NO. 95-051 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

STATE OF MONTANA, 

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. 

COUNSEL OF RECORD: 

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 on Briefs: September 13, 1995 

Decided: November 30, 1995 
Justice James C. Nelson delivered the Opinion of the Court. 

David Christopher Johnson (Johnson) was charged with five 

counts of criminal sale of dangerous drugs. A plea 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 an order 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. We affirm. 

The sole issue on appeal 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 on five 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. 

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On January 7, 1994, Johnson's attorney filed a motion 

requesting substitution of counsel. The motion stated that counsel 

had a conflict because he was representing two other criminal 

defendants against whom Johnson would be called to testify. The 

District Court granted the motion and another attorney from the 

public defenders' office was appointed to represent Johnson. 

A second bail reduction hearing was held on January 20, 1994, 

and the District Court reduced Johnson's bail from $100,000 to 

$15,000. On January 27, 1994, Johnson's second attorney filed a 

motion to be relieved as counsel of record and requested that the 

court appoint another attorney for Johnson. After a February 4, 

1994 hearing, at which Johnson indicated that he did not object to 

his attorney's withdrawal, the District Court granted the motion. 

The court appointed Marvin Anderson, an associate public defender, 

as the third attorney to represent Johnson. 

At the omnibus hearing on March 22, 1994, Johnson informed the 

court that he wanted to defend himself, thus the District Court 

allowed Johnson to represent himself during the hearing and argue 

his motions to dismiss for selective prosecution and for 

multiplicity of charges. These motions were later denied by the 

court. By stipulation, Johnson's bail was reduced to $2,500. 

Johnson was released from jail and trial was set for May 16, 1994. 

On the day set for trial, the District Court received a letter 

from Johnson charging Johnson's attorney with incompetence and 

requesting that another attorney be appointed. Before proceeding 

with jury selection, the District Court held a hearing and inquired 
about the letter. Johnson told the court that he did not want to 

be represented by Anderson 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 a plea 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 and Johnson 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 a federal 

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 a motion to withdraw his guilty pleas. On October 

17, 1994, the time set for sentencing, the District Court also 

conducted a hearing on Johnson'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 

and Johnson was designated a non-dangerous offender for purposes of 

parole eligibility. Johnson now appeals the denial of his motion 

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to 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 a request to withdraw a guilty 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 a denial of a motion to withdraw a guilty plea is whether 

the district court abused its discretion. Enoch, 887 P.2d at 177 

(citing State v. Reynolds (19921, 253 Mont. 386, 390, 833 P.2d 153, 

155). 

Johnson alleges that his guilty pleas were coerced by the 

State with the threat that he would receive a more severe sentence 

if he did not plead guilty and that his pleas were not knowingly 

and voluntarily made because he was on anti-depressant medication 

at the time he entered his pleas. He also alleges a claim of 

ineffective assistance of counsel by his former attorney, Anderson. 

Section 46-16-105(2), MCA, states that a court may permit a 

guilty plea to be withdrawn and a non-guilty plea substituted, for 

good cause, at any time before or after judgment. "The fundamental 

purpose of allowing the withdrawal of a guilty plea is to prevent 

the possibility of convicting an innocent man." -, Radi 818 P.2d at 

1206 (quoting State v. Arledge (1987), 228 Mont. 225, 232, 741 P.2d 

781, 785). 

This Court considers three factors to determine whether good 

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cause existed and whether the District Court erred in refusing to 

allow withdrawal of 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 -I 887 P.2d at 177; Radi 818 P.2d at 1206. -I 

As to the first factor, adequacy of the court's interrogation 

at the time the plea was entered, this Court has previously stated: 

Where a District Court has done all that it can to 

determine from the defendant or otherwise, that the 

proposed plea of guilty is voluntarily made, the 

defendant understands what he is doing and is advised of 

the consequences of his plea, including the nature and 

extent of his punishment, has been adequately advised by 

counsel, and has been treated fairly at all stages of the 

prosecution against him, and that in fact the defendant 

states he is guilty of the charges made, then this Court 

has a duty to support the District Court when it allows 

a plea of guilty to be entered in place of a plea of not 

guilty. 

-I Radi 818 P.2d at 1208 (quoting State v. Long (1987), 227 Mont. 

199, 202, 738 P.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 and did not meet the 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 has previously held that a written 

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acknowledgement, combined with oral questioning of the defendant, 

constitutes adequate interrogation. State v. Mahoney (1994), 264 

Mont. 89, 95, 870 P.2d 65, 69 (citing State v. Walker (1986), 220 

Mont. 70, 73, 712 P.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), 120 Mont 152, 165, 184 P.2d 554, 561). In Enoch, a twomonth delay between the guilty plea and a motion to withdraw was 

considered reasonable. 

As to the third factor, that the plea was the result of a plea 

bargain, the record shows that Johnson, through his attorney, 

negotiated with the prosecutor on several 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 on each count, a far more lenient sentence 

than the maximum penalty of life imprisonment. In addition, the 

prosecutor agreed not to recommend a sentence enhancement for the 

use of a weapon or a dangerous offender designation. 

We have often held that this Court "will not lend its 

assistance to an accused criminal in escaping his or her 

obligations of a plea bargain after accepting its benefits." State 

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

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Reynolds, 833 P.2d at 157). 

Johnson attacks the voluntariness of his guilty pleas. He 

contends that he was coerced by threats that he would receive a 

more severe sentence if he did not plead guilty and that he was on 

antidepressant medication at the time of his pleas. The United 

States Supreme Court has long held that a plea 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 made voluntarily; that he was 

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 he was doing by pleading 

guilty. 

Johnson also claims that constitutional violations occurred 

prior to the plea agreement. He claims that his right to counsel 

was denied because he was forced 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. 

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Johnson dS0 claims ineffective assistance of COlXEXl 

involving Anderson, Johnson's counsel at the time he entered his 

guilty pleas. To determine whether a defendant received 

ineffective assistance of counsel, this Court must conduct the twopart 

107, 

Strickland test, adopted in State v. Robbins (1985), 218 Mont. 

114, 708 P.2d 227, 232. In that case we stated: 

First, the defendant must show that counsel's performance 

was deficient. This requires showing that counsel made 

errors so serious that counsel was not functioning as the 

"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 were so serious as 

to deprive the defendant of a fair trial, a trial whose 

result is reliable. 

Robbins, 708 P.2d at 232 (citing Strickland v. Washington (1984), 

466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674). If the 

issue is a defendant's guilty plea, the defendant must demonstrate 

that but for counsel's deficient performance, a defendant would not 

have entered a guilty plea. Mahoney, 870 P.2d at 73 (citing State 

v. Senn (1990), 244 Mont. 56, 59, 795 P.2d 973, 975). 

Johnson has not demonstrated that he entered the guilty pleas 

due to any deficient performance by Anderson. Anderson was not 

only prepared to represent Johnson at trial, he also prepared a 

packet of information for Johnson in case Johnson decided to 

represent himself at trial. It was only after the court ordered 

Johnson to represent himself that Johnson entered the guilty pleas. 

Additionally, the record shows that the plea agreement was in line 

with what Johnson had originally expected to receive. 

Furthermore, despite Johnson's assertions that a conflict of 

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interest existed rendering Anderson's assistance ineffective, 

Johnson has failed to show that 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 change of plea hearing that he was satisfied 

with his attorney and in the acknowledgement of waiver of rights he 

stated that he was fairly and properly represented by his attorney. 

Accordingly, since Johnson has failed to show good cause to 

allow withdrawal of his guilty pleas, we hold that the District 

Court did not abuse its discretion by denying Johnson's motion. 

Affirmed. 

We Concur: 

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