No. 00-803 

1~ -. 'TI-f~ SUPKEGIE COURT OF IHE STATE OF M@XAh'.'r 

7002 h4T 1 1-1 

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: ,4t1gust 0, 2001 

Decided: May 30, 2002 
Justice Jim Rice delivered the Opinion of the Court. 

5 I Robc1-i John Boucher (Bouehet) appeals lhc denial ofhis appeal to the i:or:i?h Judicial 

Disriict Court. Bor!clier entered a plca of guilty to driving tinder the influence of alcohol in 

Mincral County Justice Court. After judgment, 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 matterjurisdiction by deeming Boucher's filing 

in the District Court as a petition for postconviction 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-le appeared in Mineral County 

Justice Court the following day and entered a plca of not guilty. At the time of his initial 

appearance, Justice of the Peace Wanda James advised Boucher of his constitutional rights, 

and Boucher signed a form that stated, in pertinent part: 

1 understand that if you [sic] willingly and knowingly enter aguilty plea 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 and the county attorney appeared in Justice 

James' court and discussed the possibility of arncnding thc charge to Dtil per se and some 
oilhe ramiiications of a guilty plea. 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. The judgment included the 

following statement: 

The Defendant may appeal this Judgment to the district court by filing written 

notice of the appeal within ten days. 

74 Boucher then learned that as a result of his guilty plea 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 of counsel, filed a response to the motion, alleging that his plea 

was not knowing or voluntary because he had not been apprised by the Justice of the Peace 

at the time he entered the plea on April 3, 20001 that he was waiving his right to appeal 
6 At the hearing held on Septernbcr 14, 20i)O; the District C'oul~ rcvicwed t'ne Justice 

Coufiis denial of Rouchcr's motion to ~virhdraw his plea, Tl:e coil!? found Boucher !lad been 

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 of his guilty plea, specifically 

including the effect on his driving privileges in Washington, were unknown 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 oral judgment, 

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 of appeal from the District Court's dismissal of his appeal. On 

October 20, 20001 the District Court stayed Roucher's sentence pending thc outcome of the 

appeal to this Court. 

C!, I: The threshold issuc before this Court is whether the District f ourt has jurisdiction to 

review a posteonvietion denial of a motion to withdraw a gr~ilty plea in Justice Court. 'I-he 
underlying 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 :Worriage of Skillen, 19% 8T 43,79,287 klont. 399,T 9,956 P.2d 1,t 9. 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~ to revielv clpostcorlvicfion derriul qfc~ nrotion 

to witJzdt~~w 61 guilty plea 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 15,291 Mont. 196,T 15,967 P.2d 398,1/ 15. A 

party can never waive or consent to subject matterjurisdiction where there is no basis for the 

court to exercise jurisdiction. In re hi~zrriage of Skillen, (1 10. Pursuant to 5 46-1 7-203(2), 

MC.4, entry of a guilty plea in justice 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, 17,306 Mont. 353, 

'I i 7. 34 P.3d 484, 7 17. 
7/13 'I'he State asserts on appeal that the District Court lackcd subject matter jurisdiction 

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 in justice court waives the right of 

trial rle tlo~jo in district court, pursuant to 6 46-17-203(2), MCA, but contends his guilty plea 

is not valid, and challenges the Justice Court's acceptance of the plea on the grounds that his 

plea and waiver were not entered voluntarily. Boucher cites Stczte v. CV~~ynzire (1987), 226 

Mont. 306: 736 P.2d 106, for the proposition that reason, justice and public policy dictate that 

an appcal of a guilty plea in justice 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 addressed two separate cases mrl~ere defendants sought 

to withdraw their guilty pleas. Jcffeiy Waymire alleged that the justice court entered a plea 

011 his behalf but ~vithout his consent. 7'he other defendant, Charles Metcalf, voluntarily 

entered a guilty plea in justice 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 $46-17-3 I 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 cases 
on appeal from a justice'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 I0 days aHcr a judgmcnr is renderedj;,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 from the coui?s of limited jurisdiction. Feig12t, 7; 15. At present, unless a specific 

issue has been preser~ed for appeal prior to final judgment, our laws provide no appeal from 

a plca of guilty or r!o!o coizfer~riere entered in a court of limited jurisdiction. 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 original jurisdiction, 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 for postconviction relief oil the grounds that his conviction in Justice Court was based 

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 or city court. State V. Cl~rister~sen (1994), 265 Mont. 374,377,877 P.2d 468,469. 

f I8 Recently, in State v. Liefert, 2002 MT 48, :' 8,309 Mont. 19,1/ 8, - P.3d -, 7 8, 

the State invited this Court to deem an appeal as a petition for postconviction relief in order 

to exercise subject matterjurisdiction over the denial of Liefert's motion to withdraw a plea 

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 relief in accordance with 5 46-21-101, MCA. 

In vie\\ of this right and consistent with our holdings in CItristi+nsen and Liefert, we deem 
Boucher's appeal to the District Court as a petition for pusrconviction relief and the District 

Couri- proceedings as the functional equivalent of :: postcoavictiiin bearing. We now 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\~orfh Carolina v, Alford(l970),400 U.S. 25,") SS.Ct. 160, 

27 L.Ed.2d 162). The defendant must be aware of the rights waived, which include the right 

to a speedy and public trial by jury, the right to effective assistance of counsel, the right to 

confront and cross-examine wttnesses, the right to testify and have uTttnesses testify, the nght 

not to be compelled to incriminate oneself, the r~ghto have charges proved beyond a 

reasonable doubt, and the right to appeal a finding of guilty. Stafe v. 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 the judicial 

process, numerous statutes set forth procedural requ~remcnts for a \al~dplea. See $5 46-12- 

204. 46- 12-2 10,46- 12-2 12 and 46-1 6- 105(1), MCA. if these 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 

of promises 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 a justice's courti city court, or other 

court of limited jurisdiction 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 or judge sliall question the defendant to ensure that the plea and 

waiver are entered voluntarily. 

More explicitl), "the court sl?a!! detenne that thc defendant ~~nderstands . . . there mill not 

be a further tnal of any kind, so that by pleading guilty or nolo contendere the defendant 

uralves the right to a tr~al." Section 46- 12-2 10(1)(e), MCA. A court may permit a defendant 

to withdraw his guilty plea at any time, before or after judgment, for good cause shown. 

Section 46-1 6-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) u hcther the plea uas the result of a plea 

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 the 
withdrawai 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 is based solely on the adequacy ofthe Justice Court's advisement 

regarding Boucher's waiver of his appeal rights, as required by 5 46-17-203(2). MCA, and 

5 46-12-210(1)(e), MCA. Boucher maintains that he was confused about his right to appeal 

and did not realize he was waiving his appeal right at the time he entered his guilty plea. tie 

further contends that the Justice ofthe Peace 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 his plea 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~itutional rights, 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 he 
pleaded 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-med of the 

waiver before tlte plea is accepted, and the justice or judge shal2 question the defendant to 

ensure that the plea and waiver are entered voluntarily." This statute gives the clear 

impression that the justice 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 aplea of not guilty at his initial appearance. Accordingly, he waived 

no constitutional rights on November 12, 1999, when he signed the 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 of Justice James. she did not reiterate the 

infonnation the court provided five months earlier concerning Boucher's constitutional rights 

and failed to question Boucher regarding his understanding of the waiver at the 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 Since any doubt about whether a plea was voluntary should be rcsolved 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 this 
matter 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 of the 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- 

3 1 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 of this statute, 

hold that there is no statutory right of appeal to the district coun fi-om a justice 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--I have no hesitaxicy in saying that this statutory scheme is flawed to the 

extent that it denies direct appeals to the district courts from the limited jurisdiction courts 

it1 cases involving the denial of a 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 court judge or justice to inform the defendant of the waiver of the right of appeal 

by trial de novo iniposed by this section. before accepting a plea of guilty or nolo corztendere. 

Additionally, the judge or justice niust question the defendant "to ensure that the plea and 

waiver are entered volu~itarily." See ulso H.B. 454, 5ist Leg., 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 limited jurisdiction. 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 limited jurisdiction, 
unless the Legislature provides otherwise. See also 46- i 7-3 1 i(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(2I1 MCA, 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 of the combined provisions of Article VII, Sectioii 4(2), 46-17-203(2), MCA, and 

?j 46-1 7-31 1(2), MCA, a district court judge has no authority to judicially review by way of 

direct appeal; a limited jurisdiction court judge's or justice's decision to deny a defendant's 

motion to withdraw his or her guilty plea on grounds of voluntariness. 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 or for appeal even if his 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 of his or her plea (aside from the less-tlran-adequate remedy of postconviction 

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 of why an independent judicial review of the 

voluntariness of a 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-ier has no avenue to directly appeal tile denial of his motion 

to withdraw his guilty plea. And, that brings us to our decision iil Liefit-t 

q38 Consistellt with the statutory scheme which the Legislature has enacted and absent any 

defendant, to date, challenging the constitutionality of the aforementioned strictures on direct 

appeal imposed by $g 46-1 7-203(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 $36-21-10 1, MCA. See 

Licfkrr, !/ 8, Despite having done so in that case and in the one at bar, 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, 1999 MT 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 defendant would 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, 91 5 P.2d 208,220 overruled or/ otlter groutzds 

ly Sf~itc! V. Guiluglter, 2001 MT 3Y1 304 Mont. 2 15, 19 P.3d 8 17. In my view, the stage at 
which 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, $$46-21-103 and 46-21-104, 

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

$ 46-2 1-1 02. MCA, in contrast to the ten days for a direct appeal allonred by $46-1 7-3 1 1(2), 

MCA. 

4 1 Moreover, review on appeal would allow the defendant challenging the volnntariness 

of his or her plea a hearing, similar to the procedure where the deferrdarlt preserves issues of 

law for review under $ 46-12-204(3), MCA, and 5 46-17-3 1 I(]), 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, ~ntellrgent and 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 acknowledge that 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 of the 

proceedings. I continue to believe that our decision was in error. Atid, the great weight of 

fcdcral and state jurisprudence supports my conclusion. See Gunzer II, ci 59 (Nelson, J., 

dissenting). This case presents one more real-life example of why C;urner II should be overruled 

to that extent. 
cumbersome civil proeeedii~g -which allo\h-s the reviewing court discretion to appoint counsel 

and lioid a hearing. 

e42 Finally, subsection (2) of $46-21-101. hZCh, is anomaloris in that it restricts the filing 

of postconviction petitions by defendants from sentences imposed by the courts of limited 

jurisdiction to situations where the defendant has 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- 17-3 11 (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 7-3 1 l(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. if the 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 suggest that 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's 
Constit~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 Leaphart joins 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 the jurisdictional 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 since October of 2001, the majority has established nothing short of an 

elusive jurisdictional target for practitioners to hit. 

747 111 Feigiif, Fa, and Kenlpiil the Court applied a rigid construction of 5 46-17-3 11, 

MCA, to prohibit the respective appeals from justice court to district court on jurisdictional 

grounds. In Liefhrf, in order to circumvent its own narrow jurisdictional construction, the 

Court deemed Liefcrt's appeal fromjustice court to district coin? a petition forposteon\,iction 

relief so that 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 district court can 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 Sfure I.. Fcighri 200 1 hfT 205, 305 Mont. 3 12.13 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 of a justice or city coun that has 

original jurisdiction, 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 of the "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. 1 believe 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 1 believe the majority's postconviction reliefjustification perpetuates the inequitable 

ambiguity created by Feight and its successors by 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 this jurisdictional issue involving 
couns of limited jurisdiction so as to preserve the integrity of our judiciai 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 

statutory right of appeal promulgated bq the Legislature in $$1-5-303 and 46-20-1 04, MCA 

Justice Patricia 0. Cotter joins in the foregoing 

Justice