No. 91-364 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

plaintiff and Respondent, 

-vsKENNETH YOTHER, 

APPEAL FROM: District Court of the Sixteenth Judicial ~istrict, 

In and for the County of Custer, 

The Honorable Joe L. Hegel, Judge presidingCOUNSEL OF RECORD: 

For Appellant: 

Marcey Femling Schwarz; Schwarz & Custafson, P.C., 

Billings, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, 

Patricia J. Jordan, Assistant Attorney General, 

Helena, Montana 

Keith Haker, Custer County Attorney 

Miles City, Montana 

Filed: 

Submitted on Briefs: March 26, 1992 

Decided: May 1, 1992 

Clerk 
Justice Fred J. Weber delivered the Opinion of the Court. 

The District Court for the Sixteenth Judicial District, Custer 

County, denied defendant's motion to withdraw his plea of guilty to 

the offense of sexual intercourse without consent. Defendant 

appeals. We affirm. 

The issues for our consideration are: 

1. Did the District Court abuse its discretion in denying 

defendant's motion to withdraw his plea of guilty? 

2. Were defendant's constitutional rights to due process 

violated by the denial of his motion to withdraw his plea of 

guilty? 

The State charged defendant, Kenneth Yother, with sexual 

intercourse without consent, sexual assault, and incest, all 

committed against the defendant's thirteen-year-old daughter, B.Y. 

The affidavit in support of the information stated: 

The Court is further informed that through investigation 

it was determined that BY, a minor youth, was at her 

residence tending to other children when the Defendant, 

who was known to the youth, came to her residence at 

approximately 3:00 o'clock [sic] A.M. and invited her to 

go for a ride in an automobile which he was intending to 

purchase. The minor youth, BY, accepted the invitation 

for the ride and went with the Defendant. The Defendant 

left the neighborhood and drove to a secluded area where 

he parked the vehicle. BY requested that he take her 

back to her residence. This request was ignored and the 

Defendant began talking about young girls that he had 

sexual contact with when he was younger. BY attempted to 

leave the vehicle with the intent to walk home but was 

stopped by the Defendant. He grabbed her by the hair and 

pulled her face down to the area of his crotch, where his 

pants were open, and she pulled away. The Defendant 

proceeded to pull her closer, pulling off her boot and 

one of her pants legs. The Defendant held BY down, and, 

according to BY, he was able to penetrate her vagina with 

his penis. 
At the arraignment,.the District Court advised the defendant 

of the charges against him, the maximum penalties, appointed an 

attorney and advised defendant of his constitutional rights. The 

court further informed the defendant: 

You should be advised that if you make a plea 

agreement with the County Attorney, that that would be an 

agreement between you and the County Attorney and for you 

to enter a certain plea and for the County Attorney to 

make a certain recommendation to the Court. The Court is 

not a party to any such agreement and the Court would not 

be bound by such an agreement. Should the Court accept 

a plea of guilty pursuant to an agreement or otherwise 

the Court would contain [sic] the right to sentence up to 

maximum allowable by law. Also, you would not have a 

right to withdraw your guilty plea. . . . 

The defendant pled not guilty to all charges. 

On January 21, 1991, the defendant, his attorney, the County 

Attorney, B.Y. the victim, and the mother of the victim executed 

the Acknowledgment of Rights and Plea Agreement. In the agreement 

defendant acknowledged his right to challenge the sufficiency of 

the information, his right to object to any evidence obtained in 

violation of law, his right to a speedy and public trial by jury at 

which he had the right to effective assistance of counsel, the 

right to confront and cross-examine witnesses, the right to 

testify, the right to call and have witnesses testify, the right 

not to be compelled to incriminate himself, the right to have 

charges proved beyond a reasonable doubt, and the right to appeal 

a finding of guilty. The agreement contained the maximum penalties 

for sexual intercourse without consent, sexual assault, and incest. 

He agreed that by pleading guilty he would waive all the rights 

above referred to. He acknowledged he had been given ample time 
and opportunity to discuss the case with his attorney and received 

the full benefit of that attorney's advise, and that he was 

satisfied with the services of the attorney. He also acknowledged 

that he was not suffering from any mental disease or disability; 

that he was not under the influence of alcohol, drugs or 

medication; and that he had not been threatened, coerced or 

otherwise intimidated or influenced in any way. The agreement then 

contained the following specific paragraphs regarding the 

defendant: 

10. I have entered into this agreement freely and 

voluntarily and with full knowledge of its terms and 

conditions. 

