No. 89-182 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

JOHN CLEVELAND BENJAMIN, 

Petitioner and Respondent, 

JACK McCORMICK, Warden, 

Montana State Prison, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Powell, 

The Honorable Ted L. Mizner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Robert F. W. Smith, Assistant Attorney General, 

Helena, Montana 

For Respondent: 

John S. Forsythe, Esq., Forsyth, Montana 

Filed: 

Submitted on Briefs: March 22, 1990 

Decided: May 8, 1990 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

The State of Montana appeals a writ of habeas corpus issued 

by the Third Judicial District Court, Powell County, ordering the 

warden of the Montana State Prison to release prisoner John 

Benjamin on parole. The District Court found that Benjamin did not 

fully understand the consequences of his guilty plea when the 

sentencing court, prosecuting attorney, and defense attorney 

represented that he would be incarcerated approximately one year 

under the terms of his plea bargain agreement, but the sentence and 

agreement required completion of a two-year sexual offender 

program. We affirm. 

ISSUES 

The State raises three issues: 

1. Did the habeas corpus court err in not enforcing the petitioner's plea bargain agreement as written? 

2. Did the sentencing court err by representing that the 

petitioner would be incarcerated for approximately one year when 

the court had no authority to guarantee probation? 

3. Did the habeas corpus court err in finding that the petitioner's plea of guilty was not made voluntarily and knowingly? 

FACTS AND PROCEDURE 

This case presents an unusual set of circumstances. Under the 

terms of a plea bargain agreement, John Benjamin pled guilty to 

deviate sexual conduct in violation of 5 45-5-505, MCA, and 
possession of a dangerous drug in violation of 3 45-9-102, MCA. 

The Sixteenth Judicial District Court sentenced Benjamin to the 

Montana State Prison for ten years with five years suspended on the 

first count and for one year on the second count to run concurrently. The sentence included nondangerous offender designation and 

enrollment in the sexual offenders program. 

Prior to accepting the guilty plea, the District Court 

elicited Benjamin's statement providing factual support for the 

plea. The court also carefully questioned Benjamin to establish 

that he voluntarily pled guilty and that he fully understood his 

rights and the effect of his plea. 

At the time of sentencing, the court stated: 

And, of course, if you don't know, in Montana, 

a ten year sentence, five suspended, nondangerous criminal, you will serve, actually 

serve, somewhere around a year, give or take 

a few days one way or the other. And the 

sentence, of course, will recommend a treatment program. 

After one year in prison, Benjamin was denied parole and 

petitioned the sentencing court for a writ of error coram nobis. 

The court denied the writ holding that it had no jurisdiction to 

modify the sentence. In its opinion, the court stated: 

Defendant entered into a plea bargain agreement which provided, among other things, that 

the defendant would enroll in a sexual offenders program while serving his sentence in 

the state prison. It was the belief of the 

Court, defense counsel and the county attorney 

that the defendant would serve about a year in 
the prison. At the time of sentencing, the 

Court did not know that attendance in the 

sexual offender program in the prison would 

enhance defendant's sentence by more than a 

year. 

Benjamin then petitioned the court for a writ of habeas corpus on 

the same grounds, and the court transferred the petition to the 

court of appropriate jurisdiction. 

The Third Judicial District Court, Powell County, granted the 

petition and ordered Benjamin's release on parole. The court found 

that Benjamin did not fully understand the consequences of his plea 

when entered or during sentencing because the sentencing court, the 

prosecuting attorney, and his defense counsel had all represented 

that he would serve only one year in prison. Following his 

release, the State of Washington re-incarcerated Benjamin for 

violating his parole from a previous sentence for sexual offenses. 

The State now appeals the habeas corpus court's decision. 

We will address two preliminary arguments before reaching the 

determinative issue in this case. 

PLEA BARGAIN ENFORCEMENT 

The parties argue for specific enforcement of different terms 

of the plea bargain agreement. Their contentions, however, fail 

to consider the current state of the law. In State v. Cavanaugh, 

this Court overturned a plea bargain sentence when the district 

court failed to inform the defendant that he would not be eligible 
for parole. Cavanauqh (1983), 207 Mont. 237, 240, 673 P.2d 482, 

484. We held that, 

the trial judge, who accepts a plea but rejects any other portion of the plea bargain, 

[is required] to afford the defendant the 

opportunity to withdraw his guilty plea and 

enter a plea of not guilty. 

Cavanauqh, 207 Mont. at 243, 673 P.2d at 485. 

The 1985 Legislature revised 5 46-12-204, MCA, the statute 

governing plea bargain agreements. Act approved April 23, 1985, 

ch. 606, 5 2, 1985 Mont. Laws 1278, 1279. The statute now clearly 

delineates the effect of plea bargain agreements. 

A plea bargain agreement is an agreement 

between a defendant and a prosecutor that in 

exchange for a particular plea the prosecutor 

will recommend to the court a particular 

sentence. A judge may not participate in the 

making of, and is not bound by, a plea bargain 

agreement. If a judge does not impose a 

sentence recommended by the prosecutor pursuant to a plea bargain agreement, the judge 

is not required to allow the defendant to 

withdraw a plea of guilty. 

Section 46-12-204(3) (a), MCA. 

Under the present law, the sentencing court was not a party 

to the bargain and was not subject to its terms. The enforceability of the bargain is, therefore, not an issue. 

GRANTING PROBATION 

The Attorney General argues that by telling Benjamin that he 

would be paroled in one year, the sentencing court usurped the 
authority of the Board of Pardons by guaranteeing probation. The 

Attorney General overstates his position. 

First, a fair reading of the sentencing court's statement in 

light of the surrounding circumstances does not indicate that the 

court intended to guarantee Benjamin's parole. The court certainly 

knew that Benj amin1 s parole eligibility depended on numerous 

factors beyond its control. As the sentencing court later stated, 

it merely intended that the sexual offender program would not 

extend Benjamin's incarceration beyond the normal one-year 

incarceration before parole eligibility for a ten-year sentence. 

Second, the Board of Pardons does not have exclusive authority 

to grant parole. Section 46-23-104(1), MCA, only gives the Board 

statutory authority to establish regulations and grant parole 

subject to the restrictions set out in 5 46-23-201, MCA. When a 

district court finds for a petitioner on a writ of habeas corpus, 

it too may order parole under its authority to enter "such 

supplementary orders as to reassignment, retrial, custody, bail, 

or discharge as may be necessary and proper.Ig Section 46-22-306, 

MCA. 

VOLUNTARY AND KNOWING PLEA 

The primary issue in this case is whether Benjamin voluntarily 

and knowingly entered his plea of guilty. Before accepting a 

guilty plea, the sentencing court must determine that the plea is 

"voluntary with an understanding of the charge, 5 46-12-204 (2) , 
MCA, and the court must inform the defendant of "the consequences 

of his plea . . . , 46-16-105 (1) (b) , MCA. The law does not 

require the sentencing court to educate the defendant on all 

aspects of the relevant law before accepting a guilty plea. 

However, when the guilty plea is based upon a fundamental mistake 

or misunderstanding as to its consequences, the sentencing court, 

at its discretion, may allow the defendant to withdraw the plea. 

A change of plea will be permitted only if it 

fairly appears the defendant was ignorant of 

his rights and the consequences of his act, or 

he was unduly and improperly influenced either 

by hope or by fear in making the plea, or if 

it appears the plea was entered under some 

mistake or misapprehension. Each case must be 

examined on its own record. The motion rests 

within the District Court's discretion and the 

exercise of that discretion will not be disturbed absent an abuse of discretion. 

State v. Mesler (1984), 210 Mont. 92, 96, 682 P.2d 714, 716 

(citation deleted). 

In this case, Benjamin's guilty plea was based on error. Both 

the sentencing court and the habeas corpus court found that 

Benjamin was misinformed as to the consequences of his plea. The 

record contains sufficient evidence to establish that the sentencing court, prosecutor and defense counsel all apparently failed to 

recognize that the sexual offender program lasted two years and 

assured the defendant that he would be incarcerated for only one 

year. 
The usual remedy for a guilty plea that is not voluntarily or 

knowingly made is to allow the defendant to withdraw the plea. In 

this case, however, the habeas corpus court exercised its discretion to order Benjamin's release on probation. The court has the 

discretion to determine whether withdrawal of a guilty plea is 

appropriate, 5 46-16-105(2), MCA, and to issue orders implementing 

its decision for the petitioner, § 46-22-306, MCA. As the court 

noted, withdrawal of the plea and further legal proceedings would 

not have been appropriate in this case. Benjamin never asked the 

court to withdraw his plea or claimed that he was not guilty. He 

argued only that he should have been released after one year as the 

sentencing court intended. 

We hold that, on the facts of this particular case, the 

District Court did not abuse its discretion in releasing Benjamin 

on parole on the grounds that he did not have an adequate understanding of the consequences of his guilty plea. 

Affirmed. 
We concur: