No. 13523 

IN THE 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 1977 
Mr. 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 in the district 

court of Missoula County. He was sentenced to a term of 50 

years in the state prison as a persistent felony offender. Defendant appeals from the sentence imposed. 

 his case comes to us on the basis of an agreed statement of the proceedings, the district court file, and a certified copy of the docket entries in lieu 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 in the 

Missoula County jail. On October 15 they were jointly charged 

by direct information with the crimes of attempted burglary and 

theft. Each entered a plea of not guilty to each 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, in consideration of a plea 

of guilty to the two charges, agreed to recommend a sentence of 

10 years on the charge of attempted burglary and 5 years on the 

charge of theft to be served concurrently and another 10 years 

and 5 years on charges in another case to be served concurrently 

in that 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 to the 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 in conformity 

with the plea bargain proposal and agreement. McIntosh had previously been convicted of three felonies, two of them within the 
previous five years. 

In the meantime during the week of November 7 to November 14 a parole revocation hearing was held in the Missoula 

County sheriff's office on defendant Sather's parole. Defendant Sather requested counsel but was not represented by counsel 

at the parole revocation hearing. On November 14 defendant 

Sather was transported to the Montana State Prison in Deer Lodge. 

On December 29 the Parole Board at Montana State Prison 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 to the 19th case on April 5. Subsequently the 

case was reset for April 12 and finally for April 8. 

On April 7 defendant Sather was transported from the 

state prison to the 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. At that time the deputy county 

attorney stated that he would withdraw this notice if defendant 

plead guilty before the case went to trial and would thereupon 

recommend a sentence of 10 years. 

The trial started on April 8. At the 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 sentence which 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 defendant was not given proper credit for time 

served prior to conviction against the sentence imposed. 

Defendant's first specification of error carries us into 

deep constitutional waters. He claims that realistically he was 
sentenced to 10 years for attempted burglary and 40 years for 

refusing to plead guilty and insisting upon a jury trial. The 

core of his argument is simply that the prosecutor used plea 

bargaining procedures and invoked the habitual criminal statute 

for an improper purpose and when that did not work, the judge 

punished him with an excessive sentence for refusing to plead 

guilty. Defendant asserts that the totality of circumstances 

demonstrates the truth of his contentions and specifically points 

to these: 

(1) Knowledge by the prosecutor of defendant's prior 

conviction long before invoking the habitual criminal statute on 

the eve of trial, (2) apparent determination by the prosecutor 

that the public interest required no greater sentence than 10 years 

as evidenced by the prosecutor's offer to recommend a 10 year sentence if defendant would plead guilty, (3) after invoking the 

habitual criminal statute less than 24 hours before trial, the 

prosecutor's offer to withdraw it and recommend a 10 year sentence 

if defendant would plead guilty before the trial started, (4) the 

failure of the sentencing judge to secure and utilize a presentence 

investigation and report from the State Board of Pardons in sentencing defendant, and (5) the disparity of sentence imposed upon 

his codefendant who plead guilty as compared to the sentence he 

received. Because of these circumstances, defendant contends he 

was denied due process in violation of federal and state constitutional requirements. 

The State, on the other hand, denies any abuse of discretion or misconduct on the part of the prosecutor or sentencing 

judge. The State points out that the practice of plea bargaining 

between the prosecutor and defendant wherein the prosecutor offers 

to recommend a lighter sentence in exchange for a guilty plea is 

neither coercive in a constitutional sense nor otherwise constitutionally infirm. The State argues that where, as here, 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 "due process" 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 cannot be 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, 1972 Montana Constitution. He also has the 

right or privilege against self-incrimination. Fifth Amendment, 

United States Constitution; Art. 11, Section 25, 1972 Montana 

Constitution. He waives these rights by entering a plea of guilty, 

but such waiver 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 constitutional due process 

requirements. Rohrer v. Montana, 237 F.Supp. 747 (1965). Impermissible coercion may 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 in this case strongly suggests a constitutionally impermissible use of plea bargaining and the habitual criminal statute by the prosecutor. Long after defendant's background 

and prior conviction were known to the prosecutor and after plea 

bargaining had failed, the prosecutor invoked the habitual criminal statute to subject defendant to a potential sentence of 100 

years as opposed to the statutory maximum of 10 years 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 statute the day before trial, the prosecutor 

offered to withdraw this action and recommend a sentence of 10 

years if defendant would plead guilty before the trial started. 

The record is barren of any event or circumstance that would justify such action by the prosecutor within the legitimate objectives of the habitual criminal statute or the criminal justice 

system. Although the use of the habitual criminal statute is 

discretionary with the prosecutor, that discretion is not unlimited and cannot be used for improper purposes. Here the 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 were completed, the prosecutor was 

in a position to evaluate whether the habitual criminal statute 

should be invoked in the public interest or not. The prosecutor 

did not do so at that time but waited until plea bargaining had 

broken down and trial was only 24 hours away and even then offered 

to withdraw his action under the habitual criminal statute and 
recommend a 10 year sentence if defendant would plead guilty. 

This action is not consistent with a determination that the 

public interest required increased punishment of defendant under 

the habitual criminal statute. The only supportable inference 

is that such conduct was used in an attempt to coerce defendant 

into waiving his right to a jury trial. Subsequent events, 

while not conclusive, lend support to this inference. 

Retaliatory action on the part of the prosecutor for the 

exercise of procedural rights by an accused has been held to violate consitutional due process requirements. Blackledge v. Perry, 

supra. There the United States Supreme Court held that where 

defendant had appealed his conviction of misdemeanor assault in 

a lower court and was entitled to a trial de novo in superior 

court under state law, the prosecutor's subsequent action in obtaining 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 

his procedural rights under state law is entitled to pursue those 

rights without apprehension that the State will retaliate by 

substituting a more serious charge for the original one and thus 

subject him to a 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 first degree murder following the 

defendants securing of a mistrial on a prior charge of second 

degree murder. United States v. Jamison, 505 F.2d 407 (1974). 

The United States District Court in California refused to allow 

prosecution of an indictment on more serious charges after defendant had asserted his right to a change of venue on an indictment charging less serious offenses. United States v. DeMarco, 

401 F.Supp. 505 (1975). And in United States v. Ruesga-Martinez, 
534 F.2d 1367 (9th Cir. 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 to plead guilty to a misdemeanor, 

if no justification for the increase in severity of the charges 

is offered. We perceive no difference in principle 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 in a case involving > 

plea bargaining and a habitual criminal statute, placed the defendant in fear of retaliatory action for insisting upon his 

constitutional right to stand trial and that constitutional due 

process was violated. Hayes v. Cowan, supra. c his case is similar, although not identical, to the 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 to recommend 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 to plead 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 as a third offense. Defendant was convicted by a jury, and on the instructions of the judge, the mandatory life sentence for a third offense habitual criminal was 

imposed. In vacating the sentence, the court in Hayes v. Cowan, supra, 

set forth its reasoning: 

"The Commonwealth urges that the entire concept 

of plea bargaining will be destroyed if prosecutors are not allowed to seek convictions on 

more serious charges if defendants refuse to 

plead guilty. We do not agree. Although a 

prosecutor may in the course of plea negotiation 
offer a defendant concessions relating to 

poseuction under an existing indictment, 

[Citations omitted.] he may not threaten a 

defendant with the consequence that more severe 

charges may be brought if he insists on going to 

trial. When a prosecutor obtains an indictment 

less severe than the facts known to him at the 

time might permit, he makes a discretionary 

determination that the interests of the state 

are served by not seeking more serious charges. 

[Citations omitted.] Accordingly, if after plea 

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 is vindictiveness. Under these 

circumstances, the prosecutor should be required 

to justify his action. In this case, a vindictive motive need not be inferred. The prosecutor 

has admitted it." 

The only material distinction between 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 in the instant case 

as in Hayes, differing only in degree. 

For the foregoing reasons and based on the cited authority, 

we hold that defendant was denied due process under federal and 

state constitutional provisions as applied to the facts of this 

case. We do not hold that the plea bargaining process in itself 

is constitutionally infirm nor that Montana's habitual criminal 

statute is unconstitutional on its face. 

Defendant's second specification of error relating to the 

timeliness of invoking the habitual criminal statute is inseparable 

from the constitutional issue. As the timing of its injection 

into the case has been discussed previously and forms a basis for 

our ruling on the constitutional issue raised in defendant's first 

specification of error, further discussion appears unnecessary. 

In its brief the State concedes defendant's third specification of error. The State admits that defendant is entitled 
to credit of 6 months and 22 days against his sentence. This 

represents the time actually served by defendant between the 

date of his arrest and the date of 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 district court with directions to resentence the defendant 

for the crime of attempted burglary with appropriate credit for 

time actually served according to law. 

Justice 

Chief Justice 

(Specially concurring) 

I concur in the result of 

the foregoing decision but 

not in the entire rationale 

of the majority opinion.