No. 13689 

IN THE SUPREME COUXT OF THE STATE OF MONTANA 

1977 

STATE OF KONTANA, 

-vsCHARLES RAY DOTY, 

Respondent. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Appellant: 

Douglas Harkin arqued, County Attorney, Hamilton, 

Montana 

For Respondent: 

Garnaas, Hall, Riley and Pinsoneault, Missoula, 

Montana 

J. Robert Riley argued, Ilissoular Montana 

Submitted: Play 18, 1977 

Decided : jUL 29 1977 

Filed: J'UL 28 1Vj- 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court . 

This is an original proceeding. Petitioner state of 

Montana seeks a writ of supervisory control or other appropriate 

relief directing the district court, Ravalli County, the Hon. 

Edward T. Dussault presiding, to vacate its order reversing the 

order of Justice of the Peace Ruth A. Daniels denying defendant's 

motion to withdraw his plea of guilty, and to substitute therefor 

an order affirming the denial of defendant's motion in the cause 

entitled State of Montana, Plaintiff v. Charles Ray Doty, Defendant, 

Criminal Cause No. C/1569, Ravalli County. 

On April 15, 1976, defendant Charles Ray Doty was charged 

with the criminal offense of misdemeanor theft, pursuant to section 

94-6-382, R.C.M. 1947. The complaint was filed in the justice 

court, Ravalli County, before Justice of the Peace Ruth A. Daniels. 

Defendant Doty was found to be an officer of the Missoula City 

Police Department with approximately nineteen years of law enforcement experience. 

On April 27, 1976, Doty appeared in Ravalli County justice 

court with his attorney, Harold Holt of Missoula, for arraignment. 

At that time, Doty entered a plea of not guilty. The court set 

June 16, 1976 as the date of trial. The trial date was subsequently continued to June 22, 1976. Doty conferred with his 

attorney on several occasions between the arraignment and the date 

of trial concerning his defense to the charge. 

On June 17, 1976, following a telephone conversation with 

a friend, Doty telephoned Douglas Harkin, the Ravalli County 

attorney, and arranged for a meeting concerning the pending 

criminal action. Prior to the meeting, Doty attempted to contact 

his attorney of record for advice on the matter. in ding him 

unavailable, Doty consulted Missoula attorneys H. L. Garnaas and 
J. Robert Riley concerning the upcoming trial. He was advised 

the attorneys could not be prepared for trial upon such short 

notice. No further advice was given. 

Doty proceeded to Hamilton to discuss the case with the 

county attorney, unaccompanied by counsel. The county attorney 

was apprised of the fact Doty was unable to reach his attorney 

prior to the meeting. During the discussion, the county attorney 

detailed the evidence he intended to use against Doty. The remainder of the conversation concerned the legal and non-legal 

ramifications of a change of plea to guilty and failure to so 

change the plea, although the substance of this portion of the 

conversation is unclear. Doty returned to Missoula to again seek 

the advice of his attorney, who was still not available. Doty 

did speak briefly with his attorney's partner, William Murray, 

who indicated he was insufficiently informed to be able to render 

advice. On that same afternoon, and without discussing the matter 

with his attorney of record, Doty returned to Hamilton. Approximately two hours after the meeting with the county attorney, he 

appeared in justice court unaccompanied by counsel, and withdrew 

his plea of not guilty, entering a plea of guilty in substitution. 

Doty was sentenced at that time. 

On June 22, 1976, Doty filed a motion to withdraw 

his plea of guilty, together with an affidavit in support of his 

motion. In sum, Doty alleged in his affidavit the change of plea 

was improvidently made, in that it was made without the advice of 

counsel, and that at the time of the change of plea, he was 

"* * * distraught, unable to think clearly or to fully appreciate 

the significance of his act * * *." A hearing was held on the 

motion on June 25, 1976. The motion was subsequently denied. 

The decision was appealed to the district court, the case being 

submitted on the record, including the transcript of the hearing 
held on June 25, 1976, and the briefs of the respective parties. 

The district court on December 6, 1976, entered an order 

reversing the decision of the justice court and remanding it for 

a trial on the merits. It is from this order the state brings its 

application for a writ of supervisory control or other appropriate 

writ. 

This Court is asked to determine whether the district 

court erred or abused its discretion in reversing the order of 

the justice court; in allowing withdrawal of the guilty plea; and 

ordering that a trial be had on the merits. Whether defendant 

Doty should have been permitted to discuss his case directly with 

the county attorney and shortly thereafter change his plea from 

not guilty to guilty without the assistance of his counsel of 

record is the focus of determination here. 

The state of Montana has but a limited right of appeal 

in criminal cases. Such right to appeal is statutory, and is 

confined to certain specific and narrowly defined instances, set 

forth in section 95-2403, R.C.M. 1947. The state has no statutory 

right of appeal from a district court order which, as here, has 

the effect of granting a defendant's motion to withdraw a plea 

of guilty. It is clear where a party has no plain, speedy or 

adequate remedy at law, and when there is no right of appeal 

from an order of a district court, a writ of supervisory control 

may issue to review the action of the district court. State ex 

rel. Woodahl v. District Court, 166 Mont. 31, 530 P.2d 780; State 

ex rel. Ryder v. District Court, 148 Mont. 56, 417 P.2d 89. 

The vast weight of authority establishes the granting or 

refusal of permission to withdraw a plea of guilty and substitute 

therefor 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, 120 Mont. 152, 184 P.2d 554; 
State v. McAllister, 96 Mont. 348, 30 P.2d 821; State ex rel. Foot 

v. ~istrict Court, 81 Mont. 495, 263 P. 979. Each case must 

necessarily be resolved upon its own set of facts and circumstances. 

There is no rule or standard which can be relied upon in any given 

case. State v. Morgan, 131 Mont. 58, 307 P.2d 244; State v. 

Nance, supra. The Ravalli County justice court was, in this case, 

the trial court, being vested with original jurisdiction of the 

misdemeanor offense by virtue of section 95-302(a), R.C.M. 1947. 

Therefore, it was the exercise of discretion by the justice court 

that was reviewed on appeal by the district court. 

The trial court, in determining the validity of a plea 

of guilty, must determine that the plea is entirely voluntary, and 

made not inadvisedly, but rather with an understanding of the 

consequences. State v. McBane, 128 Mont. 369, 275 P.2d 218; 

State v. Casaras, 104 Mont. 404, 66 P.2d 774. It is not merely 

the province, but the duty of the court to make such a determination. 

The absence of counsel of record for the defendant at the time of 

the entry of the plea of guilty is a factor to be considered by 

the court in reaching its decision. 

The transcript of the hearing held in justice court on the 

motion for a change of plea indicates defendant Doty steadfastly 

maintained his innocence of the charge until the moment he 

changed his plea to guilty. It further appears that prior to 

both the meeting with the county attorney and the subsequent 

change of plea, Doty had actively sought legal counsel from Harold 

Holt, his attorney of record, regarding the matter. The county 

attorney and the justice of the peace were aware at the time of 

the change of plea that Doty was still represented by ~arold Holt. 

Yet, in determining that Doty's change of plea was understandingly 

and advisedly made, the court failed to ascertain that Doty had 

in fact consulted with his attorney of record regarding his action, 
and the reason his attorney was not present for the proceedings. 

Failure to do so, despite Doty's prior experience with courtroom 

procedures as a police officer, raises serious doubt as to the 

validity of the change of plea to guilty. 

This Court has, on numerous occasions, enunciated the 

principle applicable in cases of doubt: 

"* * * If there is any doubt that the plea is 

not voluntary, the doubt should be resolved in 

his [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. 

Casaras, 104 Mont. 404, 413, 

See also: State v. McAllister, 96 Mont. 348, 30 P.2d 821. 

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. 

Therefore, it cannot be said the district court erred in 

finding an abuse of discretion on the part of the trial court. 

We find no impropriety in the action of the district court sufficient to invoke the supervisory control of this Court. 

Relator's petition is denied. 

We Concur: