NO. 82-309 

IN THE 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 

; Lij 3 - 1983 

Filed: 

\ 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant appeals a sentence and judgment of the Eighteenth 

Judicial District entered July 28, 1982. Defendant was sentenced 

to ten years imprisonment for negligent homicide. Specifically, 

defendant asserts error for denial of his motion to withdraw his 

guilty pleas. 

On April 11, 1982, defendant was the driver in a singlevehicle accident. His passenger died. An information was filed 

on April 19 charging him with 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 

to May 10, and then to May 24, and then to July 26. On July 26, 

defendant pled guilty to all charges. 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: " [ylou know 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 ten years in the state prison 

at Deer Lodge, Montana ." 

On July 29, defendant filed a motion to withdraw his guilty 

pleas. Hearing on the motion was held on August 2, 1982. At the 

hearing the defense attorney testified as follows: 

"Q. During your representation of Mr. 

Dinndorf , did you have any conversations with 

. . , the deputy county attorney for Gallatin 

County, regarding this case? A. Yes, on 

several occasions. 
"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 recall on May 24, 

I filed a motion to suppress evidence on 

behalf of my client. Shortly after the 9:00 

o'clock hearing, I met with [the deputy county 

attorney] in his office as we were in the 

course of plea negotiations. I was informed 

at that time that there would be no further 

plea negotiations in this matter and I then 

asked . . . what recommendation he woulq make -- - -- - 

to the Court if my client were to enter a plea -- -- - - -- - -- - ---- of guilty to the charges. I was informed that --- - P -- - --- there - - - - - - would - - - be no recommendation made that Mr. -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 

apparently made to him by myself, that I would 

not make a recommendation to the Court. 

Therefore, I wouldn't I will not contest that 

portion of his testimony." 

Additionally, the defense attorney testified that based upon 

his belief that there would be no sentence recommendation he 

advised his client to plead guilty. 

The District Court denied the motion to withdraw guilty pleas 

and ordered the sheriff to transport the defendant to Deer Lodge 

that af ternoon. 

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 District was never followed. The District Court 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 fact that the District Court's procedure was not followed 

does not preclude the existence of an agreement. Plea bargaining 
agreements 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 orally amended. 

If an agreement or promise did exist which was later violated 

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 in exchange for the prosecutors promise 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 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." 404 U.S. at 

2621 92 S.Ct. at 499, 30 L.Ed.2d at 433. This Court has cited 

and approved of Santobello. - See State v. Allen, supra; State v. 

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 

policy of the State of New York was to recognize only those plea 

agreements which are on the record. Siege1 v. State of 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 Santobello does not allow such a ruling. 

We do not decide whether there was an agreement. The central 
issue 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 af ter 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 will not 

be disturbed absent a showing of abuse of that discretion, and 

any doubts should be resolved in favor of a trial on the merits. 

State v. Campbell (1979) , 182 Mont. 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?e corcur: 

~~ce4.%4j 

Chief Justice/-