No. 00-803 1~ -. 'TI-f~ SUPKEGIE COURT OF IHESTATE OF M@XAh'.'r 7002 h4T 11-1

Plaintiffa~~d Respondent.

Defendant and A4ppcllant.

APPEAL FROM: District Court of the Fourth Judicial District, In aud for the Cotirlry of Mineral, Honorable Ed McI,can, Judge Presiding COUNSEL, OF RECORD: For Appellant: Mark E. Jones. Attorney at I.a\v, %lissoilla,h~loiitana I'or Respondent tlonorablc Mike McGrath, Afiorney General; Cregg W. Coughlin, Assistant Attorney General; Helena, hlontana M. Shauu Donovan, County Attorr~ey, Superior, Moniana

Submitted on Briefs: ,4t1gust0, 2001 Decided: May 30, 2002Justice Jim Rice delivered the Opinion of the Court. 

## 5I Robc1-iJohnBoucher (Bouehet)appeals lhcdenial ofhisappeal to the i:or:i?h Judicial Disriict Court. Bor!clier entered a plca ofguilty to driving tinder the influence of alcohol in Mincral County Justice Court. Afterjudgment, Boucher moved to withdraw tlie plea, and the Justice Court denied the motion. Rouchcr appealed to the District Court, which both found that Boucher's plea liad been entered voluntarily and dismissed the appeal clue to lack ofjurisdiction. This Court exercises subject matterjurisdictionby deeming Boucher's filing in the District Court as apetition forpostconviction relief. On the basis that the record does not support a finding that Boucllcr entered his plea voluntarily, ltnowingly and intelligently,

we reverse and remand. FACTCAL AXD 

### PROCEDURAL BACKGROUND 712 Boucher received a citation ibr driving under the influesice of alcohol (Dlil). in violation of 

### 8 61-8-401, MCA, o:i Noven~ber I I, 1999. I-leappeared in Mineral County Justice Court the following day and entered a plca of not guilty. At the time of his initial appearance, Justice ofthe Peace Wanda James advised Boucher ofhis constitutional rights, and Boucher signed a form that stated, in pertinent part: 1understand that if you [sic]willingly and knowingly enter aguiltyplea in this case, you [sic] are giving up your [sic] riglit to appeal this case to the district court. 

### '/3 On March 3 

### 1,2000,Bouclier, his attorney andthe county attorneyappeared in Justice James' court and discussed the possibility of arncnding thc charge to Dtilper se and someoilheramiiications of a guiltyplea. The State amended tile original conrpiaint and Boucher entered a plca of guilty to a Di,ri pi.^ st:' vioiatioi~, under 

## 8 6I-8-46> bICA, by 

### telephone conversation with Jristice James on April 3,2000. Justice James testified she did not recall whether she had reiterated or discussed waiver of Botlcher's right to appeal over the telephone at the time he chiingcd h~s plea. The court issued a n~~tten judgment mcmorialtzing the sentence, which was matled to Boucher. Thejudgment included the following statement: The Defendant may appeal this Judgment to the district courtby filing written notice of the appeal within ten days. 74 Boucher then learned that as a result ofhis guiltyplea his dr15ing pnxileges would be revoked in the State of Washington where he worked on a temporary construction job. On April 7, 2000, Boucher tiled a motion in Justice Court to withdraw his plea, stating the following basis: Thc plea was entered with the [Defendant's] understanding that he could continue driving. Subsequent events of no fatilt of any of the patties have proven this to be impossible. The Justice Conrt denied Boucher's motion. 

### Ti5 On April 12. 2000, Boucher tiled apt-o.ye, hand-written notice to the District Court of an appeal "to [his] guilty plea." The State immediately moved to dismiss the appeal. Boucher, with the assistance ofcounsel, filed a response to the motion, alleging that hisplea

was not knowing or voluntary because he had not been apprised by the Justice ofthe Peace at the time he entered the plea on April 

### 3, 20001that he was waiving his right to appeal6 At the hearing held on Septernbcr 14, 20i)O;the District C'oul~ rcvicwed t'ne Justice Coufiis denial ofRouchcr's motion to ~virhdraw his plea, Tl:e coil!? found Boucher !ladbeen informed at the time of his initial appearance on November 12, 19'99, that a guilty plea waived the right to a trial and appeal, 'The court also found tltat Justice James admonished Boucher on several occasions that any collateral consequences ofhis guilty plea, specifically including the effect on his driving privileges in Washington, wereunknown to the court and would have to be determined exclusively by Boucher with the assistance of counsel. The court noted that the Justice of the Peace did not make mention of any right to appeal the judgment whcn Boucher entercd his guilty plea bq tclepltone. 

### 77 The District Court concludcd that Boucher entered his guilty pic3 knowingly, voluntarily and intelligently. Further, the court held that the Justice Court's oraljudgment, which contained no mention of any right to appeal, controlled over the subsequent written judgment, which stated that the defendant could appeal within 10 days. On the issue of jurisdiction, the court eorieluded Boucher was not entitled to appeal to the district court as

a matter of law and granted the State's motion to dismiss. 

### 1!8 Boucher filed a notice ofappeal from the District Court's dismissal of his appeal. On October 20, 20001 the District Court stayed Roucher's sentence pending thc outcome ofthe appeal to this Court. C!, I: The threshold issuc before this Court is whether the District 

### fourthas jurisdiction to review a posteonvietion denial of a motion to withdraw a gr~ilty plea in Justice Court. 'I-heunderlying issuc is whether the District Court correctly concluded tlrat Bouchcr entered liis guilty-plea justice Court voiui~iarily.. " S'TANDARD 

### OF REVIEW 710 Whether to dismiss a claim based on lack of subject matter jurisdiction is a question of law. We review a district court's conclusions of labti to determine if they are correct. 

### In re :WorriageofSkillen, 19% 8T 43,79,287 klont. 399,T 9,956P.2d 1,t9. 

### A district court may permit the withdrawal of a guilty plea for good cause. Section 46-16-105(2)> 

### MCA. This Court reviews denial of a motion to bvithdra~v a guilty plea for abuse of discretion. 

### Stcite v. 

### Nowley 

### !1997), 282 Mont. 298. 304, 938 P.2d 592?5%. 

### L (jl l 

### Did the ljistrict Court

### lzcrve j~ivi.srliclior~ torevielv clpostcorlvicfionderriulqfc~ nrotion to witJzdt~~w 61 

### guiltyplea in

### Jzrsrice Court? 712 The issue of a court's subject matter jt~risdiction may be presented at any time. 

### Brzlyeat Low, 

### PC v. I'ettir, 1998

### MT 252; (i 15,291Mont. 196,T 15,967P.2d 398,1/ 15. A party can never waive orconsent to subjectmatterjurisdiction wherethere is nobasis for the court to exercise jurisdiction. 

### In re hi~zrriage ofSkillen, (1 10. Pursuant to 

## 5 46-17-203(2), MC.4, entry of a guilty plea injustice court waives a defendant's right to a trial 

### de novo in district court. This Court recently held there is no statutory right of appeal from a justice court's order denying a motion to withdraw a guilty plea. 

### State v,Feiglzt, 2001 bI'1- 205,

### '1 22,306 Mont. 205, 22: 33 P.3d 623,

## rr 22; 

### Stcrte 1). 

### Fox.2001 'vlT 209, 17,306Mont. 353, 

### 'I i7. 34 P.3d 484, 

### 7 17.7/13 'I'he State asserts on appeal that the District Court lackcd subject matterjurisdiction

over Bouchcr's appeal because Montiina law docs not prwidc for an iappcal lo district court after a dckndant cnters a plea of guilty in a court of limited jurisdiction. Boucher acknowledges that a defendant who enters a guilty plea injustice court waives the right of trial rletlo~jo in district court,pursuant to 

## 6 46-17-203(2), MCA,but contends his guiltyplea is not valid, and challenges the Justice Court's acceptance ofthe plea on the grounds that his plea and waiver were not entered voluntarily. Boucher cites 

### Stczte v. CV~~ynzire (1987), 226 Mont.306:736P.2d 106,for theproposition that reason, justice andpublicpolicy dictatethat

an appcal of a guilty plea injustice court may be tried anew in district court provided the appeal is properly perfected.



### 13 In St~totc. v. I.Eic!yrt~ire, the Court addressedtwo separate casesmrl~ere defendants sought to withdraw their guilty pleas. Jcffeiy Waymire alleged that the justice court entered a plea

011his behalf but ~vithout his consent. 7'he other defendant, Charles Metcalf, voluntarily entered a guilty plea injustice court but was dissatisfied with his sentence. I\lthough the defendants presented very different legal issues, we held that the remedy for both was trial 

### de ~cnoi.o in district court. I;t5>ytzilz.; 226 Monk. at 408-0") 730 P.2d at 108. (115 Following the IV2iyttti~e decision, the 1,egislature limited the right of appeal fro111 courts of li~llitcd jurisdiction by amending $46-17-3I 1: MCA; in 1991 to rcad, in pertinent part: 

### Appeal from justices', municipal, and city courts. (1)Except.

. .for cascs in which legal issues are preserved for appeal pursuant to 46-12-204, all caseson appeal from ajustice's or city court must bc tried anew in thc district court



### . . .(2)The defendant may appeal to the district court by tiling written notice of inte~~tiiin to appeal within I0days 

### aHcr 

### ajudgmcnr isrenderedj;,iic>it~i~?g trial. 

### . . . Scc. 217, 

### Ch. 800. I... 1991 (words of arneadment 

### in italics). Subsequently, we 

### determined 

## 5 46-17-3 11(2),MCA, as amended, proccdurally requires adjudication of a matter by trial in a justice or city court as a prerequisite to an appeal in district court for a trial de 

### izovo. Feiglzt, 

## 1, 15. We also held that 

## 5 46- 1'7-3 1 

### 1. MCA,provides the exclusive statutory remedy for appeals fromthe coui?s oflimitedjurisdiction. Feig12t,

### 7; 15. Atpresent, unless a specific issuehas been preser~ed for appeal prior to finaljudgment, our laws provide no appeal from

a plca of guilty or r!o!o

### coizfer~riere entered in a court of limitedjurisdiction. 

### Feig-llr,

## 7 12. Accordingly, a motion to withdraw a guilty plea may be granted or denied at the discretion of a justice or city court that has originaljurisdiction, with no right of direct appeal. 716 On appeal to this Court. the State argues that aftcr the J~lstice of the Peace denied Boucher's requcst to withdraw his guilty plea, Boucher's remedy was to petition the District Court forpostconviction reliefoil the grounds that his conviction in Justice Court wasbased

on an involuntary plea. We agree. 717 Section 46-21-101(2), :MCA, states that a defendant who has exhausted all appeal remedies provided by law may seek relief from a sentence by filing a petition for postconviction relief with the district court in the county where the court of limited jurisdiction is located. Postconviction relief is available when the sentence violates state law. the blontana Constitution or the Constitution of thc llnited States. Section 46-21-lOI(1). MCA. A posrconviction bearing is not another fonn of appeal from a criminal case, but a separate civil proceeding aimed at vacating, setting aside or correcting a sentenz-_ 

### Golenzun v. 

### State (19811, 194 4ont. 428, 333, 633 P.2d 624, 627. The right lo postconviction relief is available to a defendant wliose sentence was imposed by a justice, municipal orcity court. 

### State V. 

### Cl~rister~sen (1994), 265 Mont. 374,377,877P.2d 468,469. f I8 Recently, in 

### State v. 

### Liefert, 2002 MT 48, 

### :' 8,309Mont. 19,1/8, - P.3d 

### -, 

## 7 8, the State invited this Court to deem an appeal as apetition for postconviction relief in order to exercise subjectmatterjurisdiction overthe denial ofLiefert's motion to withdraw aplea entered in justice court. We did so, but did not determine whether a petition for postconviction relief is proper in similarly situated cases. 

### Liejkrt, 

## 7 8. The instant controversy presents such a siniilarly situated case. 919 The District Court correctly determined as a matter of law that Boucher had no right to appeal the Justice Court's denial of his motion to uithdraw his guilty plea. However, gi~en the contrary instructions regarding the appeals process issued by the Justice of the Peace. the fact that just~ce court 1s not a court of record, and the naturc of Boucher's constitutio~ial challenge to the validity of hts plca, the D~strict Court held an ev~denttary hearing to establish a factual basis for ruling on issues raised. 7j20 The absence of an appellate remedy and the constitutional claims asserted establish Bouchcr's eligibility to pursue postconviction reliefin accordance with 

## 5 46-21-101, MCA. In vie\\ of this right and consistent with our holdings in CItristi+nsenand 

### Liefert, we deemBoucher's appeal tothe District Court as apetition forpusrconviction relief and the District Couri-proceedings asthefunctionalequivalent of ::postcoavictiiinbearing. Wenow address the Dtstrict Court's findtng that Boucher's plea was entered ~oluntarily



### 132 1 

### Did the District Court correct& conclude that Bouclzer entered his guilty plea it1 Justice Court knowingly urzd volwltarily? 722 111 light of the importance of the constitutional rights and protections waived by a guilty plea, the plea must be a voluntary, knowing, and intelligent choice among the alternative courses of action open to the defendant. 

### State 

### v.Radi (1991 j, 

### 250 Mont. 

### 155, 159,818 P.2d 

### 1203;1206(ciringi\~orfhCarolinav,Alford(l970),400 

### U.S. 25,") SS.Ct. 160, 27 L.Ed.2d 

### 162). Thedefendant mustbe aware ofthe rights waived, which include theright to a speedy and public trial by jury, the right to effective assistance of counsel, the right to confront and cross-examine wttnesses, the righttotestify and have uTttnesses testify, thenght not to be compelled to incriminate oneself, the r~ght o have charges proved beyond a reasonable doubt, and the right to appeal a finding of guilty. 

### Stafev. Yotlzer (1992),253 Mont. 

### 128, 130, 831 P.2d 

### 1347, 1348. 1;23 Because thc voluntary nature of a guilty plea is crucial to the integrity of thejudicial process, numerous statutes set forth procedural requ~remcnts for a\al~dplea. 

### See 

### $546-12- 204. 46-12-210,46-12-212 and

### 46-16-105(1),MCA. ifthese requirements are not met, the court may not accept the plea, and the case must be either disinisscd or tried on its merits. Section 

### 46-12-204 (2), MCA, states:'The court may not accept zl pica of guilty or itoio contendere without first determining that the pica is voluntary and not the result of force or threats or ofpromises qarr

### llom tile 

### plea agr-eernent.The court shati also iirquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the prosecutor and the defendant or the defendant's attorney, 2 Add~tional procedural safeguards to illsure that a plea entered in a court of l~mited jurisdiction is voiuntary are outlined in 

### 8 46-17-203(2), MCA, whicl~ states: 

### A plea of guilty or nolo contendere in ajustice's courti city court, or other court of limitedjurisdiction waives the right of trial de novo in district court. A defendant must be informed of the waiver before the plea is accepted, and the justice orjudge sliall question the defendant to ensure that the plea and waiver are entered voluntarily. More explicitl), "the court sl?a!! detennethat thc defendant ~~nderstands 

### . . .there mill not be a further tnal of any kind, so that by pleading guilty or nolo contendere the defendant uralvesthe right to a tr~al." Section46- 12-210(1)(e),

### MCA. A court maypermit a defendant to withdraw his guilty plea at any time, before or afterjudgment, for good cause shown. Section 46-16-i05(2),MCA. 1125 To detcnnlne u,hether good cause existed and uhether a court abused its d~scretion by denying a defendant's motion to withdram-a guilty plea, we consider three factors: (1) the adequacy of the court's iiitenogation at the tine the plea was entered regarding the defendant's understanding of the consequences of the plea; (2) the promptness \*it11 mhich the defendant attempts to uithdraw thc plea; and (3)uhcther the plea uasthe result ofaplea bargain in which the guilty plea was given in exchange for dismissal of another charge. 

### Ko~viey. 282 Mont. at 304, 938 8.2d at 505. The fundamental purpose of allouing thewithdrawai of a guilty pica is to guard against the conviction of an innocent person. ,Yluze Si-liczj; 1IY")SMI li)Lj.,? 17, 

### 288 Mont. 32 i,

## 7 1'7, 

### 058 P.2d 682. ";j '7 jciliizg iiiiiciey.i., 282 Mont. at 303-04, 933 P.2d at 

### 5955). If there is any doubt that a plea was involuntary9 the doubt should be resolved in favor of defendant, Sclzcif 

## 7 17 (quoting Stcire v. il;fcAlli.~ter (1934), 96 Mont. 348, 353, 30 P.2d 521, 823). 726 Boucher's challenge isbased solelyonthe adequacyoftheJustice Court's advisement regarding Boucher's waiver of his appeal rights, as required by 

## 5 46-17-203(2). MCA, and 

## 546-12-210(1)(e),MCA. Boucher maintains that he was confused about his right to appeal and did not realize he was waiving his appeal right atthe time he entered his guilty plea. tie further contends that the Justice ofthePeace neither 

### informed itorqucstioncd him at the time he changed his plea over the telephone to make certain that he understood the consequences of his waiver. Justice James testified at the hearing 

### in District Court that she did not recall discussing Boucher's waiver at the time he entered hisplea on April 3,2000,and relicd upon the statement signed five months earlier on November 12; 10 signifying Roucher understood he would xa~\~e h~s rlght to appeal fo~ a tr~al ife noi~u in dlstrlct court if he pleaded guilt). '727 The Justice Court was required to determine that Uoucher understood he waived certain cons~itutionalrights, including the right to a trial and appeal. pursuant to

46-12-210(1); .MCrZ. The court accomplished this at Boucher's initial appearance by having Boucher 

### acknowledge in writing that he understood the waivers he would make if hepleaded guilty. Months later: the State amended the complaint and Boucher changed his 

### plea to guilty. Section 46-1 

### 7-203(2j,MGA, stares: ","\deicndant must bc: idol-medof the waiver before tlte plea is accepted, and thejustice or judge shal2 question the defendant to

ensure that the plea and waiver are entered voluntarily." This statute gives the clear impression that thejustice court is to inform the defendant about the waiver of the right to appeal and ascertain that the defendant understands the waiver at the time a guilty plea is entered and before the court accepts the plea. 

### 728 Boucher entered apleaofnot guiltyathis initial appearance. Accordingly, hewaived

noconstitutional rightson November 12, 1999,when he signedthe waiver acknowledgment fotm provided by the tour%. Boueher's ~vaiver occurred only after the State amended thc charge and when he changed his plea to guilty in April 2000. Prior to accepting the change of plea, the court is required to "question the defendant to ensure the plea and waiver are entered voluntarily." According to the testimony ofJustice James. she did not reiterate the infonnation the court provided five months earlier concerningBoucher's constitutional rights and failed to question Boucher regardinghisunderstandingofthewaiver atthe time Boucher changed his plea. Consequently, we conclude that the court's colloquy was inadequate and good cause existed to permit Roticher to withdraw his guilty plea. 29 Sinceanydoubt about whether aplea was voluntaryshouldbercsolved in favor ofthe defendant, we hold that the District Court, under these facts, erred by not allowing Boucher to withdraw his guilty plea. Therefore, we reverse Boucher's guilty plea, and remand thismatter to the Justice Court for further proceedings 

### in regard to ihc charge against Boucher 

### br driving under the influeiicc of alcohol.

We concur:

### J~~sticc James 

### C',Nelson specially concurs. $30 1 concur 

### in our Opinion. 1

### v;riie separateIyj

### iiowel-er, lo strongly urge tne Legislature 

### to amend 

## $5 46-1 7-203. MCA. and 46-17-3 

### 1 1. MCA, 

### in the manner hereafter suggested. $3 1 

### Our Opinion sets out the history ofthe 1991 amendment to 

### 6 46-1

### 7-3 1 1. 

### MCA;which liniits the right of appeal to district courts from courts of limited jurisdiction. Section 46-17- 31

### l(2). ,MCA, 

### restricts this right of appeal to those cases where the defendant has first been tried in the limited jurisdiction court. Our Opinion also traces our recent cases interpreting $ 

### 46-17-3 1

### 1(2), MCA, which, faithful to the plain and unambiguous language ofthis statute, hold that there is no statutory right of appeal to the district coun fi-om ajustice court's order denying a motion to withdraw a guilty plea. qi32 While that is the law, as the author of all three of our controlling opinions--Feighi, Fox, 

### and 

### Ligfkrt--Ihave no hesitaxicy in saying that this statutory scheme is flawed to the extent that it denies direct appeals to the district courts from the limitedjurisdiction courts
it1

### cases involving the denial ofa defendant's motion to withdraw his or her guilty plea on the ground that the plea was not voluntary. My rationale for this conclusion is as follows. '133 It is common knowledge that many defendants who plead guilty to offenses in Montana's courts of limited jurisdiction do so without the benefit of counsel. In my experience, the judges of these courts typically do a good job ensuring that pleas are voluntarily entered as required by $ 46-17-203(2), MCA: and explaining to the accused the consequences of a guilty plea as required by 

### 5 46-17-203(l)(bf, MCA. and $ 46-12-210.?AC:A. 

### Notwithstanding?the 

### fact remains that some of these defendants ine;.itahly fail to fiii!y 

### uildersia:ld and 

### appreciate the importance of the 

### rights they are 

### waiving by pleading guilty and 

### the consequences that may follotv from their plea. :I34 ii 

### As our Opinion points out, the law is absolutely clear that any guilty plea?to be constitutionally effective, must be voluntary, knowing and intelligent. 

### Rudi, 250 Mont. at 159. 8 18 

### P.2d at 1206. To this end, 

### 5 46- 17-203(2),MCA, specifically requires the limited jurisdiction courtjudge or justice to inform the defendant ofthe waiver ofthe right of appeal by trial 

### de novo iniposedby this section. before accepting a plea ofguilty or

### nolo corztendere. Additionally, thejudge orjustice niust question the defendant "to ensure that the plea and waiver are entered volu~itarily."See 

### ulso H.B. 454, 

### 5istLeg., Sec. 3; Chap. 277, L. 

### 1989, which added subsection (2j

### to $46-17-203, MCA (Committee minutes and exhibits clearly demonstrate the legislators' and proponents' concern regarding voluntariness and that the entire scheme depends upon the voluntariness of a defendant's plea). '35 When, however, volunrariuess of a guilty plea becomes an issue--and it 

### does with

some regularity in all trial courts--then there must be a process for appellate review of the magistrate's decision denying the defendant's motion to withdraw his or her plea of guilty. LVhile that is not a problem where the plea is entered in a district court proceeding. it is uhere the 

### plea is entered in a court of limitedjurisdiction. This is so by reason of a combination of 

### three factors: First. under Article VII; Section 4(2), 

### of Montana's Constitution, trial 

### cle
~zovo in district court is the only means of appeal from the courts of limitedjurisdiction,

### unless the Legislature provides otherwise. See also 46- i 7-31i(1). MC.4. 

### Second, under 

### 5; 46- 17-203(2),MCA, a guilty plea 5,vaives trial de nova in district 

### court. And, third, 

### under cj 46- 

### 17-1 1

### i(2I1MCA, a limited

### jurisdiction court defendant has 

### no statutcry right ofappeal to the district court unless he or she has first been tried in the lower court, In other viords, by reason ofthe combinedprovisions ofArticle VII, 

### Sectioii4(2), 46-17-203(2),MCA, and ?j



### 46-1 7-31 1(2),MCA, a district court judge has no authority tojudicially review by way of direct appeal; a limited jurisdiction courtjudge's orjustice's decision to deny a defendant's motion to withdraw his or her guilty plea on grounds ofvoluntariness. Feight,

## '11 11-22;

### Fox, 

## 17 8-16. q36 This scheme results in an anomaly. 4 

### defendant who receives 

### a trial but is 

### unhappy with the outcome can receive an entirely new trial in the district court. On the other hand, a defendant who pleads guilty in a court of limited jurisdiction has no opportunity for a new trial orfor appeal even ifhis plea was constitutionally invalid. In addition, a defendant who pleads guilty under this scheme also has no opportunity for an independent 

### review of the voluntariness ofhis or her plea (aside from the less-tlran-adequateremedy ofpostconviction relief, as discussed below) because the only review allowed is that before the same judge who accepted the plea in the first place. 737 The case at bar presents a good cxan~ple ofwhy an independentjudicial review of the voluntariness ofa plea is necessary. Here, the Justice Court abused its discretion by denying Bouciter's initial motion to withdraw his guilty plea. Boucher's plea was not voluntary,

### knowing and intelligent. His 

### plea was constitutionally invalid. Notwithstanding, under the present statutory 

### scheme, Roucl-ierhas no 

### avenue to directly 

### appeal tile 

### denial of his 

### motion to withdraw his guilty 

### plea. And, that brings us to our decision iilLiefit-t 

### q38 Consistelltwith the statutory scheme which the Legislaturehas enacted and absent any defendant, to date, challenging the constitutionality ofthe aforementioned strictures on direct appeal imposed by 

## $g 46-17-203(2), MCA and 46-17-31 1(2), MCA, we treated a limited jurisdiction court defendant's "appeal" to the district court from the denial of his motion to withdraw his guilty plea as a petition for postconviction relief under $36-21-101, 

### MCA. 

### See Licfkrr, 

### !/ 8, Despite having done so in that case and in the one atbar, 

### I do not believe that pos~convietion relief is the appropriate remedy, however. 139 Postconviction relief is a civil proceeding involving a collateral attack on the defendant's conviction,rather than a direct appeal. 

### State v. 

### Garner, 1999MT 295, ?j 

### 19,297 Mout. 89, 

## 7 19, 990 P.2d 175,

### 71 19. Being a civil proceeding on collateral review, an indigent defendant has no right to appointed counsel except under the narrow circumstances set out in 

## 3 46-2 1-201(2),

### MCA. Such a defendantwould have the right to appointed counsel

on a direct appeal. Stale 

### v.Rat-don,2001 MT 77,73;305 Mont. 78,

### ?/3, 22 P.3d I 

### 132,13. Additionally, we have held that a defendant is entitled to counsel during a "critical stage" of thc criminal proceeding--i.e. where there is potential substantial prejudice to the defendant. Sturi. v. 

### Fiiz'i,zl~ 

### !

1996). 276 Mont. 126, 145,

### 915 P.2d 208,220 

### overruled or/otltergroutzds ly

### Sf~itc!V. Guiluglter,

### 2001 MT 3Y1

### 304 Mont. 2 

### 15, 19P.3d 817. In 

### my view, the stage atwhich 

### a criminai defendant seeks to withdraw his guilty plea on the basis of constitutional iirvalidity is a "critical stage" 

### of the proceedings implicating the 

### right to counsei.' "40 I: Furthermore. the postcon~;iction process--which is designed for collateral revieiv following appeal--is, on the one hand, cumbersome in that the defendant must file a verified petition supported by affida\ its, records and other documents, $$46-21-103and46-21-104, 

### MCA, yet, on the other hand, this process gicesthe defendant a year to challenge his plea, 

### $ 46-2 1-102. MCA, in contrastto the ten days for a direct appeal allonredby $46-17-3 11(2), MCA. 4 1 Moreover, review on appeal would allow the defendant challenging the volnntariness ofhis orher plea a hearing, similar to the procedure where the deferrdarltpreserves issues of law for review under 

### $ 46-12-204(3), MCA, and 

## 5 46-17-3 

### 1I(]), MCA. 

### See 

### also State 

### v. Bczrlier (1993), 260 Mont. 85, 89-92, 858 P.2d 360, 362-64; 

### Stale ex rel. Wilsorz v. 

### District C'ourl (1995), 270 Mont. 449, 893 P.2d 318. In contrast, a defendant is not entitled to a hearing in a postconviction proceeding unless the district court grants a hearing at its discretion. Section 46-21-201(1)(a), MCA. Again, keeping in mind that a guilty plea must be loluntary, ~ntellrgentand knowing, it is hard to conclude that these constitutional ~mperati\es are statutorily protected by a scheme that forces the defendant to utilize a 

# ' I acknowledgethat we held in Stcrte v. Gut-ner,2001 MT 222.306 Mont.462, 36 P.3d 336 

### (Gurrzer If),that a hearing on a motion to withdraw a guilty plea is not a critical stage ofthe proceedings. I continueto believe that our decision was in error. Atid, the great weight of fcdcral and state jurisprudence supports my conclusion. See GunzerII, ci59 (Nelson,J., dissenting). This case presents one more real-life example of why 

### C;urnerII should be overruled to that extent.

### cumbersome civil proeeedii~g -whichallo\h-sthe reviewing court discretion to appoint counsel and 

### lioid a hearing. e42 Finally, subsection 

### (2)of $46-21-101. hZCh,

### is anomaloris in that it

### restrictsthe filing of postconviction petitions by defendants from sentences imposed by the courts of limited jurisdiction to situations where the defendanthas exhausted all appeal remedies provided by law. As already noted, defendants who plead guilty or nolo conrendere 

### in the courts of limited jurisdiction have no appeal remedies to exhaust. Sections 46-17-203(2), MCA and 46- 17-311(2), MCA. 743 To remedy these defects and anomalies, 

### I suggest that the Legislature statutorily provide an exception to 

## 55 46-17-203(2), MCA and 46-1 7-31l(1) & 

### (2), MCA, to give the district courts authority to entertain direct appeals from the courts of limited jurisdiction in

cascs where the defendant claims that his or her plea was not voluntary. The district courts should have authority to appoint counsel. hold a hearing, and then enter appropriate findings of fact, conclusions of law and a decision affirming or reversing the limited jurisdiction court judge's or justice's denial of the defendant's motion to withdraw the guilty plea. ifthe district court reverses the decision of the limited jurisdiction court judge. then the case would be remanded for trial 

### in the lower court. Alternatively, the district court's decision could be appealed to this Court, 743 in 

### sum, I 

### suggestthat the present statutory scheme is flawed in the foregoing respects and may well be subject to legal challeiige. Under Article V1I; 

### Section 4(2), of Montana'sConstit~rtion the Legislature can--and should--remedy 

### this situation. Accordingly: I urge the Legislature to statutorily provide criminal defendants who seek to withdraw an 

### involunrayv guilty-plea entered 

### in a court of limited jurisdiction an awnue

### of direct appeal to the district courts.

Justice W. William Leaphartjoins in the foregoing special concurrence.Justice Jim Rcgnier Concurring 4; 

### ,,-is

A - [ concur v;ith ti.)- Coiirt's analpis in the second issiie and 1 agwe with ihc iestiir reached by the C'ourr on thejurisdictional issue. Howe\.cr, once again; I disagsec with thc "postconviction rclief' fonnula employed by the Court to establish jurisdiction ~ith the District Court. 4 Within the last se\!en months, this very jurisdictional issue has appeared before this Court on several occasions, and, in all likelihood, the inquiry will not end lvith this case.' Yet, in the short time sinceOctober of2001,the majority has established nothing short ofan elusivejurisdictional target for practitioners to hit. 747 111

### Feigiif,Fa,and 

### Kenlpiil the Court applied a rigid construction of 

## 5 46-17-311, 

### MCA,to prohibit the respective appeals from justice court to district court on jurisdictional grounds. In Liefhrf, in order to circumvent its own narrowjurisdictional construction, the Courtdeemed Liefcrt's appeal fromjustice courttodistrict coin?apetition forposteon\,iction relief sothat it might address another substantive argument raised in the appeal. Curiously, while 

### Feight, Fox, andZ,i<j&t7 raised identical issues,i.e.,whether a districtcourtcan review

a denial of a motion to withdraw a guilty plea in justice court, the majority reached an entirely different result in Liefirert than it did in Feigl~t and 

### Fox based on its postconviction relief concoction

See SfureI.. Fcighri 200 1 hfT 205,305Mont. 312.13 P.3d 623: Srrlrc 1,.I'o.x, 2001 

### k\.1-r 209. 306 hlont. 153,34 P.3d 484; Stirre v. Kenzpir~, 2001 LIT 313, 308 Mont. 17% 38 P.3d 859; Stute v. Li@rt, 2002 MI 48, 309 Mont. 10, 43 P.3d 320; and thc case at bar.'1 1~ 748 Finally, 

### in the case at bar, the Court reinforces tile notion that ""a n~orion to tvllnurdw [a] guilty pica may be granieci or denied at the discretion ofajustice or city 

### coun that has originaljurisdiction, with no right of direct appeal." However; the Court states that "[tlhe absence of an appellate remedy and the constitutional claims asserted establish Bouchcr's eligibility to purstlc postconviction relief in accordance with 

## 5 46-21-101. MCA." Yet, by justifying this postconviction relief fiction in light ofthe "absence of an appellate remedy," the Court impliedly validates Justice Cotter's intimation that the Court has "so little confidence in 

### [Feig/zt's] correctness that [it] must devise methods to avoid its consequences 

### . . . ." Liefert, 

## 7 34 (Cotter, J., specially concurring). 4 Unfortunately, with ioday's holding, the majority has once again bypassed an opportunity to revisit the ill-conceived precedent established in 

### Feiglzt. 1believe that there currently exists statutory authority which sanctions a defendant's right to appeal a denial of

a motion to withdraw a guilty plea in justice court, aside from the postcon.iiction relief placebo conjured by the 

### h'cight majority. in my view, defendants are entitled to appeal a justice court's denial of their motion to withdraw a guilty plea pursuant to 3-5-303 and 46-20-104, MA, as outlined in my dissent in 

### Feight. '150 1believe the majority's postconviction reliefjustification perpetuates the inequitable ambiguity created by

### Feight and its successorsby injecting a "means to an end" solution into this arena. For the sake of those laboring to abide by its rtrle of la\\:, the majority would be better servcd to cmpioy a consistent, objective analysis on thisjurisdictional issue involvingcouns of limitedjurisdiction so as to preserve the integrity of ourjudiciai system, To date, 

### ir has nut done so.
C151 Conscqucntly. as statcd above. 1 concur w~th the ult~mate result art~culated bv the majority. Moaever, the 

### jurisdictional justification should be premised on a defendant's statutoryright ofappeal promulgatedbq the Legislaturein $$1-5-303and46-20-104,MCA

Justice Patricia 

### 0.Cotterjoins in the foregoing

Justice