No. 81-273 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

STATE OF MONTANA, Plaintiff and Respondent,

MIKE WELLING, Defendant and Appellant.

Appeal from; DistrictCourt of the Ninth Judicial District, In and forthe County of Glacier, The Honorable R. D. McPhillips, Judge presiding,

Counsel of Record: For Appellant: Charles L. JacobsonTConrad, 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

# -1982Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

Defendant appeals from a Glacier County District Court judgment of conviction forburglary and from a finding at sentencing thathe was a persistent felony offender. First, he claims that an instruction impermissibly allowed the jury toinfer thathe acted with a criminal intent. (The jury was permitted to infer that he intended tocommit a theft by the fact that he was apprehended while unlawfully ina bar after it had closed.) Second, he claims that the prosecutor unfairly prejudiced the jury againsthim by asking a witness, who was a lawyer, if he had ever defended the defendant. Third, he claims that because he chose togo totrialrather than plead guilty, the trialjudge was vindictive in imposing a 13year sentence. Fourth, he claims thatwe should order a resentencing because the Statehad not properly notified him after trial of its intent tohave him declared a persistent felony offender. We affirmon allthe issues except the last; we remand for resentencing. Atapproximately 3:00 a.m. on September 7, 1980, the defendant was arrested inthe Wagon Wheel Bar inCut Bank, Montana, afterwitnesses observed him kick in the bar's dcor. Hewas charged with burglary inGlacier County ~istrict Court, and on September 24, 1980, defense counsel was notified in writing of the State's intention tohave the defendant designated a persistent felony offender for sentencing purposes. Plea negotiations took place, butwhen no agreement

was reached, a trialwas scheduled for January 12, 1981. On the morning before trial, the Statemetwith the defendant and defense counsel atdefense counsel's request and presenteda brief synopsis of the State's case. The parties then selected a jury and the Statemade its opening statement. At this point, defense counsel requested a recess and presented the courtwith 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 fiveyears. After extensive questioning by the court, defense counselmoved 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 lostwallet. 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 notmention 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 WheelBar 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 thepolice 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 firstwritten 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 sentencedhim to 13years 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 itmay or may not infer that the defendant intended to commit a theft while inside theWagon Wheel Bar. The trial court instructed the jury: 

### "

# . . . if you find that the defendantwas unlawfully in the Wagon Wheel Bar in the nighttimeyou 

### ----- may or may not infer,as you find the evidence to be, that he was there for the purpose of committing a theft." (Emphasisadded.) Defendant claims that the instruction unconstitutionally shifted the burden to him to prove that he was not actingwith 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., Statev. 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 defendantwas 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 iswhether this challenged jury instructionwas 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),71Wash.2d 756, 430 P.2d 546. Cf. Gaines v. State (1980), 96Nev. 561, 613 P.2d 409 (Acourt should not uphold a mandatory instruction). In this case, however, the challengewas clearlyworded as a permissive inference: 

# ".



# . . youmay or may not infer, as you find the evidence to be 

# . . ." ---- (Emphasisadded.) 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 factbeyond a reasonable doubt. Therefore, the instructionwas proper. Second,defendant contends the prosecutor unfairly prejudiced the jury by asking a rebuttalwitness, who was also an attorney,whether he had ever defended the defendant. Although this question was interrupted by defense counsel, and no answerwas given, the defendant still argues that thisquestion constituted reversible errorbecause it effectively prejudiced thejury against the defendant. Wereject this contention. During the trial, a question arose concerningwhether thedefendant had been inthe nearby town of Shelby, Montana,

a few hours before he had broken into thebar inCut Bank. The defendant answered thathe had not been inShelby that night. The State, inrebuttal, calledJames A. Johnson, a private attorneyand a parttime deputy attorney for Toole County. In an attempt toevoke Johnson's testimony thathe had spoken with the defendant ina Shelby bar a few hours before the defendant had broken intothe Cut Bank bar, the prosecutor asked Johnson if he had ever defended the defendant. The defendant contends the question was asked solelyto inform thejury thathe had been introuble before and to therefore effectively cast doubt on his credibility. We do not find the question tobe reversible errorhere. We do, however, caution against the use of this subtlemethod for bringing thejury's attention tothe fact that the defendant may have been convicted or charged with other crimes. The prosecution presented ample evidence toprove the defendant's guilty absent suchmethods. Therefore, if the State 

### - did effectively diminish defendant's credibilityby suchmethods, the resulting effecton thejury 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 theunlawful entry, but sought toexplain it by a scenario about his lost wallet. Yet, when confronted with the evidence thathe had

a wallet on hisperson when arrested, he could only explain thathe had gone home toobtain anotherwallet before he broke intothebar. However, the record shows the defendanttold 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 statementsby which it could disbelieve his testimony, and thereforewe do not find the defendant's argument sufficient to order a new trial. Third, the defendant contends that the trial court acted vindictively by sentencinghim to 13 years of imprisonment afterpersuading 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 judgewas unsatisfied that the defendant intended to commit a theftwhile inside the Wagon Wheel Bar. Further, the defendant stated several times during the questioning that thiswas 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 courtmay accept a guilty plea if satisfied that therewas 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), 177Mont. 474, 582 P.2d 346; State v. Azure (1977), 175Mont. 189, 573 P.2d 179. If a trial court doubts whether

an accused is voluntarily entering a guilty plea, it should resolve the doubtby proceeding to a trial on themerits. Huttinger, supra, 595 P.2d at 367. See Statev. 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 felonywith 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 resentencingwith proper notice given to the defendant. Upon remand, since this is a new sentencing hearing, the trial courtmust comply with our holding in State v. Baldwin (19811,

### -Mont. 

### - 

### , 629 P.2d 222, 38 St.Rep. 882. Baldwin held that a judgewho 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 itwould have given the defendant the State's recommended fiveyear sentence if he had pled guilty,but gave no clear reasons for imposing the 13year sentence. Accordingly,we affirm the conviction but remand for resentencing.We Concur: