!\lo. 83-253 

IN THE SUPREME COURT OF THE STATE OF MONTAZJA 

1983 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJOHN TICE IiXNDRICKS , 

Defendant and Appellant. 

APPEAL FROPI: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert M. Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Rerry N. Newcomer, Roundup, Montana 

For Respondent: 

IIon. Mike Greely , Attorney General, FTelena, Nontana 

William A. Douglas, County Attorney, Libby, Montana 

Submitted on Eriefsr September 22, 1983 

Decided: February 27, 1984 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

On his plea of guilty, John Tice Hendricks was convicted 

of four counts of burglary in the District Court, Nineteenth 

Judicial District, Lincoln County. He was sentenced to three 

years on each of the four offenses, to be served 

consecutively, but his sentence of imprisonment was suspended 

upon certain conditions. One of the conditions was that he 

make restitution for an automobile valued. at $12,000. 

Hendricks appeals from that portion of the sentence requiring 

him to make restitution for the value of the automobile. 

The issue in this case is similar to that of recent 

cases plaguing this Court where the District Court iudge 

refuses to accept in whole or in part the terms of a plea 

bargain negotiated between the defendant and the State, upon 

which the defendant changes his plea from not guilty to 

guilty. 

Hendricks was charged in District Court with eleven 

criminal charges. The first four counts included charges 

that he burglarized the Asa Wood School, the Libby Junior 

High School, the office of Dentist Richard S. Wood, and the 

automobile business of Higdem Auto Sales, all in Libby. The 

fifth count against him was that he committed theft of 

property at the Asa Wood School; the sixth that he committed 

theft of property from the Libby Junior High School; the 

seventh that he committed theft of a 1982 Capri motor 

vehicle, the automobile we are here discussing; the eighth 

that he committed theft in the tools taken from Higdem Auto 

Sales; the ninth that he committed theft in the property 

ta.ken from the dentist's office; the tenth that he destroyed 
property in the Asa Wood School; and the eleventh that he 

destroyed property in the Libby Junior High School. 

Hendricks' attorney and the county attorney of Lincoln 

County entered into a plea bargain agreement, whereby 

Hendricks agreed to plead guilty to the four counts of 

burglary, and the county attorney asreed to dismiss all the 

remaining counts on the information. They agreed that the 

appellant should not be held accountable for the destruction 

of a 1982 Capri automobile. The parties also agree that the 

county attorney would make no sentencing recommendation or 

present any aggravating circumstances at Hendricks sentencing 

hearing. Hendricks was to make restitution of approximately 

$612 for tools taken from the Higdem Auto Sales premises. 

As background information, it should be stated that on 

September 3, 1982, Hendricks and Barry Williams entered the 

Higdem Auto Sales building in Libby. Williams threw a rock 

through a rear window, and climbed through the window and 

then opened the door for Hendricks. Once inside, Hendricks 

and Williams siphoned gasoline from vehicles in the shop area 

and placed the gasoline in the gas tank of a yellow 1982 

Capri automobile. They then placed tool boxes with mechanics 

tools inside the Capri. Hendricks rolled up the shop door, 

Williams drove the car outside, and Hendricks shut the door 

behind him. 

Williams then drove the couple to Glacier National Park. 

At Glacier Park, they met with a youth, J.P. The three drove 

around and stopped in the early morning, leaving the 

automobile in a field near a lodge for park workers. 

Later J.P., apparently independently of Hendricks and 

Williams, returned to the 1982 Capri, poured gasoline on it 

and set it afire. 
In accordance with a plea. bargain, the county attorney 

dismissed, and the District Court ordered dismissal of, all 

of the counts against Hendricks, except for the first four 

burglary charges. On February 14, 1983, also in accord with 

a plea bargain agreement, Hendricks changed his plea from not 

guilty to guilty of the four burglary counts contained in an 

amended information. 

When Hendricks appeared in court for his change of plea, 

the District Court judge interrogated him extensively with 

respect to his understanding of the possibility of 

punishment, and the sentences applicable. He also informed 

the defendant, and the defendant said he understood that the 

district judge is not a participant in the plea bargain 

agreement and that the judge did not have to follow the 

recommendations of the county attorney or the defense 

attornev. The defendant then specifics-lly admitted 

committing the offense of burglary in each of the four places 

named in the amended information against him. In the course 

of that interroga.tion, he informed the judge tha.t he and 

Williams had taken the 1982 Capri from the Higdem Auto Sales 

premises. 

At the change of plea hearing, the following colloquy 

occurred with respect to restitution: 

"THE COURT: I notice there was something about 

restitution, in the Agreement, in the amount of 

Four Hundred Eighty-some Dollars. Is that -- 

"MR. NEWCOMER : Four Hundred Ninety-Five Dollars, 

Your Honor. 

"THE COURT: Is that the value of the tools -- 

"THE DEFENDANT: Yes. 

"THE COURT: --tha.t were not recovered?" 
At the end of the change of plea hearing there was further 

discussion of restitution: 

"THE COURT: Now, Mr. Hendricks, I notice that your 

Plea Bargain Agreement calls for restitution. Are 

you working? 

"THE DEFENDANT: Yes, I am, Your Honor. 

"THE COURT: All right. I expect, then, that you 

make a maximum effort to make that restitution. I 

think your attorney will tell you that, too, it's 

very important to me. 

"THE DEFENDANT: Yes, Your Honor. 

"THE COURT: Okay. Good enough." 

There was no further discussion at that point with 

respect to restitution and the hearing ended on that note. 

The next appearance of Hendricks before the District 

Court was for sentencing, on Ma-rch 14, 1983. After 

proceeding routinely with that portion of the proceedings 

respecting whether there was any legal rea-son not to impose 

sentence and after hearing some testimony, the court again 

raised the question of restitution: 

Q. (Mr. Newcomer) How about -- now the County 

Attorney's Office and I sat down and we tried to 

portion out the restitution and we agreed that Six 

Hundred Twelve Dollars would be your restitution. 

You paid One Hundred Seventy-Five Dollars this 

morning. How -- what's your plan for paying off 

the remaining amount? 

"THE COURT: Counsel, something's troubling me 

right there. Let's stop. 

"Let me ask you how you explain Six Hundred Twelve 

Dollars restitution. This is a joint and several 

obligation of these people who destroyed this car, 

is it not? 

"MR. NEWCOMER.: No -- well, this -- Your Honor. 

"THE COURT: Now wait a minute! My -- senses, as a 

lawyer, kind of got stomped on there. Tell me. 

"MR.. NEWCOMER: The car was taken by Mr. Williams 

and. my client. 

"THE COURT: Okay. 
"MR. NEWCOMER : -- and it was left with this John 

Page. My client and Mr. Williams had no idea that 

they were going to trash the car out--or have it 

destroyed. 

"THE COURT: It doesn't make any difference to me 

because they all participated in it, and all I can 

say is 'Yep, it's joint and several and everybody's 

stuck with the whole amount' . . ." 

Thereafter, throughout the sentencing hearing, the court 

remained fixed in its position that restitution for the Capri 

would have to be made and inserted that in the sentencing 

order. 

No discussion was had at the sentencing hearing or 

thereafter about a withdrawal of the plea and no motion was 

made by the defendant Hendricks to withdraw his plea. 

In the recent case of State v. Cavanaugh (Mont. Decided 

December 23, 1983) , - P.2d - , 40 St.Rep. 2007, this Court 

pointed out that when there is a disparity between the 

anticipated punishment and the actual punishment meted out by 

the District Court, the plea ba.rgain into which the defendant 

thought he was entering is not the plea bargain that is 

accepted by the trial judge. This Court in that case further 

adverted to the Federal Rule of Crimina.1 Procedure, ll(e) (4), 

under which the federal court which decides not to accept a 

plea bargain gives the defendant a chance to withdraw his 

plea. We also adverted to the American Law Institute, A 

Model Code of Pre-arraignment Procedure, 5 350.6 (Adopted May 

20, 1975) and to th.e American Bar Association Standards 

Relating to the Administra.tion of Criminal Justice: The 

Function of the Trial Judge, S 4.1 (c) (1974) . In Cavanaugh, 

this Court decided that because the concept of "fairness" has 

been added by the United. State Supreme Court to the 

"voluntary" and "knowing" test used to determine whether you 

should be allowed to withdraw a guilty plea, that it would be 
fundamentally unfair not to allow the defendant to withdraw 

his guilty plea under circumstances where the District Court 

refuses to accept the concessions granted by the State in a 

plea bargain agreement. 

In this case, Hendricks was not given the opportunity to 

withdraw his plea of guilty of the four counts of burglary. 

Consonant with our holding in Cavanaugh, Hendricks should 

have been given that opportunity. 

The complication of this case is that the State has 

already dismissed the remaining counts against Hendricks with 

prejudice. It would be manifestly unfair to allow Hendricks 

to withdraw his plea of guilty to those four charges which he 

has been convicted, and not to allow the State to refile 

against the defendant the remaining charges dismissed under 

the plea bargain agreement. 

Accordingly, we remand this case to the District Court 

for the following proceedings: 

1. On remand to the District Court, the defendant shall 

he returned for further proceedings before the District Court 

in connection with his sentence. If the trial judge decides 

that the final disposition of this case should not include 

the restitution concessions contemplated by the plea bargain 

agreement, he shall so advise the defendant and then call 

upon the defendant to either affirm or withdraw his plea of 

guilty. American Bar Association standard.^ Relating to the 

Administration of Criminal Justice: Pleas of Guilty, § 

3.3 (h) (1974). 

2. Before the defendant is given the opportunity to 

withdraw his plea, however, the county attorney shall be 

allowed to present evidence, if any, of prejudice to the 

State resulting from its inability to prosecute the charges 
which had been dismissed under the plea bargain. If the 

court finds prejudi-ce to the State such that withdrawal of 

the guilty plea would result in injustice, the convictions 

now existing shall be affirmed. 

