DA 08-0277

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 53N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

HUNTER NICHOLS,

Defendant and Appellant.

APPEAL FROM: District Court of the Sixth Judicial District,

In and For the County of Park, Cause No. DC 08-25

Honorable Wm. Nels Swandal, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Courtney Lawellin, Attorney at Law, Livingston, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General;

Mardell Ployhar, Assistant Attorney General, Helena, Montana

Bruce Becker, Livingston City Attorney, Livingston, Montana

Submitted on Briefs: January 28, 2009

Decided: February 24, 2009

Filed:

__________________________________________

Clerk

February 24 2009
2

Chief Justice Mike McGrath delivered the Opinion of the Court.

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

OperatingRules, as amended in 2003, the following memorandumdecision shall not be cited

as precedent. It shall be filed as a public document with the Clerk ofthe Supreme Court and

its case title, Supreme Court cause number and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Hunter Nichols (Nichols) appeals an order of the Sixth Judicial District Court, Park

County, denying his motion to withdraw guilty pleas to first offense partner or family

member assault, unlawful restraint, and endangering the welfare of children. The District

Court upheld the Livingston City Court’s denial of Nichols’ motion to withdraw his guilty

pleas.

1

 We affirm.

¶3 Nichols argues that his lack of understanding made his guilty pleas not voluntary,

knowing, and intelligent, thus demonstrating good cause for withdrawal. The issue on

appeal is the voluntariness of Nichols’ guilty pleas.

¶4 Section 46-16-105(2), MCA, permits a defendant to withdraw a guilty plea if “good

cause” is shown. Section 46-12-210, MCA, outlines required facts that a defendant must

understand before a court can accept a guilty plea. Guilty pleas must be voluntary, knowing,

and intelligent. State v. Favi, 2005 MT 288, ¶ 11, 329 Mont. 273, 124 P.3d 164; State v.

Warclub, 2005 MT 149, ¶ 18, 327 Mont. 352, 114 P.3d 254; State v. Lone Elk, 2005 MT 56,
3

¶ 13, 326 Mont. 214, 108 P.3d 500. The question of whether a plea is voluntary is a mixed

question of law and fact that we review de novo to determine whether the district court’s

holding was correct. Warclub, ¶ 24.

¶5 The record shows that Livingston City Judge Kara Bailey adequately informed

Nichols of hisrights and gave him the option of entering a not guilty plea or consulting with

an attorney. The record shows that Nichols understood his rights, and chose to waive them

and enter a guilty plea. Nichols acknowledged his understanding by signing the Court

Minute Sheet and a written waiver of counsel, which fulfilled the requirements of § 46-12-

210, MCA.

¶6 Nichols further argues that his guilty pleas were not knowing, voluntary, and

intelligent because he requested to withdraw his pleas on the day he was sentenced.

However, timeliness alone is not dispositive in determining the voluntariness of aplea. Favi,

¶ 21. Nichols also argues that his plea was not intelligent because he was not notified of his

defenses. However, the standard for voluntariness only requiresthat a defendant be awareof

the “direct consequences” of his plea. Lone Elk, ¶ 21; Warclub, ¶ 32. Because the record

supports a finding that Nichols’ plea was voluntary, the District Court correctly denied

Nichols’ motion to withdraw his guilty pleas.

1 The District Court granted Nichols’ motion to withdraw his guilty plea to destruction of a

communication device, holding that a mistake of law may have been made. This order was not

appealed.
4

¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

1996 Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions. The issues are clearly controlled by settled Montana law.

¶8 Affirmed.

/S/ MIKE McGRATH

We concur:

/S/ JOHN WARNER

/S/ PATRICIA COTTER

/S/ JAMES C. NELSON

/S/ BRIAN MORRIS