11. I understand that a plea bargain agreement is 

an aareement between a defendant and a wrosecutor that in 

exchange for a particular plea the prosecutor will 

recommend a particular sentence. 

12. I understand that the Court may not participate 

in the making of such an agreement nor is the Court bound 

by the agreement. 

13. I understand that on my plea of guilty alone I 

could lawfully be sentenced to the maximum punishment 

authorized for the offense(s) to which I plead guilty and 

that the recommendation of the wrosecutina attorney in no 

way binds the Court when im~osinq sentence. 

14. I understand that the sentence to be imposed is 

within the sole discretion of the sentencing judge and 

that the State does not make any promise or 

representation as to what the sentence will be. 

15. I understand that if the Court does not im~ose 

the sentence recommended bv the wrosecutor. the Court is 

not reauired to allow me to withdraw my plea of suiltv. 

(emphasis added). 

The defendant then agreed to plead guilty to the offense of 

sexual intercourse without consent as follows: 

18. Pursuant to 546-12-204, MCA, and conditioned 

3 
upon the understandings specified below, I agree to plead 

guilty to the offense of Sexual Intercourse Without 

Consent, a felony, as alleged in the Amended Information, 

on the following basis: 

a. That the County Attorney will recommend 

imprisonment in the Montana State Prison for five (5) 

years. Three (3) years of said sentence shall be 

determinate and must be served in its entirety in the 

Montana State Prison, less credit for time spent in the 

Custer County Jail. 

b. The Defendant shall not be entitled to early 

parole or conditional release. 

c. While at the Montana State Prison, the Defendant 

must complete the Intensive Two Year Sex Offender 

Program. 

d. Upon release from the Montana State Prison, the 

Defendant shall be placed on Parole for a period of two 

(2) years. 

The agreement further provided in detail that the llprosecution" 

would abide by the terms of the agreement throughout all 

proceedings, including sentence review and parole, and that the 

prosecution would not attempt to alter or renegotiate the terms of 

the agreement. The agreement stated that the State agrees that the 

defendant shall be entitled to withdraw from the agreement 

subsequent to the entry of a guilty plea in the event the State 

fails to perform its obligations pursuant to the agreement. 

After a hearing, the District Court accepted defendant's plea 

of guilty to the offense of sexual intercourse without consent, 

resulting in the dropping of the charges of sexual assault and 

incest. The court ordered defendant to undergo a psychosexual 

evaluation pursuant to 4 46-18-111, MCA. 

Defendant was evaluated by Pete Bruno, a licensed professional 

counselor. Mr. Bruno concluded that defendant completely denied 

any problem with deviant sexuality, that the defendant could not be 

accepted into outpatient therapy, and that Bruno could not 
recommend him for placement in the Phase I1 (Phase I1 requires a 

court order) program at the prison. 

Prior to sentencing, defendant moved to withdraw his guilty 

plea because: (1) following the plea he was ordered to complete a 

Sex Offender Evaluation; (2) the defendant nhope[d]'t he would be 

allowed to withdraw his guilty plea if the Judge did not follow the 

County Attorney's recommendations; (3) the defendant entered his 

plea out of 'Ifear" of what a jury might do; and (4) the court did 

not elicit sufficiently "strong evidence" of guilt by establishing 

a factual basis for the plea before accepting the plea pursuant to 

North Carolina v. Alford (1970), 400 U.S. 25. 

In his response to the defendant's motion to withdraw his 

guilty plea, the County Attorney contended that the prosecution had 

complied with the plea agreement and requested the court to deny 

defendant's motion. 

In considering defendant's motion to withdraw his plea, the 

District Court stated the following regarding the sexual offender 

evaluation: 

Defendant and his counsel certified to the Court that 

they had examined 46-18-101 et seq. and were aware of 46- 

18-111, MCA, and knew that the presentence investigation 

report is required to include a sex offender evaluation 

where the victim of a sex offense is under the age of 16. 

In this case, the victim was age 13 at the time of the 

offense, requiring the sex offender evaluation. . . . [I]n Custer County Criminal Cause No. 3313, this Court, 

as a condition of deferred imposition of sentence, 

previously required this same defendant to obtain a 

Sexual Offender Evaluation and follow through with all 

recommendations of said evaluation. Defendant failed to 

obtain the required sex offender evaluation and absconded 

from probation. Ultimately, Defendant's probation was 

revoked and Defendant served six months in the Custer 

County Jail. The defendant certainly should have 
expected that this. Court would definitely want him to 

undergo a sex offender evaluation after his second sex 

offense conviction. In light of the above, the Court 

finds Defendant's suggestion patently unbelievable that 

he was either surprised or unfairly prejudiced by the 

requirement of undergoing a sex offender evaluation. 

With regard to defendant's claim that he "hope[d]" he would be 

allowed to withdraw his guilty plea if the Judge did not follow the 

County Attorney's recommendations, the court referred to its 

admonition to the defendant both at arraignment and at entry of 

plea, that the court would not be bound by a plea agreement. The 

court stated the claim was premature because defendant had not yet 

been sentenced. 

In addressing defendant's argument that he entered his plea 

out of "fearv of what a jury might do, the District Court stated 

that the question is not whether the defendant acted out of fear or 

hope, but is whether defendant was influenced unduly and improperly 

either by hope or by fear in making a plea. The court concluded 

that there was nothing in the procedures used which would have 

given the defendant such false hope or fear or unduly or improperly 

influenced him. 

Finally, after reviewing the evidence before the court, the 

court concluded that it had "no doubt that the defendant . . . had 

sexual intercourse with BY". The District Court denied defendant's 

motion to withdraw his guilty plea. 

At the sentencing hearing, the probation officer who prepared 

the presentence investigation testified and recommended that the 

sentence be long enough for the defendant to complete the sex 

offender program at the prison. She testified it would take about 

6 
two years to complete the program. She further testified that she 

was "leery of the Plea Bargain". 

The District Court sentenced defendant to a term of twenty 

years in the Montana State Prison with five years to be suspended. 

The court based its sentence on defendant's past criminal history, 

including a prior sex offense; the fact that the court believed 

defendant to be a sexual offender; the presentence investigation 

report; the psychosexual evaluation; defendant's threat to society; 

defendant's designation as a dangerous offender for parole 

purposes; and the need for monitoring the defendant following his 

release from prison due to his psychosexual problems. The court 

explained its reasons for not following the plea agreement. 

Following the Plea Bargain Agreement would have 

allowed the defendant to serve a relatively short prison 

term without confronting his sexual problems and without 

obtaining the treatment required to rehabilitate the 

defendant. 

Following the sentencing, defendant filed a second motion to 

withdraw his plea of guilty stating only that the County Attorney 

did not oppose the motion. The District Court denied the motion 

stating: 

Before the court is Defendant's Motion to Withdraw 

Guilty Plea. Presumably, this Motion to Withdraw Guilty 

Plea is being proffered because the earlier Motion was 

filed before sentencing and the plea bargain provided 

that if the Court did not follow the recommendations of 

the County Attorney in the plea bargain, the County 

Attorney would not resist such a motion. Therefore, the 

Court assumes that the County Attorney does not resist 

the motion. In light of such non-resistance and the fact 

that a hearing has not been requested, the court deems 

the matter submitted. Based on the evidence in the 

record and for the reasons stated in its memorandum 

denying the earlier motion, 

Defendant's motion is hereby denied. 
Defendant filed a third motion to withdraw the guilty plea on 

~uly 12, 1991, stating: 

The sentence was given in conformance with the 

recommendation at the Sentencing Hearing of Sheila 

Rebich, Adult Probation Officer. This recommendation was 

made in violation of her expressed representations to 

defense counsel. Defendant Kenneth Yother relied upon 

those representations when he entered his plea of guilty. 

Defendant's reliance upon a probation officer's word 

and belief in her word should be considered legitimate. 

Defendant's reliance and belief in the veracity of 

Probation Officer Sheila Rebich gave rise to his hope 

that the Court would follow the Plea Agreement. 

The County Attorney filed a memorandum in opposition to 

defendant's motion to withdraw his guilty plea. In the memorandum, 

the County Attorney stated: 

It should be noted that the Plea Agreement provided that 

the County Attorney would recommend imprisonment in the 

Montana State Prison for five (5) years with three (3) 

years of said sentence to have been determinate and 

served in its entirety, less credit for time spent in the 

Custer County Jail. The jail time to be served by the 

Defendant under the plea agreement, would be close to 

what the Defendant will be serving under the terms of the 

Court's Order of Commitment. The only real difference is 

an extended period of probation for the Defendant. 

Defendant replied to the County Attorney's memorandum arguing that 

the State, by filing the memorandum, violated its agreement in 

regard to withdrawing the plea. 

After a hearing, the District Court issued its order regarding 

defendant's third motion to withdraw his guilty plea stating: 

The Court has not considered any briefing and the County 

Attorney has not argued relative to this motion pursuant 

to the County Attorney's acknowledged promise not to 

resist withdrawal of the plea if the Court did not follow 

the County Attorney's recommendation. 

The Court notes that the probation officer's 
proposed acquiescence. to the County Attorney's 

recommendation was expressly conditional on the Defendant 

being able to complete the intensive sex offender program 

at the Montana State Prison with that recommended 

sentence. After the probation officer consulted with 

officials at the Montana State Prison, she found out it 

was doubtful whether such a sentence would be workable. 

In fact, given the severity of the offense and 

defendant's dismal prognosis, the Court would have been 

hard-pressedto follow the probation officer's report had 

she acquiesced in the County Attorney's recommendation. 

Defendant's counsel is aware that the Court sometimes 

deviates from the recommendations of the probation 

officer. The fact that the Court usually goes along with 

the recommendations of the probation officer can no more 

give rise to an improper hope, than does the fact that 

the Court usually goes along with the recommendations of 

the County Attorney. The Defendant was thoroughly 

advised that the Court retained the ultimate decision and 

could sentence him up to the maximum provided by law. . , . 

Defendant appeals from the District Court's order denying his 

motion to withdraw his plea of guilty. 

Did the District Court abuse its discretion in denying 

defendant's motion to withdraw his plea of guilty? 

Defendant contends that he relied on the representations of 

the probation officer that she would recommend that the District 

Court follow the sentencing recommendation contained in the plea 

bargain. He maintains that he entered his plea in reliance on such 

representations by the probation officer, and was therefore misled. 

The State contends that the statement by the probation officer 

was not a part of the plea agreement. The State further points out 

that the probation officer's representation that she would follow 

the plea agreement was conditioned on the defendant being accepted 
into the sexual offender program at the prison. 

In State v. Milinovich (lggl), 248 Mont. 373, 812 P.2d 338, 

Milinovich and the county attorney entered into a plea agreement 

which stated that the prosecutor would, at the time of sentencing, 

make no recommendation to the court relative to a term of years to 

be served. However, the presentence investigation prepared by the 

probation officer recommended that Milinovich be sentenced to 100 

years in the Montana State Prison and be designated a dangerous 

offender for purposes of parole eligibility. Milinovich claimed 

that the probation officer's recommendation was equivalent to a 

recommendation by the prosecutor, and therefore violated the plea 

agreement. 

This Court stated: 

The pre-sentence investigation prepared by the 

parole/probation officer is authorized by 1 46-18-111, 

MCA, and its contents are spelled out in 5 46-18-112, 

MCA. Section 46-18-112, MCA, states: 

"Whenever an investigation is required, the 

probation officer shall promptly inquire into the 

characteristics, circumstances, needs, andpotentialities 

of the defendant; his criminal record and social history; 

the circumstances of the offense; the time the defendant 

has been in detention; and the harm to the victim, his 

immediate family, and the community . . The 

investigation shall include a physical and mental 

examination of the defendant when it is desirable in the 

opinion of the court." 

A sentencina recommendation is merely a factor that 

mav or mav not be considered by the iudqe, . . . (Emphasis added.) 

Milinovich, 812 P.2d at 340. 

This Court held that the District Court had not abused its 

discretion in denying Milinovich's motion to withdraw his plea of 
guilty. In doing so, this Court established that the probation 

officer's recommendation was not equivalent to a recommendation by 

the prosecutor. 

In the present case, the County Attorney consistently followed 

the agreement in the making of his recommendations to the court. 

Following Milinovich, we conclude that the probation officer's 

recommendation in this case is not equivalent to a recommendation 

by the prosecutor. We conclude that the County Attorney did not 

breach the plea agreement with regard to sentencing. As stated by 

the District Court, the record demonstrates the defendant was well 

informed that the court would not be bound by the sentencing 

recommendations contained in the plea agreement. 

We hold that the District Court did not abuse its discretion 

in denying defendant's motion to withdraw his plea of guilty. 

I I 

Were defendant's constitutional rights to due process violated 

by the denial of his motion to withdraw his plea of guilty? 

Defendant maintains that the County Attorney breachedthe plea 

agreement by opposing the motion to withdraw the plea after 

assuring defense counsel that he would not do so, and in so doing 

robbed the guilty plea of its voluntary character. 

The defendant argues that the memorandum filed by the County 

Attorney violated the plea agreement. In that memorandum the 

County Attorney pointed out that the jail time to be served under 

the plea agreement would be close to the jail time to be served 

under the court's order of commitment and that the only real 
difference was the extended period of probation under the order. 

That was not sufficient to constitute a violation of the plea 

agreement. We restate our conclusion that the County Attorney did 

not breach the plea agreement. With regard to the issue of 

constitutional rights, State v. Martz (19881, 233 Mont. 136, 144, 

760 P.2d 65, 70, states: 

If the defendant makes a voluntary and intelligent plea, 

he knowingly waives [certain] constitutional rights, 

regardless of whether or not the judge accepts the 

recommendation of the State. 

We conclude that the defendant made a voluntary and intelligent 

plea and knowingly waived all of his constitutional rights. 

We hold that the defendant's constitutional rights to due 

process were not violated by the rejection of the plea bargain by 

the District Court. 

Affirmed. 

We Concur: 

Chief Justice 

Justices 

12 
Justice Karla M. Gray, specially concurring. 

I concur in the majority opinion. While I do not believe in 

advisory opinions on legal questions or, in general, the necessity 

or propriety of offering advice regarding the practice of law, I 

believe that comment on several particulars regarding this case may 

assist both counsel and the courts in avoiding problems in future 

cases. 

The parties agree that part of the plea agreement in this case 

was a promise by the County Attorney not to object to withdrawal of 

the guilty plea in the event the court failed to follow the 

agreement. This promise was not contained in the written plea 

agreement, however. All promises and assurances which are part of 

a plea agreement should be contained in the written document in 

order to avoid disputes and difficulties over nondocumented parts 

of a plea agreement. In addition, it is my view that when the 

prosecution makes such a promise, it should abide by both the 

letter and the spirit of that promise. Under such circumstances, 

I believe it is the prosecution's duty to refrain from filing any 

brief or memorandum on the subject whatsoever. Here, the content 

of the prosecution's Memorandum in Opposition to Motion to Withdraw 

Guilty Plea did not constitute a substantive objection to the 

defendant's motion; nor did the court rely on it. The Memorandum, 

however, technically did violate the letter, and certainly violated 

the spirit, of the promise. The Memorandum does not appear to have 

affected the outcome; therefore, any error was harmless. 

Finally, I believe it is important to note that the defendant 

13 
in this case entered an ttAlford plea" to the charge of sexual 

intercourse without consent. As discussed in the dissenting 

opinion in State v. Cameron (Mont. 1992), - P.2d -, 49 St.Rep. 

150, Alford pleas in sex offense cases can result in a variety of 

unexpected consequences for defendants who, via the Alford plea, 

continue to assert their innocence. See also State v. Imlay 

(lggl), 249 Mont. 82, 813 P.2d 979. Some of those consequences 

already have arisen in this case duringthe pre-sentence evaluation 

and investigation phases. Given that the sentence imposed on this 

defendant includes completion of the sex offender program at the 

Montana State Prison, and that the program cannot be completed so 

long as the defendant continues to deny the conduct, more Alford 

plea-related consequences may be ahead for this defendant. 

Justice Terry N. Trieweiler, joins in the foregoing special 

concurrence of Justice Karla M. Gray. 

K ustice 
May 1, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Marcey Felming Schwarz 

Attorney at Law 

P.O. Box 21386 

Billings, MT 59104 

HON. MARC RACICOT, Attorney General 

Patricia Jordon, Assistant 

Justice Bldg. 

Helena, MT 59620 

Gary E. Burke, Deputy County Attorney 

301 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

Depufjl