NO. 95-051 IN THESUPREMECOURTOFTHESTATE OFMONTANA 1995

STATE OFMONTANA, Plaintiff and Respondent,

v. DAVID CHRISTOPHER JOHNSON, Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade, The Honorable John M. McCarvel, Judge presiding.

COUNSELOFRECORD:

For Appellant: John Keith, Great Falls, Montana For Respondent: Jospeh P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena, Montana; Brant Light, Cascade County Attorney, Shawn Glen, Deputy Cascade County Attorney, Great Falls, Montana

Filed: Submitted onBriefs: September 13, 1995 Decided: November 30, 1995Justice James C. Nelson delivered the Opinion of the Court.

David Christopher Johnson (Johnson) was charged with five counts of criminal sale of dangerous drugs. Aplea agreement was reached wherein Johnson pleaded guilty to all five counts. Prior to sentencing, Johnson moved the District Court for the Eighth Judicial District, Cascade County, for anorder allowing Johnson to withdraw his guilty pleas. The District Court denied the motion and sentenced Johnson to ten years with five years suspended on each count. Johnson appeals the denial of his motion to withdraw his guilty pleas. Weaffirm. The sole issue onappeal is whether the District Court abused its discretion in denying Johnson's motion to withdraw his guilty pleas.Johnson was arrested on October 1, 1993, in Great Falls and charged with five counts of criminal sale of dangerous drugs in violation of § 45-g-101, MCA (1991). The information and supporting affidavit alleged that Johnson sold marijuana to a confidential informant onfive separate occasions between September 13 and September 27, 1993. According to the affidavit, Johnson possessed a handgun during the last two transactions with the informant. An attorney with the Cascade County Public Defenders' Office

was appointed to represent Johnson. At his arraignment, Johnson entered pleas of not guilty on each count. Additionally, the District Court denied a motion for a reduction in the amount of Johnson's bail. 2On January 7, 1994, Johnson's attorney filed a motion

requesting substitution of counsel. Themotion stated that counsel had a conflict because he was representing two other criminal defendants against whomJohnson would becalled to testify. The District Court granted the motion and another attorney from the public defenders' office wasappointed to represent Johnson. Asecondbail reduction hearing washeld onJanuary 20, 1994, and the District Court reduced Johnson's bail from $100,000 to $15,000. OnJanuary 27, 1994, Johnson's second attorney filed a motion to berelieved ascounsel of record andrequested that the court appoint another attorney for Johnson. After aFebruary 4, 1994hearing, at which Johnson indicated that hedid not object to his attorney's withdrawal, the District Court granted the motion. Thecourt appointed Marvin Anderson, anassociate public defender,

asthe third attorney to represent Johnson. Atthe omnibus hearing onMarch22, 1994, Johnson informed the court that hewanted to defend himself, thus the District Court allowed Johnson to represent himself during the hearing andargue his motions to dismiss for selective prosecution and for multiplicity of charges. Thesemotions were later denied by the court. By stipulation, Johnson's bail was reduced to $2,500. Johnson wasreleased from jail andtrial wasset for May16, 1994. Onthe dayset for trial, the District Court received aletter from Johnson charging Johnson's attorney with incompetence and requesting that another attorney beappointed. Before proceeding with jury selection, the District Court held ahearing andinquiredabout the letter. Johnson told the court that he did not want to

be represented byAnderson and requested other counsel. The court refused to appoint other counsel for Johnson, required Johnson to represent himself, and designated Anderson as standby counsel. After attempting to voir dire the prospective jurors, Johnson entered into aplea agreement with the prosecutor wherein Johnson agreed to plead guilty to the five counts of criminal sale of dangerous drugs, and the prosecutor agreed to recommend ten-year concurrent sentences with no dangerous offender designation or weapons enhancement. The jury was dismissed andJohnson entered a plea of guilty to all five counts. That same day, the Cascade County Public Defenders' Office filed a motion requesting to be relieved as Johnson's counsel because Johnson had been granted leave to intervene in afederal lawsuit involving the operation and effectiveness of that office. The District Court granted the motion the following day and appointed counsel independent of the public defenders' office to represent Johnson. On June 21, 1994, through his fourth appointed counsel, Johnson filed amotion to withdraw his guilty pleas. OnOctober 17, 1994, the time set for sentencing, the District Court also conducted ahearing onJohnson's motion. The District Court denied the motion and sentenced Johnson to ten years with five years suspended on each count. The sentences were to run concurrently andJohnson wasdesignated anon-dangerous offender for purposes of parole eligibility. Johnson now appeals the denial of his motion

4to withdraw his guilty pleas.

Did the District Court abuse its discretion in denying Johnson's motion to withdraw his guilty pleas? No set rule or standard exists under which a trial court addresses arequest to withdraw aguilty plea; each case must be considered in light of its unique record. State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177 (citing State v. Radi (1991), 250 Mont. 155, 158-59, 818 P.Zd 1203, 1206). Our standard in reviewing adenial of amotion to withdraw aguilty plea is whether the district court abused its discretion. Enoch, 887 P.2d at 177 (citing State v. Reynolds (19921, 253Mont. 386, 390, 833 P.2d 153, 155). Johnson alleges that his guilty pleas were coerced by the State with the threat that hewould receive amore severe sentence if he did not plead guilty and that his pleas were not knowingly and voluntarily made because hewas on anti-depressant medication at the time he entered his pleas. He also alleges a claim of ineffective assistance of counsel byhis former attorney, Anderson. Section 46-16-105(2), MCA, states that a court may permit a guilty plea to bewithdrawn and anon-guilty plea substituted, for good cause, at any time before or after judgment. "The fundamental purpose of allowing the withdrawal of aguilty plea is to prevent the possibility of convicting aninnocent man." -, Radi 818 P.2d at 1206 (quoting State v. Arledge (1987), 228Mont. 225, 232, 741 P.2d 781, 785). This Court considers three factors to determine whether good

5cause existed andwhether the District Court erred in refusing to

allow withdrawal of aguilty plea: (1) the adequacy of the court's interrogation at the time the plea was entered regarding the defendant's understanding of the consequences of the plea; (2) the promptness with which the defendant attempts towithdraw the plea; and (3) the fact that the plea was the result of aplea bargain in which the guilty plea was given in exchange for dismissal of another charge. Enoch 887P.2d at 177; Radi

-I 818P.2d at 1206. -I Asto the first factor, adequacy of the court's interrogation at the time the plea wasentered, this Court haspreviously stated:

WhereaDistrict Court hasdoneall that it canto determine from the defendant or otherwise, that the proposed plea of guilty is voluntarily made, the defendant understands what heis doing andis advised of the consequences of his plea, including the nature and extent of his punishment, hasbeenadequately advised by counsel, andhasbeentreated fairly at all stages of the prosecution against him, andthat in fact the defendant states heis guilty of the charges made,then this Court hasaduty to support the District Court whenit allows aplea of guilty to beentered inplace of aplea of not guilty. Radi 818 P.2d at 1208 (quoting State v. Long (1987), 227Mont. -I 199, 202, 738P.2d 487, 489). In addition to being interrogated in court regarding his guilty plea, Johnson signed a plea agreement and a document entitled "Acknowledgment of Waiver of Rights by Plea of Guilty." Contrary to Johnson's assertions that the court's interrogation was inadequate anddid not meetthe criteria specified in §46-12-210, MCA, the combination of the in-court interrogation, the plea agreement and the written acknowledgement do contain all the necessary criteria. This Court haspreviously held that awritten 6acknowledgement, combined with oral questioning of the defendant,

constitutes adequate interrogation. State v. Mahoney (1994), 264 Mont. 89, 95, 870P.2d 65, 69(citing State v. Walker (1986), 220 Mont. 70, 73, 712P.2d 1348, 1350). The second factor, promptness with which the defendant attempts to withdraw the plea, weighs in Johnson's favor since Johnson filed his motion less than a month and a half after entering his guilty pleas. It has long been the rule that a request to withdraw a guilty plea should be made within a reasonable time. Enoch, 887 P.2d at 178 (citing State v. Nance (1947), 120Mont 152, 165, 184P.2d 554, 561). In Enoch, atwomonth delay between the guilty plea andamotion to withdraw was considered reasonable. Asto the third factor, that the plea wasthe result of aplea bargain, the record shows that Johnson, through his attorney, negotiated with the prosecutor onseveral occasions before Johnson agreed to plead guilty on all five counts. In exchange for a guilty plea, the prosecutor agreed to recommend concurrent sentences of ten years oneachcount, afar more lenient sentence than the maximumpenalty of life imprisonment. In addition, the prosecutor agreed not to recommendasentence enhancement for the

useof aweaponor adangerous offender designation. Wehave often held that this Court "will not lend its assistance to an accused criminal in escaping his or her obligations of aplea bargain after accepting its benefits." State

v. Milinovich (1994), 269Mont. 68, 74, 807P.2d 214, 218(quoting

7Reynolds, 833 P.2d at 157).

Johnson attacks the voluntariness of his guilty pleas. He contends that hewas coerced by threats that he would receive a

more severe sentence if hedid not plead guilty and that hewas on antidepressant medication at the time of his pleas. The United States Supreme Court has long held that aplea is not involuntary simply because it was entered to avoid a greater punishment. Milinovich, 887 P.2d at 216 (citing Brady v. United States (1970), 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747, 760). Moreover, in the acknowledgement of waiver of rights Johnson signed, he stated that his plea was madevoluntarily; that hewas not suffering under any emotional or mental disability from any

cause including the use of drugs, alcohol or prescription medication; and that he understood what hewas doing by pleading guilty.Johnson also claims that constitutional violations occurred prior to the plea agreement. He claims that his right to counsel

wasdenied because hewasforced to represent himself and he claims

a form of double jeopardy due to the multiplicity of charges. However, because Johnson pleaded guilty, he waived all factual defenses which occurred prior to the plea. State v. Skroch (1994), 267 Mont. 349, 358, 883 P.2d 1256, 1262-63 (citations omitted). Thereafter, Johnson may only attack the voluntary nature of his plea. Skroch, 883 P.2d at 1263. Moreover, at the change of plea hearing, Johnson was not unrepresented but in fact had standby counsel.

8Johnson dS0 claims ineffective assistance of COlXEXl

involving Anderson, Johnson's counsel at the time heentered his guilty pleas. To determine whether a defendant received ineffective assistance of counsel, this Court mustconduct the twopart 107, Strickland test, adopted inState v. Robbins (1985), 218Mont. 114, 708P.2d 227, 232. In that casewestated: First, thedefendant mustshowthat counsel's performance wasdeficient. This requires showing that counsel made errors soserious that counsel wasnot functioning asthe "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors weresoserious as to deprive the defendant of afair trial, atrial whose result is reliable. Robbins, 708P.2d at 232 (citing Strickland v. Washington (1984), 466U.S. 668, 687, 104S.Ct. 2052, 2064, 80L.Ed.2d 674). If the issue is adefendant's guilty plea, the defendant must demonstrate that but for counsel's deficient performance, adefendant would not haveentered aguilty plea. Mahoney, 870P.2d at 73(citing State

v. Senn (1990), 244Mont. 56, 59, 795P.2d 973, 975). Johnson hasnot demonstrated that heentered the guilty pleas due to any deficient performance by Anderson. Anderson wasnot only prepared to represent Johnson at trial, healso prepared a packet of information for Johnson in case Johnson decided to represent himself at trial. It wasonly after the court ordered Johnson to represent himself that Johnsonentered the guilty pleas. Additionally, the record showsthat the plea agreement wasin line with what Johnson hadoriginally expected to receive. Furthermore, despite Johnson's assertions that aconflict of

9interest existed rendering Anderson's assistance ineffective,

Johnson has failed to showthat his intervention in the federal lawsuit involving the public defender's office resulted in a conflict that adversely affected Anderson's performance. Moreover, Johnson stated at his changeof plea hearing that hewas satisfied with his attorney andinthe acknowledgement of waiver of rights he stated that hewasfairly andproperly represented byhis attorney. Accordingly, since Johnson has failed to showgoodcause to allow withdrawal of his guilty pleas, wehold that the District Court did not abuse its discretion bydenying Johnson's motion. Affirmed.

WeConcur:

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