DA 07-0143

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 242

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

CHARLES V. DESERLY,

 Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,

In and For the County of Hill, Cause No. DC-2006-013

Honorable David G. Rice, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jim Wheelis, Chief Appellate Defender; Roberta R. Zenker, Assistant

Appellate Defender, Helena, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General; Jesse A. Laslovich,

Assistant Attorney General, Helena, Montana

Cyndee L. Peterson, Hill County Attorney; Gina Bishop, Deputy County

Attorney, Havre, Montana

Submitted on Briefs: January 23, 2008

 Decided: July 8, 2008

Filed:

__________________________________________

Clerk

July 8 2008
2

Justice James C. Nelson delivered the Opinion of the Court.

¶1 Charles Deserly appeals from the judgment of conviction entered by the District 

Court for the Twelfth Judicial District, Hill County, on his plea of guilty to assault with a 

weapon. We reverse and remand for further proceedings consistent with this Opinion.

BACKGROUND

¶2 On February 1, 2006, officers with the Havre Police Department responded to a 

report of disturbance in a residence. Upon arriving, they encountered an upset girl who 

stated that a man had tried to kill her. The girl identified Deserly as the assailant and 

indicated that he was still inside the residence. The officers then spoke with the girl’s 

mother, who stated that Deserly had “pulled a knife on my girl.” The officers located 

Deserly in the bathroom, where he had apparently pulled a knife on a second individual.

The officers eventually subdued Deserly and placed him under arrest.

¶3 The State charged Deserly with two counts of felony assault with a weapon, in 

violation of § 45-5-213(1), MCA (2005). A person convicted of this offense may be 

imprisoned in the state prison for a term not to exceed 20 years. Section 45-5-213(2)(a), 

MCA. On August 21, 2006, Deserly and the State entered into a plea agreement, 

pursuant to which Deserly agreed to plead guilty to one count of felony assault with a 

weapon, and the State, in exchange, agreed to dismiss the second assault charge and 

forego a bail-jumping charge. In addition, the State agreed to recommend commitment to 

the Department of Corrections (“DOC”) “for a period of ten (10) years,” and Deserly 

acknowledged that he would be designated a persistent felony offender.
3

¶4 The District Court accepted Deserly’s guilty plea and ordered a presentence 

investigation. The court also scheduled a bond-reduction hearing, at which time the court 

released Deserly on a number of conditions. On September 5, 2006, the State filed a

Petition for Revocation of Release, alleging that Deserly had violated the terms and 

conditions of his release. Meanwhile, the probation/parole officer preparing the 

presentence investigation report (“PSI”) determined that a commitment to the DOC “for a 

period of ten (10) years,” which Deserly and the prosecutor had agreed to recommend at 

sentencing, was not allowed by statute. Pursuant to § 46-18-201(3)(d)(i), MCA, “all but 

the first 5 years of [a] commitment to the department of corrections must be suspended.” 

Thus, a commitment to the DOC “for a period of ten (10) years” was not a sentence that 

the District Court could impose. Until the probation/parole officer filed the PSI on 

September 21, 2006, it appears that the prosecutor, defense counsel, Deserly, and the trial 

judge were not cognizant of this fact.

¶5 At the sentencing hearing on September 27, 2006, the State announced that it was 

withdrawing from the plea agreement based on Deserly’s violation of the conditions of 

his release. At the same time, Deserly stated that he wanted to withdraw his guilty plea. 

As he later explained in his written motion to withdraw his guilty plea, he had “entered 

into the plea bargain unaware of the fact that he could not get the benefit of the bargain -

a sentence the Court could not impose under Montana law.” He argued on this basis that 

good cause existed for the District Court to permit the withdrawal of his guilty plea. The 

court denied Deserly’s motion.
4

¶6 The District Court entered judgment on January 3, 2007. The court adjudged 

Deserly guilty of felony assault with a weapon and designated him a persistent felony 

offender. The court sentenced Deserly to the Montana State Prison for a period of fifteen 

years with five years suspended. Deserly now appeals.

ISSUES

¶7 Deserly sets forth three issues on appeal, which we restate as follows:

1. Did the District Court err in denying Deserly’s motion to withdraw his guilty 

plea?

2. Was the factual basis for Deserly’s guilty plea sufficient?

3. Did Deserly receive ineffective assistance of counsel because his lawyer 

advised him to enter into a plea bargain that contemplated an illegal sentence?

¶8 Because we reverse the District Court’s judgment under Issue 1, we do not address 

Issues 2 or 3.

STANDARD OF REVIEW

¶9 We review a district court’s denial of a motion to withdraw a guilty plea de novo. 

State v. Warclub, 2005 MT 149, ¶ 17, 327 Mont. 352, ¶ 17, 114 P.3d 254, ¶ 17. The 

question of whether a plea was entered voluntarily is a mixed question of law and fact,

which we review de novo. State v. McFarlane, 2008 MT 18, ¶ 8, 341 Mont. 166, ¶ 8, 

176 P.3d 1057, ¶ 8.

DISCUSSION

¶10 Did the District Court err in denying Deserly’s motion to withdraw his guilty 

plea?
5

¶11 At any time before judgment or within one year after judgment becomes final, a 

trial court may, “for good cause shown,” permit a plea of guilty or nolo contendere to be 

withdrawn and a plea of not guilty substituted. Section 46-16-105(2), MCA (2005). 

“Good cause,” as used in § 46-16-105(2), MCA, includes the minimal constitutional 

requirement that a guilty plea be voluntary and intelligent. See State v. Lone Elk, 2005 

MT 56, ¶¶ 13, 17, 326 Mont. 214, ¶¶ 13, 17, 108 P.3d 500, ¶¶ 13, 17. Furthermore, we 

determined in Lone Elk that “good cause” may include criteria in addition to 

voluntariness. See Lone Elk, ¶ 19 (“Involuntariness and discovery of new exculpatory 

evidence constitute good causes for withdrawal of a plea under § 46-16-105(2), MCA 

(2001), but others may exist.”); see also § 46-16-105(2), MCA (referring to “a claim of 

innocence . . . supported by evidence of a fundamental miscarriage of justice”).

¶12 We need not consider any additional criteria for “good cause” in the case at hand 

since the issue here is the voluntariness of Deserly’s plea. In Lone Elk, we observed that 

this Court had been following a voluntariness standard that was less protective of 

individual rights than the United States Constitution. See Lone Elk, ¶ 22 (discussing 

State v. Miller, 248 Mont. 194, 810 P.2d 308 (1991)). We thus overruled that standard, 

under which a plea of guilty would be deemed involuntary “ ‘where it appears that the 

defendant was laboring under such a strong inducement, fundamental mistake, or serious 

mental condition that the possibility exists he may have pled guilty to a crime of which he 

is innocent.’ ” Lone Elk, ¶ 22 (quoting Miller, 248 Mont. at 197, 810 P.2d at 310)

(emphasis in Miller). In its stead, we adopted the following standard set forth by the 
6

Supreme Court in Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472 

(1970):

[A] plea of guilty entered by one fully aware of the direct 

consequences, including the actual value of any commitments made to him 

by the court, prosecutor, or his own counsel, must stand unless induced by 

threats (or promises to discontinue improper harassment), misrepresentation 

(including unfulfilled or unfulfillable promises), or perhaps by promises 

that are by their nature improper as having no proper relationship to the 

prosecutor’s business (e.g. bribes). [Brackets in original, internal quotation 

marks omitted.]

See Lone Elk, ¶ 21 (summarizing this standard).1

¶13 In adopting the Brady standard, we also jettisoned the balancing test articulated in 

State v. Huttinger, 182 Mont. 50, 595 P.2d 363 (1979). See Lone Elk, ¶¶ 12, 23. Under 

that test, we balanced the following three factors to determine whether good cause existed 

 

1 We note here that in overruling the Miller standard, we did not identify all of the 

cases in which that standard had been set out as the applicable law. As a result, the

standard has appeared in subsequent cases. Accordingly, so as to preclude any further 

confusion as to the proper standard for reviewing the voluntariness of a guilty plea, we 

explicitly overrule the following cases to the extent they may be read as supporting 

application of the Miller standard: State v. Milligan, 2008 MT 36, ¶ 10, 341 Mont. 316, 

¶ 10, 177 P.3d 500, ¶ 10, State v. Chase, 2006 MT 13, ¶ 15, 331 Mont. 1, ¶ 15, 127 P.3d 

1038, ¶ 15, State v. Tweed, 2002 MT 286, ¶ 26, 312 Mont. 482, ¶ 26, 59 P.3d 1105, ¶ 26, 

State v. Kellames, 2002 MT 41, ¶ 11, 308 Mont. 347, ¶ 11, 43 P.3d 293, ¶ 11, State v. 

Sanders, 1999 MT 136, ¶ 21, 294 Mont. 539, ¶ 21, 982 P.2d 1015, ¶ 21, State v. Ereth, 

1998 MT 197, ¶ 27, 290 Mont. 294, ¶ 27, 964 P.2d 26, ¶ 27, State v. Schaff, 1998 MT 

104, ¶ 33, 288 Mont. 421, ¶ 33, 958 P.2d 682, ¶ 33, State v. Skroch, 267 Mont. 349, 356, 

883 P.2d 1256, 1261 (1994), State v. Barker, 257 Mont. 31, 35, 847 P.2d 300, 303 

(1993), State v. Cameron, 253 Mont. 95, 100–01, 830 P.2d 1284, 1288 (1992), State v. 

Milinovich, 248 Mont. 373, 376–77, 812 P.2d 338, 340–41 (1991), Benjamin v. 

McCormick, 243 Mont. 252, 256, 792 P.2d 7, 10 (1990), State v. Nelson, 184 Mont. 491, 

496, 603 P.2d 1050, 1053 (1979), State v. Hilton, 183 Mont. 13, 17, 597 P.2d 1171, 1173 

(1979), State v. Campbell, 182 Mont. 521, 525, 597 P.2d 1146, 1148 (1979), State v. 

Huttinger, 182 Mont. 50, 55, 595 P.2d 363, 367 (1979), State ex rel. Gladue v. Eighth 

Judicial District, 175 Mont. 509, 511, 575 P.2d 65, 66 (1978), State v. Griffin, 167 Mont. 

11, 18, 535 P.2d 498, 502 (1975), State v. LeMay, 144 Mont. 315, 320, 396 P.2d 83, 85–

86 (1964), and State v. Pelke, 143 Mont. 262, 271, 389 P.2d 164, 169 (1964).
7

to permit withdrawal of a guilty plea: (1) whether the district court adequately 

interrogated the defendant to determine his understanding of his plea; (2) whether the 

defendant promptly filed his motion to withdraw the prior plea; and (3) whether the 

defendant’s plea was the result of a plea bargain in which the prosecutor dismissed 

another charge. See Lone Elk, ¶ 11; Huttinger, 182 Mont. at 54, 595 P.2d at 366. This 

test, we noted, “neither lists all the factors [bearing on voluntariness], nor are all the 

factors it lists necessary.” See Lone Elk, ¶ 14. Yet, although we “relegate[d] that test to 

history,” we nevertheless stated that “two of the criteria from the Huttinger test (the 

adequacy of colloquy and the existence of plea bargain) bear on the question of 

voluntariness.” Lone Elk, ¶ 23; accord State v. McFarlane, 2008 MT 18, ¶ 26, 341 Mont. 

166, ¶ 26, 176 P.3d 1057, ¶ 26. We also stated that “numerous other case-specific 

considerations may also bear on that question.” Lone Elk, ¶ 23. One consideration, for 

example, is the defendant’s mental competency to enter a plea, including any medication 

he or she is taking. See Lone Elk, ¶ 21.

¶14 In the case at hand, Deserly contends that his guilty plea was not voluntary 

because he was induced into entering the plea “by a promise that could not be 

performed.” Although the plea agreement stated that the sentencing judge “is not bound” 

by the parties’ sentencing recommendation (see § 46-12-211(1)(c), MCA), and although 

the judge also advised Deserly of this fact before he entered his guilty plea, Deserly still 

understood that the sentence agreed upon by the parties and set out in the agreement was 

at least possible. In other words, he pleaded guilty with the expectation that the sentence 

not only would be recommended by the prosecutor and defense counsel, but also could be 
8

imposed by the District Court; yet, it was subsequently determined that the sentence was 

illegal and could not be imposed. On this basis, Deserly maintains that his guilty plea 

was involuntary and that he should have been allowed to withdraw it.

