### No. 81-269 

### IN THE SUPREME COURT OF THE STATEOF MONTANA 1981

STATE OF MONTANA, Plaintiff and Respondent,

VS

# . GEORGEALLEN, Defendant and Appellant.

Appeal from: District Court of the Eleventh JudicialDistrict, In and for the County of Flathead Honorable Robert Sykes, Judgepresiding. Counsel of Record: ForAppellant: Sherlock and Nardi, Kalispell,Montana StephenJ. 

### Nardi argued and William E. Hileman argued,

Kalispell,Montana For Respondent: Won. Mike Greely

## ,Attorney General,Helena,Montana Ted 0. 

### Lympus,County Attorney, argued, Kalispell,Montana Mark Higgins argued, studentpractioner,Missoula,Montana

Submitted: December 7,

### 1981 ~ecided:@~ '''

I m Y #

### ClerkMr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Defendant appeals from a judgment of the District Court convicting him of the crime of sexual assault following a plea of guilty, sentencing him 

### to 20 years imprisonment, and denying his motion 

### to set aside the sentence 

### or to allow him to withdraw his plea of guilty. The underlying issue in this

### case is whether the prosecuting attorney violated a plea bargain agreement thereby depriving defendant of due process of 

### law. On May 27 1980, a complaint 

### was filed inthe Justice Court of Flathead County, Montana, charging defendant George Allen with 

### two counts of sexual intercourse without consent and

one count of incest. Defendant 

### was arrested, bound over to the District Court on one count of sexual intercourse without consent, a felony, and bail 

### was 

### set in the amount of $45,000. On July 14, an information 

### was filed inthe District Court of Flathead County charging the defendant with sexual intercourse without consent, a felony, involving a regular course of conduct with hisdaughter, age under 16, commencing in 1977and continuing to and including September, 1979. Defendant appeared with counsel atthe arraignment on July 15, 1980, atwhich 

### time

an amended information 

### was filed charging defendant with sexual assault, a felony. Defendant entered a plea of guilty and 

### was released on hisown recognizance to permit hisadmission to the Veterans Hospital inSheridan, Wyoming, fordiagnosis and treatment of any physical 

### or mental problem, and the hearing inaggravation 

### or mitigation of punishment was continued pending completion of a treatment program and a report from thathospital. On November 3, 1980, a sentencing hearing 

### was held in aggravation or mitigation of punishment. On the same date judgment was entered finding the defendant guiltyof sexual assault, sentencing him to 20 years imprisonment, designating him

a nondangerous offender forparole purposes, committing him tothe Montana StatePrison for a 45-day evaluation and report, and providing for furtherconsiderationof any possible suspension of sentence and incarceration prior to any probation. On January 7

## , 1981, the defendant reappeared before the District Court with counsel and a further sentencing hearing 

### was held. Atthe conclusion thereof the District Court entered an order finding that the prior sentence 

### was reasonable and fairand leftit unchanged. On January 12, defendant petitioned the District Court to 

### set aside the sentence 

### or alternatively to be allowed 

### to withdraw hisplea of guiltyon the ground that the prosecuting attorney failed to fulfillhispromises made 

### to the defendant in a plea bargain agreement dated July 2

## , 1980

## , therebydenying defendant due process of 

### law. On April 10, 1981, the District Court made findingsof fact and conclusions of law and entered an order denying defendant's petition. This appeal followed. The record before us indicates thatdefendant's counsel sent the following 

### letterdated July 

### 2, 1980, 

### to the prosecuting attorneyprior to the filingof the amended information and entry of defendant's plea of guilty: "Mr. Ted 0. Lympus County Attorney P. 0. Box 1516 Kalispell, Montana 59901 "RE: George Allen "Dear Ted: "As per our conversation inyour officeon Monday I 

### am writing this 

### letter 

### to con£

### irmour agreement inthe above-entitled 

### matter. "It is my understanding thatyour officewould be willing to accept a plea to one count of sexual intercourse without consent from my client and in returnwould recommend to the court thatMr. Allen receive a suspended sentence 

### for a period of ten to fifteenyears and that said suspension be conditional upon hisattending and completing a treatment program 

### atthe Veterans Hospital in Sheridan, Wyoming, for whatever 

### time period theydeem appropriate and necessary. It 

### is my understanding thatyour office willnot present testimony inaggravation of sentence nor oppose a withdrawal of the guiltyplea should our agreement not be followed by the court."If you have any additions 

### or corrections please don't hesitate 

### to contact

### me atany time. "Sincerely, "DALEY

## , SHERLOCK & NARD1 "By: "SJN:bra "bcc: William E. Hileman, Jr., Esq." The prosecuting attorney acknowledges he made no written response to this

### letter. The defendant's attorney advised the District Court atthe final hearing that the agreement was orallyamended to allowdefendant to enter a plea of guilty 

### to "sexual assault" and that the recommendation was to be thathis entire sentence be suspended. The prosecuting attorney stated atthe time thathe didnlt know what would be a good disposition at that 

### timeand that the information was amended because the original charge required a mandatory two-year prison sentencewhich deprived defendant of the opportunity 

### to show the judge thathe should not be incarcerated. The prosecuting attorney further stated that it

was his understanding thatboth attorneys would recommend the Fort Sheridan facilityas their expectation was that there they could find out what would be proper. He further stated that the "Fort Sheridan thing" did not work out and they were back in court for the sentencing. He stated thathe did not think the Statehad presented aggravation testimony atthe sentencing hearing. The record shows that the District Court advised the defendant prior 

### to accepting hisplea of guiltythat it would not be bound by any agreement between the county attorney, defense counsel or the defendant. The District Court indicated its sentence 

### was not dependent on any aggravating 

### or mitigating circumstances submitted atthat timeand stated the reasons for its sentence. On appeal, defendant contends thathe was induced to entera plea of guiltywhereby he was 

### to receive a suspended sentence because the prosecutor agreed 

### to a suspended sentence con-ditional on defendant's completion of a treatmentprogram at the Veterans Hospital inSheridan, Wyoming, and that the prosecutor agreed not 

### to present evidence in aggravation of sentence nor oppose withdrawal of the guiltyplea if their agreement 

### was not followed by the court. Defendant 

### claims he fulfilled the agreement on hispart and the prosecution violated this agreement. The Statedisputes this. The day is long past for credible argument againstplea bargaining as a component of the criminal justice system inthis country. No 

### less authority than the United States Supreme Court

so held at least 10years ago: "The dispositionof criminal charges by agreement between the prosecutor and the accused, 

### sometimes loosely called 'plea bargaining, 

### is an essential component of the administration of justice. Properly administered, it is 

### to be encouraged. If every criminal charge 

### were subjected to a full 

### scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities." Santobellov. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427. See also Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. However, plea bargain agreements presuppose fundamental fairness in securing such agreements between the accused and the prosecutor: "This phase of the process of criminal justice, and the adjudicative element inherent in accepting 

### a plea of guilty, must be attended by safeguards to insure the defendant what 

### is reasonablydue in the circumstances. Those 

### circumstances willvary, but a constant factor 

### is thatwhen a plea 

### rests inany significantdegree on a promise oragreement of the prosecutor, so that it can be said to be part of the inducement 

### or consideration, such promise must be fulfilled." Santobello v. New York, supra. Inaccord: Gardipee v. Blodgett (1981), Mont

# . - P.2d

Prosecuters who engage inplea bargaining must meet strict and meticulous standards of both promise and performance as a plea 

### of guiltyresting in any significantdegree on an unfulfilled plea bargain 

### is involuntary and subject to vacation.Correale v. United States (1stCir. 1973), 479 F.2d 944. Prosecutorial violations, even if made inadvertently 

### or ingood faith

### to obtain a just and mutuallydesired end, 

### are unacceptable. Correale v. United States, supra; Santobello v. New York, supra. In this

### case both parties acknowledge the existence of a plea bargain of 

### some kind. The problem is that there is an unresolved factual dispute concerning both the 

### terms of the plea bargain agreement and whether the prosecutor violated the agreement. Specifically, 

### were the 

### terms of the agreement set forth in the ~uly 2 

### letterof defense counsel to the prosecutor complete and agreed 

### to by the prosecutor? Was the agreement orallyamended by 

### some further agreement between the prosecutor and defense counsel atornear the 

### time the amended information

was filed? What promise 

### was made by the prosecutor and what did the defendant understand the promise 

### to be when he entered a plea of guilty 

### to the amended charge? Did any unfulfilled promise of the prosecutor induce the defendant to enter

### a guiltyplea 

### or onlyaffect the sentence imposed? Did the prosecutor violate the plea bargain by his conduct at the sentencing hearing? These unresolved factual issues 

### rest upon the intentof the parties and must be resolved by the District Court inan evidentiaryhearing for thatpurpose. United Statesv. Arnett (9th Cir. 1979), 628 F.2d 1162. Accordingly, 

### we remand 

### to the District Court of Flathead County for an evidentiaryhearing inconformity with thisopinion with directions to enter findingsof fact, conclusions of law and order and certify the same to this Court with transcript for review. We retainjurisdiction of this appeal for thatpurpose.

Chief ~ustice

### We concur: