NO. 95-042 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

STATE OF MONTANA, 

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. 

COUNSEL OF RECORD: 

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 on Briefs: August 17, 1995 

Decided: October 24, 1995 
Justice W. William Leaphart delivered the Opinion of the Court. 

Michael Ray Nelson (Nelson) appeals from the judgment entered 

by the Twenty-First Judicial District Court, Ravalli County, on his 

guilty plea to the offenses of felony assault, criminal mischief, 

and resisting arrest. We affirm. 

On September 7, 1994, Nelson was charged by information with 

three counts of felony assault, one count of misdemeanor assault, 

one count of misdemeanor resisting arrest and one count of 

misdemeanor criminal mischief. Two weeks later, Nelson entered 

pleas of not guilty to all charges. At the arraignment, the county 

attorney presented a psychological evaluation of Nelson. Defense 

counsel did not object to the admission of the evaluation. 

On October 4, 1994, Nelson entered into a plea agreement in 

which the State dismissed two counts of felony assault and one 

count of misdemeanor assault. Nelson then pled guilty to one count 

of felony assault and the two misdemeanors of resisting arrest and 

criminal mischief. 

On October 4, 1994, Nelson signed a Plea of Guilty and Waiver 

of Rights. Nelson's Plea of Guilty and Waiver of Rights stated 

that Nelson voluntarily plead guilty, explained the rights being 

waived, outlined the sufficiency of his attorney's representation, 

detailed in his own words the factual basis for his guilty plea, 

and asserted that he was not under the influence of drugs or 

alcohol. 

The next day, during the court's interrogation at the change 

of plea hearing, the District Court confirmed Nelson's 

2 
understanding of the nature and potential penalties for each of the 

charges against him. The court confirmed Nelson's understanding of 

the rights he waived in entering pleas of guilty and that he had no 

right to withdraw his guilty pleas. The court determined that 

Nelson had not been threatened or forced into pleading guilty and 

that he had 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 own words, 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 was not recommending any 

particular sentence, and that regardless of the actual sentence, 

Nelson would have no right 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 on his own recognizance (hereinafter "OR") 

pending sentencing. While this release was not part of the plea 

agreement, the State had no objection to the motion. After a brief 

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 my agreement. This understanding -- 

I'm not ready to plead yet. I'd like you to send me over 

to Warm Springs, sir, because I can't take any more of 

it. I honest to God can't. They told me that they'd do 

an OR. I thought this was part of the plea agreement. 

3 
That'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 an OR and that was still up to the Court. 

THE DEFENDANT: Your Honor, in regard to the guilty pleas 

__ 

THE COURT: Mr. Nelson, that's already a done deal. YOU 

plead guilty. 

THE DEFENDANT: Your Honor, I can't take any more of 

this. You have to send me to Warm Springs. This isn't 

the deal that -- 

THE COURT: Silence, Mr. Nelson, or I will have you 

removed. 

THE DEFENDANT: Your Honor, can you do something or -- 

THE COURT: I can have you removed. Sheriff? 

Nelson raises three issues on appeal. 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 a term 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 and voluntarily entered? 

Nelson argues that he should have been allowed to withdraw his 

4 
guilty pleas because the District Court did not adequately advise 

him of the consequences of pleading guilty, specifically the 

possibility that he could be designated a dangerous 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 55 46-12-210 and 46-16- 

105(l), MCA, before accepting a guilty plea. Section 46-16-105(2), 

MCA, regarding the withdrawal of a guilty 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 a plea of not guilty substituted. 

This Court has consistently stated that no set rule or 

standard exists under which a district court addresses a request to 

withdraw a guilty 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. -I Radi 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. 

When pleading guilty to a criminal charge a defendant waives 

numerous constitutionally based rights and protections. -, Radi 818 

P.2d at 1206. In light of the significance of the rights that are 

5 
waived upon a plea of guilty, it is well-settled that a guilty plea 

must be a voluntary, knowing, and intelligent choice among the 

alternative courses of action open to the defendant. North 

Carolina v. Alford (1970), 400 U.S. 23, 91 S.Ct. 160, 27 L.Ed.2d 

162; w, 818 P.2d at 1206. 

This Court balances three factors when considering a criminal 

defendant's attempt to withdraw a guilty 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 the plea was the result of 

a plea bargain in which the guilty plea was given in exchange for 

dismissal of another charge. Enoch , 887 P.2d at 177. 

In the present case, we need not engage in an analysis of the 

above three factors because, although Nelson sought to withdraw his 

pleas due to his misunderstanding as to release on recognizance, 

Nelson did not attack the voluntary nature of his pleas. See State 

v. Mason (19921, 253 Mont. 419, 424, 833 P.2d 1058, 1061. The 

record reveals that Nelson did not move to withdraw his guilty 

pleas on the grounds that the District Court failed to adequately 

advise him that he could be designated a dangerous offender for 

parole purposes. Rather, Nelson objected solely to the District 

Court's decision to set bail instead of releasing him on his own 

recognizance prior to sentencing. 

Release on his own recognizance was not included in Nelson's 

plea agreement and, in response to Nelson's objection, his attorney 

6 
specifically denied that release on OR was part of the plea 

agreement. Thus, Nelson can not argue that his objection to bail 

instead of OR was related to the voluntary nature of his guilty 

pleas because OR was not a condition of his plea agreement. In 

other words, he did not plead guilty in order to gain release on 

OR, he pled guilty on the condition that the State drop two of the 

felony assault charges. In fact, Nelson's Plea of Guilty and 

Waiver of Rights states: "I am not entering this plea of guilty in 

order to get released from jail." Nor can he relate his objection 

to being denied OR to the issue he now raises that he was not 

adequately advised that he could be designated a dangerous offender 

for parole purposes. 

Nelson's objection and motion to withdraw did not raise any of 

the grounds on which 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. We have held that failure 

to raise an issue before the district court bars a defendant from 

raising the issue on appeal under § 46-20-104, MCA. State v. 

Arlington (1994), 265 Mont. 127, 151, 875 P.2d 307, 321. We hold 

that Nelson's contemporaneous motion to withdraw his pleas did not 

raise a question as to the adequacy of the court's interrogation. 

Further, although § 46-16-105(2), MCA, would have allowed a postjudgment motion attacking the voluntariness of the pleas, no so 

such motion was made in the District Court. Thus, Nelson is barred 

from raising the issue of whether he was advised of the possibility 

and consequences of being designated a dangerous offender on 

7 
appeal. 

We hold 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 and without Nelson having been first advised of his 

rights? 

Nelson argues that the District Court erred in considering and 

relying on an emergency 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. We have held that failure to raise 

an issue before the district court bars a defendant from raising 

the issue on appeal under 5 46-20-104, MCA. Arlinqton, 075 P.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 a nonviolent felony offense pursuant to 55 46-l& 

225, and 46-18-201(10), MCA, before sentencing Nelson to a term of 

imprisonment? 

Nelson qualified as a nonviolent felony offender. He argues 

that Montana law, § 46-18-201(10), MCA, requires the sentencing 

8 
court to consider alternatives to incarceration when sentencing 

nonviolent offenders. 

In three recent cases in which the district courts failed to 

consider alternatives to incarceration for nonviolent offenders, we 

remanded for resentencing. State v. Pence (Mont. 1995), 902 P.2d 

41, 52 St.Rep. 937; State v. LaMere (Mont. 1995), 900 P.2d 926, 52 

St.Rep. 828; State v. Stevens (1993), 259 Mont. 114, 854 P.2d 336. 

However, in each of these cases the defendants raised the issue of 

consideration of alternatives to incarceration before the district 

court. In Pence, I' Ii1 mmediately 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, we held that the defendant's objections to the sentence and 

request for reconsideration were sufficient to preserve the issue 

for appeal. LaMere, 900 P.2d at 928. Stevens also specifically 

raised the issue of sentencing alternatives before the district 

court. Stevens, 854 P.2d at 337. 

However, in the instant case, the issue of consideration of 

alternatives to imprisonment was not raised before the District 

Court. Nelson did not object to the court's failure to consider 

sentencing alternatives. The transcript of the sentencing hearing 

reveals that Nelson did not object to the sentence imposed nor did 

he request reconsideration. As we stated earlier, 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. We have held that 

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

defendant from raising the issue on appeal 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. 

We note 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 a nonviolent felony offender to imprisonment, 

the court must examine and take into account the ten specific 

criteria set forth in 5 46-18-225, 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. The legislature has directed trial courts to 

make these considerations before any nonviolent offender 

is incarcerated. 

LaMere, PO0 P.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. 

10 
We c 

11 
MICHAEL RAY NELSON, ) 

Defendant and Appellant. ; 

On October 24, 1995, the Opinion of this Court in the aboveentitled cause was filed. On November 2, 1995, appellant Michael 

Ray Nelson (Nelson) filed a Petitionfor Rehearing or Modification 

of Opinion. Nelson alleges that this Court's Opinion of October 

24, 1995 was in direct conflict with controlling decisions of this 

Court and that the Court overlooked material facts. The State of 

Montana filed its objections to Nelson's petition on November 6, 

1995. 

After review of this Court's opinion issued on October 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 IS ORDERED: 

1. The petition for modification of opinion is GRANTED. 

2. Issue 3 of this Court's October 24, 1995, Opinion (Slip 

Op. pp. 8 through lo), is hereby withdrawn and replaced with the 

following: 

3. Did the District Court fail to consider alternatives 

to imprisonment for a ncnviolent felony offense pursuant 

to §§ 46-18-225, and 46-18-201(11) [formerly (lo)], MCA, 

before ser?tsncir.g Xelscr. to a term of imprisonment? 

Nelson qualified as a rcnviolent felony offender. He argues 
that Montana law, 5 46-18-201(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 to incarceration for nonviolent offenders, we 

remanded for resentencing. State v. Pence (Mont. 1995), 902 P.2d 

41, 52 St.Rep. 937; State v. LaMere (Mont. 19951, 900 P.2d 926, 52 

St.Rep. 828; State v. Stevens (1993), 259 Mont. 114, 854 P.2d 336. 

However, in these cases the defendants raised the issue of 

consideration of alternatives to incarceration before the district 

court, or, as in 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 902 P.2d at 44. In LaMere, -r we held that 

the defendant's objections to the sentence and request for 

reconsideration were sufficient to preserve the issue for appeal. 

LaMere, 900 P.2d at 928. 

However, in the instant case, the issue of consideration of 

alternatives to imprisonment was not raised before the District 

Court and the State did not concede that the statute had not been 

followed. The transcript of the sentencing hearing reveals that 

Nelson did not object to the court's failure to consider sentencing 

alternatives nor did he request reconsideration. 

Nelson did request a deferred sentence at the sent3lcir.g 
hearing and he argues that this request is sufficient to preserve 

the issue for appeal. However, a request for a deferred sentence 

does not serve the same role 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 was not able to correct any deficiency in the sentencing 

process. 

As we stated earlier, 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. We have held that failure to raise an 

issue before the district court bars a defendant from raising the 

issue on appeal under § 46-20-104, MCA. Arlinston, 875 P.2d at 

321. 

An exception to this general rule is found in the holdings of 

State v. Lenihan (1979), 184 Mont. 338, 602 P.2d 997 and State v. 

Hatfield (1993), 256 Mont. 340, 846 P.2d 1025. In those cases we 

held that an appellate court may 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 made at the 

time of sentencing. Lenihan, 602 P.2'd at 1000; Hatfield, 846 P.2d 

at 1029 (emphasis added). While not disturbing the holdings of 

these cases, we find the instant case distinguishable. 

In Lenihan, the defendant pled guilty to burglary and his 

three-year sentence was deferred. He appealed from the sentencing 

condition requiring him to pay $250 as reimbursement for his public 

d&end*r 1 5 aEcorney's fees. Lenihan argued that because Montana 

3 
does not have a recoupment statute, the district court's order to 

reimburse the county for attorney's fees was invalid. The State 

countered, inter alia, that Lenihan did not object to reimbursement 

in the district court. This Court held: 

Traditionally, in both civil and criminal matters, 

this Court has not accepted for review issues which were 

not objected to at the trial level. . . . 

This Court, however, has never specifically ruled on 

the question presented here. That is, whether an 

objection at the trial level is a prerequisite to the 

challenging of a sentencing order on appeal. 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 made at 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 and conspiracy to sell drugs. Hatfield 

argued that the court 

condition: 

Defendant may be required to serve up to an additional 

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

supervising Probation Officer. . . The Probation 

Officer has the right to decide the amou3-l or cl-e to b,e 

served for any infraction, u;, to t‘r.e entire o~-~e i-.-.;u:ldred 

erred in imposing the following sentencing 

4 
eighty days. . . 

Hatfield, 846 P.2d at 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 a criminal sentence may be 

reviewed on appeal if it is alleged to be illegal or in excess of 

statutory mandates, the Court addressed the sentencing issue. The 

Court stated: "We have long held that a district court has no power 

to impose a sentence in the absence of specific statutory 

authority." Hatfield, 846 P.2d at 1029. Holding that the district 

court had exceeded its statutory authority by delegating sentencing 

discretion to a probation officer and by imposing a condition that 

could have resulted in Hatfield spending more time in jail than the 

maximum sentence allowed, the Court remanded the case for 

resentencing. 

Both Lenihan and Hatfield involved situations where the 

judgment was void due to lack of statutory authority. In Lenihan 

and Hatfield, 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) and 46-18-225, MCA, do not preclude a court from sentencing 

a nonviolent felony offender to prison. Section 46-18-225, MCA, 

states: "Prior to sentencing a nonviolent 'felony offender to a term 

of imprisonment . .I' the court shall take into account certain 

criteria. Section 46-18-201(11) states: 1' If the offender is 

5 
subsequently sentenced to the state prison . .'I the court shall 

state why alternatives to imprisonment were not selected. Although 

these statutes require consideration of alternatives to 

imprisonment, such consideration would not have necessarily changed 

the court's final sentence for Nelson. Nelson's sentence of ten 

years is not in excess of the maximum statutorily 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 by this 

requirement, the sentence is subject to challenge or objection. 

That does not mean, however, that in the absence of an objection, 

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 

does not come within the exception found in Lenihan and Hatfield. 

Having failed to object to the sentence or to move for 

reconsideration, Nelson is barred from raising the issue of 

consideration of alternatives on appeal. 

We note 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 a nonviolent fe1cr.y offender to imprisonment, 

6 
the 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 be best served. 

These statutes do not provide the court with any 

discretion. The legislature has directed trial courts to 

make these considerations before any nonviolent offender 

is incarcerated. 

LaMere, 900 P.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 

3. In all other respects, Nelson's Petition for Rehearing is 

DENIED. Let Remittitur issue forthwith. 

4. The Clerk 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