No. 14512 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

IN THEMATTER OF ANTHEL LAVAN BROWN, a/k/a ROBERT MICHAEL WILCOX, a/k/a BO-BO-BROWN, Defendant and Petitioner.

Appeal from: District Court of the Eighteenth Judicial District,

ORIGINAL PROCEEDING:

Counsel ofRecord: For Petitioner: JohnW. McDonald, Missoula,Montana James Taylor argued, Missoula,Montana For Respondent: Hon. Mike Greely,Attorney General,Helena,Montana Mary B. Troland argued,Assistant Attorney General,

Helena, Montana Donald White argued, CountyAttorney, Bozeman,Montana

Submitted: October 30, 1979 

### - rrtnr, Decided: 

### .jfib!

## 1' ISCVMr. Justice John C. Sheehy delivered the Opinion of the Court. Petitioner, Anthel LaVan Brown, appeals the order of the Gallatin County District Court which denied his petition for withdrawal of his guilty plea. The sole issue in this appeal iswhether the District Court,before accepting defendant's guilty plea, established that the defendant voluntarily and understandingly entered his plea onwhich he

was sentenced. On November 20, 1978,defendant filed a petition for postconviction relief with this Court. We remanded the petition to the District Court which held a postconviction hearing on December 5, 1978,and filed its order of January 18, 1979,denying defendant's request forwithdrawal of his guilty plea. Defendant appeals the District Court's denial of his petition. The State's information charged the defendant with five offenses: count 1,felony theft; count 2,deliberatehomicide; count 3, sexual intercourse without consent;count 4,robbery; and count 5,aggravated assault. At his arraignment, the defendant's attorneys stated that the defendantwished to enter a guilty plea. The court established on the record its instruction to the defendant that defendant's attorneysbelieved that entry of a guilty plea was not in the defendant's best interest, and that such a plea was awaiver of his constitutional rights to trial by jury, to confront and cross-examinewitness, and his right against self-incrimination. Defendant's counsel informed the court that defendant wished to enter a guilty plea because of his dislike of maximum security confinement in the Gallatin County jail. The court stated to the defendant that such confinementwas a necessity and was an irritationmore than anything else. The court asked defendant whether he believed a guilty pleawould result in his sudden release, and the defendant replied that he knewwhere he was going. The court informed the defendant of the maximum charge for each offense and that the rest of his life even at best would be spent in confinement. The court stated for the record that it had received from the county attorney a statement from

a psychiatrist stating that the defendantwas sane and capable to stand trial. The defendant then pleaded guilty to each of the five counts contained in the information. The court continued the hearing until the afternoon,and after recess againwent through each of the charges against the defendant, read to the defendant the acts alleged under each count of the information,and asked the defendant to explain in his ownwords what he did. With regard to the charge of felony theft, the information charged the defendant with the theft of a .22Hi-Standard revolver,numerous .22 shells,and a suitcasevalued in excess of $150. The defendant admitted that he stole the revolver and shells but stated that he owned the suitcase. If thiswere true, the remaining articlesmay not have had enough value to constitute a felony. The information charged the defendant committed deliberate homicide by willfully, purposely, or knowingly,orwhile engaged in the commission of or attempt to commit a robbery causing the death of Glen Belnap by shootinghim with a firearm. Concerning this charge,the defendant admitted entering the deceased'spremises with a gun, and that the deceased

was dead when he left,but defendant did not recall whether he fired his gun. The court then read the last three charges, and to each charge, the defendant stated that he did not do -3-anything, that he never even saw thevictim of the rape, robbery, and assault. The court accepted the defendant's guilty pleas and at defendant's request immediately sentenced him. The sentence provided that the defendant should serve the maximum term provided for each of the five counts, a total of 190 years in prison. Defendant claims that the District Court erred in accepting his guilty plea because he professed his innocence concerning the rape, robbery and assault charges,and could not recallwhether he committed the homicide. Defendant maintains that the court should have established on the record a factualbasis for each of these charges before it accepted his plea. Defendant also claims error in the District Court's failure to instruct defendant that he mightmitigate the chargesof felony theft and deliberate homicide.' The final assertion of error is that the DistrictCourt,having been informed that defendant objected to the nature of his incarceration, should have inquired into conditions of his confinement to determine whether the guilty plea was truly voluntary. The defendant's first contention is that the District Court erred in accepting his guilty plea before it established a factualbasis in the record to support the plea. Defendant cites Boykinv. Alabama (1969),395 U.S. 298, 89 S.Ct. 1709, 23 L.Ed.2d 274, for the proposition that the trial court shall not accept a guilty plea without firstdetermining that it isvoluntarywith an understanding of the charge. See also, sections 46-16-105 and 46-12-204(2), MCA. He argues that the record does not disclose that the District Court made such a determinationhere because his guilty plea was accompanied by a declarationof innocence. The defendant's argument lacksmerit. There isno constitutional prohibition against accepting the guilty plea -4-of a defendant who denied his actual guilt. North Carolina

v. Alford (1970),400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. There is no set standard to be applied by a court in handlingmotions towithdraw a guilty plea. Statev. Lewis

(19781,173Mont. 1, 582 P.2d 346. The trial court's decision concerning the motion is subject to review only upon a showing of an abuse of discretion. State v. Doty

(19771,173Mont. 233, 566 P.2d 1388. Here there was no abuse of discretion because the record establishedby the trial court includes a substantial factualbasis for the plea, and further shows the defendant's almost obstinate insistence that he be allowed to plead guilty to all five counts. The State filed an affidavit of probable cause to support itsmotion for leave to file an information. Judge Lessley, who presided at defendant's arraignment, signed the order granting the State'smotion. The State's affidavit established the following events: At lsOO a.m. on the morning of September 23, 1979, a female taxi cab driver in Bozeman reported to police that

a 20 to 25 year old man, 5'6" tall with blorrjehair and a mustache and wearing blue denim pants had sexually assaulted her, and at gunpoint had taken her wallet, a bowling card receiptwith her name printed on the card, and her food stamps. Later thatmorning the police received another complaint concerning aman matching the same description. The complainant reported the theft of a .22 caliber revolver. The

same day a person matching the defendant's descriptionwas seen running from Hoadley's Standard Station where Glen Belnap

was just shot and killed. The deceased was shot five times with .22 caliberbullets. The fleeing suspectwas described

aswearing a blue coatwith a fur-lined hood.The defendant is in fact 5'6" tall, 150 pounds, with blonde hair and amustache. He was arrested in Butte, Montana and taken to the Bozeman police stationwhere he confessed that he entered Hoadley's Standard Station with the intent to rob, and that in the course of the robbery he killed the storeowner. The police obtained a searchwarrant and searched defendant's room where they obtained a blue coatwith a fur-lined hood, a pair of blue denim jeans,a partially burned bowling cardwith the firstname of the rape victim still visible, some food stamps,and five spent .22 caliber shell casings. The defendant had in his possession

a .22 Hi-Standard revolver when he was arrested. The defendantwas not unaware of the acts charged against him. The transcriptof defendant's arraignment shows that the court thoroughly familiarized the defendant with acts alleged in the information concerning each of the five counts. Under these circumstances, the court did all that itwas reasonably expected to do to enable the defendant to understand the charges against him as they relate to the facts of this case. We conclude that the State's affidavit and the transcript of the arraignmentestablished an adequate factual basis for defendant'splea. In spite of the thoroughprocedures taken by the trial court to protect the defendant's rights,he contends that the record does not establish that he understood the charge of felony theft. The defendant argues that sincehe denied having stolen a suitcase,and the two itemswhich he admitted having stolen are probably less than $150 invalue, the facts towhich he confessed are only amisdemeanor. Thus,he argues that the court had a duty to informhim that if he went to trial and proved that he owned the suitcase,he -6-might mitigate the charge of felony theft, a misdemeanor, and reduce his sentence. See Jonesv. State ofMontana

(D.Mont. 1964), 235 F.Supp. 673. This argument lacks merit because the record of the arraignment includes statementsby defendant's counsel that defendant had been informed by counsel that the acts which he admittedmight only constitute a misdemeanor. The District Court's repetition of this explanation to the defendant would not have added to his understanding of the charge,' and was not required here. The defendant argues that the record fails to establish that he understood the consequencesof pleading guilty to deliberatehomicide. He maintains that,the court had a duty to informhim that the charge of deliberate homicide might be mitigated with a showing at trial that he lacked the intent willfully, purposely, or knowingly to kill the deceased. See State v. Azure (1977),

## -Mont

# . , 573 P.2d 179, 34 St.Rep. 1569. This argument also lacks merit. The State's information charged the defendant with willful felonymurder as well as with willful and deliberate murder, and its affidavit of probable cause stated that defendant had confessed to entering Hoadley's Standard Stationwith the intent to rob and in the course of the robbery had shot the deceased,Glen Belnap. Thus it was clearly on record that the State had a case against the defendant on the charge of felonymurder. The last contention raised by defendant is that the court erred by failing to inquire into the voluntariness of the defendant's pleas when he stated that he was pleading guilty to get out of jail and to get out of the county. However, the record clearly shows that defendantwas under no compulsion to enter his plea. The defendant's counsel stated that defendant objected to his confinement in the county jail -7-because he was placed inmaximum security quarters. A prisoner's dislike of the security quarters is not per se

a factor in determining the voluntariness of his plea. Kress

v. United States (8th Cir. 1969), 411 F.2d 16;~erdon v. United States (8thCir. 1961), 296 F.2d 549, 552, cert.den. 370 U.S. 945 (1962). Neither defendant nor his counsel have suggested that conditions in the jail were substandard or in any way abusive. There is nothing in the record to suggest that the jail conditions coerced the defendant into entering his plea. Under these circumstancesno error was commited by the District Court in accepting defendant's guilty plea without further inquiry. We find that the record developed by the DistrictCourt before accepting the defendant's plea indicates that defendant pleaded voluntarily and understandingly to each of the charges againsthim. Accordingly, the District Court's denial of defendant's petition forwithdrawal of his guilty plea is affirmed.

We Concur: Justice

Chief Justice

J Justices Mr. Justice Daniel J. Sheawill file a written dissent at a later time.