No. 14860 INTHE SUPmME COURT OF THE STATE OF MONTANA 1980

-- THE STATE OF MONTANA, Plaintiff and Respondent,

VS

# . JOHNNIE BURTON HAYNIE, Defendant and Appellant.

Appeal from: DistrictCourt of the Eighth Judicial District, Honorable Joel G. Roth, Judge presiding. Counsel of Record: For Appellant: Asselstine, Strause & Anderson, Great Falls, Montana Howard Strause argued, Great Falls, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Richard Larson argued, Assistant Attorney General,

Helena, Montana J. Fred Bourdeau, County Attorney, Great Falls, Montana Michael G. Barer argued, Deputy County Attorney,

Great Falls, Montana

Filed: Submitted: February 20, 1980 Decided:

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# 39811Mr. Justice John C. Sheehy delivered the Opinion of the Court. Johnie Burton Haynie appeals from an order denying both his application for post-conviction relief and his motion to withdraw a guilty plea. The order was entered by the District Court, Eighth Judicial District, CascadeCounty. On October 11, 1973, an eleven count informationwas filed in the District Court, Cascade County, charging Haynie with one count of indecentexposure, two counts of committing

an infamous crime against nature, three counts of second degree assault, two counts of committing a lewd and lascivious act upon a child and three counts of rape. The alleged incidents involved five differentwomen, including at least twominors. On that same day, Haynie appearedbefore the District Court to hear the charges againsthim. Hayniewas told he would be given asmuch time as was necessary to prepare his pleas. Haynie waived time to prepare his pleas and pleaded not guilty to all the charges. After the pleas were entered, Haynie moved for a psychiatric evaluation. Themotion was granted. At this same time, Hayniewas facing a forcible rape charge in California. Between October 11, 1973 and December 5, 1973,plea bargain negotiations took place between the State, Haynie and Haynie's defense counsel. Thewhole point of the negotiationswas to see if Haynie might take advantage of California's broader facilities for treating Haynie's admitted

sexproblem. During theseplea negotiations, both the State and defense counsel advised Haynie of the maximum penalties involved in all eleven of the Montana charges. They also advised Haynie of his constitutional rights and that he would waive those rightsby entering a guilty plea.Haynie appeared in the District Court with his defense counsel on December 5, 1973. As a result of the plea bargaining, ~aynie@eac?edguilty to count nine of the information, rape. In return, the State moved to dismiss the remaining ten counts of the information. Haynie's plea was accepted, and the State's motion was granted. The District Court continued sentencing until after a determinationof the California forcible rape charge. All parties agreed Haynie would be returned to Montana if found not guilty of the California charge. If Haynie was found guilty orplmwguilty in California, the Montana District Court would postpone sentencing Haynie on count nine until after California determined whether Haynie's problem could be treated. Haynie was to be brought back to Montana for sentencing upon such a determination. The District Court explained to Haynie it could not controlwhat the California courtwould do. The District Court also explained itwas reserving its full discretion to impose any sentence on Haynie it deemed suitable. Haynie expressed his understanding. On December 7, 1973,Hayniewaived extradition. He was transferred to California four days later. Haynie plead guilty to the California forcible rape charge on February 26, 1974. He was sent to an institution for "mentally disordered

sex offenders" for a determination of his chances for rehabilitation. Hayniewas determined not to be amenable to treatment. On August 23, 1974, the California court sentenced Haynie to

an indeterminate sentence of three years to life. While serving his California sentence,Haynie requested to be returned to Montana for sentencing on count 9. He was transferred to Montana under the Interstate Agreement on Detainers.On December 10, 1974,Haynie appeared in the District Court, Cascade County. He was informed his former defense counselwas now the Great Falls city attorney and would not be able to representHaynie during the sentence proceeding. Hayniewas told a public defender would be appointed. Haynie appeared in the DistrictCourt for sentencing

on January 22, 1975. No presentence reportwas ordered. The DistrictCourtknew Haynie's juvenile record and his prior criminal record. Hayniewas represented at the sentence hearing by Vaughn Barron. Barron was the first defense counsel to talk to Haynie since his return from California. Barron firstmet Haynie shortly before the sentence hearing. Upon being informed of this, the DistrictCourt asked Haynie if he wanted time to talk to Barron. Haynie said he wanted to go ahead with the sentencing. TheDistrict Court next asked Haynie if he was ready for sentencing now. Haynie answered thathewas. Haynie was found to be a dangerous offenderbecause of his prior sex crimes. He was sentenced to 99years at hard labor in the state penitentiary. The sentencewas to be served consecutivelywith the California sentence. Prior to sentencing, the DistrictCourt did not informHaynie of the maximum possible sentences for rape or the other dismissed charges. Haynie was returned to Californiawhere he was incarcerated until August 1977. After the completion of his ~alifornia sentence,Hayniewas returned to Montana to begin his rape sentence. Upon his return,Haynie applied to theMontana Sentence Review Board. On October 24, 1978, that Board decided not to disturb Haynie's sentence. -4-On February 20, 1979,Haynie filed his application for post-conviction relief. The application alleged Haynie was denied effective assistance of counsel at the 1975 sentenceproceeding. On April 2, 1979,Haynie moved to withdraw his guilty plea to count 9. Haynie asserted the District Court did not inform him at the time he entered his plea of the maximum possible sentence for rape. Three hearingswere held on the application and motion. Haynie

was represented by court-appointed counsel. The District Court denied both the application and the motion on the grounds (1)Haynie waived his right to counsel at sentencing, (2)Haynie's guilty plea was properly accepted, and (3)Haynie's challenges were not timely. On July 20, 1979, Haynie moved for a reconsiderationof the above order. A hearing was held onAugust 3, 1979,and the motion was denied onAugust 6, 1979. This appeal followed. The issues upon appeal are whether the District Court erred in denying Haynie's petition for post-conviction relief and hismotion to withdraw his guilty plea. Therewas no error. An indigent criminal defendant has a right to counsel at sentencing. However, that right is akin to any other constitutional right and may be lostby a knowing and understanding waiver. Petition of Brittingham (1970),155 Mont. 525, 529, 473 P.2d 830, 832. The nature of such a waiver was described in Johnsonv. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466, as follows: "Awaiver is ordinarily an intentional relinquishmentor abandonmentof a known right or privilege. The determinationof whether there has been an intelligent waiver of right to counsel must depend, in each case,upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."Under the facts of this cause,Haynie knowingly and understandingly waived his right to more extensive counsel at sentencing. Haynie knewhe was entitled to an attorney at sentencing. Hayniewas not a novice to the criminal justice system. Haynie's past criminal record is extensive, and Haynie had previously appeared before thisparticular sentencing judge on at least two similarbut unrelated charges. Thus, the sentencing judgewas familiarwith Haynie's background and had several opportunities to observe Haynie's understanding of the criminal justice system. More importantly, the first thing Haynie did at the sentence hearing was to ask that the record reflect his lack of counsel at sentencing. Hayniewas offered counsel at the sentencehearing but rejected the offer. Both Haynie and his attorney, Barron, told the District Court Haynie did i~ot have an opportunity to talk with counsel prior to the hearing and Barron was merely "stand-in"counsel. At that point, the following colloquy occurred: "THECOURT: Mr. Haynie, do you want time to talk to Mr. Barron? "MR. HAYNIE: No, I'd just as soon he'd stand in for sentencing now. "THECOURT: Are you ready now? "MR. HAYNIE: Yes." Upon appeal, Haynie claimshe believed he would only be allowed a fewminutes to talk with Barron and nothing could be accomplished in such a short time. Yet,both Barron and Clary, theprosecuting attorney, testified at the post-conviction hearing that they understood Haynie would be given asmuch time as Haynie believed was necessary to talk with counsel.Haynie entered his plea with a knowledge of the maximum penalty possible for the crime charged. While Haynie denies this, both Glicko, Haynie's initial defense counsel, and Clary testified at thepost-conviction hearing that Haynie

was informed during plea bargain negotiations of the maximum possible sentences for the crimes charged. Having decided that Haynie knowingly and understandingly waived his right to counsel,we will not reach the State's contention that Haynie is barred by laches from attacking the sentenceprocedure. Haynie next contends he should be allowed to withdraw his guilty plea to count 9 since the District Court failed to inform him of themaximum possible sentence for rape. We do not agree. A change ofplea will be permitted only if it fairly appears the defendantwas ignorant of his rights and the consequencesofhis act, or he was unduly and improperly influenced either by hope or by fear in making the plea,

or if it appears the plea was entered under somemistake

ormisapprehension. State v. McAllister (1934),96 Mont. 348, 353, 30 P.2d 821, 823. Each case must be examined

on its own record. Themotion restswithin the District Court's discretion, and the exercise of that discretionwill not be disturbed absent an abuse of discretion. State v. Nelson (1979) 

### , Mont. 

## , 603 P.2d 1050, 1053, 36 St.Rep. 2228, 2232. We hold the District Court did not abuse its discretion in denying Haynie's motion to withdraw his guilty plea. There are three important considerations involved in a criminal defendant's attempt to withdraw his guilty plea. These are 

### (1)the adequacy of the District Court's interrogation at the time the plea was entered as to the defendant's



## -7-understanding of the plea, (2)the promptness of the motion to withdraw the plea and, (3)the fact the plea resulted fromplea bargaining. Statev. Nelson, supra, 603 P.2d at 1053, 36 St-Rep.at 2232. The DistrictCourt's interrogation of Haynie at the time his plea was entered was inadequate. Haynie was never informed of his constitutional rights or that he would waive those rights by entering a guilty plea. Hayniewas also not informed by the DistrictCourt of the maximum possible sentence for rape. Nor did the DistrictCourt find outwhether Hayniewas dissatisfiedwith his defense counsel. Finally and most importantly, the DistrictCourt did not go into the underlying facts of the alleged offense, the name of the victim and the date and place of the alleged

occurrence. But, these factors alone are not determinative. The second consideration is the timeliness of the motion to withdraw the guilty plea. The guilty plea was entered

on December 5, 1973. The first time Haynie expressed dissatisfactionwith his plea was onApril 2, 1979, the day themotion to withdraw the guilty plea was filed. Haynie has not explained this delay of over fiveyears. Given this delay, the availability of witnesses would be a question, and

even assuming their availability, the time lapse would most assuredly have erased the details of the crime from their memories. See Statev. Lewis (1978)

## , Mont

# . , 582 P.2d 346, 35 St-Rep.1089. Haynie's plea was entered after extended plea negotiations. Although nowritten record of the plea bargain was kept, the State dismissed the 10remaining charges against Haynie in exchange for Haynie's guilty plea to the charge of rape. At the time of the plea, the DistrictCourt explained to Haynie at great length that he would merely be given an opportunity for treatmentand whatever treatment Haynie did

or did not receive in California would not be determinative -8-of theMontana sentence he received. Haynie expressed his understanding several times. There is no question Haynie

was competent to bargain or that he was satisfiedwith the competency of his defense counsel. See State v. Huttinger

(19791, Mont

# . , 595 P.2d 363, 36 St.Rep. 945. To grant Haynie's motion to withdraw his guilty plea would be to allowXal~nieto escape the obligations of his bargain. However, this Courtwill not aid an accused to escape the obligations of a plea bargain agreement after accepting the benefits thereof. Statev. Huttinger, supra. 595 P.2d at 370, 36 St.Rep. at 954. Taking these three factors together,we find it was not error to deny Haynie's motion to withdraw his guilty plea. Without explanation, Haynie waited almost 5 1/2 years to take exception to theplea. Moreover, Haynievoluntarily and understandingly entered the plea bargain with the sentence open. Hayniemay notnow seek to avoid the obligations of thatbargain after accepting its benefits. Having found no merit in Haynie's contentions,we affirm the District Court order denying Haynie's application for post-conviction relief and hismotion to withdraw his guilty plea. 

# p--g:--* Justice 

## ------ We Concur:

hief Justice

A



## ........................... Justices I concur in the result. 

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............................ Justice