NO. 96-414 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1997 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

DANNY GRUENDEMANN , 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell C. Fagg, Judge Presiding. 

COUNSEL OF RECORD: 

For Appellant: 

L. Sanford Selvey 11, Chief Public Defender, 

Billings, Montana 

For Respondent: 

Honorable Joseph P. Mazurek, Attorney General; 

Tammy Plubell, Assistant Attorney General, 

Helena, Montana 

Dennis Paxinos, County Attorney; John Kennedy, 

Deputy County Attorney, Billings, Montana 

Submitted on Briefs: February 13, 1997 

Decided: April 1, 1997 

Filed: 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Danny Gruendemann pled guilty in the Thirteenth Judicial 

District Court, Yellowstone County, to sexual intercourse without 

consent. He appeals from the court's order denying his motion to 

withdraw that plea. We affirm. 

The issues are whether the District Court abused its discretion when it refused to allow Gruendemann to withdraw his guilty 

plea, and whether the State of Montana is barred from prosecuting 

Gruendemann for sexual intercourse without consent following his 

prosecution and conviction in Wyoming for endangering the welfare 

of children. 

On June 21, 1995, Gruendemann met a fourteen-year old girl, 

A. W. , at a convenience store in Laurel, Montana. A. W . informed 

Gruendemann that she wanted to run away from home. Gruendemann 

offered to help her, but told her that he wanted to have sex with 

her first. Gruendemann engaged in sexual intercourse with A.W., 

who was incapable of legally consenting because of her age. 

A.W. then accompanied Gruendemann to Wyoming. On June 24, 

1995, Gruendemann and A.W. appeared at a homeless shelter in 

Casper, Wyoming. They were taken into custody after a shelter 

worker became suspicious of Gruendemann's story that A.W. was his 

daughter. Gruendemann subsequently pled guilty in the State of 

Wyoming to charges of child endangerment and was sentenced to serve 

six months in the Natrona, Wyoming, County Jail. 

In July 1995, Gruendemann was charged in Yellowstone County 

District Court with two counts of sexual intercourse without 
consent upon A. W. outside Laurel, Montana, on or about June 21, 

1995. Gruendemann pled guilty to one of those counts in December 

1995. He later moved to be allowed to withdraw his guilty plea, 

based upon his Wyoming conviction. The court denied Gruendemann's 

motion and sentenced him to serve twenty-five years at the Montana 

State Prison. Gruendemann appeals. 

ISSUE 1 

Did the District Court abuse its discretion when it refused to 

allow Gruendemann to withdraw his plea? 

Section 46-16-105 (2) , MCA, provides that " [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." In doing so, the court must consider: 

1. the adequacy of the court's interrogation at the 

time the plea was entered regarding the defendant's 

understanding of the consequences of the plea; 

2. the promptness with which the defendant attempts 

to withdraw the plea; and 

3. the fact that the plea was the result of a plea 

bargain in which the guilty plea was given in exchange 

for dismissal of another charge. 

State v. Moddison (Mont. 1996), 926 P.2d 253, 257, 53 St.Rep. 961, 

963. This Court's standard of review on a denial of a motion to 

withdraw a guilty plea is whether the court abused its discretion. 

State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177. 

The record establishes that at the time he entered his guilty 

plea, Gruendemann was adequately advised as to the consequences of 

the plea. He does not contend otherwise, except to argue that he 

was not adequately informed of the consequences of his Wyoming 
conviction. As to the second factor listed above, the State 

acknowledges that Gruendemann's request to withdraw his guilty plea 

was promptly made prior to his sentencing. 

As to factor number three, Gruendemann argues that he has not 

received any benefits of the plea agreement. The record does not 

support that argument. In exchange for Gruendemann's guilty plea, 

the State dismissed one count of sexual intercourse without consent 

and agreed to recommend a twenty-five-year prison sentence on the 

remaining count. In dismissing one of the two counts of sexual 

intercourse without consent, the State reduced Gruendemann's 

maximum potential prison sentence by half, from eighty years to 

forty years. In light of the nature of Gruendemann's offense, the 

bleak results of his psychological and sex offender evaluations 

(severe and chronic substance abuse, a "morally indiscriminate 

sexual abuser," rehabilitation prognosis "quite guarded," and high 

risk to reoffend), his criminal history, and the recommendations 

set forth in the presentence investigation, we conclude that the 

plea agreement represented a significant benefit to him. 

We hold that the District Court did not abuse its discretion 

in denying Gruendemann's motion to withdraw his guilty plea. 

ISSUE 2 

Is the State of Montana barred from prosecuting Gruendemann 

for sexual intercourse without consent following his prosecution 

and conviction in Wyoming for endangering the welfare of children? 

Section 46-11-504, MCA, provides: 

When conduct constitutes an offense within the concurrent 

jurisdiction of this state and of the United States or 
another state or of two courts of separate, overlapping, 

or concurrent jurisdiction in this state, a prosecution 

in any other jurisdiction is a bar to a subsequent 

prosecution in this state under the same circumstances 

barring further prosecution in this state if: 

(1) the first prosecution resulted in an acquittal 

or in a conviction and the subsequent prosecution is 

based on an offense arising out of thesame transaction [. I 

The court must determine whether the following three factors are 

present: (1) the defendant's conduct constitutes an offense within 

the jurisdiction of the court where the first prosecution occurred 

and within the jurisdiction the court where the subsequent 

prosecution is pursued; (2) the first prosecution results in an 

acquittal or a conviction; and (3) the subsequent prosecution is 

based on an offense arising out of the same transaction. State v. 

Tadewaldt (Mont. 1996), 922 P.2d 463, 465, 53 St.Rep. 635, 636. 

All three factors must be present before a subsequent prosecution 

is barred. Tadewaldt, 922 P.2d at 466. 

In the present case, the State concedes that the Wyoming 

prosecution resulted in a conviction, so that factor (2) is 

present. The parties disagree on whether factors (1) and (3) are 

present. 

Factor (1) is whether the defendant's conduct constitutes an 

offense within the jurisdiction of the court where the first 

prosecution occurred (here, Wyoming) and within the jurisdiction of 

the court where the subsequent prosecution is pursued (Montana). 

Gruendemann points out that the State of Montana could have charged 

him with endangering children, the offense with which he was 

charged in Wyoming. The State points out that, on the other hand, 
there is no indication that the State of Wyoming had any basis upon 

which to charge Gruendemann with sexual intercourse without 

consent. 

Gruendemann cites State v. Zimmerman (1977), 175 Mont. 179, 

187, 573 P.2d 174, 179, for the idea that [tlhe measure of 

concurrent jurisdiction is whether defendant's conduct subjected 

him to prosecution in both jurisdictions." Gruendemann asserts, 

citing Zimmerman, that if conduct gives rise to offenses chargeable 

in both jurisdictions, concurrent jurisdiction lies regardless of 

the particular offense ultimately charged in each jurisdiction. 

Zimmerman was charged in Montana state court with multiple 

counts of embezzlement. While he could have been charged with 

embezzlement under federal statutes as well, he was instead charged 

in federal district court with making false statements to secure 

funds. Zimmerman therefore does not stand for the proposition that 

concurrent jurisdiction exists when the two jurisdictions lack the 

ability to charge the same offense. In the present case, as the 

State has noted, there is no indication that the State of Wyoming 

had the ability to charge Gruendemann with the offense of which he 

was convicted in Montana, sexual intercourse without consent. 

Concurrent jurisdiction did not exist as to that offense. 

Because concurrent jurisdiction did not exist, we conclude 

that we need not address whether factor (3) is present. We hold 

that § 46-11-504, MCA, does not bar Gruendemann's prosecution in 

Montana . 
Finally, Gruendemann argues that his conviction in Montana is 

barred under § 46-11-503 (1) (b) , MCA: 

(1) When two or more offenses are known to the prosecutor, are supported by probable cause, and are consummated 

prior to the original charge and jurisdiction and venue 

of the offenses lie in a single court, a prosecution is 

barred if: .*. 

(b) the former prosecution resulted in a conviction that 

has not been set aside, reversed, or vacated[.] 

In order for § 46-11-503, MCA, to apply, venue and jurisdiction of 

the offenses must lie in a single court. Gruendemann maintains 

this is true because both offenses could have been charged in 

Montana district court. But both offenses were not charged in 

Montana district court--Gruendemann was charged with child 

endangerment only in Wyoming, not in the "single courtu in which he 

asserts venue and jurisdiction lie. We hold that Gruendemann's 

Montana conviction of sexual intercourse without consent is not 

barred under § 46-11-503 (1) (b) , MCA. 

We affirm the judgment of the District Court. 

We concur: