No. 14546 INTHE SUPREME CW OF THE STATE OF M3JXWW 1979

THE smIE OF

### I'xmlmm, Plaintiff and Respondent,

-vs

### BRAD mIAM

## m-, Defendant andAppellant.

-1 frcm: DistrictCourtof 

### the Eighth Judicial

### District, Honorable H. William Coder, Judge presiding. Counsel of Record: For Appellant: Ralph T. Randono argued, Great Falls, bbntana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Chris Tweeten argued, AssistantAttorney General,

Helena, mntana J. Fred Bourdeau, CountyAttorney, Great Falls, Montana

S-tted: May 3, 1979 Decided:

### MD;~ 

## 22

# \:73

.- Filed

### :II- 'Mr. Justice Gene B. Daly delivered the Opinion of the Court; Defendant Brad Huttinger appeals from the order of the DistrictCourt of Cascade County, the Honorable H. William Coder, denying hismotion towithdraw a plea of guilty to the charge of deliberate homicide. The District Court postponed sentencing pending the final disposition of this appeal. Huttinger remains atWarn Springs StateHospital where he was sent pending sentencing. On July 9, 1976, Huttinger was charged with the 

### crimes of deliberate homicide and aggravated kidnapping inthe stabbing death of an elderly Great Falls woman. The Dis

### trict Court ordered a psychiatric evaluation of Huttinger which was conducted on August 4, 1976. The reporting psychiatrist, Dr. Ronald Hughes, concluded that on the date of the 

### crimes charged that Huttinger, although under the influence of a variety of psychoactive drugs, "knew the difference between right and wrong insofar as 

### it is related to the charges against him" and did not "lack the ability to adhere

tothe right." (Ultimately, however, Dr. Hughes recommended that Huttinger be hospitalized inthemaximum securityward atWarm Springs StateHospital.) On December 3, 1976, Huttinger entered a plea of not guilty to the offense charged. On February 

### 14, 1977, Huttinger allegedly changed his plea to guilty on the charge of deliberate homicide inexchange for a dismissal of the charge of aggravated kidnapping. Immediately after the February 14proceedings, Huttinger



### was sent toWarm Springs StateHospital for a complete psychiatric evaluation. The examining psychiatrist, Dr. 

### WilliamAlexander, concluded:"Summary: There is no evidence of organic involvement. Patient 

### is felttobe psychotic because of his flataffect, his intellectual deterioration, and his inability tohandle abstract concepts. His actual illness isquite

### well encapsulated. He 

### seems tobe 

### a compulsive type who has a great deal of internal hostility which isbarely controlled most of the 

### time. He has a great difficulty intrying to sortout his feelings about his normal passivity inrelationship to the occasional outbursts of aggression. There 

### is a great deal of anxiety which is related tohis fears of losing control over himself. "Patient 

### is aware of the nature of the charges against him and has the ability to assisthis lawyer inhis own defense. He 

### is also aware of the criminality of his actions. Because of his severe emotional problems he has been unable to conduct himself according tothe requirements of the law. He 

### is able tohave a particular state of mind which 

### is an element of the offense charged. "Diagnosis: Schizophrenia, paranoid type." In a clarifying 

### letter received on July 25, 1977, Dr. Alexander wrote tothe DistrictCourt: "Inmy opinion, atthe 

### timeof the incident, this patient 

### was unable toconduct himself according to the requirements of the law because of his severe, chronic, emotional illnesswhich probably started invery early childhood but was certainly present eightyears ago, and for which he has, tomy knowledge, never received treatment." On September 1, 1977, the DistrictCourt sentenced Huttinger to 100 years inprison without parole. Huttinger appealed the sentence and on April 10, 1978, this Court, in

an unreported per curiam order, vacated the sentence pursuant to a stipulation of counsel and remanded the case for resentencing. Huttinger thereafter filed a Motion for Leave of Court forMotion toWithdraw Plea of Guilty on May 26, 1978. Ata hearing on thismotion, Huttinger asserted that, prior to originally entering his plea of guilty to the charge of deliberate homicide, he had not been informed of the availability of the possible defense of insanity or that otherfactors present atthe 

### time of the 

### crime charged might serve tomitigate his sentence. The Statepresented testimony of ~uttinger's attorneys atthe 

### timeof entry of his plea of guilty to the effect that they had discussed the insanity defense with Huttinger and he had rejected 

### it. On August 10, 1978, the DistrictCourt entered findings, conclusions, and an order denying Huttinger's motion. Huttinger appeals. The issue presented for this Court's review 

### is: Did the District Court abuse 

### its discretion indenying Huttinger's motion towithdraw his plea of guilty? This appeal requires a balancing of three conflicting factors or aspects involved ina criminal defendant's attempt towithdraw a previously entered plea of guilty. The three factors of which 

### we speak 

### are (1)the adequacy of the interrogation by the DistrictCourt of the defendant atthe entry of the guilty plea as tothe defendant's understanding of the consequences of his plea, 

### (2) thepromptness with which the defendant attempts towithdraw the prior plea, and (3) the fact that the defendant's plea was apparently the result of a plea bargain inwhich the guilty plea was given inexchange for dismissal of another charge, in this 

### case, aggravated kidnapping, a felony. Allthree factors, among others, have been discussed inprevious 

### cases as considerations inthe determination of whether a 

### District Court should allow the withdrawal of a guilty plea. Before discussing these particular factors, 

### we first state some general principles governing thewithdrawal of a guilty plea. The right of a criminal defendant to a trial by jury 

### is safeguarded by Art. 11Sections 24 and 26 of the1972 Montana Constitution. Section 95-1606 

### (e)

## , R.C.M. 1947,

now section 46-12-204 MCA, states inpart: "The defendant shall enter a plea of guilty or not guilty tothe indictment, information or complaint. If the defendant refuses toplead to the indictment, information orcomplaint a plea of not guiltymust be entered. "The court may refuse to accept a plea of guilty and shall not accept the plea of guilty without firstdetermining that the plea 

### isvoluntary with an understanding of the charge." More specifically, section 95-1902, 

### R.C.M. 1947, now section 46-16-105(2) MCA, states inpart: "At any 

### timebefore or after judgment the court may for good cause shown permit the plea of guilty tobe withdrawn and a plea of not guilty substituted.

### " "There 

### isno 

### set rule or standard which can be relied

on inany given casewhere a motion 

### ismade towithdraw a guilty plea." Statev. Lewis (1978), Mon

### t

# . , 582 P.2d 346, 352, 35 St-Rep. 1089, 1096. "Each case must be examined on 

### its own record 

# . . ." Statev. Griffin (1975), 167Mont. 11, 21, 535 P.2d 498, 503. "The granting orrefusal of permission towithdraw a plea of guilty and substitute a plea of not guilty 

### rests inthe discretion of the trial court and 

### is subject toreview only upon a showing of an abuse of discretion. Statev. Nance, (1947), 120 Mont. 152, 184 P.2d 554. "A plea of guilty

### willbe deemed involuntary where it appears that the defendant was laboring under such a strong inducement, fundamental 

### mistake, or seriousmental condition that thepossibilityexists he may have plead guilty to a 

### crime of which he 

### is innocent." State ex rel. Gladue v. Eiqhth Judicial District (1978), - Mont

# . , 575 P.2d 65, 66, 35 St.Rep. 220, 221-22. If, however, there is any doubt that a plea 

### is not voluntary, the doubt should be resolved inthe defendant's favor. On application to change a plea, alldoubts should be resolved in favor of a trial on the

### merits. Statev.Doty (1977) Mont. 

## , 566 P.2d 1388, 1391, 34 St. Rep. 731, 734. With these general principles inmind, 

### we proceed to an examination of the three factors described above. Adequacy - of DistrictCourt's Interrogation. For ease of analysis, 

### we find 

### it helpful to 

### set forth the complete transcript of the hearing atwhich Huttinger allegedly made his guiltyplea: "THE COURT: Ladies and Gentlemen, this Court 

### willnow be in session. This 

### is the Stateof Montana against Brad WilliamHuttinger, Cause No. 6857 A. Mr. Barron, you are representing the defendant, Mr. Huttinger, inthis matter? "MR. BARRON: I do. "THE COURT: And 

### it 

### is of course understood at thispoint in

### timeyou wish to enter a change of plea in this case; it that correct? "MR. BARRON: Yes, your Honor. Mr. Huttinger would ask leave towithdraw his plea of Not Guilty toDeliberate Homicide. "THE COURT: You understand what a plea of guilty entails in thismatter, do you not, Mr. Huttinger? "MR. HUTTINGER: Yes; I do. "THE COURT: You understand that change of plea, you waive your right toremain silent? You understand that? "MR. HUTTINGER: Yes. "THE COURT: You understand that you waive your right to counsel torepresent you in thismatter? You understand that? "MR. HUTTINGER: Yes. "THE COURT: You waive your right toa jury trial, you understand that? "MR. HUTTINGER: Yes. "THE COURT: You also understand that you waive your right tocompel attendance of witnesses to appear and testify on your behalf; you understand that? "MR. HUTTINGER: Yes."THE COURT: You understand the penalty for DeliberateHomicide inthe State of Montana 

### is imprisonment inthe Montana StatePrison, Deer Lodge, for 

### a termnot to exceed one hundred years; you understand that? "MR. HUTTINGER: Yes. "THE COURT: It is also the court's understanding, Mr. Barron, that there have been some negotiations with regard todismissal of the other count of Aggravated Kidnapping; 

### is that correct? "MR. BARRON: That 

### is correct, your Honor. We 

### are informed by Mr. Bourdeau he 

### willdismiss the Aggravated Kidnapping charge. "THE COURT: Mr. Bourdeau? "MR. BOURDEAU: Yes, your Honor. Atthis 

### time the prosecution 

### willorally move the Court for permission todismiss the charge of Aggravated Kidnapping heretofore filed inthis action. "THE COURT: Okay. Atthis point in 

### time, Mr. Huttinger, 

### it 

### is incumbent upon the Court to ascertainand make a factual basis for the plea of guilty. You understand what the Court is indicating now? "MR. HUTTINGER: Yes.

"MR. BUTTINGER: Yes. "THE COURT: Allright, Mr. 

### -Huttinger. 

### - The Court willaccept 

### --- your plea of Guilty toDeliberate Homicide, and the Court 

### willalsoaccept the County Attorney's motion todismiss the Aggravated Kidnapping inthismatter. By virtue of the nature of this case, Mr. Huttinger, the Court 

### will order a pre-sentence investigation, and it 

### is the Court's understanding atthis point intime from your counsel, Mr. Barron, that he would like to have, asa part of the pre-sentence investigation, an examination by Dr. Alexander attheWarm Springs StateHospital; 

### is that correct? "MR. BARRON: That's right, your Honor. "THE COURT: The Court willaccept a plea of Guilty inthismatter, $Ir. Huttinger. I 

### will set the hearing on the sentencing March 14, 1977, at 2 P.M. and the Court willorder you transferred toWarm Springs for an examination prior to the sentencing."MR. BARRON: Your Honor, there have been two reports received by the Court, one psychological evaluation, one psychiatric evaluation from our Mental Health Clinic here. I would likepermission from the Court tohave the Clerk copy those and furnish 

### mewith copies, and as a part of the pre-sentence report, 

### we would also like tohave Mr. Huttinger's reports from MilesCity and Twin Bridges inorder tomake 

### it a complete report to the Court. "THE COURT: Allright. For purposes of sentencing have the Court filemade available toyou. "MR. BARRON: Thank you. "COURT ADJOURNED." (kphasisadded.) Review of this transcript reveals several serious inadequacies. Atthemost basic, 

### it appears that Huttinger

never really did admit, in somany words, that he committed any deliberate homicide, only that such a homicide was committed. Neither did he actually plead guilty to any offense atall; he only asked "leave towithdraw his plea of Not Gui1 ty

# ." Beyond these perhaps technical or semantic discrepancies, however, there aremore serious flaws. Never was the name of the victim stated or the date or place of the alleged offense specified; nothing to identify the particular 

### crime towhich Huttinger allegedly was pleading specifically appears inthe transcript. The underlying facts of the offense 

### were not stated or admitted. In short, Huttinger did not plead anything to any offense specified in any manner. Further, the DistrictCourt did not ascertain particularly that defendant was satisfied with his appointed counsel or that he thought his counsel was competent. Finally, the voluntariness of the guilty plea is called further into question by the fact that immediately after entry of the plea, Huttinger was sent toWarm Springs StateHospital for psychiatric examination and treatment. He remained atWarm Springs for over sixmonths before being sentenced and 

### is currently being held atWarm Springs pending this appeal. The question naturally arises, was Huttinger competent toenter any plea? In Statev. Lewis, 582 P.2d at352, 35 St-Rep. at1097,



### we held: 

# ".



# . . when inthe sentencing procedure, the Dis

### trict Court carefully, 

### as here, examines the defendant, finds him tobe competent, and determines from him that hisplea of guilty 

### isvoluntary, he understands the charge and his possible punishment, he 

### is not acting under the influence of drugs or alcohol, he admits his counsel 

### is competent and he has been 

### well advised, and he declares inopen court the facts upon which his guilt 

### isbased, then a plea of guilty accepted by the DistrictCourt on the basis of that examination 

### willbe upheld 

# . . ." When compared to these standards, the interrogation of Huttinger by the DistrictCourt inthe instant case falls short on allcounts. There 

### isone other respect inwhich the DistrictCourt interrogation 

### is inadequate. 

### In Statev. Azure (1977), - Mont. 

## , 573 P.2d 179, 34 St.Rep. 1569, this Court vacated the judgment and sentence and instructed the 

### District Court to allow thewithdrawal of the guilty plea. We stated



### as our rationale: "The DistrictCourt made no inquiry as towhether defendant understood that by purposely orknowingly causing the death of Randy Lewis he may have committed either deliberate homicide or

### mitigated deliberate homicide. Nor was defendant informed that if he went to 

### trial on the charge of deliberate homicide, he would have the right topresent evidence of mitigation, and if the jury accepted his version of the offense and convicted him of mitigated deliberate homicide, themaximum sentence he could receive would be a 40 year prison 

### term."When an accused pleads guilty tothe crime of deliberate homicide charged under Montana's statutory scheme which 

### sets out distinctkinds of criminal homicide, 

### it is of vital importance that the record discloses the defendant had a fullunderstanding of the precise kind of homicide towhich he plead. Absent such 

### a showing, this Court 

### willnot assume the plea 

### was made 'with an understanding of the charge.'

"Because the DistrictCourt did not determine whether defendant understood the differing 

### elements and effects of deliberate homicide and mitigated deliberate homicide, 

### we hold that acceptance of hisplea of guilty

### was improper. The 

### District Court should have granted defendant's motion for leave towithdraw the guilty plea." 573 P.2d at183, 34 St.Rep. at1574, 1575. We conclude that the instant appeal 

### is governed by Azure, atleast so far as consideration of the adequacy of the DistrictCourt's interrogation. In neither casewas the defendant informed of the differing elements of homicide, although inboth 

### cases the DistrictCourt knew, or should have known, of possible evidence of mitigating circumstances-- inboth 

### cases the defendant 

### was under the influence of drugs and alcohol and possibly suffering from mental distress or instability. Inboth cases, the defendant appeared incourt with appointed counsel and entered a plea of guilty to the charge of deliberate homicide. When compared to the Dis

### trictCourt interrogation found inadequate inAzure, the interrogation of the defendant here is even 

### less sufficient. The State's argument that

### we should not retroactively apply Azure (or presumably Lewis) is not persuasive. While it is true thatAzure 

### was decided after the original entry of the guiltyplea, it was decided before Huttinger's motion

towithdraw his plea and before he had been sentenced. Even more important, however, 

### is that the equities of the situation and the ends of justice favor application ofthese later cases tothe instant appeal. By applying them,



### we are not releasing Huttinger from his possible criminal liability. Rather, the case would merely go to trial. As



### we stated inDoty, 566 P.2d at 1391, 34 St.Rep. at734-35: "Here, any irregularity and doubt should have been resolved by the trial court in favor of defendant, inhismotion for a change of plea; then that doubt could properly be resolved by a jury. Only through trialon the 

### merits following a change of plea would the ends of jus

### tice best be served in this case." In any event, the rules stated inAzure and Lewis are not new. The law inboth cases can be traced back through many decisions over many years. See, e.g., State

### v. Casaras (1937), 104 Mont. 404, 66 P.2d 774; Statev. Nance (1947), 120Mont. 152, 184 P.2d 554; State v. 5lcBane (1954), 128 Mont. 369, 275 P.2d 218. Having concluded that the interrogation of Huttinger by the DistrictCourt was inadequate for determining whether his guiltyplea was voluntarily given, 

### we proceed to consideration of the effect of the two additional factors specified earlier. Timeliness of 

### -- the Motion 

### - toWithdraw. In State 

### v. Lewis, 582 P.2d at352, 35 St.Rep. at 1096, and State

### v. Sattler (1976), 170 Mont. 35, 549 P.2d 1080, 1081, this Court held that a claim of laches may lie against a motion

towithdraw a guiltyplea in cases where the records upon which the plea of guiltywas entered aremissing, the 

### witnesses are unavailable, or evidence has been disposed of. The State asserts that laches should similarly bar Huttinger's motion here. Huttinger firstentered his guiltyplea on February 14, 1977. He thereafter 

### was sentenced to 100 years inprison without parole on September 1, 1977. This sentence 

### wasvacated by this Court on appeal by stipulation of counsel, and the cause remanded for resentencing on April 10, 1978. Six weeks later, on May 26, and before he had been resentenced, Huttinger filed hismotion for withdrawal of plea. This sequence indicates defendant's position here 

### is stronger than that found tojustify a claim of laches in Lewis. Cf. Statev. Nance (1947), 120Mont. 152, 184 P.2d 554 (onemonth between entry of guiltyplea and motion to withdraw held not reasonably timely). In Lewis over one year elapsed between the date of sentencing and the date of themotion towithdraw plea, with no record of an intervening appeal tothe Supreme Court. In the instant case, while eight and one-half months elapsed between the date of sentencing and themotion towithdraw, there alsowas the intervening appeal and reversal of the sentence. ~uttinger promptly proceeded tomake hismotion towithdraw after the first sentence was vacated and before the new sentence was pronounced. Neither has the Statepresented any evidence that records are lost, evidence missing, orwitnesses unavailable aswas done inSattler. In fact, part of the record on appeal are the police reports made during the investigation of the homicide. "The generally accepted rule 

### is that inorder to

### receive favorable consideration an application towithdraw a plea of guilty should be made within a reasonable time." Statev. Nance, 120 Nont. at165, 184 P.2d at 561. Section 95-1902, R.C.M. 1947, now section 46-16-105(2) MCA, provides that withdrawal may be made "[altany timebefore or after judgment." In Statev. McBane, 128 Mont. at377, 275 P.2d at222, Justice Freebourn specially concurred stating:"Being guaranteed the right to a trial by jury, there is no sound reason, since the stategives up nothing, why a defendant charged with a felony should be denied the 'sacred1right to a trialby jury, where after plea of guilty but before the commencement of his sentence he demands such right." Huttinger's motion, made before final sentencing and before he actually started serving his sentence, was timely. Plea Bargaining. In exchange for Huttinger's plea of guilty tothe charge of deliberate homicide, the Cascade County Attorney agreed to a dismissal of a charge of aggravated kidnapping although no written record of this plea bargain was made. This Court has statedmany 

### times that 

# ".

. 

# . itwillnot lend 

### its assistance to an accused 

### criminal in escaping the obligations of his agreement after accepting thebenefits thereof.

### " Statev. Sattler (1976)

## , 170Mont. 35, 37, 549 P.2d 1080, 1081. Accord, State v. Nance (1947), 120Mont. at166, 184 P.2d at561. This is undoubtedly themost troubling aspect of this appeal and is the factor weighing most strongly against allowing Huttinger towithdraw his guilty plea. We conclude, however, that it does not outweigh the other factors which favor allowing withdrawal. This conclusion 

### isbased on several grounds. First, as noted earlier, immediately after entry of his guilty plea, Huttinger was sent toWarm Springs State Hospital for psychiatric evaluation and treatment. He remained atWarm Springs for over sixmonths before being first sentenced. After sentencing, Huttinger was transferred toWarm Springs for further treatment. He is now inWarm Springs pending this appeal. In all, since July 1976 when he was first charged, Huttinger has spent nine months inthe State Hospital and only sixmonths inthe StatePrison. Therefore,there 

### is now, and there 

### was atthe 

### time of his guilty plea,

a serious question as toHuttinger's competency toenter into any plea bargain. Second, atthe hearing on themotion towithdraw his guilty plea, Huttinger and his (adoptive) parents both testified that the possibility of a defense based on mental disease or defectwas not presented or discussed by either of his appointed counsel. While this testimony was contradicted by testimony from the attorneys involved, it does raise a question as to whether Huttinger was satisfied with the competency of his attorney. This goes to the issue of whether Huttinger 

### was aware of allhis options before entering into the plea bargain. As noted earlier, whether the defendant was satisfied with his attorney's competency is one of the areas that should be investigated by the DistrictCourt atthe 

### time it accepts a guilty plea. State

v. Lewis, 582 P.2d at352, 35 St.Rep. at1097. This investigation was not undertaken by the District Court inthis

case.Similarly, nowhere does 

### it appear that Huttinger was advised of the fact that he could introduce evidence in mitigation of the deliberate homicide charge. He was not informed, in a sense, of allthe elements of the plea bargaining arrangement. It 

### is conceivable that had he known that the deliberate homicide charge, carrying a maximum 

### term of 100 years or perhaps death, could have possibly been reduced by the introduction of mitigating circumstances to mitigated deliberate homicide carrying a maximum sentence of 40 years, Huttinger might have decided not to enter into the plea bargain. See, Statev. Azure, supra.We 

### emphasize again that doubts incases involving motions towithdraw 

### a guiltyplea should be resolved in favor of allowing withdrawal and a trial on the

### merits. Taking allthe factors involved inthis case and resolving doubts in favor of the defendant, we conclude that the District

### Court abused its 

### discretion inrefusing toallow Huttinger towithdraw his guilty plea. The judgment of the District 

### Court 

### is reversed and the

case 

### .isremanded for further proceedings consistent with this opinion.



# /Justice

We 

### concur: 

# &44&&&w4 Chief ~ugticeMr. Justice John Conway Harrison dissenting: I respectfully dissent. As I view 

### it, 

### we have a factual situation that takes place over a two-year period, involving three defense attorneys and a trialjudge making every effort to explain to the defendant his rights. Perhaps the golden words "Are you guilty of the murder of Mrs. I1



### were not specificallyused, but the trialjudge asked in the colloquy between the court, the defendant, and his attorney: "THE COURT: And it is of course understood at this point in

### timeyou wish to enter a change of plea in this case; 

### is that correct? "MR. BARRON: Yes, your Honor. Mr. Huttinger would ask leave towithdraw hisplea of Not Guilty toDeliberate Homicide. "THE COURT: You understand what a plea of guilty entails inthismatter, do you not, Fir. Huttinger? "MR. HUTTINGER: Yes; I do. "THE COURT: You understand that change of plea, you waive your right toremain silent? You understand that? "MR. HUTTINGER: Yes. "THE COURT: You understand that you waive your right to counsel torepresent you inthis matter? You understand that? "MR. HUTTINGER: Yes. "THE COURT: You waive your right to a jury 

### trial, you understand that? "MR. HUTTINGER: Yes. "THE COURT: You also understand that you waive your right to compel attendance of witnesses to appear and testify on your behalf; you understand that? "MR. HUTTINGER: Yes. "THE COURT: You understand the penalty for Deliberate Homicide inthe State of Yontana is imprisonment inthe Montana StatePrison, Deer Lodge, for a term not to exceed one hundred years; you understand that? "MR. HUTTINGER: Yes."In withdrawing his plea of not guilty, I believe the only plea that can be considered under these circumstances 

### is that he is entering a plea of guilty. He stated he understood waiving his rights and the sentence to be imposed and so the record indicates he understood the plea bargaining indropping the aggravated kidnapping charge, which could have resulted ina death penalty if defendant had been convicted of both charges. Under these particular circumstances, I would affirm the judgment and sentence.