No. 14512 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

IN THE MATTER 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 of Record: 

For Petitioner: 

John W. 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, County Attorney, Bozeman, Montana 

Submitted: October 30, 1979 

- rrtnr, Decided: .jfib! 1 ' ISCV 
Mr. 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 is whether the District Court, before accepting 

defendant's guilty plea, established that the defendant 

voluntarily and understandingly entered his plea on which 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 for withdrawal 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, deliberate homicide; 

count 3, sexual intercourse without consent; count 4, robbery; 

and count 5, aggravated assault. At his arraignment, the 

defendant's attorneys stated that the defendant wished to 

enter a guilty plea. The court established on the record its 

instruction to the defendant that defendant's attorneys believed 

that entry of a guilty plea was not in the defendant's best 

interest, and that such a plea was a waiver of his constitutional 

rights to trial by jury, to confront and cross-examine witness, 

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 confinement was a necessity and was an irritation 
more than anything else. The court asked defendant whether 

he believed a guilty plea would result in his sudden release, 

and the defendant replied that he knew where 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 defendant was 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 again went 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 own words what he did. 

With regard to the charge of felony theft, the information 

charged the defendant with the theft of a .22 Hi-Standard 

revolver, numerous .22 shells, and a suitcase valued in excess 

of $150. The defendant admitted that he stole the revolver 

and shells but stated that he owned the suitcase. If this were 

true, the remaining articles may not have had enough value to 

constitute a felony. 

The information charged the defendant committed deliberate 

homicide by willfully, purposely, or knowingly, or while 

engaged in the commission of or attempt to commit a robbery 

causing the death of Glen Belnap by shooting him with a firearm. Concerning this charge, the defendant admitted entering 

the deceased's premises 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 

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anything, that he never even saw the victim 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 recall whether he committed the homicide. Defendant 

maintains that the court should have established on the record 

a factual basis 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 might mitigate the 

charges of felony theft and deliberate homicide.' The final 

assertion of error is that the District Court, 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 factual basis in the record to support the plea. Defendant 

cites Boykin v. 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 first determining that 

it is voluntary with 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 determination here because his guilty plea was 

accompanied by a declaration of innocence. 

The defendant's argument lacks merit. There is no 

constitutional prohibition against accepting the guilty plea 

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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 

handling motions to withdraw a guilty plea. State v. Lewis 

(19781, 173 Mont. 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, 173 Mont. 233, 566 P.2d 1388. Here there was no abuse 

of discretion because the record established by the trial 

court includes a substantial factual basis 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 

its motion for leave to file an information. Judge Lessley, 

who presided at defendant's arraignment, signed the order 

granting the State's motion. 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 

receipt with her name printed on the card, and her food stamps. 

Later that morning the police received another complaint 

concerning a man matching the same description. The complainant reported the theft of a .22 caliber revolver. The 

same day a person matching the defendant's description was seen 

running from Hoadley's Standard Station where Glen Belnap 

was just shot and killed. The deceased was shot five times 

with .22 caliber bullets. The fleeing suspect was described 

as wearing a blue coat with a fur-lined hood. 
The defendant is in fact 5'6" tall, 150 pounds, with 

blonde hair and a mustache. He was arrested in Butte, 

Montana and taken to the Bozeman police station where 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 search warrant 

and searched defendant's room where they obtained a blue 

coat with a fur-lined hood, a pair of blue denim jeans, a 

partially burned bowling card with the first name 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 defendant was not unaware of the acts charged against 

him. The transcript of 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 it was 

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 arraignment established an adequate factual 

basis for defendant's plea. 

In spite of the thorough procedures 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 since he denied 

having stolen a suitcase, and the two items which he admitted 

having stolen are probably less than $150 in value, the facts 

to which he confessed are only a misdemeanor. Thus, he 

argues that the court had a duty to inform him that if he 

went to trial and proved that he owned the suitcase, he 

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might mitigate the charge of felony theft, a misdemeanor, 

and reduce his sentence. See Jones v. State of Montana 

(D. Mont. 1964), 235 F.Supp. 673. This argument lacks merit 

because the record of the arraignment includes statements by 

defendant's counsel that defendant had been informed by counsel 

that the acts which he admitted might 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 consequences of pleading guilty to 

deliberate homicide. He maintains that, the court had a duty 

to inform him 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 felony murder as well as 

with willful and deliberate murder, and its affidavit of 

probable cause stated that defendant had confessed to entering 

Hoadley's Standard Station with 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 felony murder. 

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 defendant was under no compulsion 

to enter his plea. The defendant's counsel stated that 

defendant objected to his confinement in the county jail 

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because he was placed in maximum 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 (8th Cir. 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 circumstances no error was commited 

by the District Court in accepting defendant's guilty plea 

without further inquiry. 

We find that the record developed by the District Court 

before accepting the defendant's plea indicates that defendant 

pleaded voluntarily and understandingly to each of the charges 

against him. Accordingly, the District Court's denial of 

defendant's petition for withdrawal of his guilty plea is 

affirmed. 

We Concur: 

Justice 

Chief Justice 

J Justices 

Mr. Justice Daniel J. Shea will file a written dissent at 

a later time.