No. 91-533 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsCHARLES LEE REYNOLDS, JR., 

Defendant and Appellant. 

APPEAL FROM: District court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James G. Hunt; Dix & Hunt Law Firm, Helena, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; John Paulson, 

Assistant Attorney General, Helena, Montana 

Mike McGrath, Lewis & Clark County Attorney, 

Helena, Montana 

Filed: 

Submitted on Briefs: May 7, 1992 

Decided: May 28, 1992 
Justice John Conway ~arrisan delivered the opinion of the Court. 

This is an appeal from the District Court of the ~irst 

Judicial District, Lewis and Clark County, concerning the 

withdrawal of a guilty plea. We affirm. 

The sole issue presented for review is whether the District 

Court erred by denying appellant's motion to withdraw his guilty 

plea. 

The appellant, Charles Lee Reynolds, Jr. (Reynolds) , was 

charged by complaint in the Justice Court of Lewis and Clark 

County, on January 4, 1990, with the offense of issuing a bad check 

(common scheme) , a felony, On January 25, 1990, a second complaint 

was filed against Reynolds in Justice Court, charging him with the 

offense of criminal trespass, a misdemeanor; intimidation, a 

felony; and forgery, a misdemeanor. At that time an arrest warrant 

was issued and Reynolds was arrested on that date. Reynolds posted 

bond in the amount of $2,500. 

On March 22, 1990, Reynolds waived a preliminary hearing on 

the charges in Justice Court and was bound over to District Court. 

The Lewis and Clark County Attorney filed an information on April 

23, 1990, charging Reynolds with the offenses of issuing a bad 

check, a felony; and forgery, a misdemeanor. Although the record 

is unclear, it appears that the Lewis and Clark County Attorney 

dropped the criminal trespass and intimidation charges in the 

transmission from Justice to District Court. 

Four separate short transcripts of the court proceedings are 

filed in this matter: (1) The May 3, 1990, transcript of Reynolds1 
initial appearance, arraignment and sentencing in District Court: 

(2) the April 5, 1991, transcript of the County Attorney's petition 

to revoke Reynolds1 suspended sentence; (3) the July 11, 1991, 

transcript entitled "Review Hearing;" and (4) the July 25, 1991, 

transcript of Reynoldsv motion to withdraw his guilty plea. 

The various transcripts reveal that in early 1990, while 

Reynolds was under arrest and being held in the county jail, he 

initiated contact with Sgt. Les Hathcock of the Helena Police 

Department about becoming a drug informant. After Sgt. Hathcock 

discussed this matter with the Lewis and Clark County Attorney, 

they agreed to use Reynolds as an informant. Reynolds acted as an 

informant for the county between the end of January, 1990 until 

April, 1990. During that time, he became well acquainted with the 

police officers and the prosecution staff of Lewis and Clark 

County. The record indicates that while working as an informant 

Reynolds testified at several trials which resulted in over twenty 

drug convictions. 

On May 3, 1990, Reynolds appeared before the District Court, 

without counsel, for his arraignment. At that time the court 

advised him that by appearing without counsel he was waiving a 

right to which he was entitled, and the court asked whether he was 

ready to proceed. Reynolds stated that he did not wish to be 

represented by counsel. On appeal, Reynolds indicated that one of 

the reasons he felt he did not need an attorney when he entered his 

guilty plea was that he had considerable faith in the Lewis and 

Clark County Attorney. 
Before the court accepted Reynoldsq guilty plea, Reynolds 

explained to the court that he and his wife broke up, and as a 

result of the break up, he was doing considerable drinking and 

gambling. He further testified that before the charges were 

brought against him, he issued a number of bad checks to various 

Helena area merchants knowing his deposits were insufficient to 

cover the amount of checks he wrote. As to the second charge of 

forgery, Reynolds testified that he sold a clock for $60 but 

altered the check by inserting a one before the six thereby making 

the amount payable appear to be $160. He cashed the check for 

After reading the charges in the information to Reynolds, the 

court said to him: 

THE COURT: . . . And at the time, you knew that [the $60 

check] was made or altered in such a manner that it 

purported to have been made by Fae Tickler. Do you 

generally understand what's charged in each count? 

CHARLES LEE REYNOLDS: Yes, sir. 

Thereafter, the court set forth the maximum possible 

punishment for each offense, and after explaining the same the 

District Court Judge asked Reynolds, "Do you understand what the 

maximum possible punishment is?" To which Reynolds replied wYes, 

sir. 

Then, the court asked Reynolds: 

THE COURT: Now, . . . You are also entitled to be 

represented by an attorney. You appear here without an 

attorney and do you wish to be represented by an 

attorney? 

CHARLES LEE REYNOLDS: No, I don't believe so. 
THE COURT: You feel that under the circumstances you 

will represent yourself; is that correct? 

CHARLES LEE REYNOLDS: Yes. 

All of this information was available to the trial judge when he 

sentenced Reynolds, and the May 3, 1990, transcript reveals 

considerable discussion between the court and Reynolds prior to his 

entering a plea. 

During the May 3, 1990, proceeding, Reynolds entered his 

guilty plea and the court proceeded directly to sentencing 

Reynolds. Accepting the County Attorney's recommendation, Judge 

Honzel sentenced Reynolds to three years in the state prison and 

suspended all but time served on the conditions the County Attorney 

recommended. Judge Honzel stated: 

THE COURT: . . . First of all, you make restitution, and 

it will probably be in the neighborhood of $3,800, and 

the restitution officer will get a final amount. We 

won't leave that hanging forever. And, then, we'll have 

a final amount probably in thirty days and we1 11 set that 

as the time. So, whatever [the restitution officer] 

comes up with in thirty days, that's what you'll be 

responsible for. If, for some reason, you think [the 

restitution officer is] way out of line, youlre entitled 

to a hearing on that, and, then, 1'11 determine what the 

exact amount is. Otherwise, we'll go with the figure 

[the restitution officer] comes up with. And youlll be 

a law-abiding citizen. 

In addition, you811 be given credit for the time 

that you've already served. I guess the way to do that 

is, we'll suspend all of it but eight days and youlll be 

given credit for the time that you served. I guess 

that's the easiest way to handle that. 

As far as the reasons, it does comply with the plea 

agreement and you have previously had a deferred sentence 

and you're not entitled to another one and this is the 

type of an offense which requires restitution. From your 

standpoint, the one thing that you need to understand is 

that if you goof up and you don't make restitution or you 

get into further trouble with the law, the county 
attorney can ask that your suspended sentence be revoked 

and that you begin to serve that sentence. 

. . . Approximately one year later, on March 18, 1991, the Lewis and 

Clark County Attorney petitioned the court to revoke Reynolds' 

suspended sentence for his failure to make a good faith effort to 

pay the restitution as required by the judgment of the court. The 

court held a hearing on that motion on April 5, 1991, wherein the 

County Attorney elicited testimony that Reynolds made little or no 

effort to comply with the conditions of his suspended sentence; 

that he did not make himself available to the restitution officers 

of Lewis and Clark County; and, as noted by the restitution 

officer, Reynoldsa cooperation with the restitution program was not 

very positive. 

The transcript reveals that the year after Reynolds pled 

guilty, he had earned income of approximately $16,000, gross, and 

during December of 1990, and January, February and half of March, 

1991, he had drawn unemployment. Out of those funds, a large 

percentage was taken to pay child support and other expenses, 

however, Reynolds paid nothing toward fulfilling his restitution 

obligation. 

After that hearing, Reynolds filed a motion to withdraw his 

guilty plea on June 7, 1991. The court set July 25, 1991, for 

hearing on that motion. 

The record reveals that following Reynoldsa guilty plea and 

sentencing in 1990, he was charged in United States District Court, 

State of Montana, with a violation of 18 U.S. C. 9 922 (a) (6) , making 

6 
a false statement on Alcohol, Tobacco and Firearms Form 4473; and 

violation of 18 U.S.C. § 922 (g) (1) , being a felon in possession of 

a firearm for allegedly purchasing a firearm on June 14, 1990. 

Apparently, Reynolds' motion to withdraw his guilty plea a year 

later was somewhat influenced by the charges in United States 

District Court. 

The standard of review in cases involving a district court's 

refusal to allow a defendant to withdraw a guilty plea is whether 

the district court abused its discretion. State v. Cameron (Mont. 