¶15 We agree that Deserly should have been allowed to withdraw his plea. A 

defendant’s plea is not voluntary if “the court, the prosecutor, his own counsel, or some 

other party, induced the plea, however slightly, by . . . misrepresentation, including 

unfulfilled or unfulfillable promises.” Lone Elk, ¶ 21 (citing Brady, 397 U.S. at 753, 755, 

90 S. Ct. at 1471–72). Here, Deserly was induced, at least in part, by the prospect of 

being able to receive the sentence that he and the prosecutor had negotiated and agreed to 

recommend. Yet, that sentence, because it was an illegal sentence, could not have been 

imposed by the District Court—a fact which came to the parties’ attention after Deserly 

had entered his plea. It is true that, except in circumstances not at issue here, sentencing 

courts are not bound by plea agreements and that Deserly was advised of this fact. 

However, the critical issue here is the inducement, and it is not enough to say that Deserly 

knew he might not receive the specific sentence recommended by the parties. At the time 

he entered his guilty plea, it was reasonable for Deserly to expect that the District Court 

could at least consider, if not actually impose, the recommended sentence. This 

expectation informs the question of inducement. Notably, once he learned that the 

sentence was not statutorily authorized, he promptly moved the court to withdraw his

guilty plea.

¶16 Our conclusion is consistent with the general rule that a defendant, who has 

entered a guilty plea pursuant to a plea bargain which contemplates a particular sentence, 
9

is entitled to withdraw the plea if it is subsequently determined that the sentence is illegal 

or unauthorized. See Christopher Vaeth, Guilty Plea as Affected by Fact That Sentence 

Contemplated by Plea Bargain Is Subsequently Determined to Be Illegal or 

Unauthorized, 87 A.L.R.4th 384, 388 (1991). In United States v. Greatwalker, 285 F.3d 

727 (8th Cir. 2002), the court stated:

There can be no plea bargain to an illegal sentence. Even when a 

defendant, prosecutor, and court agree on a sentence, the court cannot give 

the sentence effect if it is not authorized by law. Thus, when a defendant 

has entered a plea bargain contemplating an illegal sentence, the defendant 

is generally entitled to withdraw the guilty plea. Because the plea bargain 

is based on a promise the trial court lacks authority to fulfill, and the 

defendant was induced to plead guilty by that promise, plea withdrawal is 

necessary to return the parties to their initial positions.

Greatwalker, 285 F.3d at 729–30 (citations omitted). Similarly, in State v. Brown, 606 

N.W.2d 670 (Minn. 2000), the court stated:

A guilty plea cannot be induced by unfulfilled or unfulfillable 

promises, including a promise of a sentence unauthorized by law. Where a 

sentence is illegal and therefore invalidly imposed, the voluntariness of the 

plea is drawn into question. But a plea agreement calling for an 

unauthorized sentence cannot be specifically enforced.

Brown, 606 N.W.2d at 674 (citations omitted). Along these same lines, the court 

observed in Ford v. State, 69 P.3d 407 (Wyo. 2003), that “[i]f the prosecutor’s 

performance of the terms of a plea agreement is not possible, a withdrawal of the plea is 

the correct remedy.” Ford, ¶ 18; cf. Thomas v. State, 327 So. 2d 63, 63–64 (Fla. 1st Dist. 

App. 1976) (holding that the defendants had bargained not just for the prosecutor’s “mere 

act of recommending probation,” but also for the court’s either imposing that sentence or 

allowing them to withdraw their guilty pleas). Other courts are in accord with these 
10

general principles. See e.g. People v. Ramirez, 39 Cal. Rptr. 2d 374, 384 (Cal. App. 2d 

Dist. 1995) (“Since defendant pleaded guilty with the understanding he would receive a 

seven-year sentence [which is not authorized], he must be given the opportunity to 

withdraw his guilty plea, if he chooses to do so.”); Shelton v. State, 739 So. 2d 1235, 

1237 (Fla. 4th Dist. App. 1999) (“[A] defendant cannot be bound to an agreement to

accept an illegal sentence.”).

¶17 The State asserts that Deserly’s claim is “moot.” The State opines that Deserly 

only wanted to withdraw his guilty plea because the State decided to withdraw from the 

plea agreement, thereby preventing him from receiving the agreed-upon sentence. 

According to the State, because it was entitled to withdraw from the plea agreement, 

“Deserly cannot now argue that his guilty plea should be withdrawn due to the illegal 

recommendation because once he violated his conditions of release, no Agreement 

existed.”

¶18 That the parties were no longer bound by the plea agreement once the State 

withdrew from it is inapposite. The issue in this case is whether, at the time Deserly 

entered his guilty plea, he was induced to do so by any of the circumstances 

contemplated by Brady or Lone Elk. What occurred subsequent to Deserly’s change of 

plea does not determine whether the plea was voluntary at the time it was entered. Thus, 

the fact that the State later withdrew from the plea agreement has no bearing on whether 

Deserly’s guilty plea was voluntary.

¶19 The State also maintains that “there is nothing in the record that shows Deserly 

was laboring under strong inducement or fundamental mistake.” As stated above in ¶ 12, 
11

however, this is not the correct standard for determining the voluntariness of a plea. 

Where, as in the case at hand, a defendant is induced, “however slightly,” by a 

misrepresentation, including an unfulfilled or unfulfillable promise, the plea is not 

voluntary. Lone Elk, ¶ 21.

¶20 Lastly, the State observes that the parties were not aware that the recommended 

sentence was illegal until the author of the PSI pointed out that it was not authorized by 

statute. It is of no consequence, however, that the recommended sentence was not an 

intentional misrepresentation. Deserly was induced to plead guilty by what amounts to 

an unfulfillable promise: that the District Court could consider and impose the sentence 

which the prosecutor agreed to recommend. Accordingly, his plea was not voluntary, and 

good cause existed for the District Court to permit him to withdraw his guilty plea.

¶21 Before concluding, it is necessary to acknowledge that there are exceptions to the 

general rule discussed above, i.e., the rule that a defendant is entitled to withdraw his 

guilty plea if he entered the plea pursuant to a plea bargain which contemplated a 

sentence subsequently determined to be illegal or unauthorized. As described in 

Greatwalker:

Withdrawal of the plea may be unnecessary when the agreed-on sentence 

exceeds the sentence authorized by law and the government accepts a 

sentence reduced to the legal term, when the sentence can be reconciled 

with the plea agreement or otherwise corrected to give the defendant the 

benefit of the bargain, or when the defendant is willing to accept a legal 

sentence in place of the promised one.

Greatwalker, 285 F.3d at 730. One justification for these exceptions is the concern that,

should the defendant withdraw his plea and stand trial, “the State may no longer be able 
12

to produce witnesses or other evidence necessary to proceed with a prosecution.” Vaeth, 

87 A.L.R.4th at 388. Another rationale is the fact that the defendant may not wish to 

withdraw his plea. See Vaeth, 87 A.L.R.4th at 388, 397–404.

¶22 While it may be appropriate to adopt and apply these exceptions in some future 

case, we conclude that doing so here is unwarranted. Given that the State has already 

withdrawn from the parties’ plea agreement, it is appropriate simply to return the parties 

to their initial positions.

CONCLUSION

¶23 Deserly was induced to enter into the plea agreement by a misrepresentation—

albeit, one which was unintentional. We conclude, therefore, that Deserly’s guilty plea 

was not voluntary. Involuntariness constitutes good cause for withdrawal of a plea under 

§ 46-16-105(2), MCA. Lone Elk, ¶ 19. Accordingly, Deserly is entitled to withdraw his 

guilty plea.

¶24 The District Court erred in denying Deserly’s motion to withdraw his guilty plea. 

We reverse the District Court’s judgment and remand this matter to the court with 

instructions to grant Deserly’s motion.

¶25 Reversed and remanded for further proceedings consistent with this Opinion.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ JOHN WARNER

/S/ BRIAN MORRIS