3. If the county attorney does not present such 

evidence of prejudice, or if the District Court finds no 

prejudice to the State in reinstating the dismissed charges, 

the defendant must, if he decides to withdra.~ his plea of 

guilty, agree as a condition thereto that the county attorney 

may refile in the District Court the dismissed criminal 

charges against him which were subject to the plea bargain 

agreement, and further agree that in subsequent criminal 

proceedings as to those charges he will not raise the issue 

of estoppel, res judicata, double jeopardy or any other 

defense which attacks the propriety of refiling the dismissed 

criminal charges. 

4. If the defendant decides not to withdraw his guilty 

plea and to stand upon his plea of guilty to the four charges 

of burglary upon which he has been convicted, the sentence of 

the District Court, including restitution for the Capri 

automobile is hereby affirmed. 

// \ 

'-. , 

We Concur: 
Justices 

Mr. Justice L.C. Gulbrandson dissenting. 

I respectfully dissent. 

The majority relies upon State v. Cavanaugh, supra, 

for its order remanding this case for further proceedings. 

I respectfully dissented in Cavanaugh, but I now 

accept that holding as Montana law. However, that opinion 

clearly states that it was to be applied prospectively only, 

and its use retroactively appears to me to be a 

misapplication of the law. 

In my view, Judge Holter was correct in requiring that 

full restitution be made to the innocent victim, and I would 
Mr. Justice Daniel J. Shea concurring and dissenting: 

I join the opinion holding that defendant Hendricks 

should have been given the opportunity to withdraw his plea 

of guilty to the four counts of burglary. However, I do not 

agree with that part of the opinion giving the county 

attorney the power to prevent withdrawal of the pleas by 

presenting evidence of prejudice to the State if a trial were 

required. 

The question of whether defendant should have been 

granted the right to withdraw his pleas of guilty is a due 

process question and cannot be tied to the State's ability to 

prosecute once the pleas are withdrawn. Therefore I would 

grant to the defendant the choice of whether he will withdraw 

his pleas of guilty and go to trial. I do agree, however, 

that if defendant makes this choice, it is fair that the 

State should be permitted to reinstate and proceed with the 

dismissed charges. 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 83-258 

STATE OF MONTANA, 

Defendant and Respondent, -. 

VS . 

JOHN TICE HENDRICKS, 

DEC3l 1384 plaintiff and AppelJ-ant- 

&fL@! Yb/ -j ;Ef*$*~$@ay 

CLERK OF SUPWEPVfE COURT 

8m-E OF MORITAMA 

ORDER ON R.EHEARING 

This Court handed down its original opinion in this 

cause on February 27, 1984, reported in 41 St.Rep. 315. 

Hendricks was convicted of burglary in the District 

Court, Ninteenth Judicial. District, Lincoln County. He was 

sentenced to three years in each of four offenses, to be 

served consecutively, but his sentence of imprisonment wa-s 

suspended upon certain conditions. One of the conditions was 

that he make restitution for an automobile valued at $12,000. 

Hendricks appeals from that portion of the sentence requiring 

him to make restitution for the value of: the automobile. 

Because the State and Hendricks had entered into a plea 

bargain, through their respective counsel, and because the 

District Court chose not to follow the terms of the plea 

bargain, this Court in its original opinion, under our 

holding in State v. Cavanaugh (Mont. 1983), 673 P.2d 482, 40 

St.Rep. 2007, remanded the cause to the District Court for 

further proceedings. In our original opinion here, we said 

that if on remand the District Court decided on final 
disposition of the case not to agree to the restitution 

concessions involving the 1982 Capri automobile, i.t should 

give the defendant a chance either to affirm or withdraw his 

plea of guilty. However, we also provided that if the county 

attorney presented evidence of prejudice to the State 

resulting from its inability to prosecute other charges which 

have been dismissed under the plea bargain, then the sentence 

would be affirmed. 

The oriqinal opinion in this cause was decided by a 

panel of five Justices assigned to the case. Three of the 

iustices agreed to the remand for further proceedings on the 

basis just stated. A fourth iustice agreed that Hendricks 

should have the opportunity to withdraw his plea of guilty, 

but that the county attorney should not be able to prevent 

the withdrawal of his plea of guilty by presenting evidence 

of prejudice to the state if a trial were required. A fifth 

justice dissented in any event to the remand. 

The State petitioned for a rehearing, contendinq that 

only three justices of the Court had decided to allow the 

State to show evidence as to the dismissed charges, if the 

defendant withdrew his plea. The State contended therefore, 

that the opinion as written was not a decision of the 

majority of the Court. 

We granted rehearing and oral argument was had on the 

matter before this Court on September 24, 1984. On 

reconsideration by the full Court, 

IT IS NOW HEREBY ORDERED: 

1. The sentence imposed upon the defendant John Tice 

Elendricl;~ is modified by striking therefrom all- provisions 

relating to restitution to be made by him for or on account 
of the 1982 Capri automobile, and as so modified, the 

iudgrnent of the District Court is affirmed. 

2. This Order is prospective only, and shall apply only 

to payments not heretofore made by Hendricks relating to said 

1-982 Capri automobile. 

DATED this 213 day of December, 1984. 

We Concur: 

%&,%& Chief Justice 

Justices 

Mr. Justice L. C. Gulbrandson, dissenting: 

I dissent for the same 

the Opinion in this cause. 

ustice