NO. 82-309 INTHE SUPREME COURT OF THE STATE OF MONTANA 1983

THE STATE OF MONTANA, Plaintiff and Respondent,

vs. RAYMOND M. DINNDOPt, Defendant and Appellant.
Appeal from: District Court of the Eighteenth Judicial District, In and for the County of Gallatin Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellant: Nash and Nash, Bozeman, Montana uqni-hec- Michael P. Sand argued and Mark

# &argued, Bozeman,

Montana For%:Zespondent: Hon. Mike Greely, Attorney General, Helena, Montana A. Michael Salvagni, County Attorney, Bozeman, Montana John Atkins, Special Assistant Deputy County Attorney,

argued, Bozeman, Montana

-- - Submitted: January 18, 1983 Decided: February 3, 1983 

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Lij

## 3

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## 1983 Filed:

\ ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court. Defendant appeals a sentence and judgment of the Eighteenth Judicial District entered July28, 1982. Defendant 

### was sentenced to ten years imprisonment for negligent homicide. Specifically, defendant 

### asserts error for denial of hismotion to withdraw his guiltypleas. On April 11, 1982, defendant was the driver in a singlevehicle accident. Hispassenger died. An information 

### was filed onApril 19charging himwith negligent homicide, driving without
a valid driver's license

## , and driving under the influence of alcohol. Defendant 

### was arraigned on May 3, which 

### was continued toMay 10, and then to May 24, and then 

### to July26. On July26, defendant pled guilty 

### to allcharges. The prosecutor recommended
a ten-year sentence on the negligent homicide charge. The defense counsel then stated 

### to the courtr "I'm a 

### little taken aback by the County Attorney's recommendation. It 

### was my understanding that there would be no recommendation made to the Court as far as sentencing. There 

### was a specific agreement 

### to the effect which has been violated by the County Attorney." The court replied: 

### "[ylouknow the policy in the Eighteenth Judicial District, Department Number One, when there 

### is 

### a plea agreement, the 

### two attorneys 

### meet with the court reporter and their client and put it on the record. There's nothing on the record is there?" Defense counsel responded, 

### "[t] here is not, Your Honor." The Court proceeded 

### to pass sentence; "on Count I, negligent homicide, you shall spend tenyears in the stateprison atDeer Lodge, Montana

# ." On July 29, defendant filed a motion to withdraw his guilty pleas. Hearing on themotion 

### was held on August 2, 1982. Atthe hearing the defense attorney testified as follows: "Q. During your representation of Mr. Dinndorf

## ,didyou have any conversations with



# . . , the deputy county attorney forGallatin County, regarding this 

### case? A. Yes, on severaloccasions."Q. Do you recall a conversation on 

### or about the 24th of May, 1982? A. Yes, I do. "Q. Do you recall the substance of that conversation? A. Yes, as I recallon May 24, I filed a motion to suppress evidence on behalf of my client. Shortly after the 9:00 o'clock hearing, I 

### metwith [thedeputy county attorney] in his office 

### as 

### we were in the course of plea negotiations. I 

### was informed at that 

### time thatthere would be no further plea negotiations in this 

### matter and I then asked

# . . . what recommendation he woulq 

### make -- - -- - 

### totheCourt ifmy client

### were toentera plea 

### -- -- --

### -- --- ----- of guilty

### tothecharges. I 

### was informed that
--- - P -- - --- therewould beno recommendationmade thatMr.

- -- -- - - -- -p --

### -- -

### - Dinndorf's plea would be strictly to the ---- -- - 

### - Court.

### " (~m~has1's added.

### I-- When the Deputy County Attorney had an opportunity to crossexamine, he declined, stating: "Your Honor, 

### it's the position of the 

### state and myself that I'm not in a position to contest the testimony of [defense counsel] regarding the existence of the overture apparentlymade to him bymyself, that I would not make a recommendation 

### to the Court. Therefore, I wouldn't I willnot contest that portion of histestimony." Additionally, the defense attorney testified that based upon his belief that there would be no sentence recommendation he advised hisclient to plead guilty. The DistrictCourt denied the motion to withdraw guiltypleas and ordered the sheriff 

### to transport the defendant toDeer Lodge thatafternoon. Appellant argues basically that since an agreement 

### was violated, he should have been allowed to withdraw his pleas of guilty. Respondent 

### asserts that there never existed an agreement. Respondent relies on the fact that the procedure of the Districtwas never followed. The DistrictCourt adopted that position, stating: 

### "[nlow there never was a plea agreement in this situation. There's no question about that. There may have been an offer and there may have been the jostling and moving around of attorneys as happens many 

### times in criminal matters. There 

### was never a plea agreement of any kind." The factthat the District Court's procedure

### was not followed does not preclude the existenceof an agreement. Plea bargainingagreements 

### are subject to contract 

### law standards, United States v. Arnett (9th Cir. 1979), 628 F.2d 1162, thus 

### oral agreements 

### are valid and binding. This Court, in State v. Allen (1981),

--..-.- Mont

# . -- ,645 P.2d 380, 38 St.Rep. 2192, recognized the validity of oral plea bargain agreements; the case 

### was remanded for consideration of various factors

## , including whether the agreement had been orallyamended. If an agreement 

### or promise did existwhich 

### was laterviolated by the prosecutor, the appellant has a very strong argument and the court should have allowed him to withdraw his guilty pleas. A United States Supreme Court case addresses this specific situation. In Santobello v. New York (1971)

## , 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427, the defendant agreed 

### to plead guilty to a 

### lesser included offense inexchange for the prosecutors pro

### mise to refrain from making a sentence recommendation. The sentencing took place months later and a new prosecutor recommended
a maximum sentence. The Supreme Court held that: "when a plea 

### rests inany 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." 404 U.S. at 2621 92 S.Ct. at 499, 30 L.Ed.2d at433. This Court has cited and approved of Santobello. - See Statev. Allen, supra; Statev. Brown (1981), 

### ----- Mont. -

.-. --- 629 P.2d 777, 38 St.Rep. 953. During argument of this case, respondent brought to our attention

### a recent 

### case decided by the second circuit. There the court held that "off the record" promises made by 

### a prosecutor are a nullity and cannot be relied upon by a defendant since the policyof the Stateof New York was to recognize onlythose plea agreements which 

### are on the record. Siege1 v. Stateof New York (2nd Cir. 1982), 691 F.2d 620. We do not agree with the majority, rather 

### we agree with Justice Pratt 

### who dissented because he believes that the United States Supreme Court's holding of Santobellodoes not allowsuch a ruling. 

### We do not decidewhether there

### was an agreement. The centralissue is whether the District Court should have allowed the defendant to withdraw his pleas of guilty. The authority for withdrawing a guilty plea is found in section 46-16-105(2), MCA; 

### "[a] t any time before 

### or after judgment the court may, for good cause shown, permit the plea of guilty 

### to be withdrawn and a plea of not guilty substituted." It 

### is well settled that the decision 

### rests in the sound discretion of the trial court which willnot be disturbed absent a showing of abuse of that discretion, and anydoubts should be resolved infavor of 

### a trial on the 

### merits. Statev. Campbell (1979)

## , 182Mont. 521, 597 P.2d 1146. In effect, the District Court concluded that no agreement existed since its procedures 

### were not followed. We find 

### error for the court's failure to consider other factors indicating a broken promise. The court improperly denied defendant's motion to withdraw his guilty pleas. This case 

### is remanded 

### to allow defendant 

### to replead.

7?ecorcur: 

# ~~ce4.%4j Chief Justice/-