IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

LESLIE LEROY YOTHER, 

Petitioner and Appellant, 

-vs - 

STATE OF MONTANA, 

Respondent and Respondent. 

Appeal from: District Court 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 for post-conviction relief. This 

petition is based upon proceedings in justice court, a hearing 

in District Court on an application for writ of habeas corpus, 

and upon the arraignment and sentencing of petitioner in 

District Court for first degree assault. 

In the early morning of March 9, 1973, petitioner, who 

was on parole or probation at the time, appeared at the Clancy 

Bar, Clancy, Montana, and allegedly assaulted patrons of that 

tavern. Petitioner was arrested by a deputy sheriff responding 

to a call about the disturbance at the Clancy Bar. Later in 

the day petitioner was charged by complaint of the arresting 

officer in the justice court for Boulder Township, Jefferson 

County, Montana, with disturbing the peace 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 100 days 

in jail or a fine of $1,000 by 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 100 days in 

jail case sent to district court--case bound over to district 

court April 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, 1973 with assault in the 

first and second degrees and with resisting officers. (The 

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action in this cause was commenced prior to the effective 

date of the 1973 Criminal Code.) The first degree assault 

charges were based upon complaints filed by persons involved 

in the altercation at the Clancy Bar. 

A psychiatric examination was ordered for petitioner 

on March 22, 1973. Petitioner filed a handwritten letter on 

March 22, 1973, which the District Court treated as an 

application for a writ of habeas corpus. The writ was issued 

and a hearing on the writ was continued until after the 

examination was 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 sentence was imposed, 

rather petitioner was merely held pursuant to a warrant issued 

by a parole probation officer. Deputy sheriff W. J. Gwaltney 

(the arresting officer) testified that petitioner was brought 

before the Justice of 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 for petitioner 

for any possible parole/probation violation. 

Upon conclusion of the hearing, the District Court quashed 

the application for a writ of habeas corpus and denied relief. 

The court also determined the proceedings in justice court 

had "apparently never been disposed of" and indicated petitioner 

could be arraigned on the charges contained in the information. 

Petitioner was arraigned at 2:00 p.m. on April 12, 1973 

and at that time acknowledged receipt of the information filed 

against him and that he read it. The court then advised 

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petitioner of the maximum 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 in which he indicated he would seek sentencing 

for petitioner 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. Petitioner was 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 true name, advised him of his right to bail 

(though bond was filed) or whether the court inquired as to 

the voluntariness of the guilty plea and the understanding the 

petitioner had of the charges as required by statute. Section 

46-12-201, -202 MCA (formerly section 95-1606, R. C.M. 1947) . 

The petition for post-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 jeopardy by 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 it was required to do. 

In the hearing, the court granted a motion requesting it to 

take judicial notice of the records in the prior proceedings. 

The court had before it as evidence the original complaint 

filed in the justice court as well as a copy of the Board of 

Pardons violation report indicating petitioner had pled guilty 

and been sentenced for disturbing the peace. 

Petitioner testified at this hearing that he felt he 

had pled guilty in justice court and had been sentenced. As 

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to the entry of the guilty plea in District Court, petitioner 

testified he had been unhappy with his representation by 

counsel and had tried to complain but to no avail. Petitioner 

further testified he felt his attorney was not representing 

him and he did not want to be sentenced as a recidivist as the 

county attorney indicated he 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 jeopardy claim. 

Three issues confront this Court in this matter. First, 

does the record of proceedings in the District Court indicate 

the petitioner 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 a way 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 for post-conviction relief correctly conclude petitioner 

had been properly informed of his constitutional rights and 

the voluntariness 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 is whether 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 has when requesting such 

relief is to show by a preponderance of evidence that the facts 

-5- 
justify the relief. 578 P.2d at 1152; see, Young v. Cupp 

(1971), 8 Or-App. 41, 491 P.2d 1201. 

In the present 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 this matter 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 Gwaltney who unequivocally stated 

petitioner, "plead guilty and Judge Kirtley sentenced him to 

a hundred days;" the testimony of the parole/probation officer 

that no warrant for petitioner 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 notation by Judge Kirtley, indicating petitioner 

had been convicted of and received a sentence for disturbing 

the peace. We therefore find the petitioner - did present a 

preponderance of evidence showing he had been convicted of and 

sentenced for disturbing the peace, and the evidence was not so 

substantial as to warrant a determination otherwise by the 

District Court. 

Turning to the second issue in this cause we now must 

decide if such conviction would prevent for double jeopardy 

reasons a subsequent prosecution for first degree 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. 

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The United States Supreme Court has decided that a subsequent prosecution is barred by a prior conviction if the 

subsequent prosecution is based upon the same acts as was the 

prior conviction, if the subsequent prosecution is for an 

offense of which the offense in the prior conviction is a lesser 

included offense, and if the subsequent prosecution is in a 

court which is part 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 States v. Mechanic (8th Cir. 1971), 454 F.2d 849, 855; 

Turley v. 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 statutes under 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; State v. Lagerquist (1968), 152 Mont. 51, 445 P.2d 910, 

916. 

Article VIII, Section 1 of 1889 Plontana Constitution 

states: "the judicial power of the state shall be 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." 

This provision demonstrates the judicial power to try petitioner 

on the charge in justice court springs from the same organic 

law that created the District Court in which petitioner was 

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 falls within the ambit of the 

Waller decision and the petitioner here was 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 no proof beyond that 

necessary for conviction of a greater offense bars the prosecution 

for that greater offense. 432 U.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 its quashing petitioner's writ of habeas corpus, 

the District Court arraigned petitioner on the information 

filed against him. The court ascertained petitioner had read 

the information and then informed the petitioner of the charges 

filed against him and the potential penalties involved. The 

court further informed the petitioner of his right to counsel 

and his right to remain silent. The petitioner indicated he 

would like to plead and then entered a not guilty plea. During 

the next few hours petitioner spoke with his attorney and with 
the county attorney, the latter apparently informing 

petitioner that if the case went to trial, increased penalty 

under the recidivist statute would be sought. After this 

petitioner returned to court and through his counsel withdrew 

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 information were dismissed and the 

court passed sentence. The court made 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 confront witnesses. Petitioner argues the record before 

the District Court mandated a thorough inquiry as to voluntariness 

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 is whether the plea represents a voluntary and intelligent 

choice among the alternative courses of action open to the 

defendant as affirmatively disclosed by the record. North 

Carolina v. Alford (1970), 400 U.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 (9th Cir. 1974), 505 F.2d 761, 763. While it is clear 

that courts are not required to articulate specific rights when 

accepting a guilty plea, Wilkins, supra; State v. Griffin (1975), 

167 Mont. 11, 535 P.2d 498, 503, an "in depth examination by 

the court is desirable and mandatory in cases where 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 petitioner was 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 State v. 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 

thus was 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 

allow petitioner to withdraw his guilty plea to the first 

degree assault charges and thereafter to dismiss that charge. 

The District Court is further instructed to dismiss petitioner 

from any custody by the State, or supervision by the Bureau 

of Probation and Parole, that is directly attributable to the 

conviction for first degree assault. 

Judgment reversed and remanded with instructions. 

Justice 
Mr. Chief Justice Frank I. Haswell dissenting. 

I would grant the petition to the extent of vacating 

petitioner's guilty plea as involuntary and remand the case 

to the District Court for further proceedings. I would not 

dismiss the charge on double jeopardy grounds. 

In my 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 in which case the bar of 

double jeopardy would not apply. I would leave this factual 

determination to the District Court on remand. 

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

Justice