No. 83-181 INTHE SUPF?JIME COURTOF THE STATEOF MONTANA 1984

STATE OF MONTAPJA, Plaintiff and Respondent,

-vsKATHLEEN RACHEL WILRINSON

### , Defendant andAppellant.

APPEAL FROM: District Court of the Fourth Judicial District, Inand for the County of Missoula, TheHonorable Jack L. Green,Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Ferguson 6( Mitchell; CarolPlitchell argued, Plissoula,Montana For Respondent: Bon. Mike Greely,Attorney General,Helena,Montana Chris Tweeten argued,Asst. Atty. General, Helena RobertL. Deschamps, 111,CountyAttorney, (Karen Townsend,Deputy)Missoula,Montana

Submitted: 1/13/34 Decided: 3/26/84

ClerkMr Justice John Conway Harrison delivered the Opinion of the Court.The appellant, Wilkinson, appeals from an order of the Missoula County DistrictCourt, denying her motion either to withdraw her plea of guilty to a reduced charge of negligent homicide, or be sentenced in accordance with aplea bargain struck by theparties. We affirm the action of theDistrict 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.ussel1Sigler. 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 uponmotion 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 generallywilling to accept a guilty plea to a reduced charge of negligent homicide, the Statewas 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 agreementhad 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 courtwas not bound by the prosecutor's recommendation. The appellant offered to accept the prosecution's proposal if the recommended suspended sentencewas increased from seven to eight years, since under a sentence of tenyearswith eight suspended she would be eligible for release onparole before the birth of her baby. The prosecution accepted the offer, and the defendant made a sworn statement and testified against Sigler duringhis trial. Two days later, onAugust 13, 1982,the appellant, her counsel and the Deputy County Attorney, Karen Townsend,traveled toPolson from Missoula toallow the appellant to change her plea before Judge Green, who was sitting inLake 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 insimilar cases. During thehearing inPolson, Ms. Townsend spread the elementsof thepleabargain on therecord: "MS. TOWNSEND: Your Honor, I thinkprior tothe time Miss Wilkinson answers this, I would like to state for the record, which I think theCourt isprobablyaware of through media coverage, thattherehas 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 Informationwith 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 arenotbound to agreetothat. "Finally, Your Honor, I think the Court does know there is a sortof a companion civil case in connection with this particular incident. There has been no agreement to whether we will drop orcontinue, 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, Ido,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. "THEDEFENDANT: Yes, Ido,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? "THEDEFENDANT: 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, anddefense 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-examinedDr. 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 yearswith twoyears suspended. Thereafter the appellant moved on September 20, 1982, to withdraw her guilty plea, or in the alternative that hersentence 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 themotion to withdraw the plea and sought only a new sentence of ten yearswith 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 theplea 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~uldoffer at sentencing. Following the sentencing,Judge Green entered detailed findings and conclusions in support of his decisionrejecting 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 fullycomplied with thepleabargaining. Atthe time this case arrived, there was alsopending 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 toThe 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_.. ThisCourt splitfour tothree. However, the decision in Cavanaugh concluded that the standards were to be adopted, but the decision would be prospective only. Thereinwe 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, toafford thedefendant theopportunity to withdraw his guilty plea and enter aplea ofnot 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), 182Mont. 521, 597 P.2d 1146." 673 P.2d at 485, 40 St.Rep at 2011. There,we established a newprocedural 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 newprocedure of any trial judge in this state. As stated by this Court in the unanimous opinion, Statev. Campbell (1979),182Mont. 521, 597P.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 effectat 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 guiltyplea was entered and to determine voluntariness on the basis of such law." 182 Mont. at 526, 597P.2d at 1149. In addition in 

### -- Campbell, supra, we referred to prior decisions of this Court and theUnited States SupremeCourt, indenying 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 thecounty 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 inplace of

### Mr. Justice Frank B. Morrison, Jr.

Mr. JusticeDaniel J. Shea dissents andwill file a written dissent later.HonorableChan Ettien, DistrictJudge,dissenting: Idissent. In Statev. Cavanaugh (DecidedDecember 23, 1983), P.2d 

## , 40 St.Rep. 2007, Cavanaughwas sentenced September 19, 1977. Wilkinsonwas sentencedAugust 13, 1982. The Cavanauqh ruling is retroactive in favor of its subject to September 19, 1977,but on theway back by-passes

a judgmentonWilkinson imposed fiveyears later. The logic of the majority escapes me when both cases were pending before thisCourt at the sametime. TheCavanauqh rule shouldbe retroactive from theda.te of its judgment, September 19, 1977. While it appears, practically, that Wilkinson has nothing to gain by reversal-,Iwould reverse and remand for her option to changeher plea if she wishes, in keepingwith the doctrine of fundamentalfairness. 

# (&19 (E;&

Honora e Chan Ettien, istrict Judge, sitting in place of Mr. JusticeFrank B. Morrison,Jr.JusticeJohnC. Sheehy,dissenting: Idissent to the manifest injusticedoneby this decision to KathleenRachelWilkinson. Kathleen without disputeherehad an invinciblewish 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-dnot have convicted Sigler, but the evidence incriminated herself. Now the State,worse than Shylock,has extracted the benefit ofa fine quillet of the law--Judge Green told her before her sentencing,but after shehad fully performed her part of the agreement, thathe was notbound by theplea bargain. It is not enough here, as itwas in Cavanaugh, cited above in the majority opinion, that shebe given a chance towithdraw her plea of guilty. Her prior evidence given in Sigl-erwould 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 thewhole 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 (eventhough the result she sought to obtajn is now beyond

ourpower). Only then can thisCourt wrap itself in the robe of "substantialfairness." T also disagree that we must not apply the Cavanaugh rule here because of our prospective-only line in that case. Wilkinson got to thisCourtbefore Cavanaugh,and in aprocedural process beyond Wikinson's control, Cavanauqh leap-frogged Wilkinson. Injustice is injustice. She sustained a greater injusticethan did Cavanaugh. Arewepowerless to remedy injustice?DISSENT OF MR. JUSTICE DANIELJ. SHEA

NO. 83-181 STATE OF MONTANA, Plaintiff and Respondent,

VS. KATHLEEN RACHEL WILKINSON, Defendant and Appellant.Mr. Justi-ceDaniel J. Shea, dissenting:

I dissent. InStatev. Cavanaugh (Mont. 1983), 673 P.2d 482, 40 St..Rep. 2007, indissent, I statedourholding 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 toallplea 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 allviol-ations that took glace on that same date or on any da.te after September 19, 1977, would be given thebenefit of theCavanaugh ruling. If so, thedefendantWilkinsonwould be entitledtorelief inthiscase. Another gross inequity existshere. Althoughwe decided the issue in Cavanauqh, the issue was not raised in that case. Rather, it was first raised inthe present case. It just so happened that the Cavanaugh case was decided before the present case, although thepresent casewas thenpending 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 inwhich the issuehad not even