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No. 99-120 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 129 

299 Mont. 517

1 P.3d 946

STATE OF MONTANA, 

Plaintiff and Respondent,

v.

WILLIAM JOSEPH OSTERLOTH,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark,

The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders,

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Assistant Attorney General; Helena, Montana

Mike McGrath, Lewis and Clark County Attorney; Carolyn Clemens,

Deputy Lewis and Clark County Attorney, Helena, Montana

Submitted on Briefs: December 9, 1999 

Decided: May 11, 2000

Filed:

__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1 William Osterloth (Osterloth) appeals from the judgment and commitment entered by 

the First Judicial District Court, Lewis and Clark County, sentencing him to 30 years 

imprisonment at the Montana State Prison (MSP), with 25 years suspended on conditions, 

and from its order denying his motion to withdraw his guilty plea. We affirm and remand 

with instructions.

¶2 We restate the issues on appeal as follows:

¶3 1. Did the District Court abuse its discretion in denying Osterloth's motion to withdraw 

his guilty plea?

¶4 2. Was Osterloth denied his Sixth Amendment right to effective assistance of counsel 

in the presentation of his motion to withdraw?

¶5 3. Did the District Court err in sentencing Osterloth without a psychosexual evaluation 

prepared by a qualified evaluator and in continuing his sentencing to allow him an 

opportunity to succeed in a community-based sex offender treatment program?

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¶6 4. Did the District Court err in sentencing Osterloth by failing to comply with statutory 

requirements?

BACKGROUND

¶7 On July 10, 1997, the State of Montana (State) charged Osterloth by information with 

one count of felony sexual assault under §§ 45-5-502(1), (3) and (5), MCA, based on 

allegations that he sexually molested two of his nephews. Osterloth pled not guilty.

¶8 Osterloth subsequently moved to suppress a statement he had made to Detective Sam 

McCormack, and, after a hearing, the District Court denied his motion. At a change of 

plea hearing on October 30, 1997, Osterloth changed his plea to guilty. The District Court 

accepted the guilty plea, ordered a presentence investigation report with a sexual offender 

evaluation and scheduled sentencing for January 8, 1998. Osterloth moved "to allow the 

defense to have a sex offender evaluation done of the Defendant by a sex offender 

psychotherapist of the defense's choosing at county expense" and the District Court 

granted the motion.

¶9 Osterloth chose therapist Kevin Wyse (Wyse) to conduct the sex offender evaluation. 

Wyse determined that Osterloth "is at moderately high risk for sexual reoffense and is 

moderately amenable to sex offender treatment." On that basis, he recommended that 

"Osterloth should participate in an intensive outpatient sex offender treatment program" on 

a six-month trial basis. Wyse explained that "[i]f Mr. Osterloth is successful in completing 

this six month trial period, he should remain in this sexual offender treatment program for 

a period of no less than three years. Termination from treatment will be based on the 

opinions of his primary treatment therapist and his probation officer." Wyse also 

recommended that, "[i]f Mr. Osterloth cannot succeed in an intensive outpatient program, 

based on the opinion of his primary treatment therapist or his probation officer, he should 

be incarcerated at the Montana State Prison . . . ."

]¶10 The State presented Wyse's recommendations at the sentencing hearing rescheduled 

to February 12, 1998. On the basis of those recommendations, the State and Osterloth 

jointly requested a continuance for several months to give Osterloth an opportunity to 

succeed at community-based sex offender treatment. In the event the treatment was 

unsuccessful, the State advised it would seek a prison sentence. The District Court 

accepted the recommendations and continued the sentencing hearing to August 6, 1998. 

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Sentencing was later rescheduled at the parties' request.

¶11 Wyse terminated Osterloth from the community sex offender treatment program on 

September 1, 1998. He reported that Osterloth "has been either unwilling or unable to 

honestly report and take responsibility for the inappropriate sexual behaviors which led to 

the crime of Felony Sexual Assault."

¶12 The District Court resumed the sentencing hearing on October 16, 1998, at which time 

Osterloth moved to withdraw his guilty plea. The primary basis for the motion was that he 

was given poor advice by his attorney which he would have rejected if he were not so 

easily led by authority figures. He also requested, and obtained, a psychological evaluation 

for purposes of supporting his contention.

¶13 After completion of the psychological evaluation and briefing on Osterloth's motion, 

the District Court deemed the motion submitted. It subsequently denied Osterloth's motion 

to withdraw on the basis that the "psychological evaluation produced no finding to show 

that the Court, or Defendant's attorney, somehow improperly influenced the Defendant." 

The court also recognized Osterloth's concession that its change of plea interrogation had 

been adequate, observed that the guilty plea was not the result of a plea bargain and 

concluded the motion to withdraw--filed nearly 12 months after Osterloth entered his 

guilty plea--was not prompt.

¶14 The District Court ultimately sentenced Osterloth to 30 years imprisonment at the 

MSP, with 25 years suspended on conditions, and ordered him ineligible for parole until 

he completed both phases of the MSP's sex offender treatment program. Osterloth appeals.

DISCUSSION

¶15 1. Did the District Court abuse its discretion in denying Osterloth's motion to 

withdraw his guilty plea?

¶16 A district court may permit a defendant to withdraw his guilty plea at any time, before 

or after judgment, for good cause shown. Section 46-16-105(2), MCA.

A change of plea will ordinarily be permitted if it fairly appears that the defendant was in 

ignorance of his rights and of the consequences of his act, or if influenced unduly and 

improperly either by hope or fear in making it, or if it appears that the plea was entered 

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under some mistake or misapprehension. If there is any doubt that a plea is involuntary, 

the doubt should be resolved in the defendant's favor. 

State v. Schaff, 1998 MT 104, ¶ 17, 288 Mont. 421, ¶ 17, 958 P.2d 682, ¶ 17 (citation omitted).

¶17 In its order denying Osterloth's motion to withdraw, the District Court first properly 

quoted the Schaff principles. In discussing the reasons for its decision, however, it stated 

that "withdrawal was permissible only if it fairly appears that the defendant was ignorant 

of his rights and the consequences of his guilty plea, or if he was influenced unduly or 

improperly by hope or fear in the entry of his guilty plea, or if the guilty plea was entered 

by some mistake or misapprehension." (Emphasis added.)

¶18 Osterloth argues at the outset that, in substituting "only" for "ordinary" in determining 

whether to permit his plea to be withdrawn, the District Court misapplied Schaff. Given 

the language in Schaff, it is apparent that the District Court erroneously summarized Schaff

in its second reference to that decision. This is not to say, however, that this error means 

the District Court necessarily misapplied the Schaff principles.

¶19 In this regard, the record reflects that Osterloth's motion was based primarily on his 

contention that his plea was involuntary because he is easily influenced by authority 

figures, namely, his attorney. He obtained a psychological evaluation in hopes of 

supporting his contention but, as the District Court found, that "evaluation produced no 

finding to show that the Court, or Defendant's attorney, somehow improperly influenced 

[him]." That finding, unchallenged by Osterloth, was the foundation for the court's later 

determination there was no reason, let alone any sound reason, to allow withdrawal of 

Osterloth's plea. The District Court went on to observe that, while Schaff requires any 

doubt regarding the voluntary nature of the plea to be resolved in the defendant's favor, "[i]

n this case, there is no doubt that needs to be resolved one way or the other." Based on the 

record before us, Osterloth has not established that the District Court's error in 

summarizing the Schaff principles resulted in misapplication of Schaff.

¶20 In a somewhat similar vein, Osterloth contends his plea was involuntary because he 

was influenced unduly and improperly by hope he would be placed in a community-based 

sex offender treatment program and avoid the mandatory minimum two-year sentence. He 

urges that he moved to withdraw his guilty plea because community-based sex offender 

treatment was no longer available. The problem with Osterloth's argument is that it was 

not the basis for his motion to withdraw in the District Court. We do not address issues or 

theories raised for the first time on appeal. Schaff, ¶ 26. Therefore, we decline to address 

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this argument further.

¶21 We review a district court's denial of a motion to withdraw a guilty plea for abuse of 

discretion. Schaff, ¶ 18 (citation omitted). In determining whether an abuse of discretion 

occurred, we consider three factors:

 (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.

Schaff, ¶ 18 (citations omitted).

¶22 The District Court briefly addressed these factors in its order. It observed that 

Osterloth had conceded the adequacy of its interrogation and observed there was no plea 

bargain in this case. Finally, the court noted that Osterloth's motion was filed nearly 12 

months after he entered his guilty plea and concluded that such delay negated any notion 

of promptness.

¶23 Here, the parties do not dispute that the District Court's interrogation at the time the 

plea was entered was adequate and no plea agreement was involved. Therefore, the first 

and third factors in our review of the court's decision are not at issue here.

¶24 Osterloth contends that his motion to withdraw was timely because he filed it prior to 

his sentencing and less than a year after he entered his guilty plea. In this regard, we long 

have held that a request to withdraw a guilty plea must be made within a reasonable time. 

See State v. Nance (1947), 120 Mont. 152, 165, 184 P.2d 554, 561. We have declined to 

adopt specific parameters defining the timeliness of a motion to withdraw because each 

case presents unique factual circumstances. State v. Enoch (1994), 269 Mont. 8, 12, 887 

P.2d 175, 178. As a general rule, however, a motion to withdraw a guilty plea filed over a 

year after entry of the plea is untimely. State v. Reynolds (1992), 253 Mont. 386, 391, 833 

P.2d 153, 156 (citation omitted). On the other hand, we have upheld a district court's 

denial of a motion to withdraw a guilty plea because it was untimely when the motion was 

filed only five months after entry of the plea. See State v. Coggins (1993), 257 Mont. 440, 

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441-42, 849 P.2d 1033, 1034-35.

¶25 In the present case, Osterloth entered his guilty plea on October 30, 1997. After a 

continuance of sentencing to allow him an opportunity to succeed at community-based sex 

offender treatment, followed by termination from that treatment, he moved to withdraw 

his guilty plea when the District Court resumed the sentencing hearing on October 16, 

1998.

¶26 Osterloth's primary argument for withdrawing his guilty plea in the District Court was 

that his plea was involuntary because he was easily influenced by authority figures such as 

the court and his attorney. The record reflects, however, that Osterloth first argued he was 

easily influenced by authority figures on August 22, 1997, when he moved to suppress a 

statement he had made to Detective McCormack. After this motion was denied, Osterloth 

changed his plea to guilty. Thus, Osterloth was aware of his purported susceptibility to 

influence by authority figures prior to changing his plea, prior to the initial sentencing 

hearing on February 12, 1998, and well over a year before he asserted it as grounds for his 

motion to withdraw his guilty plea. Moreover, at the change of plea hearing on October 

30, 1997, the court ordered Osterloth to have weekly contact with his attorney and, as a 

result, he had numerous opportunities to initiate the withdrawal of his guilty plea without 

waiting until the final sentencing hearing almost a year later.

¶27 The case before us is analogous to Coggins. There, the defendant stated that "he knew 

from '[t]he minute [he] made the plea' that it was a mistake." Coggins, 257 Mont. at 443, 

849 P.2d at 1035. Here, Osterloth similarly knew of his purported susceptibility to 

influence by authority figures--the primary grounds for his motion to withdraw--at the 

time he entered his plea. In Coggins, 257 Mont. at 443, 849 P.2d at 1035, we observed 

that, although the defendant had spent some time out of state with his ill mother and a 

month in alcohol treatment, there was no indication that he was unable to contact his 

attorney during those periods. Here, the District Court ordered Osterloth on October 30, 

1997, to maintain weekly contact with his attorney. In addition, as was the case in 

Coggins, Osterloth participated in the preparation of the presentence investigation report 

between the time he entered his guilty plea and the time he sought to withdraw it. See 

Coggins, 257 Mont. at 443, 849 P.2d at 1035. We conclude, therefore, that Osterloth's 

motion to withdraw his guilty plea was untimely.

¶28 We hold the District Court did not abuse its discretion in denying Osterloth's motion 

to withdraw his guilty plea.

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¶29 2. Was Osterloth denied his Sixth Amendment right to effective assistance of 

counsel in the presentation of his motion to withdraw?

¶30 In evaluating ineffective assistance of counsel claims, this Court utilizes the twoprong test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 

L.Ed.2d 674. State v. Senn (1990), 244 Mont. 56, 58-59, 795 P.2d 973, 975 (citations 

omitted). The defendant must establish that counsel's performance was deficient and that 

the deficient performance prejudiced him. Senn, 244 Mont. at 59, 795 P.2d at 975 

(citations omitted).

¶31 Osterloth contends he was denied effective assistance of counsel when his lawyer 

failed to premise the motion to withdraw on his having entered the guilty plea out of hope 

of avoiding the mandatory minimum sentence for sexual assault by being admitted to a 

community-based sex offender treatment program and fear of incarceration. This 

unasserted basis for the motion to withdraw apparently arises from the District Court's 

observation that Osterloth "wants to withdraw his guilty plea simply because it now 

appears that he may not be amenable to community sexual offender treatment." He relies 

on Schaff for the proposition that an assertion that a guilty plea was influenced by hope or 

fear is a proper basis for withdrawing a plea and, therefore, such an argument ordinarily 

would have resulted in the District Court allowing withdrawal of his plea.

¶32 Here, the District Court advised Osterloth, at the change of plea hearing, of the 

minimum and maximum sentences for the offense and that it would not be bound by the 

recommendations of the presentence investigation or the sexual offender evaluation. Even 

assuming Osterloth hoped to avoid incarceration at the time he entered the guilty plea, "a 

plea is not involuntary simply because it was entered to avoid a greater punishment." State 

v. Milinovich (1994), 269 Mont. 68, 71, 887 P.2d 214, 216 (citation omitted). Moreover, 

we have previously stated that counsel's performance cannot be deficient for failure to 

raise an issue which lacks merit. See, e.g., State v. Baker (1995), 272 Mont. 273, 283, 901 

P.2d 54, 60; State v. Hildreth (1994), 267 Mont. 423, 432-33, 884 P.2d 771, 777. Because 

Osterloth's plea was not involuntary even if entered to avoid greater punishment, his 

counsel's performance was not deficient in failing to raise the issue in Osterloth's motion 

to withdraw.

¶33 Osterloth having failed to establish the first prong of the Strickland test, we need not 

address the second prong. See State v. Sellner (1997), 286 Mont. 397, 403, 951 P.2d 996, 

999. We hold Osterloth was not denied his Sixth Amendment right to effective assistance 

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of counsel in the presentation of his motion to withdraw.

¶34 3. Did the District Court err in sentencing Osterloth without a psychosexual 

evaluation prepared by a qualified evaluator and in continuing his sentencing to 

allow him an opportunity to succeed in a community-based sex offender treatment 

program?

¶35 Osterloth contends the District Court erred in sentencing him without a psychosexual 

evaluation prepared by a Montana Sex Offender Treatment Association (MSOTA) 

provider or other qualified therapist as required by § 46-18-111(1), MCA. He also urges 

the District Court erred in imposing an " 'interim sentence' or a condition of Osterloth 

continuing release on bail that he attend and participate in sex offender treatment" because 

it was not authorized by statute to do so and because § 46-18-115, MCA, requires the 

court to conduct a sentencing hearing without unreasonable delay. The State responds that 

Osterloth waived his right to assert these alleged errors on appeal by failing to object in 

the District Court.

¶36 Under § 46-20-104(2), MCA, "this Court is precluded from considering an alleged 

error unless a timely objection was made . . . or unless the . . . criteria [of § 46-20-701(2), 

MCA,] are met." State v. Schmalz, 1998 MT 210, ¶ 12, 290 Mont. 420, ¶ 12, 964 P.2d 763, 

¶ 12. Here, the record reflects that Osterloth did not object to Wyse conducting his 

psychosexual evaluation or to the District Court continuing his sentencing hearing to give 

him an opportunity to succeed in a community-based sex offender treatment program. 

Consequently, these arguments have not been properly preserved for appeal. Schmalz, 

¶ 13. Nor does Osterloth assert that he can satisfy any of the requirements of § 46-20-701

(2), MCA. We conclude, therefore, that Osterloth waived the right to have this Court 

consider his arguments relating to Wyse's qualifications or the continued sentencing 

hearing.

¶37 4. Did the District Court err in sentencing Osterloth by failing to comply with the 

statutory requirements?

¶38 Osterloth contends that the District Court totally failed to comply with § 46-18-115

(6), MCA, which requires in felony cases that the court "specifically state all reasons for 

the sentence . . . in open court on the record and in the written judgment." As a result, he 

urges he is entitled to be resentenced. Osterloth is partially correct.

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¶39 The District Court stated in open court that

[t]he law is quite clear that you are required to get two years in prison just by 

pleading guilty. And last year, we went out on a limb that is available to not send 

you to prison, to allow you to stay in the community. We were willing to take that 

risk in the unusual case, which this is and was. And, unfortunately, it didn't work 

out. So with that being done, I cannot accept the risk to the other children in this 

community. So I will agree with [the probation and parole officer]. I will sentence 

you to 30 years in the State Prison. 25 of that will be suspended.

We conclude that these statements meet the § 46-18-115(6), MCA, requirement that the 

court state the reasons for the sentence in open court. The court did not set forth the 

reasons for the sentence imposed in its written judgment, however, and, to that extent, we 

conclude the District Court erred. Our conclusion does not require that Osterloth be 

resentenced, however.

¶40 "[T]he sentence orally pronounced from the bench in the presence of the defendant is 

the legally effective sentence and valid, final judgment" and the written judgment and 

commitment serves as evidence of the sentence orally pronounced. State v. Lane, 1998 

MT 76, ¶ 40, 288 Mont. 286, ¶ 40, 957 P.2d 9, ¶ 40. In Lane, we upheld a district court's 

nunc pro tunc order modifying its written judgment to conform to its oral sentence. Lane, 

¶ 49. In subsequent cases where a written judgment did not conform to an oral sentence, 

we have remanded for modification of the written judgment. See, e.g., State v. Waters, 

1999 MT 229, ¶ 35, 296 Mont. 101, ¶ 35, 987 P.2d 1142, ¶ 35; State v. Simpson, 1999 MT 

259, ¶ 15, 296 Mont. 335, ¶ 15, 989 P.2d 361, ¶ 15. The same result is appropriate here.

¶41 Affirmed and remanded for entry of a modified written judgment setting forth the 

reasons for the sentence as stated in the District Court's oral judgment.

/S/ KARLA M. GRAY

We concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

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/S/ TERRY N. TRIEWEILER 

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