1992)t - P.2d _, -, 49 St.Rep. 150, 152. Absent an abuse of 

discretion, we will not disturb the district court's decision. 

Cameron, - P.2d at -, 49 St.Rep. at 152. 

Section 46-16-105(2), MCA, allows the court to permit the 

withdrawal of a guilty plea and substitute in its place a plea of 

not guilty upon a showing of good cause. This Court considers the 

following three factors when determining whether a district court 

erred in refusing to allow a defendant to withdraw his guilty plea: 

(1) the adequacy of the District Court's interrogation at 

the time the plea was entered as to the defendant's 

understanding of the consequences of his plea; (2) the 

promptness with which the defendant attempts to withdraw 

the prior plea; and (3) the fact that the defendant's 

plea was the result of a plea bargain. 

State v. Walker (1986), 220 Mont. 70, 72, 712 P.2d 1348, 1350 

(citation omitted). Here, we carefully considered the above 

factors in determining whether the District Court abused its 

discretion in denying Reynolds* motion to withdraw his guilty plea. 

In reviewing the first factor, the District Court noted that 

this Court has held that the procedure it followed is adequate when 

7 
a district court : 

[Elxamines the defendant, finds him to be competent, and 

determines from him that his plea of guilty is voluntary, 

he understands the charge and his possible punishment, he 

is not acting under the influence of drugs or alcohol, he 

admits his counsel is competent and he has been well 

advised, and he declares in open court the facts upon 

which his guilt is based. . . . 

State v. Lewis (29781, 177 Mont. 474, 485, 582 P.2d 346, 352. 

Reynolds argues that the District Court's interrogation was 

inadequate. Reynolds contends that his motion to withdraw his 

guilty plea should have been granted because he did not have 

counsel at the time he entered his guilty plea. He further claims 

that the factual basis for one of his guilty pleas was not 

sufficiently established in the record: that the court failed to 

properly inform him of a possible defense or a possible lesserincluded offense; and that the court failed to advise him of 

consequences of pleading guilty. 

The District Court noted that in this case Reynolds was not 

represented by counsel, but he knowingly waived his right to 

counsel. Further, Reynolds himself initiated discussions about the 

possibility of being used as an informant in exchange for favorable 

treatment. In the course of that role as an informant he built a 

relationship with the Lewis and Clark County law enforcement 

officers and he came to rely on that affiliation. 

In reviewing the second factor, Reynolds argues that he timely 

made his motion to withdraw his guilty plea. Reynolds did not move 

to withdraw his guilty plea until some thirteen months after he 

entered it. In general, filing the motion to withdraw a guilty 
plea over a year after entry of the guilty plea is untimely. State 

v. LaTray (1986), 220 Mont. 358, 715 P.2d 52. 

Reynolds makes considerable argument concerning his federal 

court firearm charge, and argues that the State's position that he 

did not timely move to withdraw his plea, having waited thirteen 

months after sentencing, is unsubstantiated. We note that due to 

the federal firearm charge, Reynolds did not, nor could not, have 

acted much faster because he was not aware of or at least was not 

arrested for being a felon in possession of a firearm until March 

5, 1991, at which time counsel had been appointed for him. 

However, we do not find that this was the controlling factor in the 

trial court's decision to deny Reynolds' motion to withdraw his 

guilty plea. 

In reviewing the third factor, Reynolds argues that although 

his guilty plea resulted from a favorable plea bargain agreement, 

he was unaware that the plea subjected him to another felony, the 

possession of a firearm. However, Reynolds received exactly what 

he bargained for when the District Court sentenced him according to 

the County Attorney's sentencing recommendations. 

Reynolds argues that he was not advised that he could not 

possess a firearm as a consequence of his guilty plea and that he 

did not become aware of that regulation until after he had 

purchased the firearm. To this argument the District Court noted 

that, as a part of sentencing procedure, it was not aware of any 

requirement, nor are we, that defendants should be informed that it 

is illegal for a convicted felon to possess a firearm. Here, as in 
most proceedings on suspended sentences, Reynolds was informed that 

he must be a law abiding citizen. If not, the suspended portion of 

his sentence could be revoked. 

Reynolds was sentenced May 3, 1990. Subsequently, he 

attempted to purchase the firearm on or about June 14, 1990. To 

obtain the firearm, Reynolds represented on ATF Form 4473 that he 

had not been convicted of a felony punishable by imprisonment for 

a term exceeding a year. This was clearly an error. Although 

Reynolds may not have known at the time of pleading guilty that 

possessing a firearm was illegal, he certainly became aware of it 

shortly thereafter when he had to make a false statement to the 

seller to obtain the firearm. It is impossible for a district 

court to inform a defendant of every illegal action that could 

affect the defendant upon entering a guilty plea. The District 

Court properly considered this factor when denying Reynolds' 

request to withdraw his guilty plea. 

Here, the District Court carefully considered the factors in 

refusing to permit Reynoldsi withdrawal of his guilty plea. 

Additionally, the court considered that the County Attorney did not 

include in its information in District Court two of the charges 

filed in Justice Court; and that the County Attorney recommended a 

short suspended sentence with unsupervised probation and payment of 

restitution. When accepting Reynoldsf guilty plea and the County 

Attorney's sentencing recommendations, the court considered and 

made a concession in view of the fact that Reynolds had a prior 

felony conviction. 
This Court has often held that it will not lend its assistance 

to an accused criminal in escaping his or her obligations of a plea 

bargain after accepting its benefits. State v. Radi (Mont. 1991), 

818 P.2d 1203, 48 St.Rep. 903; State v. Koepplin (1984), 213 Mont. 

55, 689 P.2d 921. Considering and balancing all of the factors, we 

find the District Court was well within its discretion in denying 

Reynolds' motion to withdraw his guilty plea. 

Affirmed . 

Justices 
Justice Karla M. Gray, concurring in part and dissenting in part. 

I concur in the majority opinion insofar as it analyzes the 

withdrawal of appellant's plea of guilty to the forgery charge. I 

respectfully dissent from that opinion, however, on the issue of 

withdrawal of appellant's guilty plea to the charge of issuing a 

bad check. 

The majority notes Reynolds' argument that the District 

Court's interrogation at the time of entry of the plea was 

inadequate; it also notes his claim that Itthe factual basis for one 

of his guilty pleas [to the charge of issuing a bad check] was not 

sufficiently established in the record. lf Having so noted, the 

majority never addresses this contention. It is my view that 

Reynolds is correct and that no factual basis for the intent 

element of the offense of issuing a bad check was established at 

the time the District Court accepted the plea to that charge. 

The record contains the following exchange between the court 

and Reynolds with regard to the factual basis for the intent 

element: 

THE COURT: And I take it that during that 

period of time, last June till this January, 

you were writing a lot of checks? 

CHARLES LEE REYNOLDS: Yes, sir. 

THE COURT: And the bank didn't cover a number 

of those checks; is that right? 
CHARLES LEE REYNOLDS: Yes, sir. 

THE COURT: And you knew at the time that you 

were short of funds in the account? 

CHARLES LEE REYNOLDS: Well, I was making 

deposits, yeah -- it wasn't clear at the time. 

I was confused and mixed up and emotionally 

hurt and I was drinking a lot and gambling a 

lot to try to pass time. 

THE COURT: Whatever deposits you were making, 

they weren't enough to -- 

CHARLES LEE REYNOLDS: NO, sir. 

THE COURT: -- to cover these checks. Where 

were you making them to, mostly in the bars 

and casinos? 

CHARLES LEE REYNOLDS: Yes. 

It is clear that the District Court attempted to establish 

that Reynolds knew at the time he wrote the checks that his 

deposits were insufficient to cover those checks. It is my view, 

however, that Reynolds' testimony was that he was confused, upset 

and often under the influence of alcohol during the time period at 

issue. He responded that, as a matter of fact, the deposits he 

made were not enough to cover the checks. This is not a statement 

that he knew or intended at the time that the checks would not be 

covered. Indeed, the record contains no clear statement that 

Reynolds knew at the time he was writing the checks that there were 

not sufficient funds in his account to cover the checks. For that 

reason, I conclude that sufficient 

element of the offense of issuing a 

factual basis for the intent 

bad check is not contained in 
the record. Therefore, I would hold that the District Court abused 

its discretion in denying Reynolds' motion to withdraw his guilty 

plea to that charge.