### No. 82-206 INTHE SUPREMECOURTOF THE STATE OF MONTANA 1982

STATE OF MONTANA, Plaintiff and Respondent,

vs

# . JOHN FESLER LANCE,Defendantand Appellant.

Appeal from: DistrictCourt of the Fourth JudicialDistrict, In and for the County ofRavalli Honorable Gordon Bennett, Judgepresidinq. Counselof Record: ForAppellant: Koch & 

### McKenna,Hamilton,Montana Thomas P. Koch,Hamilton,Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Robert

### B. Brown,CountyAttorney, Hamilton,Montana

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### Submitted onbriefs: Seotember 10, 1982

Filed: 

# ocl'6

# -1982 Decided:.October 

### 4,1982Mr. Justice John Conway Harrison delivered the Opinion of the Court. Defendant-appellant was charged with the 

### crime of custodial interference arising out of an incident which took place on August 13, 1979. On December 18, 1979, the date set for trial, defendant entered a plea of guilty to the charge while at a conference in the judges chambers. On February 18, 1982, defendant moved towithdraw hisplea of guilty. The District Court denied defendant's motion and defendant appeals. Pursuant 

### to a decree of divorce entered inthe District Court of the FourthJudicialDistrict of the Stateof Montana, six-year old, Brad Lance, was placed in the legal custody of Dale Lance, defendant's ex-wife. Prior 

### to August 13, 1979, the ~istrict Court had issued a restraining order enjoining defendant from interfering with Dale Lance's custody of the minor children and from disturbing the peace of Dale Lance and the minor children. On August 13, 1979, defendant removed Brad Lance who 

### was sleeping in a tent in the yard of Dale Lance. Defendant removed Brad Lance with protest from Dale Lance. Later in the day of August 13, 1979, defendant 

### was located and arrested in the parking lot of TremperIs Shopping Center in Missoula

## , Montana. Brad Lance 

### was returned to Dale Lance by Missoula police. Defendant 

### was arraigned and pled "not guilty" to the charge of custodial interference on September 21, 1979. Trial 

### was scheduled for December 18, 1979. Thomas P. Koch 

### was appointed by Judge Gordon R. Bennett to represent defendant, but since defendant refused Mr. Kochls services, the trial court asked him to appear as "standbycounsel.

### " On December 13, 1979, the county attorney, Douglas Harkin, JudgeBennett, the defendant and Mr. Koch metinchambers to considerpreliminarymotions. The county attorneymade a motion in limine 

### to exclude a letter written by defendant addressed to JudgeBennett dated December 14, 1979. Defendant stated thatthe reading of the 

### letter would constitute hisdefense to the chargeof custodial interference. The trial court granted the county attorney's motion to exclude the letter, holding that a majority of its contents 

### were irrelevant to the case before the court. After conversing with the trial court, defendant stated to avoid forcinghis son to testify and to save timehe would plead guilty tothe charge as the letter was the onlydefense he was going to present. Whereupon, theproceeding was moved from thechambers to the courtroom where the judge opened the matter for trial, read defendant's plea intothe record and dismissed the jury. On June 27, 1980, defendant was sentenced to ten years in prison, with alltime suspended except thatalready served. On February 18, 1982, defendant, appearing pro 

### se, filed a motion 

### to withdraw his plea of guilty. On February 23, 1982, Judge Bennett denied the motion and entered findings of fact and conclusions of law in support of his order on March 8, 1982. Defendant appeals the order denying his motion 

### to withdraw the plea of guilty. Defendant raises three issues forreview: 1. Whether the District Court erred by accepting the guilty plea without informing defendant of a possible defense 

### to the charge via section 45-5-304 (3),MCA. 2. Whether the guilty plea was accepted in open court 

### as required under section 46-16-105 (1) 

### (a),MCA. 3. Whether the District Court erred in determining that undue delayjustified the denial. Section45-5-304, MCA, states: "Custodial interference. (1) A person commitsthe offense of custodial interference if, knowing that he has no legal right to do 

### so, he takes, entices, 

### or withholds from lawful custody any child, incompetent person, 

### or other person entrusted by authority of law to the custody of anotherperson or institution



### "(3) A person who has not leftthe statedoes not 

### commitan offense under thissection if he voluntarily returns such person to law£ul custodyprior to arraignment

# ." Here, defendant was arrested at the shopping center and his

-3-son 

### was returned to defendant's ex-wife by the Missoula police. It does not appear defendant was given an opportunity 

### to voluntarilyreturn the child to the mother. The Commission's comments tosection45-5-304, MCA, 

### state: 

### "[olne should be especially cautious in providingpenal sanctions applicable toestranged parents struggling over the custody of their children, since such situations 

### are better regulated by custody orders en£ orced through con tempt proceedings

# ." We agree with the Commission's comments. Here, defendant's taking of the child in violation of the custody order could possibly have been grounds for a contempt charge. However, this Courtwillnot condone charging an estranged husband or wife with custodial interference just because they want 

### to spend timewith their natural child, when they do not attempt 

### to hide 

### or secret such child from the otherparent. The record shows defendant

### was arrested exactly where he told the mother he would be. 

### We are

aware that defendant would have been better represented had he chosen to avail himself of the advice of legal counsel. The record 

### is void of any indication thatdefendant 

### was aware of the availabledefense as contained in section45-5-304, MCA. S e c t i o n 46-16-105, MCA, 

### states when a plea of guilty may be accepted: "(1) Before orduring trial, a plea of guilty may be accepted when: "(a) the defendantenters a pleaof guilty in open court; and "(b) the court has informed the defendant of the consequences of his plea and of the maximum penalty provided by 

### law which may be imposed upon acceptance of such a plea. 

### "(2) Atany timebefore or afterjudgment the court may, for good cause shown, permit the plea of guilty to he withdrawn and a plea of not guiltysubstituted." 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 affirmativelydisclosed by the record. Schantle v. Crist (1980), Mont

# . , 612 P.2d 673, 37 St.Rep. 1053; Yother v. State (1979

### 1I Mont

# . --- ----

## , 597 P.2d 79, 36 St.Rep. 1192. Whileit is 

### clear that courts are not required to articulate specific rights when accepting a guilty plea, an indepth examination by the court 

### is desirable and mandatory in 

### cases where the record requires it. Yother

## ,supra. Here, the discussion in chambers between the court, standby counsel and defendant 

### was 

### as follows: "THE COURT: NOW, even though you haven't asked, consented for him to be your attorney, I would like to ask Mr. Koch if you believe this plea is now being entered voluntarily with fullunderstanding of what's involved? "MR. KOCH: I believe thathe has your honor. "THE COURT: And you can say that

## -- "MR. KOCH: I'm not sure that I believe that it 

### is wise, but I believe he knows what he is doing. "THE COURT: Very well. Can you say that you're entering thisplea voluntarily? "MR. LANCE: Yes, Your Honor. "THE COURT: With fullunderstanding of what's involved? All right. I'll accept your plea of guilty, and that concludes the function of the jury

# ." Here, it 

### was not an intelligentchoice forthe defendant to enter

a plea of guiltywhen there 

### was an available defense in the statute. The meaning and consequences of section 45-5-304(3), MCA, should have been explained to the defendant and the record is simply empty 

### as to any discussion in that regard. We therefore hold the District Court erred in accepting defendant's plea without fully informing him of the available defense to the charge. Although defendant waited over three years to move to withdraw his plea, considering the facts of this case, undue delay did not justify the denial. As we have already found reversible error as to the acceptance of the guiltyplea, 

### we will not comment upon whether the plea 

### was accepted in open court as required under section46-16-105 (1) (a),MCA. Judgment is reversed, and this cause is remanded 

### to the District Court for further proceedings with directions 

### to allowthe appellant to withdraw his plea.

We concur:

Chief,Justice

F="