No. 82-206 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

vs . 

JOHN FESLER LANCE, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Ravalli 

Honorable Gordon Bennett, Judge presidinq. 

Counsel of Record: 

For Appellant: 

Koch & McKenna, Hamilton, Montana 

Thomas P. Koch, Hamilton, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert B. Brown, County Attorney, Hamilton, Montana 

------ 

Submitted on briefs: Seotember 10, 1982 

Filed: ocl' 6 - 1982 

Decided:. October 4, 1982 
Mr. 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 to withdraw his plea of guilty. The District Court denied 

defendant's motion and defendant appeals. 

Pursuant to a decree of divorce entered in the District Court 

of the Fourth Judicial District of the State of 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 Tremper Is 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 "standby counsel. " 

On December 13, 1979, the county attorney, Douglas Harkin, 

Judge Bennett, the defendant and Mr. Koch met in chambers to consider preliminary motions. The county attorney made a motion in 

limine to exclude a letter written by defendant addressed to 

Judge Bennett dated December 14, 1979. Defendant stated that the 

reading of the letter would constitute his defense to the charge 
of 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 

forcing his son to testify and to save time he would plead guilty 

to the charge as the letter was the only defense he was going to 

present. Whereupon, the proceeding was moved from the chambers to 

the courtroom where the judge opened the matter for trial, read 

defendant's plea into the record and dismissed the jury. On June 

27, 1980, defendant was sentenced to ten years in prison, with 

all time suspended except that already 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 for review: 

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 delay justified the denial. 

Section 45-5-304, MCA, states: 

"Custodial interference. (1) A person commits the 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 another person or institution 

" (3) A person who has not left the state does 

not commit an offense under this section if he 

voluntarily returns such person to law£ ul 

custody prior 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 voluntarily return the child to the mother. The Commission's comments 

to section 45-5-304, MCA, state: 

" [olne should be especially cautious in providing penal sanctions applicable to estranged 

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 

Court will not condone charging an estranged husband or wife with 

custodial interference just because they want to spend time with 

their natural child, when they do not attempt to hide or secret 

such child from the other parent. 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 that defendant was aware of the 

available defense as contained in sect ion 45-5-304, MCA. S e c t i o n 

46-16-105, MCA, states when a plea of guilty may be accepted: 

"(1) Before or during trial, a plea of guilty 

may be accepted when: 

"(a) the defendant enters a plea of 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) At any time before or af ter judgment the 

court may, for good cause shown, permit the 

plea of guilty to he withdrawn and a plea of 

not guilty substituted." 

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 

af f irmatively disclosed by the record. Schantle v. Crist ( 1980 ), 

Mont . , 612 P.2d 673, 37 St.Rep. 1053; Yother v. State 

(1979 1 I Mont . -- - -- - - , 597 P.2d 79, 36 St.Rep. 1192. While 
it 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 full understanding of what's involved? 

"MR. KOCH: I believe that he 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 this plea voluntarily? 

"MR. LANCE: Yes, Your Honor. 

"THE COURT: With full understanding 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 intelligent choice for the defendant to enter 

a plea of guilty when 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 guilty plea, we will 

not comment upon whether the plea was accepted in open court as 

required under section 46-16-105 (1) (a), MCA. 

Judgment is reversed, and this cause is remanded to the 

District Court for further proceedings with directions to allow 
the appellant to withdraw his plea. 

We concur: 

Chief, Justice 

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