witnesses observed him kick in the bar's dcor. 

He was charged with burglary in Glacier County ~istrict Court, 

and on September 24, 1980, defense counsel was notified in 

writing of the State's intention to have the defendant 

designated a persistent felony offender for sentencing 

purposes. Plea negotiations took place, but when no agreement 

was reached, a trial was scheduled for January 12, 1981. On 

the morning before trial, the State met with the defendant 

and defense counsel at defense counsel's request and presented 
a brief synopsis of the State's case. The parties then 

selected a jury and the State made its opening statement. 

At this point, defense counsel requested a recess and 

presented the court with an executed, written plea bargain 

agreement in which the defendant agreed to plead guilty to 

burglary in exchange for the State's recommendation that he 

be imprisoned for five years. After extensive questioning 

by the court, defense counsel moved to withdraw the not 

guilty plea and substitute a guilty plea, pursuant to the 

written plea bargain agreement. Upon further questioning by 

the court, the defendant admitted that he broke down the 

bar's door and entered the bar after hours, but that it 

wasn't his purpose to commit an offense therein. He explained 

that he had broken into the bar to look for his lost wallet. 

After more questioning, the defendant stated that he wanted 

to plead not guilty to burglary, but guilty to breaking into 

the bar. The trial judge advised him that the court couldn't 

prevent him from pleading guilty, and that the court preferred 

that he go to trial if he wanted to tell the jury his story. 

The court also informed the defendant that the plea bargain 

agreement did not mention the fact that the State was seeking 

to have him designated a persistent felony offender, and 

that this designation could increase his sentence. The 

defendant, however, chose to proceed with trial. 

At trial, the arresting officer testified that the 

defendant stated at the scene that he had passed out or 

fallen asleep in the bar and had become locked in. When the 

defendant took the stand, however, he testified that he had 

lost his wallet earlier in the evening on September 6, 1980, 

and remembered that he used the bathroom in the Wagon Wheel 
Bar sometime during the course of the evening. He testified 

that he had kicked in the bar's door to look for his wallet. 

But when the police booked the defendant into the jail, the 

defendant had a wallet in his possession. The defendant 

explained that upon realizing that he had lost his wallet, 

he took an older wallet from his home and habitually put it 

in his pocket, after checking to see if he had left any 

extra money in it. 

On February 4, 1981, the day of sentencing, the State 

filed its first written notice of intent to have the defendant 

designated a persistent felony offender. The court took 

judicial notice of the fact that it had previously entered a 

judgment against this same defendant on May 8, 1975, after 

he had been convicted of theft in Toole County, Montana. 

The court also found that it had sentenced the defendant to 

imprisonment after revoking his suspended sentence for that 

crime on October 7, 1976. The court found that the notice of 

intent had been given to defendant's counsel in sufficient time 

to invoke the persistent felony offender statute. The court 

then sentenced him to 13 years of imprisonment as a nondangerous, 

persistent felony offender. 

First, the defendant contends that it was reversible 

error for the trial court to instruct the jury that it may or 

may not infer that the defendant intended to commit a theft 

while inside the Wagon Wheel Bar. The trial court instructed 

the jury: " . . . if you find that the defendant was unlawfully 

in the Wagon Wheel Bar in the nighttime you ----- may or may not 

infer, as you find the evidence to be, that he was there for 

the purpose of committing a theft." (Emphasis added.) 

Defendant claims that the instruction unconstitutionally shifted 

the burden to him to prove that he was not acting with this 

intent. We disagree. 
A criminal state of mind is rarely susceptible of 

direct proof, and therefore, must usually be inferred from 

the facts as established by witnesses, and the circumstances 

as developed by the evidence. See e.g., State v. Hardy 

(1980) - Mont . , 604 P.2d 792, 37 St.Rep. 1. Further, 

in State v. Pascgo (1977), 173 Mont. 121, 125, 566 P.2d 802, 

we recognized the ". . . obvious inference that a person 

found unlawfully on the premises of another in the nighttime 

is there for the purpose of committing a theft." Here the 

defendant was not only found in the Wagon Wheel Bar at approximately 3:00 a.m., but witnesses saw him kicking in the bar 

door, and the defendant offered inconsistent explanations 

for his presence in the bar. 

The real question is whether this challenged jury 

instruction was a permissive rather than a mandatory inference, 

for a court should uphold a permissive inference. See State 

v. Olson (1979), 39 0re.App. 383, 592 P.2d 273; State v. 

Durning (1967), 71 Wash.2d 756, 430 P.2d 546. Cf. Gaines v. 

State (1980), 96 Nev. 561, 613 P.2d 409 (A court should not 

uphold a mandatory instruction). In this case, however, the 

challenge was clearly worded as a permissive inference: ". . . 

you may ---- or may not infer, as you find the evidence to be . . ." 

(Emphasis added.) In addition, other instructions properly 

explained the term "infer," and clearly instructed the jury to 

presume the defendant innocent, until the prosecution established 

each essential fact beyond a reasonable doubt. Therefore, 

the instruction was proper. 

Second, defendant contends the prosecutor unfairly 

prejudiced the jury by asking a rebuttal witness, who was 

also an attorney, whether he had ever defended the defendant. 

Although this question was interrupted by defense counsel, 

and no answer was given, the defendant still argues that this 
question constituted reversible error because it effectively 

prejudiced the jury against the defendant. We reject this 

contention. 

During the trial, a question arose concerning whether 

the defendant had been in the nearby town of Shelby, Montana, 

a few hours before he had broken into the bar in Cut Bank. 

The defendant answered that he had not been in Shelby that 

night. The State, in rebuttal, called James A. Johnson, a 

private attorney and a parttime deputy attorney for Toole 

County. In an attempt to evoke Johnson's testimony that he 

had spoken with the defendant in a Shelby bar a few hours 

before the defendant had broken into the Cut Bank bar, the 

prosecutor asked Johnson if he had ever defended the defendant. 

The defendant contends the question was asked solely to 

inform the jury that he had been in trouble before and to 

therefore effectively cast doubt on his credibility. We do 

not find the question to be reversible error here. We do, 

however, caution against the use of this subtle method for 

bringing the jury's attention to the fact that the defendant 

may have been convicted or charged with other crimes. 

The prosecution presented ample evidence to prove the 

defendant's guilty absent such methods. Therefore, if the 

State - did effectively diminish defendant's credibility by 

such methods, the resulting effect on the jury would not 

have changed the verdict. The record shows that defendant 

himself had established his lack of credibility. In his 

testimony, the defendant not only admitted the unlawful 

entry, but sought to explain it by a scenario about his lost 

wallet. Yet, when confronted with the evidence that he had 

a wallet on his person when arrested, he could only explain 

that he had gone home to obtain another wallet before he 

broke into the bar. However, the record shows the defendant 
told the arresting officer, at the scene of the crime, 

that he had fallen asleep, or passed out in the bar and 

had been mistakenly locked in. The defendant gave the 

jury ample inconsistent statements by which it could disbelieve his testimony, and therefore we do not find the 

defendant's argument sufficient to order a new trial. 

Third, the defendant contends that the trial court acted 

vindictively by sentencing him to 13 years of imprisonment 

after persuading him to abandon the plea bargain. We find 

that the trial court acted properly by letting the defendant 

proceed to trial. After extensive questioning, the trial 

judge was unsatisfied that the defendant intended to commit 

a theft while inside the Wagon Wheel Bar. Further, the 

defendant stated several times during the questioning that 

this was not his intent. Therefore the trial court was 

understandably hesitant to accept a guilty plea. 

The defendant relies upon the principle announced in 

North Carolina v. .Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 

27 L.Ed.2d 162, that a court may accept a guilty plea if 

satisfied that there was strong evidence of guilt, even 

though the defendant, while offering to plead, denies that 

he was in fact guilty. But Alford does not require the 

court to accept a guilty plea under such circumstances. In 

dicta, the Court explicitly rejected that notion. 400 U.S. 

at 38, n. 11. Consequently, the decision to accept a 

guilty plea is left to the sound discretion of the trial 

court and we find no abuse of discretion here. The 

trial court fully satisfied the requirements this Court 

set forth in previous cases for determining the voluntariness 

of a guilty plea. See e.g., State v. Huttinger (19791, 
Mont. - , 595 P.2d 363, 36 St.Rep. 945; State v. Lewis 

(1978), 177 Mont. 474, 582 P.2d 346; State v. Azure (1977), 

175 Mont. 189, 573 P.2d 179. If a trial court doubts whether 

an accused is voluntarily entering a guilty plea, it should 

resolve the doubt by proceeding to a trial on the merits. 

Huttinger, supra, 595 P.2d at 367. See State v. Doty (1977), 

173 Mont. 233, 566 P.2d 1388. 

Fourth and finally, the defendant contends, and the State 

concedes, that this case should be remanded for resentencing 

because the trial court was without jurisdiction to sentence 

the defendant as a persistent felony offender. Section 46- 

18-503, MCA, provides that if the accused is convicted of a 

felony with which he has been charged, the State must file 

written notice of it's intention to have the defendant 

sentenced as a persistent felony offender, so the defendant 

receives at least three days notice before the sentencing 

hearing. This was not done here, and we therefore remand 

for resentencing with proper notice given to the defendant. 

Upon remand, since this is a new sentencing hearing, the 

trial court must comply with our holding in State v. Baldwin 

(19811, - Mont. - , 629 P.2d 222, 38 St.Rep. 882. Baldwin 

held that a judge who participates in plea bargaining, must, 

if the bargain is not completed, state for the record the 

reasons supporting a sentence greater than the defendant offered 

prior to trial. Here, the trial court stated that it would 

have given the defendant the State's recommended five year 

sentence if he had pled guilty, but gave no clear reasons 

for imposing the 13 year sentence. 

Accordingly, we affirm the conviction but remand for 

resentencing. 
We Concur: