No. 83-181 

IN THE SUPF?JIME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTAPJA, 

Plaintiff and Respondent, 

-vsKATHLEEN RACHEL WILRINSON , 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ferguson 6( Mitchell; Carol Plitchell argued, 

Plissoula, Montana 

For Respondent : 

Bon. Mike Greely, Attorney General, Helena, Montana 

Chris Tweeten argued, Asst. Atty. General, Helena 

Robert L. Deschamps, 111, County Attorney, (Karen 

Townsend, Deputy) Missoula, Montana 

Submitted: 1/13/34 

Decided: 3/26/84 

Clerk 
Mr Justice John Conway Harrison delivered the Opinion of the 

Court. 

The appellant, Wilkinson, appeals from an order of the 

Missoula County District Court, denying her motion either to 

withdraw her plea of guilty to a reduced charge of negligent 

homicide, or be sentenced in accordance with a plea bargain 

struck by the parties. We affirm the action of the District 

Court. 

The facts surrounding the case involve the death of 

19-month-old Paul Tucker Wilkinson, on February 23, 1982, 

who was found dead in an East Missoula trailer, where he 

resided with his mother, the appellant, and her boyfriend, 

William R.ussel1 Sigler. Within a month of the death, on 

March 18, 1982, the appellant was charged with a negligent 

homicide in connection with the death of her son. This 

charge was based upon her failure to secure medical 

attention for her child. Sigler was charged with deliberate 

homicide. When subsequent investigation convinced the 

County Attorney's office that the accountability theory, 

approved by this Court in State v. Powers (Mont. 1982), 645 

P.2d 1357, 39 St.Rep. 989, might apply, the negligent 

homicide charge against the appellant was dismissed and a 

new information was filed charging her with deliberate 

homicide. 

The trials of the appellant and Sigler were bifurcated 

upon motion of defense counsel for Sigler. The Sigler trial 

was scheduled to begin in early August of 1982, while that 

of the appellant was set for a later date. In July, 1982, 

the appellant's counsel approached the State about a 

possible plea bargain. While the State was generally 
willing to accept a guilty plea to a reduced charge of 

negligent homicide, the State was unwilling to agree to two 

of appellant's demands. Those demands were: (1) that the 

State either agree to recommend probation or make no 

recommendation as to incarceration; (2) that a dependant and 

a neglected child action relating to the then-pregnant 

appellant's unborn child be dropped. 

At the time the Sigler trial commenced on August 4, 

1982, no plea bargain agreement had been reached between the 

appellant and the State. 

The State sought the appellant's testimony against 

Sigler. With this object, on August 7, 1982, the State 

offered to reduce the charge against the appellant to 

negligent homicide and to recommend a sentence of ten years 

imprisonment with seven years suspended if the appellant 

would plead guilty, give a sworn statement and testify 

against Sigler. The prosecution furnished a chart to the 

appellant to use in computing parole eligibility dates 

within the various sentences then under consideration. The 

appellant's counsel advised her that the court was not bound 

by the prosecutor's recommendation. The appellant offered 

to accept the prosecution's proposal if the recommended 

suspended sentence was increased from seven to eight years, 

since under a sentence of ten years with eight suspended she 

would be eligible for release on parole before the birth of 

her baby. The prosecution accepted the offer, and the 

defendant made a sworn statement and testified against 

Sigler during his trial. 

Two days later, on August 13, 1982, the appellant, her 

counsel and the Deputy County Attorney, Karen Townsend, 
traveled to Polson from Missoula to allow the appellant to 

change her plea before Judge Green, who was sitting in Lake 

County. During the trip, Townsend again informed the 

defendant that neither her sentence nor parole was 

guaranteed, and that the court was free to disregard the 

recommenda.tion of the State. Townsend also informed the 

appellant that Judge Green had not followed prosecution 

sentence recommendations in similar cases. 

During the hearing in Polson, Ms. Townsend spread the 

elements of the plea bargain on the record: 

"MS. TOWNSEND: Your Honor, I think prior 

to the time Miss Wilkinson answers this, 

I would like to state for the record, 

which I think the Court is probably aware 

of through media coverage, that there has 

been, in fact, a plea bargain that has 

been entered by myself and Ms. Mitchell 

with respect to this particular charge. 

Part of that plea bargain has been 

fulfilled by the filing of this Amended 

Information with a reduced charge. 

"Secondly, I have agreed to recommend to 

the Court at the time of sentencing a 

sentence for Miss Wilkinson which would 

be no more than ten years in the Montana 

State Prison with all but eight 

suspended. 

"Further, the bargain is that Ms. 

Mitchell-- 

"THE COURT: You said all but eight 

suspended? 

"MS. TOWNSEND : I'm sorry, eight 

suspended. In other words, with two 

left. 

"Further, Ms. Mitchell and Ms. Ferguson 

are free to argue to the Court for a 

complete probationary sentence if they 

would wish to. So they are not bound to 

agree to that. 

"Finally, Your Honor, I think the Court 

does know there is a sort of a companion 

civil case in connection with this 

particular incident. There has been no 

agreement to whether we will drop or 
continue, and that case will proceed as 

is. " 

The appellant's counsel agreed that Townsend's 

statement covered the terms of the plea bargain. Judge 

Green then questioned the appellant as to her understanding 

of the plea bargain: 

"THE COURT: Well, Miss Wilkinson, you 

understand that the Court had no part in 

this agreement? 

"THE DEFENDANT: Yes, I do, Your Honor. 

"THE COURT: The Court has not bound 

itself to follow the recommendations of 

the county attorney. I haven't done it 

in this case, and I never will. It's up 

to the Court to determine the proper 

sentence after I have received the 

pre-sentence report and considered 

everything that is pertinent in your 

case. 

"THE DEFENDANT: Yes, I do, Your Honor. 

"THE COURT: So there have been no 

promises made to you outside of the 

recommendation that the county attorney 

will make to the Court. 

"THE DEFENDANT: Yes, Your Honor. 

"THE COURT: You understand that? Now 

knowing this, do you wish to withdraw 

your plea of guilty as charged at this 

time? 

"THE DEFENDANT: No, Your Honor." 

The court further advised the defendant that under her 

guilty plea she could be sentenced to up to ten years in 

prison and fined $50,000. She responded that she 

understood. The court ordered a presentence report and set 

sentencing for September 10, 1982. 

At sentencing, the appellant called as witnesses Joe 

Sobansky, the probation officer, and Dr. Will Stratford, a 

psychiatrist who had examined the appellant. Sobansky had 

recommended a ten year sentence with none suspended, and 
defense counsel's examination of him, covering some eight 

pages of transcript, attempted to show that he had 

inadequately investigated the case, in part by failing to 

consult Dr. Stratford. Townsend's cross-examination of 

Sobansky, covering less than two pages of the transcript, 

brought out the reason Stratford had not been contacted--he 

had made no report--and retraced Sobansky's reasons for his 

recommendation, which had been elicited on direct 

examination. Defense counsel had no objection to this 

cross-examination. Defense counsel's examination of Dr. 

Stratford, covering some seven pages of transcript, focused 

on Stratford's opinion of the appellant's mental condition 

and the appropriateness of the recommended sentence. 

Townsend's cross-examination, covering approximately three 

pages of transcript, inquired as to the likelihood of 

rehabilitation, the fact that counseling would assist the 

appellant and that appellant would need vocational training 

as a condition of her suspended sentence, and what other 

conditions the doctor would recommend. The court in 

addition cross-examined Dr. Stratford. 

Townsend then unequivocally recommended a sentence of 

ten years with eight suspended, as agreed under the plea 

bargain. Her recommendation discussed her reasons in depth 

and at length. Defense counsel then argued for the plea 

bargain, although suggesting that a lesser sentence was 

appropriate, particularly recommending that the appellant 

receive no jail time. The court then imposed a sentence of 

ten years with two years suspended. 

Thereafter the appellant moved on September 20, 1982, 

to withdraw her guilty plea, or in the alternative that her 
sentence be vacated and that she be resentenced in 

compliance with the prosecutor's recommendation. The court 

set the motion for hearing on October 22, 1982. At the 

hearing, defense counsel withdrew the motion to withdraw the 

plea and sought only a new sentence of ten years with eight 

suspended. Appellant testified that she had agreed to the 

plea bargain only because she wanted to be released on 

parole before the birth of her child. She acknowledged to 

the court that she had been advised by Ms. Townsend and by 

Judge Green that the sentence recommendation was not 

binding, but stated that she thought the judge would go 

along, and that the judge's inquiry at the plea proceeding 

was but a formality. 

The appellant also presented testimony from an 

eight-time felony convict and two public defenders to the 

effect that most defendants would subjectively believe the 

prosecutor's recommendation would be followed. One of the 

appellant's attorneys, Paulette Ferguson, testified that the 

appellant accepted the plea bargain because she wanted to be 

paroled before the birth of her baby. Ferguson told the 

appellant that Judge Green was not bound by the 

recommendation, and that parole eligibility did not 

guarantee that the appellant would be paroled. Ferguson 

admitted that the plea bargaining did not prevent Ms. 

Townsend from cross-examining defense witnesses at 

sentencing and that the prosecution had no prior notice of 

the recommendation that defense counsel w~uld offer at 

sentencing. 

Following the sentencing, Judge Green entered detailed 

findings and conclusions in support of his decision 
rejecting the appellant's motion. The court found as fact 

that the appellant had been advised by Townsend, by her own 

counsel twice, and by Judge Green, that the prosecutor's 

recommendation did not bind the court. The court further 

found that Ms. Townsend had made the recommendation agreed 

upon in the plea bargaining. The court concluded that the 

appellant's plea was knowingly and voluntarily made, and 

that in particular she was advised that the court was not 

bound by the recommendation, and that the prosecutor had 

fully complied with the plea bargaining. 

At the time this case arrived, there was also pending 

the case of State v. Cavanaugh (Mont. 1983) 673 P.2d 482, 

40 St.Rep. 2007, wherein this Court adopted the ABA 

Standards requiring the sentencing court to inform a 

defendant if it is not going to accept the entire plea 

bargain, and then give the defendant an opportunity to 

affirm or withdraw the guilty plea. See, ABA Standards 

Relating to The Administration of Criminal Justice; Function 

of the Trial Judge, section 4.l(c) (1974), and ABA 

Standards, supra, Pleas of Guilty, sections 2.1 and 3.3, 

(1974). As noted in that opinion a majority of other state 

jurisdictions as well as the federal courts follow this 

procedure. See, Federal Rules of*% Procedure, ll(e)(4). Crrm. 

zc_.. 

This Court split four to three. However, the decision 

in Cavanaugh concluded that the standards were to be 

adopted, but the decision would be prospective only. 

Therein we stated: 

"We therefore adopt the previously 

discussed standards of the American Bar 

Association and F.R.w,P. ll(e)(4), and 

require the trial juhf4'&' who accepts a 

plea but rejects any other portion of the 

plea bargain, to afford the defendant the 
opportunity to withdraw his guilty plea 

and enter a plea of not guilty. 

"The decision in this case shall have 

prospective application only. The 

decision applies to defendant James 

Cavanaugh and all who are sentenced after 

the effective date of this decision. In 

support of this prospective holding, see 

State v. Campbell (1979), 182 Mont. 521, 

597 P.2d 1146." 673 P.2d at 485, 40 

St.Rep at 2011. 

There, we established a new procedural requirement for 

sentencing. In accordance with the requirement in effect at 

the time of the sentencing, the experienced trial judge 

carefully advised the appellant that he would not be bound 

by the recommendation of the prosecution. Her own counsel, 

several times, so advised her, as did the prosecuting 

attorney in the case. We find that criminal justice would 

be seriously hampered by requiring conformity to an 

unannounced new procedure of any trial judge in this state. 

As stated by this Court in the unanimous opinion, 

State v. Campbell (1979), 182 Mont. 521, 597 P.2d 1146: 

"It should be obvious that retroactive 

application of this rule would seriously 

retard its operation. Litigants have a 

right to rely on the law in effect at the 

time. The administration of justice 

would be seriously hampered by requiring 

conformity to an as yet unannounced new 

procedural requirement. Law enforcement 

agencies and courts are entitled to rely 

on the rules pertaining to guilty pleas 

in effect at the time the guilty plea was 

entered and to determine voluntariness on 

the basis of such law." 182 Mont. at 

526, 597 P.2d at 1149. 

In addition in -- Campbell, supra, we referred to prior 

decisions of this Court and the United States Supreme Court, 

in denying retroactive application of the decision. 

We note in addition, that the appellant now is on 

parole, having been given credit for time she served in the 
county jail, has been employed and is under supervision of 

state authorities. The crime for which she entered a plea 

was serious, homicide, and reviewing the entire transcript 

and file on this case, we are of the opinion that she 

received "substantial fairness" by the judicial system of 

this state. 

The decision is affirmed. 

We concur: 

&d&& 

Chief Justice 

Justices 

Hon. Chan Ettien, District 

Judge, sitting in place of Mr. 

Justice Frank B. Morrison, Jr. 

Mr. Justice Daniel J. Shea dissents and will file a written 

dissent later. 
Honorable Chan Ettien, District Judge, dissenting: 

I dissent. 

In State v. Cavanaugh (Decided December 23, 1983), 

P.2d , 40 St.Rep. 2007, Cavanaugh was sentenced September 

19, 1977. 

Wilkinson was sentenced August 13, 1982. 

The Cavanauqh ruling is retroactive in favor of its 

subject to September 19, 1977, but on the way back by-passes 

a judgment on Wilkinson imposed five years later. 

The logic of the majority escapes me when both cases 

were pending before this Court at the same time. 

The Cavanauqh rule should be retroactive from the da.te 

of its judgment, September 19, 1977. 

While it appears, practically, that Wilkinson has 

nothing to gain by reversal-, I would reverse and remand for 

her option to change her plea if she wishes, in keeping with 

the doctrine of fundamental fairness. 

(&19 (E;& 

Honora e Chan Ettien, istrict Judge, sitting in place 

of Mr. Justice Frank B. 

Morrison, Jr. 
Justice John C. Sheehy, dissenting: 

I dissent to the manifest injustice done by this decision to Kathleen Rachel Wilkinson. 

Kathleen without dispute here had an invincible wish to 

bear the child she was then carrying outside the prison 

walls. To achieve this, she consented by plea bargain to 

provide the evidence without which the State coul-d not have 

convicted Sigler, but the evidence incriminated herself. Now 

the State, worse than Shylock, has extracted the benefit of a 

fine quillet of the law--Judge Green told her before her 

sentencing, but after she had fully performed her part of the 

agreement, that he was not bound by the plea bargain. It is 

not enough here, as it was in Cavanaugh, cited above in the 

majority opinion, that she be given a chance to withdraw her 

plea of guilty. Her prior evidence given in Sigl-er would 

convict her now. As Brandeis said in Omstead v. United 

States (1928), 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 

(Brandeis, J., dissenting) , our government teaches the whole 

people by its example. The teaching here is, beware of the 

State: it. will trick you if it can. We should order the 

District Court in this instance to follow scrupulously the 

terms of the agreement the State was so eager to procure 

(even though the result she sought to obtajn is now beyond 

our power). Only then can this Court wrap itself in the robe 

of "substantial fairness." 

T also disagree that we must not apply the Cavanaugh 

rule here because of our prospective-only line in that case. 

Wilkinson got to this Court before Cavanaugh, and in a procedural process beyond Wikinson's control, Cavanauqh 

leap-frogged Wilkinson. Injustice is injustice. She sustained a greater injustice than did Cavanaugh. Are we powerless to remedy injustice? 
DISSENT OF MR. JUSTICE DANIEL J. SHEA 

NO. 83-181 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

KATHLEEN RACHEL WILKINSON, 

Defendant and Appellant. 
Mr. Justi-ce Daniel J. Shea, dissenting: 

I dissent. In State v. Cavanaugh (Mont. 1983), 673 P.2d 

482, 40 St..Rep. 2007, in dissent, I stated our holding should 

be given retroactive application on due process grounds. If 

so, defendant Wilkinson would be given the benefit of our 

holding in Cavanaugh. But even if it were not given full 

retroactive application, the holding in Cavanaugh should at 

least apply to all plea entry situations that took place on 

or after the date Cavanaugh entered his plea--September 19, 

1977. If a. violation occurred, and the majority certainly 

held a violation occurred by giving Cava.naugh relief, then 

all viol-ations that took glace on that same date or on any 

da.te after September 19, 1977, would be given the benefit of 

the Cavanaugh ruling. If so, the defendant Wilkinson would be 

entitled to relief in this case. 

Another gross inequity exists here. Although we decided 

the issue in Cavanauqh, the issue was not raised in that 

case. Rather, it was first raised in the present case. It 

just so happened that the Cavanaugh case was decided before 

the present case, although the present case was then pending 

before this Court. It is totally unfair not to give 

Wilkinson the benefit of the very issue she raised in her 

appeal simply because we d.ecided the issue first in another 

case in which the issue had not even