No. 14546 

IN THE SUPREME CW OF THE STATE OF M3JXWW 

1979 

THE smIE OF I'xmlmm, 

Plaintiff and Respondent, 

-vsBRAD mIAM m-, 

Defendant and Appellant. 

-1 frcm: District Court of 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, Assistant Attorney General, 

Helena, mntana 

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

S-tted: May 3, 1979 

Decided: MD;~ 2 2 \:73 .- 

Filed :II - ' 
Mr. Justice Gene B. Daly delivered the Opinion of the Court; 

Defendant Brad Huttinger appeals from the order of the 

District Court of Cascade County, the Honorable H. William 

Coder, denying his motion to withdraw a plea of guilty to 

the charge of deliberate homicide. The District Court 

postponed sentencing pending the final disposition of this 

appeal. Huttinger remains at Warn Springs State Hospital 

where he was sent pending sentencing. 

On July 9, 1976, Huttinger was charged with the crimes 

of deliberate homicide and aggravated kidnapping in the 

stabbing death of an elderly Great Falls woman. The District 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 

to the right." (Ultimately, however, Dr. Hughes recommended 

that Huttinger be hospitalized in the maximum security ward 

at Warm Springs State Hospital.) 

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 in exchange for a dismissal of the 

charge of aggravated kidnapping. 

Immediately after the February 14 proceedings, Huttinger 

was sent to Warm Springs State Hospital for a complete 

psychiatric evaluation. The examining psychiatrist, Dr. 

William Alexander, concluded: 
"Summary: There is no evidence of organic involvement. Patient is felt to be psychotic because of 

his flat affect, his intellectual deterioration, 

and his inability to handle abstract concepts. 

His actual illness is quite well encapsulated. 

He seems to be a compulsive type who has a great 

deal of internal hostility which is barely controlled most of the time. He has a great difficulty in trying to sort out his feelings about 

his normal passivity in relationship to the occasional outbursts of aggression. There is a great 

deal of anxiety which is related to his fears of 

losing control over himself. 

"Patient is aware of the nature of the charges 

against him and has the ability to assist his 

lawyer in his 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 to the requirements of 

the law. He is able to have 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 to the District Court: 

"In my opinion, at the time of the incident, this 

patient was unable to conduct himself according 

to the requirements of the law because of his 

severe, chronic, emotional illness which probably 

started in very early childhood but was certainly 

present eight years ago, and for which he has, 

to my knowledge, never received treatment." 

On September 1, 1977, the District Court sentenced 

Huttinger to 100 years in prison 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 

for Motion to Withdraw Plea of Guilty on May 26, 1978. At a 

hearing on this motion, 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 other 
factors present at the time of the crime charged might serve 

to mitigate his sentence. The State presented testimony of 

~uttinger's attorneys at the time of 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 District Court 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 in denying 

Huttinger's motion to withdraw his plea of guilty? 

This appeal requires a balancing of three conflicting 

factors or aspects involved in a criminal defendant's attempt to withdraw a previously entered plea of guilty. The 

three factors of which we speak are (1) the adequacy of the 

interrogation by the District Court of the defendant at the 

entry of the guilty plea as to the defendant's understanding 

of the consequences of his plea, (2) the promptness with 

which the defendant attempts to withdraw the prior plea, and 

(3) the fact that the defendant's plea was apparently the 

result of a plea bargain in which the guilty plea was given 

in exchange for dismissal of another charge, in this case, 

aggravated kidnapping, a felony. All three factors, among 

others, have been discussed in previous cases as considerations in the 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 the withdrawal of a 

guilty plea. The right of a criminal defendant to a trial 

by jury is safeguarded by Art. 11 Sections 24 and 26 of the 
1972 Montana Constitution. Section 95-1606 (e) , R.C.M. 1947, 

now section 46-12-204 MCA, states in part: 

"The defendant shall enter a plea of guilty or 

not guilty to the indictment, information or 

complaint. If the defendant refuses to plead 

to the indictment, information or complaint a 

plea of not guilty must be entered. 

"The court may refuse to accept a plea of guilty 

and shall not accept the plea of guilty without 

first determining that the plea is voluntary 

with an understanding of the charge." 

More specifically, section 95-1902, R.C.M. 1947, now section 

46-16-105(2) MCA, states in part: 

"At any time before or after judgment the court 

may for good cause shown permit the plea of 

guilty to be withdrawn and a plea of not guilty 

substituted. " 

"There is no set rule or standard which can be relied 

on in any given case where a motion is made to withdraw a 

guilty plea." State v. Lewis (1978), Mon t . , 582 

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

examined on its own record . . ." State v. Griffin (1975), 

167 Mont. 11, 21, 535 P.2d 498, 503. 

"The granting or refusal of permission to withdraw a plea of guilty and substitute a plea of 

not guilty rests in the discretion of the trial 

court and is subject to review only upon a showing of an abuse of discretion. State v. Nance, 

(1947), 120 Mont. 152, 184 P.2d 554. 

"A plea of guilty will be deemed involuntary 

where it appears that the defendant was laboring 

under such a strong inducement, fundamental mistake, or serious mental condition that the possibility exists 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 in the defendant's 

favor. On application to change a plea, all doubts should 

be resolved in favor of a trial on the merits. State v. 
Doty (1977) Mont. , 566 P.2d 1388, 1391, 34 St. 

Rep. 731, 734. 

With these general principles in mind, we proceed to an 

examination of the three factors described above. 

Adequacy - of District Court's Interrogation. For ease 

of analysis, we find it helpful to set forth the complete 

transcript of the hearing at which Huttinger allegedly made 

his guilty plea: 

"THE COURT: Ladies and Gentlemen, this Court 

will now be in session. This is the State of 

Montana against Brad William Huttinger, Cause 

No. 6857 A. Mr. Barron, you are representing 

the defendant, Mr. Huttinger, in this matter? 

"MR. BARRON: I do. 

"THE COURT: And it is of course understood at 

this point in time you wish to enter a change 

of plea in this case; it that correct? 

"MR. BARRON: Yes, your Honor. Mr. Huttinger 

would ask leave to withdraw his plea of Not 

Guilty to Deliberate Homicide. 

"THE COURT: You understand what a plea of guilty 

entails in this matter, do you not, Mr. Huttinger? 

"MR. HUTTINGER: Yes; I do. 

"THE COURT: You understand that change of plea, 

you waive your right to remain silent? You understand that? 

"MR. HUTTINGER: Yes. 

"THE COURT: You understand that you waive your 

right to counsel to represent you in this 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 in the State of Montana is 

imprisonment in the Montana State Prison, Deer 

Lodge, for a term not 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 to dismissal of the other count 

of Aggravated Kidnapping; is that correct? 

"MR. BARRON: That is correct, your Honor. We 

are informed by Mr. Bourdeau he will dismiss the 

Aggravated Kidnapping charge. 

"THE COURT: Mr. Bourdeau? 

"MR. BOURDEAU: Yes, your Honor. At this time 

the prosecution will orally move the Court for 

permission to dismiss the charge of Aggravated 

Kidnapping heretofore filed in this action. 

"THE COURT: Okay. At this point in time, Mr. 

Huttinger, it is incumbent upon the Court to 

ascertain and 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: All right, Mr. - Huttinger. - The Court 

will accept --- your plea of Guilty to Deliberate 

Homicide, and the Court will alsoaccept the 

County Attorney's motion to dismiss the Aggravated 

Kidnapping in this matter. 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 at this point in time from 

your counsel, Mr. Barron, that he would like to 

have, as a part of the pre-sentence investigation, 

an examination by Dr. Alexander at the Warm Springs 

State Hospital; is that correct? 

"MR. BARRON: That's right, your Honor. 

"THE COURT: The Court will accept a plea of 

Guilty in this matter, $Ir. Huttinger. I will set 

the hearing on the sentencing March 14, 1977, at 

2 P.M. and the Court will order you transferred 

to Warm 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 like permission from the Court to have the Clerk copy those 

and furnish me with copies, and as a part of the 

pre-sentence report, we would also like to have 

Mr. Huttinger's reports from Miles City and Twin 

Bridges in order to make it a complete report to 

the Court. 

"THE COURT: All right. For purposes of sentencing 

have the Court file made available to you. 

"MR. BARRON: Thank you. 

"COURT ADJOURNED." (kphasis added.) 

Review of this transcript reveals several serious 

inadequacies. At the most basic, it appears that Huttinger 

never really did admit, in so many words, that he committed 

any deliberate homicide, only that such a homicide was 

committed. Neither did he actually plead guilty to any 

offense at all; he only asked "leave to withdraw his plea of 

Not Gui 1 ty . " 

Beyond these perhaps technical or semantic discrepancies, however, there are more 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 to which Huttinger allegedly was pleading specifically appears in the 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 District Court 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 to Warm Springs State 
Hospital for psychiatric examination and treatment. He 

remained at Warm Springs for over six months before being 

sentenced and is currently being held at Warm Springs pending this appeal. The question naturally arises, was Huttinger competent to enter any plea? 

In State v. Lewis, 582 P.2d at 352, 35 St-Rep. at 1097, 

we held: 

". . . when in the sentencing procedure, the District Court carefully, as here, examines the 

defendant, finds him to be competent, and determines from him that his plea of guilty is voluntary, 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 in open court the facts upon which his 

guilt is based, then a plea of guilty accepted 

by the District Court on the basis of that examination will be upheld . . ." 

When compared to these standards, the interrogation of 

Huttinger by the District Court in the instant case falls 

short on all counts. 

There is one other respect in which the District Court 

interrogation is inadequate. In State v. 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 the withdrawal of the guilty plea. We stated 

as our rationale: 

"The District Court made no inquiry as to whether 

defendant understood that by purposely or knowingly 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 

to present evidence of mitigation, and if the 

jury accepted his version of the offense and 

convicted him of mitigated deliberate homicide, 

the maximum sentence he could receive would be 

a 40 year prison term. 
"When an accused pleads guilty to the crime of 

deliberate homicide charged under Montana's 

statutory scheme which sets out distinct kinds 

of criminal homicide, it is of vital importance 

that the record discloses the defendant had a 

full understanding of the precise kind of homicide to which he plead. Absent such a showing, 

this Court will not assume the plea was made 

'with an understanding of the charge.' 

"Because the District Court did not determine 

whether defendant understood the differing elements and effects of deliberate homicide and 

mitigated deliberate homicide, we hold that acceptance of his plea of guilty was improper. 

The District Court should have granted defendant's motion for leave to withdraw the guilty 

plea." 573 P.2d at 183, 34 St.Rep. at 1574, 

1575. 

We conclude that the instant appeal is governed by 

Azure, at least so far as consideration of the adequacy of 

the District Court's interrogation. In neither case was the 

defendant informed of the differing elements of homicide, 

although in both cases the District Court knew, or should 

have known, of possible evidence of mitigating circumstances-- 

in both cases the defendant was under the influence of drugs 

and alcohol and possibly suffering from mental distress or 

instability. In both cases, the defendant appeared in court 

with appointed counsel and entered a plea of guilty to the 

charge of deliberate homicide. When compared to the District Court interrogation found inadequate in Azure, 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 that Azure was decided after the original entry 

of the guilty plea, it was decided before Huttinger's motion 

to withdraw 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 of 
these later cases to the 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 in Doty, 566 P.2d at 1391, 34 St.Rep. at 734-35: 

"Here, any irregularity and doubt should have 

been resolved by the trial court in favor of 

defendant, in his motion for a change of plea; 

then that doubt could properly be resolved by 

a jury. Only through trial on the merits following a change of plea would the ends of justice best be served in this case." 

In any event, the rules stated in Azure and Lewis are 

not new. The law in both 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; State v. Nance (1947), 

120 Mont. 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 District Court was inadequate for determining whether 

his guilty plea was voluntarily given, we proceed to consideration of the effect of the two additional factors 

specified earlier. 

Timeliness of -- the Motion - to Withdraw. In State v. 

Lewis, 582 P.2d at 352, 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 

to withdraw a guilty plea in cases where the records upon 

which the plea of guilty was entered are missing, the witnesses are unavailable, or evidence has been disposed of. 

The State asserts that laches should similarly bar Huttinger's motion here. 

Huttinger first entered his guilty plea on February 14, 

1977. He thereafter was sentenced to 100 years in prison 

without parole on September 1, 1977. This sentence was 
vacated 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 his motion for withdrawal of plea. 

This sequence indicates defendant's position here is 

stronger than that found to justify a claim of laches in 

Lewis. Cf. State v. Nance (1947), 120 Mont. 152, 184 P.2d 

554 (one month between entry of guilty plea and motion to 

withdraw held not reasonably timely). In Lewis over one 

year elapsed between the date of sentencing and the date of 

the motion to withdraw plea, with no record of an intervening appeal to the Supreme Court. In the instant case, 

while eight and one-half months elapsed between the date of 

sentencing and the motion to withdraw, there also was the 

intervening appeal and reversal of the sentence. ~uttinger 

promptly proceeded to make his motion to withdraw after the 

first sentence was vacated and before the new sentence was 

pronounced. Neither has the State presented any evidence 

that records are lost, evidence missing, or witnesses unavailable as was done in Sattler. 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 in order to receive favorable consideration an application to withdraw a 

plea of guilty should be made within a reasonable time." 

State v. Nance, 120 Nont. at 165, 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 "[alt any time before or after 

judgment." In State v. McBane, 128 Mont. at 377, 275 P.2d 

at 222, Justice Freebourn specially concurred stating: 
"Being guaranteed the right to a trial by jury, 

there is no sound reason, since the state gives 

up nothing, why a defendant charged with a 

felony should be denied the 'sacred1 right to a 

trial by 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 to the 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 stated many times that 

". . . it will not lend its assistance to an accused criminal in escaping the obligations of his agreement after 

accepting the benefits thereof. " State v. Sattler (1976) , 

170 Mont. 35, 37, 549 P.2d 1080, 1081. Accord, State v. 

Nance (1947), 120 Mont. at 166, 184 P.2d at 561. 

This is undoubtedly the most troubling aspect of this 

appeal and is the factor weighing most strongly against 

allowing Huttinger to withdraw his guilty plea. We conclude, however, that it does not outweigh the other factors 

which favor allowing withdrawal. 

This conclusion is based on several grounds. First, as 

noted earlier, immediately after entry of his guilty plea, 

Huttinger was sent to Warm Springs State Hospital for psychiatric evaluation and treatment. He remained at Warm 

Springs for over six months before being first sentenced. 

After sentencing, Huttinger was transferred to Warm Springs 

for further treatment. He is now in Warm Springs pending 

this appeal. In all, since July 1976 when he was first 

charged, Huttinger has spent nine months in the State Hospital and only six months in the State Prison. Therefore, 
there is now, and there was at the time of his guilty plea, 

a serious question as to Huttinger's competency to enter 

into any plea bargain. 

Second, at the hearing on the motion to withdraw his 

guilty plea, Huttinger and his (adoptive) parents both 

testified that the possibility of a defense based on mental 

disease or defect was 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 all his 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 

District Court at the time it accepts a guilty plea. State 

v. Lewis, 582 P.2d at 352, 35 St.Rep. at 1097. This investigation was not undertaken by the District Court in this 

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 all the 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, State v. Azure, supra. 
We emphasize again that doubts in cases involving 

motions to withdraw a guilty plea should be resolved in 

favor of allowing withdrawal and a trial on the merits. 

Taking all the factors involved in this case and resolving 

doubts in favor of the defendant, we conclude that the 

District Court abused its discretion in refusing to allow 

Huttinger to withdraw his guilty plea. 

The judgment of the District Court is reversed and the 

case .is remanded for further proceedings consistent with 

this opinion. 

/ Justice 

We concur: 

&44&&&w4 

Chief ~ugtice 
Mr. 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 trial judge 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 specifically used, but the trial judge asked in the 

colloquy between the court, the defendant, and his attorney: 

"THE COURT: And it is of course understood at 

this point in time you wish to enter a change 

of plea in this case; is that correct? 

"MR. BARRON: Yes, your Honor. Mr. Huttinger 

would ask leave to withdraw his plea of Not 

Guilty to Deliberate Homicide. 

"THE COURT: You understand what a plea of guilty 

entails in this matter, do you not, Fir. Huttinger? 

"MR. HUTTINGER: Yes; I do. 

"THE COURT: You understand that change of plea, 

you waive your right to remain silent? You understand that? 

"MR. HUTTINGER: Yes. 

"THE COURT: You understand that you waive your 

right to counsel to represent you in this 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 in the State of Yontana is 

imprisonment in the Montana State Prison, 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 in dropping the aggravated kidnapping charge, which 

could have resulted in a death penalty if defendant had 

been convicted of both charges. Under these particular 

circumstances, I would affirm the judgment and sentence.