NO. 95-042 INTHESUPREMECOURTOFTHESTATE OFMONTANA 1995

STATE OFMONTANA,

Plaintiff and Respondent,

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

In and for the County of Ravalli, The Honorable Jeffrey H. Langton, Judge presiding.

COUNSELOFRECORD:

For Appellant: William F. Hooks, State Appellate Defender, Helena, Montana

For Respondent: Hon. Joseph P. Mazurek, Attorney General; Patricia Jordan, Ass't Attorney General, Helena, Montana George Corn, Ravalli County Attorney, Hamilton, Montana

Filed: Submitted onBriefs: August 17, 1995 Decided: October 24, 1995Justice W.William Leaphart delivered the Opinion of the Court.

Michael RayNelson (Nelson) appeals from the judgment entered bythe Twenty-First Judicial District Court, Ravalli County, onhis guilty plea to the offenses of felony assault, criminal mischief, andresisting arrest. Weaffirm. OnSeptember 7, 1994, Nelson wascharged byinformation with three counts of felony assault, onecount of misdemeanor assault,

one count of misdemeanor resisting arrest and one count of misdemeanor criminal mischief. Twoweeks later, Nelson entered pleas of not guilty toall charges. Atthe arraignment, the county attorney presented apsychological evaluation of Nelson. Defense counsel did not object to the admission of the evaluation. OnOctober 4, 1994, Nelson entered into aplea agreement in which the State dismissed two counts of felony assault and one count of misdemeanor assault. Nelson then pled guilty to onecount of felony assault andthe twomisdemeanors of resisting arrest and criminal mischief. OnOctober 4, 1994, Nelson signed aPleaof Guilty andWaiver of Rights. Nelson's Plea of Guilty andWaiver of Rights stated that Nelson voluntarily plead guilty, explained the rights being waived, outlined the sufficiency of his attorney's representation, detailed in his ownwords the factual basis for his guilty plea, and asserted that he was not under the influence of drugs or alcohol. Thenext day, during the court's interrogation at the change of plea hearing, the District Court confirmed Nelson's 2understanding of the nature andpotential penalties for each of the

charges against him. The court confirmed Nelson's understanding of the rights hewaived in entering pleas of guilty andthat hehad no right to withdraw his guilty pleas. The court determined that Nelson had not been threatened or forced into pleading guilty and that hehad not consumed any drugs or alcohol that could affect his judgment or ability to communicate. Nelson admitted that his counsel was competent and had advised him well. Nelson explained, in his ownwords, the facts upon which the charges and his guilty pleas were based. At the change of plea hearing, the court inquired whether Nelson understood that the county attorney wasnot recommending any particular sentence, and that regardless of the actual sentence, Nelson would have noright to withdraw his pleas. Nelson responded that he understood. The court accepted the plea agreement and found Nelson guilty as charged. Defense counsel then moved the court to release Nelson onhis ownrecognizance (hereinafter "OR") pending sentencing. While this release was not part of the plea agreement, the State hadnoobjection to the motion. After abrief discussion regarding Nelson's sentencing date and bail, the court declined to release Nelson on OR and the following colloquy occurred: THE COURT:

. . . . Anything else? THE DEFENDANT: Yes, Your Honor. I'm not going to do this. This wasn't myagreement. This understanding -- I'm not ready to plead yet. I'd like you to send meover to Warm Springs, sir, because I can't take any more of it. I honest to Godcan't. They told methat they'd do an OR. I thought this was part of the plea agreement. 3That's not happening here, sir.

MR. STENERSON: Your Honor, for the record, I did not tell him it was part of the plea agreement. I told him if he took this plea agreement that Mr. Corn would not oppose anORand that was still upto the Court. THEDEFENDANT: Your Honor, in regard to the guilty pleas

__ THE COURT: Mr. Nelson, that's already adone deal. YOU plead guilty. THE DEFENDANT: Your Honor, I can't take any more of this. You have to send meto WarmSprings. This isn't the deal that -- THE COURT: Silence, Mr. Nelson, or I will have you removed. THEDEFENDANT: Your Honor, can you do something or -- THECOURT: I can have you removed. Sheriff? Nelson raises three issues onappeal. First, did the District Court fail to adequately advise Nelson of the consequences of pleading guilty and, as a result, were his pleas knowingly, intelligently and voluntarily entered. Second, did the District Court err in considering the mental evaluation report, prepared at the direction of the State, without counsel present and without Nelson having been advised of his rights. Finally, did the District Court fail to consider alternatives to imprisonment for a nonviolent felony offense pursuant to 55 46-18-225, and 46-18- 201(10), MCA, before sentencing Nelson to aterm of imprisonment.

1. Did the District Court fail to adequately advise Nelson of the consequences of pleading guilty and, as a result, were his pleas knowingly, intelligently andvoluntarily entered? Nelson argues that heshould have been allowed to withdraw his

4guilty pleas because the District Court did not adequately advise

him of the consequences of pleading guilty, specifically the possibility that he could be designated adangerous offender thus restricting his eligibility for parole. The principles governing the entry and withdrawal of guilty pleas are set forth in both case law and statutes. State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177. District courts must meet the statutory requirements found in 5546-12-210 and 46-16- 105(l), MCA, before accepting aguilty plea. Section 46-16-105(2), MCA, regarding the withdrawal of aguilty plea, provides:

At any time before or after judgment the court may, for good cause shown, permit the plea of guilty to be withdrawn and aplea of not guilty substituted. This Court has consistently stated that no set rule or standard exists under which adistrict court addresses arequest to withdraw aguilty plea, and that each case must be considered in light of its unique record. Enoch, 887 P.2d at 177; State v. Radi (1991), 250 Mont. 155, 158-59, 818 P.Zd 1203, 1206. The grant or denial of a motion to withdraw a guilty plea is within the discretion of the district court. Radi -I 818 P.2d at 1206. Our standard in reviewing a district court's denial of a motion to withdraw a guilty plea is whether the district court abused its discretion. Enoch, 887 P.2d at 177; State v. Reynolds (19921, 253 Mont. 386, 390-91, 833 P.2d 153, 155. Whenpleading guilty to acriminal charge adefendant waives

numerous constitutionally based rights and protections. -, Radi 818 P.2d at 1206. In light of the significance of the rights that are

5waived uponaplea of guilty, it is well-settled that aguilty plea

must be avoluntary, knowing, and intelligent choice amongthe alternative courses of action open to the defendant. North Carolina v. Alford (1970), 400U.S. 23, 91S.Ct. 160, 27L.Ed.2d 162; w, 818P.2d at 1206. This Court balances three factors whenconsidering acriminal defendant's attempt towithdraw aguilty plea: (1) the adequacy of the court's interrogation at the time the plea was entered regarding the defendant's understanding of the consequences of the plea; (2) the promptness with which the defendant attempts to withdraw the plea; and(3) the fact that theplea wasthe result of

aplea bargain in which the guilty plea wasgiven in exchange for dismissal of another charge. Enoch, 887P.2d at 177. In the present case, weneednot engagein ananalysis of the abovethree factors because, although Nelson sought towithdraw his pleas dueto his misunderstanding asto release onrecognizance, Nelson did not attack thevoluntary nature of his pleas. SeeState

v. Mason (19921, 253Mont. 419, 424, 833 P.2d 1058, 1061. The record reveals that Nelson did not moveto withdraw his guilty pleas onthe grounds that the District Court failed to adequately advise him that hecould bedesignated adangerous offender for parole purposes. Rather, Nelson objected solely to the District Court's decision to set bail instead of releasing him onhis own recognizance prior to sentencing. Release onhis ownrecognizance wasnot included in Nelson's plea agreement and, inresponse toNelson's objection, his attorney

6specifically denied that release on ORwas part of the plea

agreement. Thus, Nelson can not argue that his objection to bail instead of ORwas related to the voluntary nature of his guilty pleas because ORwas not a condition of his plea agreement. In other words, he did not plead guilty in order to gain release on OR, hepled guilty onthe condition that the State drop two of the felony assault charges. In fact, Nelson's Plea of Guilty and Waiver of Rights states: "I amnot entering this plea of guilty in order to get released from jail." Nor can herelate his objection to being denied ORto the issue he now raises that he was not adequately advised that hecould bedesignated adangerous offender for parole purposes. Nelson's objection andmotion to withdraw did not raise any of the grounds onwhich he now appeals. This Court does not review issues which were not preserved for appeal in the court below. Sections 46-20-104 and 46-20-701, MCA. Wehave held that failure to raise an issue before the district court bars adefendant from raising the issue on appeal under § 46-20-104, MCA. State v. Arlington (1994), 265 Mont. 127, 151, 875 P.2d 307, 321. Wehold that Nelson's contemporaneous motion to withdraw his pleas did not raise aquestion as to the adequacy of the court's interrogation. Further, although §46-16-105(2), MCA, would have allowed apostjudgment motion attacking the voluntariness of the pleas, no so such motion wasmadein the District Court. Thus, Nelson is barred from raising the issue of whether hewasadvised of the possibility and consequences of being designated a dangerous offender on

7appeal.Wehold that Nelson did not, either before or after judgment,

move to withdraw his guilty pleas for lack of voluntariness. The District Court did not abuse its discretion in denying Nelson's motion to withdraw his guilty pleas based solely upon his misunderstanding as to being released on his own recognizance.

2. Did the District Court err in considering the mental evaluation report, prepared at the direction of the State without counsel present andwithout Nelson having been first advised of his rights?Nelson argues that the District Court erred in considering and relying onanemergency mental health evaluation report prepared in violation of Nelson's Fifth Amendment rights. However, Nelson failed to object to the admission of the report either when the report was incorporated into the Presentence Investigation Report

or at the sentencing hearing. This Court does not review issues which were not preserved for appeal in the court below. Sections 46-20-205 and 46-20-701, MCA. Wehave held that failure to raise

an issue before the district court bars adefendant from raising the issue onappeal under 546-20-104, MCA. Arlinqton, 075P.2d at 321. Thus, Nelson is barred from raising the issue of the mental health report on appeal.

3. Did the District Court fail to consider alternatives to imprisonment for anonviolent felony offense pursuant to 5546-l& 225, and 46-18-201(10), MCA,before sentencing Nelson to aterm of imprisonment? Nelson qualified as anonviolent felony offender. Heargues that Montana law, §46-18-201(10), MCA, requires the sentencing 8court to consider alternatives to incarceration whensentencing

nonviolent offenders. In three recent cases in which the district courts failed to consider alternatives toincarceration for nonviolent offenders, we remanded for resentencing. State v. Pence (Mont. 1995), 902P.2d 41, 52St.Rep. 937; State v. LaMere (Mont. 1995), 900P.2d 926, 52 St.Rep. 828; State v. Stevens (1993), 259Mont. 114, 854P.2d 336. However, in eachof these cases the defendants raised the issue of consideration of alternatives to incarceration before the district court. In Pence, I'Ii1mmediately following the District Court's oral ruling, Pence's counsel asked the judge to reconsider his sentence, pointing out that the court was required to consider alternatives to incarceration." Pence -, 52 St.Rep. at 939. In LaMere, weheld that the defendant's objections to the sentence and request for reconsideration were sufficient to preserve the issue for appeal. LaMere, 900P.2d at 928. Stevens also specifically raised the issue of sentencing alternatives before the district court. Stevens, 854P.2d at 337. However, in the instant case, the issue of consideration of alternatives to imprisonment wasnot raised before the District Court. Nelson did not object to the court's failure to consider sentencing alternatives. Thetranscript of the sentencing hearing reveals that Nelson did not object to the sentence imposed nor did herequest reconsideration. Aswestated earlier, this Court does not review issues which werenot preserved for appeal inthe court below. Sections 46-20-104 and46-20-701, MCA. Wehaveheld that

9failure to raise an issue before the district court bars a

defendant from raising the issue onappeal under §46-20-104, MCA. Arlincrton, 875 P.2d at 321. Thus, Nelson is barred from raising the issue of consideration of alternatives on appeal. Wenote that although the District Court enunciated reasons for its sentence, it did not specifically reference the statutory requirement that it consider alternatives to incarcerating a nonviolent offender or the criteria set forth in §46-18-225, MCA. Prior to sentencing anonviolent felony offender to imprisonment, the court must examine and take into account the ten specific criteria set forth in 546-18-225, MCA. Section 225 requires consideration of such things as where the needs of the offender would be best served. These statutes do not provide the court with any discretion. Thelegislature has directed trial courts to make these considerations before any nonviolent offender is incarcerated. LaMere, PO0P.2d at 928 (emphasis added). Explicit, rather than implicit consideration of the criteria makes for a much more meaningful appellate review. In future cases, we strongly encourage district courts, in imposing sentence upon nonviolent offenders, to specifically recognize and address the criteria set forth in §46-18-225, MCA. Affirmed.

10We c

11MICHAELRAYNELSON, ) Defendant andAppellant. ; OnOctober 24, 1995, the Opinion of this Court in the aboveentitled cause wasfiled. OnNovember 2, 1995, appellant Michael RayNelson (Nelson) filed aPetitionfor Rehearing orModification of Opinion. Nelson alleges that this Court's Opinion of October 24, 1995wasin direct conflict with controlling decisions of this Court andthat the Court overlooked material facts. TheState of Montana filed its objections to Nelson's petition onNovember 6, 1995.After review of this Court's opinion issued onOctober 24, 1995, and having considered Nelson's Petition for Rehearing or Modification of Opinion as well as the State's Objections to Petition for Rehearing, we conclude that while the following changes are necessary to clarify this Opinion in regard to our previous opinions in Lenihan and Hatfield, the holding of our original opinion still stands. Therefore, IT ISORDERED: 1. Thepetition for modification of opinion is GRANTED. 2. Issue 3of this Court's October 24, 1995, Opinion (Slip Op. pp. 8through lo), is hereby withdrawn andreplaced with the following:

3. Did the District Court fail to consider alternatives to imprisonment for ancnviolent felony offense pursuant to §§46-18-225, and46-18-201(11) [formerly (lo)], MCA, before ser?tsncir.g Xelscr. to aterm of imprisonment? Nelson qualified asarcnviolent felony offender. Hearguesthat Montana law, 546-18-201(11), MCA,requires the sentencing

court to consider alternatives to incarceration when sentencing nonviolent offenders. In three recent cases in which the district courts failed to consider alternatives toincarceration for nonviolent offenders, we remanded for resentencing. State v. Pence (Mont. 1995), 902P.2d 41, 52St.Rep. 937; State v. LaMere (Mont. 19951, 900P.2d 926, 52 St.Rep. 828; State v. Stevens (1993), 259Mont. 114, 854P.2d 336. However, in these cases the defendants raised the issue of consideration of alternatives to incarceration before the district court, or, asin Stevens, the State conceded that the statute had not been followed. Stevens, 854 P.2d at 337. In Pence, tl[ilmmediately following the District Court's oral ruling, Pence's counsel asked the judge to reconsider his sentence, pointing out that the court was required to consider alternatives to incarceration." Pence 902P.2d at 44. In LaMere,

-r weheld that the defendant's objections to the sentence and request for reconsideration were sufficient to preserve the issue for appeal. LaMere, 900P.2d at 928. However, in the instant case, the issue of consideration of alternatives to imprisonment wasnot raised before the District Court andthe State did not concede that the statute hadnot been followed. Thetranscript of the sentencing hearing reveals that Nelson did not object tothe court's failure to consider sentencing alternatives nor did herequest reconsideration. Nelson did request a deferred sentence at the sent3lcir.ghearing andheargues that this request is sufficient to preserve

the issue for appeal. However, arequest for adeferred sentence does not serve the samerole as an objection to the sentence actually imposed. Nelson did not alert the District Court to the alleged failure to consider alternatives to imprisonment. Thus, the court wasnot able to correct anydeficiency in the sentencing process. Aswestated earlier, this Court doesnot review issues which

werenot preserved for appeal in the court below. Sections 46-20- 205 and 46-20-701, MCA. Wehave held that failure to raise an issue before the district court bars adefendant from raising the issue onappeal under §46-20-104, MCA. Arlinston, 875 P.2d at 321. Anexception to this general rule is found in the holdings of State v. Lenihan (1979), 184Mont. 338, 602P.2d 997andState v. Hatfield (1993), 256Mont. 340, 846P.2d 1025. In those cases we held that anappellate court mayreview anysentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is madeat the

time of sentencing. Lenihan, 602P.2'dat 1000; Hatfield, 846P.2d at 1029 (emphasis added). While not disturbing the holdings of these cases, wefind the instant casedistinguishable. In Lenihan, the defendant pled guilty to burglary and his three-year sentence wasdeferred. Heappealed from the sentencing condition requiring himtopay$250asreimbursement for his public d&end*r 1

5aEcorney's fees. Lenihan argued that because Montana

3doesnot have arecoupment statute, the district court's order to

reimburse the county for attorney's fees wasinvalid. TheState countered, inter alia, that Lenihan did not object toreimbursement in the district court. This Court held:

Traditionally, in both civil andcriminal matters, this Court hasnot accepted for review issues which were not objected to at the trial level.

. . . This Court, however, hasnever specifically ruled on the question presented here. That is, whether an objection at the trial level is aprerequisite to the challenging of asentencing order onappeal. This issue has been ruled on in other jurisdictions with varying results.

. . .

It appears to be the better rule to allow an appellate court to review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is madeat the time of sentencing. Lenihan, 602 P.2d at 1000 (emphasis added; citations omitted). Because the district court exceeded its statutory authority by requiring Lenihan to reimburse the county for attorney's fees, this Court remanded Lenihan's sentence with instructions to vacate the condition of repayment of attorney's fees. Lenihan, 602 P.2d at 1001.In State v. Hatfield, Hatfield appealed his convictions of sale of dangerous drugs andconspiracy to sell drugs. Hatfield argued that the court condition: Defendant mayberequired to serve upto anadditional

_ one hundred-eighty days. at tile discretion or tne supervising Probation Officer.

. . The Probation Officer hasthe right to decide the amou3-lor cl-e to b,e served for anyinfraction, u;,to t‘r.eentire o~-~e i-.-.;u:ldred erred in imposing the following sentencing

4eighty days.

. .

Hatfield, 846P.2dat 1029. This Court noted that Hatfield did not object to the sentence at the time it was entered. However, relying on the Lenihan holding that acriminal sentence maybe reviewed onappeal if it is alleged to beillegal or in excess of statutory mandates, the Court addressed the sentencing issue. The Court stated: "Wehavelong held that adistrict court hasnopower to impose a sentence in the absence of specific statutory authority." Hatfield, 846P.2dat 1029. Holding that the district court hadexceeded its statutory authority bydelegating sentencing discretion to aprobation officer andbyimposing acondition that could haveresulted inHatfield spending moretime injail than the maximum sentence allowed, the Court remanded the case for resentencing. Both Lenihan and Hatfield involved situations where the judgment wasvoid dueto lack of statutory authority. In Lenihan andHatfield, the district courts' sentences were illegal or in

excess of statutory authority because the courts lacked the specific statutory authority to impose the sentence. Unlike Lenihan and Hatfield, Nelson's sentence is neither illegal nor does it exceed statutory authority. Sections 46-18- 201(11) and46-18-225, MCA,donot preclude acourt from sentencing

anonviolent felony offender to prison. Section 46-18-225, MCA, states: "Prior to sentencing anonviolent 'felony offender to aterm of imprisonment

. .I' the court shall take into account certain criteria. Section 46-18-201(11) states: 1' If the offender is

5subsequently sentenced to the state prison

. .'I the court shall

state whyalternatives to imprisonment werenot selected. Although these statutes require consideration of alternatives to imprisonment, suchconsideration wouldnot havenecessarily changed the court's final sentence for Nelson. Nelson's sentence of ten years is not in excess of the maximumstatutorily authorized by §45-5-202(3), MCA. Sections 46-18-201(11) and 46-18-225, MCA, impose an affirmative duty upon the court to take certain matters into consideration in sentencing. If the court fails to abide bythis requirement, the sentence is subject to challenge or objection. That doesnot mean, however, that in the absence of anobjection, the sentence is thereby illegal. The District Court, after considering the criteria in § 46-18-225, MCA, and stating its

reasons why alternatives to imprisonment were not selected as required by § 46-18-201(11), MCA, could still have 'legally sentenced Nelson to ten years in prison. Thus, Nelson's sentence doesnot comewithin the exception found in Lenihan andHatfield. Having failed to object to the sentence or to move for reconsideration, Nelson is barred from raising the issue of consideration of alternatives onappeal. Wenote that although the District Court enunciated reasons for its sentence, it did not specifically reference the statutory requirement that it consider alternatives to incarcerating a nonviolent offender or the criteria set forth in §46-18-225, MCA. Prior to sentencing anonviolent fe1cr.y offender to imprisonment,

6the court must examine and take into account the ten specific

criteria set forth in §46-18-225, MCA. Section 225 requires consideration of such things as where the needs of the offender would bebest served. These statutes do not provide the court with any discretion. Thelegislature hasdirected trial courts to makethese considerations before anynonviolent offender is incarcerated. LaMere, 900P.2d at 928 (emphasis added). Explicit, rather than implicit consideration of the criteria makes for a much more meaningful appellate review. In future cases, we strongly encourage district courts, in imposing sentence upon nonviolent offenders, to specifically recognize andaddress the criteria set forth in §46-18-225, MCA. Affirmed

3. In all other respects, Nelson's Petition for Rehearing is DENIED. Let Remittitur issue forthwith. 4. TheClerk is directed to mail copies of this order to counsel of record for the respective parties, West Publishing Company, State Reporter Publishing Company, and the Honorable Jeffrey H. DATED