INTHE SUPREME COURT OF THE STATE OF MONTANA 1978

LESLIE LEROY YOTHER, Petitioner and Appellant, 

### -vs

## - STATE OF MONTANA, Respondent and Respondent.

Appeal from: DistrictCourt of the Fifth Judicial District, Honorable James D. Freebourn, Judge presiding. Counsel of Record: For Appellant: James W. Zion argued, Helena, Montana For Respondent: Mike Greely

## ,Attorney General, Helena, Montana Michael McGrath, Assistant Attorney =neral, argued Helena, Montana Patrick Flaherty

## ,Boulder, Montana Mark Murphy, Special Deputy County Attorney, argued Boulder, Montana

Submitted: March 15, 1979 Decided

## JUL

## 3 

## 1979

Filed:

### Mr. Justice John C. Sheehy delivered the Opinion of the Court. Petitioner Yother appeals from the order of the District Court, Fifth Judicial District, Jefferson County,dated March 27, 1978,denying a petition forpost-conviction relief. This petition isbased upon proceedings in justice court, a hearing in DistrictCourt on an application for writ of habeas corpus, and upon the arraignment and sentencingof petitioner in DistrictCourt for first degree assault. In the earlymorning of March 9, 1973,petitioner, who

was on parole orprobation at the time, appeared at the Clancy Bar, Clancy,Montana, and allegedly assaulted patrons of that tavern. Petitionerwas arrested by a deputy sheriff responding to a call about the disturbance at the Clancy Bar. Later in the day petitionerwas charged by complaint of the arresting officer in the justice court for Boulder Township, Jefferson County, Montana, with disturbing thepeace on March 9,

### 1973, at Clancy, Montana, "by tumultuous and offensive conduct; and



# .. .by loud,unusual noise, cursing or swearing, fighting and threatening to fight." The petitioner allegedly pled guilty to the charge of disturbing the peace, and was allegedly sentenced to 100days in jail or a fineof $1,000by Justice of the Peace Edwin E. Kirtley. These allegations are based upon the notation in Justice of the Peace Kirtley's handwriting on the complaint that petitioner "pled guilty--bail set $1,000 or 100days in jail case sent to district court--casebound over to district courtApril 12, 1973." 

### Unfortunately no docket entry was 

### made regarding the disposition of this action. Petitioner began serving the jail sentence. Petitioner was thereafter charged by information on March 16, 1973with assault in the first and second degrees and with resisting officers. (The -2-action in this causewas commenced prior to the effective date of the 1973 Criminal Code.) The first degree assault chargeswere based upon complaints filed by persons involved in the altercation at the Clancy Bar. A psychiatric examinationwas ordered forpetitioner

on March 22, 1973. Petitioner filed a handwritten letter on March 22, 1973,which the District Court treated as an application for awrit of habeas corpus. The writ was issued and a hearing on thewrit was continued until after the examinationwas completed. On April 12, 1973, the hearing on the writ was held before the court. Justice of the Peace Kirtley testified petitioner did not plead guilty and no sentencewas imposed, rather petitioner was merely held pursuant to awarrant issued by a parole probation officer. Deputy sheriff

### W. J. Gwaltney

(thearresting officer) testified that petitioner was brought before the Justiceof the Peace on the complaint of disturbing the peace and not because of any request by the parole/probation officer. Deputy Gwaltney further testified petitioner was arraigned on the charge,pled guilty and was sentenced to 100 days in jail. The deputy also testified petitioner expressed astonishment at the length of the sentence. The parole/ probation officer testified no warrant was issued forpetitioner for any possible parole/probation violation. Upon conclusion of the hearing, the DistrictCourt quashed the application for a writ of habeas corpus and denied relief. The court also determined the proceedings in justice court had "apparentlynever been disposed of" and indicated petitioner could be arraigned on the charges contained in the information. Petitionerwas arraigned at 2:00 p.m. onApril 12, 1973 and at that time acknowledged receipt of the information filed against him and that he read it. The court then advised -3-petitioner of themaximum penalties for the charges made against him, of petitioner's right to remain silent, and of his right to counsel. Petitioner pled not guilty to the charges. Later that afternoon, after bargaining by the county attorney inwhich he indicated he would seek sentencing forpetitioner under the recidivist statute, the petitioner through his attorney changed his plea to guilty as to first degree assault. The court accepted the plea and dismissed the remaining charges. Petitionerwas then sentenced to ten years in the Montana State Prison. The record does not indicate whether the court at the arraignment or sentencing ascertained the petitioner's truename, advised him of his right to bail

(thoughbond was filed) orwhether the court inquired as to thevoluntariness of the guilty plea and the understanding the petitioner had of the charges as required by statute. Section 46-12-201, -202MCA (formerlysection 95-1606,R.C.M. 1947)

# . The petition forpost-conviction relief was filed in District Court on August 19, 1977, and a hearing was conducted

on February 1, 1978. The petitioner offered two grounds for granting the relief he requested--first, that he had been placed twice in jeopardyby his prosecution on the assault charges and second, that his guilty plea had not been completely voluntary and the District Court failed to ascertain the circumstances surrounding the plea as itwas required to do. In the hearing, the court granted amotion requesting it to take judicialnotice of the records in the prior proceedings. The court had before it as evidence the original complaint filed in the justice court aswell as a copy of the Board of Pardonsviolation report indicating petitioner had pled guilty and been sentenced fordisturbing the peace. Petitioner testified at this hearing that he felt he had pled guilty in justice court and had been sentenced. As -4-

### to the entry of the guilty plea in District Court,petitioner testified he had been unhappywith his representation by counsel and had tried to complain but to no avail. Petitioner further testified he felthis attorneywas not representing him and he did not want to be sentenced as a recidivist as the county attorney indicatedhe would ask the court to do. The District Court denied the relief requested in the petition specifically finding the petitioner's guilty plea was knowingly and voluntarily given and that no undue influence

was exerted or threats made with respect to the guilty plea. The court, however, made no explicit determination with respect to petitioner's double jeopardyclaim. Three issues confront this Court in thismatter. First, does the record of proceedings in the District Court indicate thepetitioner had pleaded guilty to an offense in justice court and was sentenced for that offense? Second, if the petitioner did plead guilty to a charge in justice court,did the charge - 

### arise out of the same transaction as the District Court charges in such away as to bar the District Court proceedings as being violative of the constitutional protection against double jeopardy? Finally,did the District Court considering the petition forpost-conviction relief correctly concludepetitioner had been properly informed of his constitutional rights and thevoluntariness of his plea firmly established in light of the record before his guilty plea was accepted? The scope of our review of a denial of post-conviction relief iswhether substantial evidence supports the findings and conclusions of the District Court. In the Matter of Jones

(19781, Mont

# . , 578 P.2d 1150, 1152, 35 St.Rep. 469. 

### The burden the petitioner haswhen requesting such relief is to showby a preponderance of evidence that the facts -5-justify the relief. 578 P.2d at 1152; see,Young v. Cupp (1971),8Or-App.41, 491P.2d 1201. In thepresent case, the District Court hearing the petition concluded petitioner had failed to meet this burden and therefore denied the post-conviction relief requested. We disagree and conclude the petitioner had established by a preponderance of the evidence his claim of double jeopardy and his claim that the District Court did not affirmatively ascertain the voluntariness of his guilty plea. Our review of the record in thismatter reveals the only evidence indicating the petitioner had not pled guilty to, and thus been convicted of, disturbing the peace is the testimony of Justice of the Peace Kirtley. Arrayed against this testimony is the testimony of Deputy Gwaltneywho unequivocally stated petitioner, "plead guilty and Judge Kirtley sentenced him to

a hundred days;" the testimony of the parole/probation officer that nowarrant forpetitioner had been issued by his office contrary to the claim of the justice of the peace; and the documents admitted in evidence by the District Court, including

a handwritten notationby Judge Kirtley, indicating petitioner had been convicted of and received a sentence fordisturbing the peace. We therefore find the petitioner - did present a preponderance of evidence showing he had been convicted of and sentenced fordisturbing the peace, and the evidencewas not so substantial as towarrant a determination otherwise by the District Court. Turning to the second issue in this causewe now must decide if such convictionwould prevent for double jeopardy

reasons a subsequent prosecution for firstdegree assault. We note initially petitioner's plea of guilty to the assault charge is not a bar to the claim of double jeopardy. Menna v. New York (1975), 423 U.S. 61, 62, 96 S.Ct. 241, 46 L.Ed.2d 195. -6-The United States Supreme Court has decided that a subsequent prosecution isbarred by a prior conviction if the subsequent prosecution is based upon the same acts aswas the prior conviction, if the subsequent prosecution is for an offense ofwhich the offense in the prior conviction is a lesser included offense, and if the subsequent prosecution is in a court which ispart of the same sovereign as the court involved in the prior conviction. Waller v. Florida (1970), 397 U.S. 387, 390, 394-395, 90 S.Ct. 1184, 25 L.Ed.2d 435; see also United Statesv. Mechanic (8thCir. 1971), 454 F.2d 849, 855; Turleyv. Wyrick (E.D.Mo. 1976), 415 F.Supp. 87, 88; State v. Rook (1973), 14 0r.App. 211, 511 P.2d 1245, 1246. Here the disturbing the peace charge and the first degree assault charge each were based upon the acts of petitioner while in the Clancy Bar, Clancy,Montana. We have already concluded petitioner was convicted of the charge of disturbing the peace based upon those acts. According to the statutesunder which the prosecutions occurred, to establish the offense of disturbing the peace it was necessary to prove petitioner (1) willfully and maliciously

(2) disturbed the peace of a neighborhood or person (3)by tumultuous or offensive conduct or 

### (4)by threatening to fight

or fighting. Section 94-3560,R.C.M. 1947. To establish first degree assault, section 94-601,R.C.M. 1947, the prosecution had to prove petitioner (1)with the intent to commit a felony upon the person or property of the one assaulted (2)assaults another (3) with a deadly weapon. Because the offense of disturbing the peace essentially required no proof beyond that required for conviction of the first degree assault charge it

was a lesser included offense of the greater offense of assault. Brown v. Ohio (1977), 432 U.S. 161, 168, 97 S.Ct. 2221, 53 L.Ed.2d -7-

### 187; Statev. Lagerquist (1968),152Mont. 51, 445 P.2d 910, 916. Article VIII, Section 1 of 1889Plontana Constitution states: "the judicialpower of the state shallbe vested in



# .. . a supreme court,district courts, justices of the peace, and such other inferior courts as the legislative assembly may establish in any incorporated city or town." Thisprovision demonstrates the judicialpower to try petitioner

on the charge in justice court springs from the same organic law that created the District Court in which petitionerwas convicted of a felony. The two courts involved in this matter are therefore arms of the same sovereign. Waller v. Florida, 397 U.S. at 393-394. We conclude this cause fallswithin the ambit of the Waller decision and the petitioner herewas placed twice in jeopardy

### by the subsequent prosecution for first degree assault. Moreover, the Supreme Court in Brown has held that a prior conviction for an offense requiring noproof beyond that necessary for conviction of a greater offensebars the prosecution for that greater offense. 432U.S. at 168-169. Although our determination of the first two issues presented in this appeal is dispositive,we feel obliged to comment on the remaining issue, that of the voluntariness of the guilty plea.Following itsquashing petitioner's writ of habeas corpus, the District Court arraigned petitioner on the information filed againsthim. The court ascertained petitioner had read the informationand then informed the petitioner of the charges filed against him and the potential penalties involved. The court further informed thepetitioner of his right to counsel and his right to remain silent. The petitioner indicatedhe would like to plead and then entered a not guilty plea. During the next fewhours petitioner spoke with his attorney and withthe county attorney, the latter apparently informing petitioner that if the casewent to trial, increased penalty under the recidivist statutewould be sought. After this petitioner returned to court and through his counselwithdrew his earlier plea, personally indicated he was ready to enter

a plea of guilty to first degree assault, and then through counsel entered the guilty plea to first degree assault. The remaining charges in the informationwere dismissed and the court passed sentence. The courtmade no inquiry as to the circumstances surrounding the change of plea, nor did it inform petitioner of his right to trial by jury and his right to confrontwitnesses. Petitioner argues the record before the District Courtmandated a thorough inquiry as tovoluntariness and understanding and failure to do so should result in the granting of the relief he seeks. The standard by which the validity of a guilty plea is judged iswhether theplea represents avoluntary and intelligent choice among the alternative courses of action open to the defendant as affirmatively disclosed by the record. North Carolina v. Alford (1970), 400U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162; Brady v. United States (1970),397 U.S. 742, 747, 90 S.Ct. 1463, 25 L.Ed.2d 747;Boykin v. Alabama (1969),395 U.S. 238, 243-244, 89 S.Ct. 1709, 23 L.Ed.2d 274;Wilkins v. Erickson (9thCir. 1974), 505 F.2d 761, 763. While it is clear that courts are not required to articulate specific rightswhen accepting a guilty plea, Wilkins, supra; Statev. Griffin (1975), 167Mont. 11, 535 P.2d 498, 503, an "indepth examination by the court is desirable andmandatory in caseswhere the record requires it." Griffin, 535 P.2d at 503. The record in this cause discloses the District Court which accepted petitioner's guilty plea made no -inquiries other than if petitionerwas ready to enter a plea. The record also



### -9-indicates "bargaining"had taken place between petitioner, his counsel and the county attorney. We would conclude upon this record that an in depth examination of the petitioner by the court accepting the plea was desirable and mandatory. For the future assistance of District Courts considering a guilty plea, we recommend reference to Statev. Lewis (1978), Mont. 

### , 582 P.2d 346, 35 St.Rep. 1089 and the scope of inquiry there employed by the District Court. See also, State

v. Huttinger (1979), Mont

# . I- P.2d 

### , 36 St.Rep. 945, 951-953. Having concluded the petitioner demonstrated by a preponderance of the evidence in his petition for post-conviction relief that he had been convicted of disturbing the peace and thuswas placed twice in jeopardy by the subsequent prosecution for assault,we reverse the denial of the petition. The matter is remanded to the District Court with instructions to allowpetitioner to withdraw his guilty plea to the first degree assault charges and thereafter to dismiss that charge. The District Court is further instructed to dismisspetitioner from any custodyby the State, or supervision by the Bureau of Probation and Parole,that is directly attributable to the conviction for firstdegree assault. Judgment reversed and remandedwith instructions.

Justice

### Mr. Chief Justice Frank 

### I. Haswell dissenting.



### Iwould grant thepetition to the extent of vacating petitioner's guilty plea as involuntary and remand the case to the District Court for further proceedings. 

### Iwould not dismiss the charge on double jeopardy grounds. Inmy view, the record before us does not support the conclusion that petitioner's conviction of disturbing the peace

was based on the same occurrence or incident involved in the assault charge. The two charges could well have been based on separate and independent incidents inwhich case the bar of double jeopardy would not apply. I

### would leave this factual determination to the District Court on remand.

----,--------\------ 

### Justice