No. 95-185 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1997

STATE OFMONTANA,

Plaintiff andRespondent,

WALTERPAULHOPPE,

Defendant andAppellant.

APPEALFROM: District Court of the Twenty-First Judicial District,

In and for the County of Ravalli, The Honorable EdMcLean, Judge presiding.

COUNSELOFRECORD:

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 onBriefs: November 21, 1996 Decided: January 30, 1997Justice 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 asprecedent andshall bepublished byits filing asapublic document with the Clerk of the Supreme Court andbyareport of its result to State Reporter Publishing Company and West Publishing Company. TheAppellant, 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. Weaffirm. The issues before this Court are asfollows: 1) Did the District Court have authority to enforce the terms of Hoppe's deferred imposition of sentence before the written judgment hadbeen 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 andfelony assault. Hoppe was arraigned in District Court andentered pleas of not guilty to both offenses. In July of 1992, aplea agreement wasexecuted byHoppe andcounsel of record. Hoppewithdrew his pleas of not guilty and entered pleas of guilty

2OnJuly 21, 1992, the District Court conducted ahearing 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

orconsume anyintoxicants." After the hearing, Hoppewasreleased andplaced under the supervision of the Adult Probation andParole Division of the Department of Institutions. TheDistrict Court's written Judgment wasnot filed with the clerk of court until July 31, 1992. OnJuly 23, 1992, eight days before the written judgment was filed, Hoppe pled guilty to driving under the influence. TheState petitioned to revoke Hoppe's deferred imposition of sentence alleging that his conviction for driving under the influence constituted aviolation of his conditions of probation andparole. OnAugust 18, Hoppeappeared with counsel before the District Court for disposition. At the hearing, Hoppe attempted to justify his behavior byexplaining that hewasmerely having his last drinks of alcohol as hewas 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 andrevoked the deferred imposition of sentence. Hoppewassentenced to afive-year prison term onthe felony assault charge and a six-month term on the misdemeanor domestic abuse charge. In aSeptember of 1992 hearing, Hoppe moved to withdraw his guilty pleas. In support of his request, Hoppe alleged that his 3attorney told himthat his wife would beconvicted 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 mywife would be charged with perjury and that she would go to jail." Hoppe's counsel denied this characterization. Hoppe's counsel stated that hehad explained to the Hoppes that since Mrs. Hoppe had previously given atape-recorded statement, and that if her trial testimony were contrary to the taped statement, there wasa possibility the State would elect to charge her with perjury. The District Court orally denied Hoppe's motion. Twoyears later, Hoppe filed apetition 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 maynot seek relief onthose grounds pursuant to aPetition for Post-Conviction Relief." However, the District Court also granted Hoppe leave to file anamended 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 Hoppeguilty ofviolating the terms andconditions of the deferred imposition of sentence anddesignating Hoppeanon-dangerous offender. Following the disposition of these matters before the District Court, Hoppe filed the instant appeal challenging the District Court's

4

### jurisdiction to revoke his deferred imposition ofsentence andthe

District Court's denial of his motion 

### towithdraw his guilty plea.

STANDARDOFREVIEW Both issues in this case involve the District court 's interpretation of the law. The standard of review of adistrict court's conclusions of law iswhether the court's interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271Mont. 459, 898P.2d 680; Steer, Inc. v. Department of Revenue (1990), 245Mont. 470, 474-75, 803P.2d 601, 603-04. This Court reviews adistrict 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, 903P.2d 202, 204 (citing State v. Blanchard (1995), 270Mont. 11, 17, 889P.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 hadbeen 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, afelony, and domestic abuse, amisdemeanor. It is further the judgment of this Court that the imposition of sentence bedeferred for aperiod of three years oneach count. Thesentences are to run concurrent to each other onthe following conditions:

. . 5Youwill not consume any intoxicants. Youwill 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 Hoppeunder the supervision ofAdult Probation andParole andordered 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. Youshall report any arrests or contacts with law enforcement to your Probation/Parole Officer within 72hours. Two days after the hearing, Hoppe was arrested for driving under the influence of alcohol andsubsequently 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. Onthe sameday the State petitioned to revoke Hoppe's sentence, the District Court signed andfiled the written judgment with the clerk of court. Hoppe contends that the District Court's oral sentence hadno 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 adangerous offender designation at the

6oral sentencing. Onthe sameday 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, 722P.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 anoral ruling bythe trial court is not afinal judgment, and that the trial court can change such ruling at any time before the entry of written judgment." Enfinaer, 722P.2d at 1174 (quoting State v. Diaz (N.M. 19831, 673 P.2d 501, 502. However, this Court's holding in Enfinser that anoral sentence is not "final" is not dispositive of the issue in this appeal. In contrast to Enfincfer, the present case presents the issue ofwhether the court hasthe 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, hemetwith his probation officer, and read and signed the Montana rules of probation. Hoppe was fully informed of the conditions of his deferment andheviolated those conditions. Wehold that Hoppe's conditions of deferment were effective upon pronouncement in open court and subject to enforcement from that point on. Accordingly,

7weaffirm 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 towithdraw his guilty plea? Atrial judge's decision not to allow the withdrawal of a guilty plea will beaffirmed absent anabuse of discretion. State

v. Miller (1991), 248 Mont. 194, 197, 810 P.2d 308, 309. The standard for allowing the withdrawal of aguilty plea is "good cause." Section 46-16-105(2), MCA. Achange of plea should be permitted only if it appears that the defendant wasignorant of his rights and the consequences of his act, or was unduly and improperly influenced either byhope orfear inmaking 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 beconsidered whendetermining whether adefendant's guilty plea should bewithdrawn include: 1. The adequacy of the District Court's interrogation asto the defendant's understanding of the plea; 2. Thepromptness of the motion to withdraw the prior plea; 3. The fact that the defendant's plea was apparently the result of aplea bargain inwhich 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 heentered into with the State was coercive. Rather, Hoppepled guilty believing that if heproceeded to trial, and if his wife testified she would beprosecuted for perjury. Since Hoppe does not contend that the plea bargain he

8entered into with the State was coercive, wewill 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. Thecourt asked Hoppe whether heunderstood his rights andunderstood that a guilty plea was awaiver of those rights. Further, the court established the specific factual basis for Hoppe's plea of guilty. Hoppe explained that herealized hewaswaiving manyof his rights andadmitted to having committed the crime. Inaddition, the court asked Hoppe whether hehadbeen threatened, whether heunderstood the terms of his plea change, whether his plea wasvoluntary, and whether hewasunder the influence of medication. Hoppe explained that his plea wasvoluntary, andthat hehadnot been influenced in making the plea. Following these questions, the District Court madethe following findings:

I'll find further that heunderstands the nature of the charges andfully understands the consequences of his guilty pleas; further, that there have been nopromises made to him other than the plea bargain agreement; that heunderstands the sentencing judge is not bound bythat agreement; that there have been nothreats madeagainst him; that this is avoluntary plea onhis part; that he is satisfied with the competence of his counsel; that he is not suffering from any mental or physical disability such ashedoes not understand the proceedings or such as might induce him to plead guilty; further, I'll make the samefinding concerning the medication andthat heis not under the influence of any other drugs or alcohol. It is clear from the record that Hoppewasfully advised asto the consequences of achange of plea andproceeded to change his plea voluntarily. 9Two months after hewas originally sentenced and one month

after revocation of his deferred imposition of sentence, HoPPe moved to withdraw his guilty plea. Hoppe contended that hepled guilty to protect his wife and his marriage vows. NOWthat his wife has left the jurisdiction andhenolonger feels compulsion to protect her, heseeks 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 awithdrawal of the plea. Hoppe's original plea was entered after athorough andadequate interrogation bythe District Court and was not the result of any coercion bythe State or his counsel. Accordingly, we affirm the decision of the District Court.

Weconcur: