No. 05-341 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2006 MT 73N 

_______________________________________ 

STATE OF MONTANA, 

 Plaintiff and Respondent, 

 v. 

KELVIN WARREN SUTTON a/k/a KELLY W. 

SUTTON, 

 Defendant and Appellant. 

______________________________________ 

APPEAL FROM: District Court of the Fourth Judicial District, 

 In and for the County of Missoula, Cause No. DC 2003-483 

 The Honorable Edward P. McLean, Judge presiding. 

COUNSEL OF RECORD: 

 For Appellant: 

Brian C. Smith, Office of the Public Defender, Missoula, Montana 

 For Respondent: 

Hon. Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney 

General, Helena, Montana 

Fred Van Valkenburg, County Attorney; Kirsten LaCroix, Deputy County 

Attorney, Missoula, Montana 

____________________________________ 

Submitted on Briefs: March 29, 2006 

 Decided: April 18, 2006 

Filed: 

______________________________________ 

Clerk 
 2

Justice John Warner delivered the Opinion of the Court. 

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

Operating Rules, as amended in 2003, the following memorandum decision shall not be 

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme 

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

this Court=s quarterly list of nonciteable cases published in the Pacific Reporter and 

Montana Reports. 

¶2 Kelvin Warren Sutton (Sutton) appeals from the denial of two motions to dismiss 

the charges against him. Sutton raises multiple issues on appeal, but we only consider the 

dispositive issue of whether Sutton waived his right to appeal the denial of his motions to 

dismiss when he pled guilty without reserving the right to appeal. We affirm. 

¶3 The State charged Sutton by Information with one count of felony driving under 

the influence of an intoxicating substance and three misdemeanors. Sutton filed a motion 

to dismiss the felony count, alleging his prior convictions were constitutionally infirm, 

and a motion to dismiss all counts based on lack of a speedy trial. The District Court 

denied both motions. Sutton entered a plea agreement on November 29, 2004, in which 

he agreed to plead guilty to the four counts in the Information. In return, the State agreed 

to make certain sentencing recommendations and to withdraw its notice to seek 

punishment as a persistent felony offender. 

¶4 Although Sutton failed to provide the Court with a transcript of the change of plea 

hearing, the minute entry clearly shows he orally moved to amend the plea agreement to 

provide that he reserved his right to appeal the denial of his motions to dismiss. The 

State refused to agree to Sutton’s motion and stated that Sutton could either plead guilty 
 3

or go to trial. The District Court denied the motion. Sutton then stated that he wished to 

proceed and pled guilty. At sentencing, the District Court advised that it would not 

follow the sentence recommendation in the plea agreement. Sutton declined an 

opportunity to withdraw his guilty plea and was sentenced. This appeal followed. 

¶5 We have determined to decide this case according to Section I, Paragraph 3(d) of 

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

memorandum opinions. 

¶6 A defendant who enters a guilty plea may reserve the right to appeal an adverse 

determination of any specified pretrial motion only with the consent of the prosecutor and 

the approval of the court. Section 46-12-204(3), MCA. The prosecution refused to 

consent to Sutton’s motion to reserve his right to appeal the denial of his motions to 

dismiss. Likewise, the District Court declined to approve Sutton’s request. When Sutton 

pled guilty, he waived his right to appeal the denial of his motions to dismiss. 

¶7 Affirmed. 

 /S/ JOHN WARNER 

We Concur: 

/S/ KARLA M. GRAY 

/S/ JAMES C. NELSON 

/S/ BRIAN MORRIS 

/S/ JIM RICE