No. 95-185 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1997 

STATE OF MONTANA, 

Plaintiff and Respondent, 

WALTER PAUL HOPPE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twenty-First Judicial District, 

In and for the County of Ravalli, 

The Honorable Ed McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William F. Hooks, State Appellate Defender, 

Helena, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Jennifer Anders, Ass't Attorney General, Helena 

Montana 

George Corn, Ravalli County Attorney, Hamilton 

Montana 

Filed: 

Submitted on Briefs: November 21, 1996 

Decided: January 30, 1997 
Justice W. William Leaphart delivered the Opinion of the Court. 

Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court 

1995 Internal Operating Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result to State Reporter Publishing Company and West Publishing 

Company. 

The Appellant, Walter Hoppe (Hoppe), appeals from the TwentyFirst Judicial District Court's revocation of his five-year 

deferred imposition of sentence for felony assault and six-month 

deferred imposition of sentence for domestic abuse. We affirm. 

The issues before this Court are as follows: 

1) Did the District Court have authority to enforce the 

terms of Hoppe's deferred imposition of sentence before 

the written judgment had been filed? 

2) Did the District Court abuse its discretion in denying 

Hoppe's motion to withdraw his guilty plea? 

BACKGROUND 

In November of 1991, the State of Montana (State) moved the 

District Court, Ravalli County, for leave to file an Information 

against Hoppe. The Information charged Hoppe with committing the 

crimes of misdemeanor domestic abuse and felony assault. Hoppe was 

arraigned in District Court and entered pleas of not guilty to both 

offenses. In July of 1992, a plea agreement was executed by Hoppe 

and counsel of record. Hoppe withdrew his pleas of not guilty and 

entered pleas of guilty 

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On July 21, 1992, the District Court conducted a hearing in 

which it deferred imposition of Hoppe's sentence for three years on 

the felony assault charge and six months on the domestic abuse 

charge. The terms of the deferment were to run concurrently on 

certain conditions, including the condition that Hoppe "not possess 

or consume any intoxicants." After the hearing, Hoppe was released 

and placed under the supervision of the Adult Probation and Parole 

Division of the Department of Institutions. The District Court's 

written Judgment was not filed with the clerk of court until July 

31, 1992. 

On July 23, 1992, eight days before the written judgment was 

filed, Hoppe pled guilty to driving under the influence. The State 

petitioned to revoke Hoppe's deferred imposition of sentence 

alleging that his conviction for driving under the influence 

constituted a violation of his conditions of probation and parole. 

On August 18, Hoppe appeared with counsel before the District Court 

for disposition. At the hearing, Hoppe attempted to justify his 

behavior by explaining that he was merely having his last drinks of 

alcohol as he was not going to be able to drink for three years 

(the length of his deferral term). Following the hearing, the 

District Court found Hoppe guilty of violating the terms of the 

deferred imposition of sentence and revoked the deferred imposition 

of sentence. Hoppe was sentenced to a five-year prison term on the 

felony assault charge and a six-month term on the misdemeanor 

domestic abuse charge. 

In a September of 1992 hearing, Hoppe moved to withdraw his 

guilty pleas. In support of his request, Hoppe alleged that his 

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attorney told him that his wife would be convicted of perjury if he 

went to trial. Hoppe alleged that his counsel told him that "if I 

did not plead guilty to the charges of the state, that my wife 

would be charged with perjury and that she would go to jail." 

Hoppe's counsel denied this characterization. Hoppe's counsel 

stated that he had explained to the Hoppes that since Mrs. Hoppe 

had previously given a tape-recorded statement, and that if her 

trial testimony were contrary to the taped statement, there was a 

possibility the State would elect to charge her with perjury. The 

District Court orally denied Hoppe's motion. 

Two years later, Hoppe filed a petition for post-conviction 

relief. In January of 1995, the District Court ordered that the 

petition for post-conviction relief be dismissed on procedural 

grounds, "as all grounds asserted in the Petition are appealable 

issues and, thus, Mr. Hoppe may not seek relief on those grounds 

pursuant to a Petition for Post-Conviction Relief." However, the 

District Court also granted Hoppe leave to file an amended petition 

"regarding any ineffective assistance of counsel claims Mr. Hoppe 

may wish to raise in this matter." After reviewing Hoppe's 

petition, the District Court concluded that Hoppe had been given 

effective assistance of counsel. The District Court issued a 

Second Amended Judgment in December of 1995, declaring Hoppe guilty 

of violating the terms and conditions of the deferred imposition of 

sentence and designating Hoppe a non-dangerous offender. Following 

the disposition of these matters before the District Court, Hoppe 

filed the instant appeal challenging the District Court's 

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jurisdiction to revoke his deferred imposition of sentence and the 

District Court's denial of his motion to withdraw his guilty plea. 

STANDARD OF REVIEW 

Both issues in this case involve the District court ' s 

interpretation of the law. The standard of review of a district 

court's conclusions of law is whether the court's interpretation of 

the law is correct. Carbon County v. Union Reserve Coal Co. 

(1995), 271 Mont. 459, 898 P.2d 680; Steer, Inc. v. Department of 

Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04. This 

Court reviews a district court's sentencing decision for legality 

only and will not disturb the decision unless the district court 

abused its discretion. State v. DeSalvo (1995), 273 Mont. 343, 

346, 903 P.2d 202, 204 (citing State v. Blanchard (1995), 270 Mont. 

11, 17, 889 P.2d 1180, 1182). 

DISCUSSION 

1) Did the District Court have authority to enforce the 

conditions of Hoppe's deferred imposition of sentence 

before the written judgment had been filed? 

At a July 21, 1992 hearing, the District Court deferred 

imposition of sentence by explaining: 

No cause appearing why sentence should not be 

imposed, it is hereby the judgment of this Court that 

you're guilty of the underlying offenses, to wit: 

Assault, a felony, and domestic abuse, a misdemeanor. 

It is further the judgment of this Court that the 

imposition of sentence be deferred for a period of three 

years on each count. The sentences are to run concurrent 

to each other on the following conditions: 

. . 

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You will not consume any intoxicants. You will not 

possess any intoxicants. You will not go into any 

establishment whose principal business is the sale of 

intoxicants; that includes bars and casinos. 

Following the hearing, the court placed Hoppe under the supervision 

of Adult Probation and Parole and ordered him subject to all of its 

terms and conditions. Next, Hoppe met with his probation officer 

and read and signed the Montana rules of probation. The Montana 

rules of probation signed by Hoppe included the following 

condition: 

You shall comply with all city, county, state, and 

federal laws and ordinances and conduct yourself as a 

good citizen. You shall report any arrests or contacts 

with law enforcement to your Probation/Parole Officer 

within 72 hours. 

Two days after the hearing, Hoppe was arrested for driving 

under the influence of alcohol and subsequently pled guilty to that 

charge. In light of this arrest, the State petitioned to revoke 

Hoppe's deferred imposition of sentence, alleging that Hoppe 

violated one of the conditions of deferment by driving under the 

influence. On the same day the State petitioned to revoke Hoppe's 

sentence, the District Court signed and filed the written judgment 

with the clerk of court. 

Hoppe contends that the District Court's oral sentence had no 

final effect. He contends the District Court did not have 

jurisdiction to enforce the conditions of the deferred imposition 

of sentence since it had not yet been reduced to writing. In 

support of this contention, Howe cites to State v. Enfinger 

(1986), 222 Mont. 438, 722 P.2d 1170. In Enfinser, the district 

court failed to include a dangerous offender designation at the 

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oral sentencing. On the same day it orally sentenced Enfinger, and 

before filing its written judgment, the district court brought 

Enfinger back into court for an additional hearing. The court 

explained that it had failed to state its reasons for imposing the 

sentences earlier and that it was necessary to do so. Enfinser, 

722 P.2d at 1171. Over Enfinger's objections, the district court 

found Enfinger to be a dangerous offender. In affirming the 

district court's sentence, the Court held, "I [ilt is well 

established that an oral ruling by the trial court is not a final 

judgment, and that the trial court can change such ruling at any 

time before the entry of written judgment." Enfinaer, 722 P.2d at 

1174 (quoting State v. Diaz (N.M. 19831, 673 P.2d 501, 502. 

However, this Court's holding in Enfinser that an oral sentence is 

not "final" is not dispositive of the issue in this appeal. 

In contrast to Enfincfer, the present case presents the issue 

of whether the court has the authority to enforce orally pronounced 

conditions, rather than whether the district court has the 

authority to modify a sentence. Here, Hoppe had been fully 

informed of the conditions of deferment orally "rendered in open 

court" as required by law. Section 46-18-102, MCA. Hoppe was 

present during the District Court's oral pronouncement, he met with 

his probation officer, and read and signed the Montana rules of 

probation. Hoppe was fully informed of the conditions of his 

deferment and he violated those conditions. We hold that Hoppe's 

conditions of deferment were effective upon pronouncement in open 

court and subject to enforcement from that point on. Accordingly, 

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we affirm the District Court's decision to enforce the conditions 

of Hoppe's deferred imposition of sentence. 

2) Did the District Court abuse its discretion in denying 

Hoppe's motion to withdraw his guilty plea? 

A trial judge's decision not to allow the withdrawal of a 

guilty plea will be affirmed absent an abuse of discretion. State 

v. Miller (1991), 248 Mont. 194, 197, 810 P.2d 308, 309. The 

standard for allowing the withdrawal of a guilty plea is "good 

cause." Section 46-16-105(2), MCA. A change of plea should be 

permitted only if it appears that the defendant was ignorant of his 

rights and the consequences of his act, or was unduly and 

improperly influenced either by hope or fear in making the plea, or 

if it appears the plea was entered under some mistake or 

apprehension. Miller, 810 P.2d at 310. The three factors which 

are to be considered when determining whether a defendant's guilty 

plea should be withdrawn include: 

1. The adequacy of the District Court's interrogation 

as to the defendant's understanding of the plea; 

2. The promptness of the motion to withdraw the prior 

plea; 

3. The fact that the defendant's plea was apparently 

the result of a plea bargain in which the guilty plea was 

given in exchange for dismissal of another charge. 

Miller, 810 P.2d at 309. In the instant case, Hoppe does not 

maintain that the plea bargain he entered into with the State was 

coercive. Rather, Hoppe pled guilty believing that if he proceeded 

to trial, and if his wife testified she would be prosecuted for 

perjury. Since Hoppe does not contend that the plea bargain he 

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entered into with the State was coercive, we will focus on the 

adequacy of the District Court's interrogation as to Hoppe's 

understanding of the plea. 

At the hearing to change Hoppe's plea from not guilty to 

guilty, the District court inquired of Hoppe as to his 

understanding of the consequences of his change of plea. The court 

asked Hoppe whether he understood his rights and understood that a 

guilty plea was a waiver of those rights. Further, the court 

established the specific factual basis for Hoppe's plea of guilty. 

Hoppe explained that he realized he was waiving many of his rights 

and admitted to having committed the crime. In addition, the court 

asked Hoppe whether he had been threatened, whether he understood 

the terms of his plea change, whether his plea was voluntary, and 

whether he was under the influence of medication. Hoppe explained 

that his plea was voluntary, and that he had not been influenced in 

making the plea. Following these questions, the District Court 

made the following findings: 

I'll find further that he understands the nature of 

the charges and fully understands the consequences of his 

guilty pleas; further, that there have been no promises 

made to him other than the plea bargain agreement; that 

he understands the sentencing judge is not bound by that 

agreement; that there have been no threats made against 

him; that this is a voluntary plea on his part; that he 

is satisfied with the competence of his counsel; that he 

is not suffering from any mental or physical disability 

such as he does not understand the proceedings or such as 

might induce him to plead guilty; further, I'll make the 

same finding concerning the medication and that he is not 

under the influence of any other drugs or alcohol. 

It is clear from the record that Hoppe was fully advised as to the 

consequences of a change of plea and proceeded to change his plea 

voluntarily. 

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Two months after he was originally sentenced and one month 

after revocation of his deferred imposition of sentence, HoPPe 

moved to withdraw his guilty plea. Hoppe contended that he pled 

guilty to protect his wife and his marriage vows. NOW that his 

wife has left the jurisdiction and he no longer feels compulsion to 

protect her, he seeks to withdraw his guilty plea. The District 

Court found that the motion was not timely and that it did not 

state sufficient reasons to allow withdrawal of the plea. Aside 

from whether the motion was timely or not, we agree with the 

District Court's holding that the grounds asserted in the motion do 

not warrant a withdrawal of the plea. Hoppe's original plea was 

entered after a thorough and adequate interrogation by the District 

Court and was not the result of any coercion by the State or his 

counsel. Accordingly, we affirm the decision of the District 

Court. 

We concur: