No. 13523 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

STATE OF MONTANA, Plaintiff and Respondent,

-vsWILLIAM CHRISTOPHER SATHER, Defendant and Appellant.

Appeal from: 

### District Court of the Fourth Judicial District, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record: For Appellant: Paul B. Smith argued, Missoula, Montana William Boggs argued, Missoula, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Robert Deschamps 111, County Attorney, Missoula,

Montana Ed McLean, Deputy County Attorney, argued, Missoula,

Montana

- Submitted: April 15, 1977 Decided: 

## JUN 

# -2 

## 1977Mr. Justice Frank I. Haswell delivered the Opinion of the Court.

Defendant William Christopher Sather was convicted of the crime of attempted burglary by jury verdict inthe district court of Missoula County. Hewas sentenced toa 

### termof 50 years inthe stateprison asa persistent felony offender. Defendant appeals from the sentence imposed. 

### his case comes tous on thebasis of an agreed statement of the proceedings, the district court file, and 

### a 

### certified copy of the docket entries inlieu of a transcript and exhibits pursuant to section 95-2408, R.C.M. 1947. Defendant Sather and Claude Sylvester McIntosh 

### were arrested on September 30, 1975. They 

### were incarcerated inthe Missoula County jail. On October 15they 

### werejointly charged by direct information with the crimes of attempted burglary and theft. Each entered a plea of not guiltytoeach charge. On October 31 a written plea bargain proposal and agreement signed by the deputy county attorney and McIntosh 

### was filed with the district court. The State, inconsideration of a plea of guiltytothe two charges, agreed torecommend a sentence of 10 years on the charge of attempted burglary and 5 years on the charge of theft tobe served concurrently and another 10years and 5 years on charges inanother case tobe served concurrently inthat 

### case but consecutively with the sentence imposed for the attempted burglary. On November 

### 4 McIntosh appeared in court with counsel, withdrew his plea of not guilty tothe charges of attempted burglary and theft and entered a plea of guilty to each charge. A presentence investigation

### was ordered and sentencing 

### set for November 20. On November 20 McIntosh received a sentence inconformity with the plea bargain proposal and agreement. McIntosh had previously been convicted of three felonies, two of them within theprevious fiveyears. In themeantime during the week of November 7 toNovember 14a parole revocation hearing 

### was held inthe Missoula County sheriff's officeon defendant Sather's parole. Defendant Sather requested counsel but was not represented by counsel 

### atthe parole revocation hearing. On November 

### 14defendant Sather 

### was transported tothe Montana StatePrison inDeer Lodge. On December 29 the Parole Board atMontana StatePrison revoked defendant Sather's parole contingent on his case being reconsidered after disposition of the pending charges. The charges of attempted burglary and theft against defendant Sather wereset for trial in the April, 1976 jury term. Names of potential jurors 

### were drawn on February 20. On March 16 the prospective jury panel was finalized and sent questionnaires by the clerk of court. On March 18 the case

### was set for trial on April 

### 5 

### as the 9th case. On March 22 the case was 

### reset for 

### trial from the 9th case tothe 19th case on April 5. Subsequently the

case was 

### reset for April 12and finally forApril 8. On April 

### 7 defendant Sather 

### was transported from the 

### stateprison tothe Missoula County jail. On that date the deputy county attorney filed and served upon defendant's counsel 

### a notice of intent to seek increased punishment pursuant to sections 95-1506 and 95-1507, R.C.M. 1947, by reason of defendant's prior conviction of kidnapping. Atthat

### timethe deputy county attorney statedthat he would withdraw thisnotice if defendant plead guiltybefore the case went totrialand would thereupon recommend a sentence of 10 years. The trial started on April 8. Atthe conclusion of the state's case-in-chief, the presiding judge dismissed the charge of theft on motion of the State. On April 12, the jury returned



### a verdict of guilty on the charge of attempted burglary. On April 19 defendant Sather was sentenced to 50 years imprisonment

### in the state prison and given credit for 45 days served in the Missoula County jail. No presentence report was made by the State Board of Pardons. On more than one occasion between defendant Sather's arrest and trial the deputy county attorney and defendant's counsel discussed the matter of defendant's plea. The deputy county attorney offered to recommend to the sentencing judge that defendant receive a sentence of 10 years in the state prison if he agreed to plead guilty. At the start of trial and again on the day of sentencing, counsel for defendant objected to the filing of notice to seek increased punishment less than 24 hours before trial contending that the filing of such notice under the circumstances

was unlawful and unfair. The district court overruled defendant's objection. We were advised upon oral argument that during the pendency of this appeal, defendant Sather applied to the Sentence Review Board for reduction of his sentencewhich was denied. Defendant has appealed from the final judgment. All specifications of error are directed at the sentence imposed. None are directed at his conviction of attempted burglary. Defendant raises three specifications of error:

(1)That Montana's statute of increased punishment for prior offenders as applied in this case denies defendant due process of law as required by federal and state constitutional provisions. (2)

### That the notice of intention to seek increased punishment was not timely served. (3) 

### That defendantwas not given proper credit for time served prior to conviction against the sentence imposed. Defendant's first specification of error carries us into deep constitutionalwaters. He claims that realistically he was

### sentenced to 10 years for attempted burglary and 40 years for refusing toplead guilty and insisting upon a 

### jury trial. The

core of his argument is 

### simply that theprosecutor used plea bargaining procedures and invoked the habitual criminal statute for an improper purpose and when thatdidnot work, thejudge punished him with an excessive sentence forrefusing toplead guilty. Defendant asserts that the totalityof circumstances demonstrates the truthof hiscontentions and specifically points tothese: (1)

### Knowledge by theprosecutor of defendant's prior conviction long before invoking the habitual criminal statuteon the eve of trial, (2) 

### apparent determinationby theprosecutor that thepublic interest required no greater sentence than 10

### years

asevidenced by the prosecutor's offer torecommend a 10year sentence if defendantwould plead guilty, (3) 

### after invoking the habitual criminal statuteless 

### than 24 hours before trial, the prosecutor's offer towithdraw it 

### and recommend a 10

### year sentence if defendant would plead guiltybefore the trial started, (4) 

### the failureof the sentencingjudge to secure and utilize a 

### presentence investigation and report from the StateBoard of Pardons in sentencing defendant, and (5) 

### the disparityof sentence imposed upon hiscodefendant who plead guiltyas compared tothe sentencehe received. Because of these circumstances, defendant contends he

was denied due process inviolation of federal and stateconstitutional requirements. The State, on theother hand, denies any abuse of discretion ormisconduct on the part of the prosecutor or sentencing judge. The Statepoints out that the practice of plea bargaining between theprosecutor and defendant wherein theprosecutor offers torecommend a lighter sentence in exchange for a guiltyplea is 

### neither coercive ina constitutional sensenor otherwise constitutionally infirm. The Stateargues thatwhere, ashere, there is

### no evidence of bad faith, discrimination or arbitrary use of plea bargaining, it is unobjectionable. The State emphasizes that both the prosecutor and judge acted within the limits of their statutory authority in sentencing defendant under Montana's habitual criminal statute. The State denies any abuse of discretion on the part of the prosecutor or judge. In short, the State denies any "dueprocess" violation under the facts of this

case. It is important to note that defendant does not attack plea bargaining per se nor contend that Montana's habitual criminal statute is unconstitutional on its face. Defendant's constitutional attack is bottomed on the proposition that these procedures were unconstitutionally applied in his case to deny him due process of law. The broad dimensions of the pertinent constitutional requirements are quite clear. A person cannotbe deprived of his liberty without due process of law. Fourteenth Amendment, United States Constitution; Art. 11, Section 17, 1972 Montana Constitution. A defendant in a criminal case has a constitutional right to a jury trial, Sixth Amendment, United States Constitution; Art. 11, Section 26, 1972Montana Constitution. He also has the right or privilege against self-incrimination. FifthAmendment, United States Constitution; Art. 11, Section 25, 1972Montana Constitution. He waives these rights by entering a plea of guilty, but suchwaiver must be voluntary. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L Ed 2d 747, and cases cited therein. A 

### coerced plea of guilty violates constitutionaldue process requirements. Rohrer v. Montana, 237 F.Supp. 747 (1965). Impermissible coercionmay exist in a variety of forms arising out of the conduct of the prosecutor or judge acting within statutory authority. North Carolina 

### v. Pearce, 395 U.S. 711, 84 

### S.Ct. 2072, 23 L Ed 2d 656;Hayes v. Cowen, United States Court of Appeals,6th Circuit (No. 76-1409), December 30, 1976. Vindictive, 

### retaliatory or punitive use of otherwise unobjectionable procedures offends constitutional due process requirements. Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L Ed 2d 628; North Carolina

v. Pearce, supra; Hayes v. Cowen, supra. The record inthiscase strongly suggests 

### a constitutionally impermissible use of plea bargaining and the habitual 

### criminal statuteby the prosecutor. Long after defendant's background and prior conviction 

### wereknown tothe prosecutor and afterplea bargaining had failed, the prosecutor invoked the habitual 

### criminal statuteto subject defendant toa potential sentenceof 100 years asopposed tothe statutorymaximum of 10years for attempted burglary. See section 95-1507, R.C.M. 1947; section 94-4-103, R.C.M. 1947; section 94-6-204, R.C.M. 1947. After invoking the habitual criminal statutethe day before 

### trial, the prosecutor offered towithdraw thisaction and recommend a sentence of 10 years if defendant would plead guilty before the trial started. The record 

### isbarren of any event or circumstance thatwould justify such action by the prosecutor within the legitimateobjectives of the habitual criminal statute or the criminal justice system. Although the use of the habitual criminal statute is discretionarywith the prosecutor, that discretion 

### isnot unlimited and cannot be used for improper purposes. Herethe prosecutor knew of defendant's prior criminal record and had the parole board's evaluation of defendant before him and had completed his information gathering long before invoking the habitual criminal statute. When these functions 

### werecompleted, the prosecutor was ina position to evaluate whether the habitual criminal statute should be invoked inthe public interest or not. The prosecutor did not do so atthat 

### timebut waited until plea bargaining had broken down and trialwas only 

### 24 hours away and even then offered towithdraw his action under the habitual criminal statuteandrecommend a 10 year sentence if defendant would plead guilty. This action 

### isnot consistentwith a determination that the public interestrequired increased punishment of defendant under the habitual criminal statute. The only supportable inference 

### is that such conduct was used inan attempt tocoerce defendant intowaiving his right to

### a jury trial. Subsequent events, while not conclusive, lend support tothis inference. Retaliatory actionon the part of the prosecutor for the exercise of procedural rights by an accused has been held toviolate consitutionaldue process requirements. Blackledge v. Perry, supra. There the United States Supreme Court held thatwhere defendant had appealed his conviction of misdemeanor assault in

a lower court and was entitled toa trialdenovo in superior court under 

### state law, the prosecutor's subsequent action inobtaining an indictment for felony assault covering the same conduct contravened the due process clause of the Fourteenth Amendment. The basis for the ruling was that a defendant pursuing hisprocedural rightsunder statelaw 

### isentitled topursue those rightswithout apprehension that the State

### willretaliate by substitutinga more serious charge for the original one and thus subject him toa significantly increased potential period of incarceration. Similar holdings have been handed down by other federal courts. The federal court of appeals for the District of Columbia reversed a conviction for the firstdegree murder following the defendants securing of a mistrial on a prior charge of second degree murder. United Statesv. Jamison, 505 F.2d 407 (1974). The United States DistrictCourt inCalifornia refused toallow prosecution of an indictment on more serious charges after defendant had asserted his right toa change of venue on an indictment charging less serious offenses. United Statesv. DeMarco, 401 F.Supp. 505 (1975). And inUnited Statesv. Ruesga-Martinez,534 F.2d 1367 (9thCir. 1976) the federal court of appeals for the 9th Circuit held that a defendant cannot be tried on a felony indictment after he has refused toplead guilty toa misdemeanor, if no justification for the increase in severity of the charges isoffered. Weperceive no difference inprinciple between these

cases and the instant case where the charge remains unchanged but a substantially increased penalty 

### is sought by invoking the habitual criminal statute. The federal court of appeals for the 6th Circuit has recently held that the prosecutor's tactics ina case involving 

## > plea bargaining and a habitual criminal statute, placed the defendant in fear of retaliatory action for insisting upon his constitutionalright to stand trialand that constitutionaldue process was violated. Hayes v. Cowan, supra. c his case is 

### similar, although not identical, tothe instant 

### case on the facts. In Hayes the defendant was indicted for forgery. After arraignment, a pretrial conference was held with the prosecutor who offered torecommend a 

### 5 year sentence if defendant would plead guilty. Defendant 

### was warned that if he did not plead guilty he would be charged under the habitual criminal statute. Defendant refused toplead guilty, but insisted on receiving a full trial. The prosecutor then obtained a new indictment from the grand jury charging defendant under the habitual criminal statute based upon the forgery asa third offense. Defendant was convicted by a jury, and on the instructionsof the judge, the mandatory lifesentence for a third offense habitual criminal was imposed. In vacating the sentence, the court inHayes v. Cowan, supra, set forth 

### its reasoning: "The Commonwealth urges that the entireconcept of plea bargaining willbe destroyed if prosecutors arenot allowed to seek convictions on more serious charges if defendants refuse 

### to plead guilty. Wedo not agree. Although 

### a prosecutor may inthe course of plea negotiationoffer a defendant concessions relating to poseuction under an existing indictment,

[Citationsomitted.] he may not threaten a defendant with the consequence thatmore severe charges may be brought if he insistson going to 

### trial. When a prosecutor obtains an indictment less severe than the factsknown tohim atthe 

### timemight permit, he makes 

### a discretionary determination that the 

### interests of the state are served by not seeking more serious charges. [Citationsomitted.] Accordingly, if afterplea negotiations fail, he then procures an indictment charging a more serious crime, 

### a strong inference 

### is created that the only reason for the more serious charge isvindictiveness. Under these circumstances, theprosecutor should be required tojustify his action. In thiscase, a vindictivemotive need not be inferred. The prosecutor has admitted it." The only material distinctionbetween Hayes and the case on appeal 

### is that there the prosecutor expressly threatened the defendant with mandatory increased punishment under the habitual criminal statute if he did not plead guilty, while here the prosecutor expressed no threat but simply invoked a discretionary and potentially greater penalty after plea bargaining had broken down. In our view, the coercive effect 

### is as surely present inthe instant case

asinHayes, differing only indegree. For the foregoing reasons and based on the cited authority,



### we hold that defendant 

### was denied due process under federal and stateconstitutionalprovisions as applied tothe factsof this

case. Wedo not hold that the plea bargaining process initself 

### is constitutionally infirm nor thatMontana's habitual criminal statute 

### is unconstitutional on 

### its face. Defendant's second specification of error relating tothe timeliness of invoking the habitual criminal statute 

### is inseparable from the constitutional issue. As the timing of its injection intothe case has been discussed previously and forms a basis for

our ruling on the constitutional issueraised indefendant's first specification of error, further discussion appears unnecessary. In 

### itsbrief the State concedes defendant's third specification of error. The State admits that defendant is entitled

### tocredit of 6 

### months and 22 

### days againsthis sentence. This represents the 

### timeactually served by defendant between the date of his arrest and the dateof sentence. The 50 

### year sentence imposed is

### vacated. The State's notice of intent to seek increased punishment under the habitual criminal statute is

### ordered stricken. The cause is

### remanded to the districtcourtwith directions toresentence the defendant for the crime of attempted burglary with appropriate credit for 

### timeactually served according to law.

Justice

Chief Justice

(Specially concurring) 

### I concur in the result of the foregoing decisionbut not inthe entirerationale of themajority opinion.