No. 81-269 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

GEORGE ALLEN, 

Defendant and Appellant. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead 

Honorable Robert Sykes, Judge presiding. 

Counsel of Record: 

For Appellant: 

Sherlock and Nardi, Kalispell, Montana 

Stephen J. 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, student practioner, Missoula, Montana 

Submitted: December 7, 1981 

~ecided:@~ ''' 

I m 

Y # Clerk 
Mr. 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 in the 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 in the District Court 

of Flathead County charging the defendant with sexual intercourse 

without consent, a felony, involving a regular course of conduct 

with his daughter, age under 16, commencing in 1977 and continuing to and including September, 1979. Defendant appeared 

with counsel at the arraignment on July 15, 1980, at which time 

an amended information was filed charging defendant with sexual 

assault, a felony. Defendant entered a plea of guilty and was 

released on his own recognizance to permit his admission to the 

Veterans Hospital in Sheridan, Wyoming, for diagnosis and treatment of any physical or mental problem, and the hearing in aggravation or mitigation of punishment was continued pending completion of a treatment program and a report from that hospital. 

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 guilty of sexual 

assault, sentencing him to 20 years imprisonment, designating him 

a nondangerous offender for parole purposes, committing him to 
the Montana State Prison for a 45-day evaluation and report, and 

providing for further consideration of 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. At the conclusion thereof the District Court entered an 

order finding that the prior sentence was reasonable and fair and 

left it unchanged. 

On January 12, defendant petitioned the District Court to 

set aside the sentence or alternatively to be allowed to withdraw 

his plea of guilty on the ground that the prosecuting attorney 

failed to fulfill his promises made to the defendant in a plea 

bargain agreement dated July 2 , 1980 , thereby denying defendant 

due process of law. On April 10, 1981, the District Court made 

findings of fact and conclusions of law and entered an order denying 

defendant's petition. This appeal followed. 

The record before us indicates that defendant' s counsel 

sent the following letter dated July 2, 1980, to the prosecuting 

attorney prior to the filing of 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 in your office on Monday I am 

writing this letter to con£ irm our agreement in the 

above-entitled matter. 

"It is my understanding that your office would be 

willing to accept a plea to one count of sexual 

intercourse without consent from my client and in 

return would recommend to the court that Mr. Allen 

receive a suspended sentence for a period of ten to 

fifteen years and that said suspension be conditional 

upon his attending and completing a treatment program 

at the Veterans Hospital in Sheridan, Wyoming, for 

whatever time period they deem appropriate and 

necessary. It is my understanding that your office 

will not present testimony in aggravation of sentence 

nor oppose a withdrawal of the guilty plea should our 

agreement not be followed by the court. 
"If you have any additions or corrections please 

don't hesitate to contact me at any 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 at the final hearing that the agreement was orally amended 

to allow defendant to enter a plea of guilty to "sexual assault" 

and that the recommendation was to be that his entire sentence be 

suspended. The prosecuting attorney stated at the time that he 

didnl t know what would be a good disposition at that time and 

that the information was amended because the original charge 

required a mandatory two-year prison sentence which deprived 

defendant of the opportunity to show the judge that he should not 

be incarcerated. The prosecuting attorney further stated that it 

was his understanding that both attorneys would recommend the 

Fort Sheridan facility as 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 that he did not think the 

State had presented aggravation testimony at the sentencing 

hearing. 

The record shows that the District Court advised the 

defendant prior to accepting his plea of guilty that 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 at that time and stated the reasons for its 

sentence. On appeal, defendant contends that he was induced to 

enter a plea of guilty whereby he was to receive a suspended sentence because the prosecutor agreed to a suspended sentence con- 
ditional on defendant's completion of a treatment program at the 

Veterans Hospital in Sheridan, Wyoming, and that the prosecutor 

agreed not to present evidence in aggravation of sentence nor 

oppose withdrawal of the guilty plea if their agreement was not 

followed by the court. Defendant claims he fulfilled the 

agreement on his part and the prosecution violated this 

agreement. The State disputes this. 

The day is long past for credible argument against plea 

bargaining as a component of the criminal justice system in this 

country. No less authority than the United States Supreme Court 

so held at least 10 years ago: 

"The disposition of 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." Santobello v. 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 

reasonably due in the circumstances. Those circumstances will vary, but a constant factor is 

that when a plea rests in any significant degree 

on a promise or agreement 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. 

In accord: Gardipee v. Blodgett (1981), Mon t . - P.2d 

Prosecuters who engage in plea bargaining must meet strict 

and meticulous standards of both promise and performance as a 

plea of guilty resting in any significant degree on an 

unfulfilled plea bargain is involuntary and subject to vacation. 
Correale v. United States (1st Cir. 1973), 479 F.2d 944. 

Prosecutorial violations, even if made inadvertently or in good 

faith to obtain a just and mutually desired 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 letter of defense counsel to the prosecutor 

complete and agreed to by the prosecutor? Was the agreement 

orally amended by some further agreement between the prosecutor 

and defense counsel at or near 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 guilty plea or 

only af fect the sentence imposed? Did the prosecutor violate the 

plea bargain by his conduct at the sentencing hearing? 

These unresolved factual issues rest upon the intent of 

the parties and must be resolved by the District Court in an evidentiary hearing for that purpose. United States v. Arnett (9th 

Cir. 1979), 628 F.2d 1162. 

Accordingly, we remand to the District Court of Flathead 

County for an evidentiary hearing in conformity with this opinion 

with directions to enter findings of fact, conclusions of law and 

order and certify the same to this Court with transcript for 

review. We retain jurisdiction of this appeal for that purpose. 

Chief ~ustice 
We concur: