No. 14860 

IN THE SUPmME COURT OF THE STATE OF MONTANA 

1980 

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THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

JOHNNIE BURTON HAYNIE, 

Defendant and Appellant. 

Appeal from: District Court 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 : rAi..-i 12 39811 
Mr. 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, Cascade County. 

On October 11, 1973, an eleven count information was 

filed in the District Court, Cascade County, charging Haynie 

with one count of indecent exposure, 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 different women, including at least two minors. 

On that same day, Haynie appeared before the District 

Court to hear the charges against him. Haynie was told he 

would be given as much 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. The motion was 

granted. 

At this same time, Haynie was 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. The whole point of the 

negotiations was to see if Haynie might take advantage of 

California's broader facilities for treating Haynie's admitted 

sex problem. During these plea 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 rights by 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 

determination of 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 orplmw guilty 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 control what the California court would do. The 

District Court also explained it was reserving its full discretion to impose any sentence on Haynie it deemed suitable. 

Haynie expressed his understanding. 

On December 7, 1973, Haynie waived 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. Haynie was 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 

counsel was now the Great Falls city attorney and would not 

be able to represent Haynie during the sentence proceeding. 

Haynie was told a public defender would be appointed. 

Haynie appeared in the District Court for sentencing 

on January 22, 1975. No presentence report was ordered. The 

District Court knew Haynie's juvenile record and his prior 

criminal record. Haynie was represented at the sentence 

hearing by Vaughn Barron. Barron was the first defense counsel 

to talk to Haynie since his return from California. Barron 

first met Haynie shortly before the sentence hearing. Upon 

being informed of this, the District Court asked Haynie if he 

wanted time to talk to Barron. Haynie said he wanted to go 

ahead with the sentencing. The District Court next asked 

Haynie if he was ready for sentencing now. Haynie answered 

that he was. 

Haynie was found to be a dangerous offender because of 

his prior sex crimes. He was sentenced to 99 years at hard 

labor in the state penitentiary. The sentence was to be 

served consecutively with the California sentence. Prior to 

sentencing, the District Court did not inform Haynie of the 

maximum possible sentences for rape or the other dismissed 

charges. 

Haynie was returned to California where he was incarcerated 

until August 1977. After the completion of his ~alifornia 

sentence, Haynie was returned to Montana to begin his rape 

sentence. 

Upon his return, Haynie applied to the Montana Sentence 

Review Board. On October 24, 1978, that Board decided not 

to disturb Haynie's sentence. 

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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 sentence proceeding. 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 

hearings were 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 reconsideration of 

the above order. A hearing was held on August 3, 1979, and 

the motion was denied on August 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 his motion to withdraw his guilty plea. There was 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 lost by 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 Johnson v. Zerbst (1938), 304 U.S. 

458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466, as follows: 

"A waiver is ordinarily an intentional 

relinquishment or abandonment of a known right 

or privilege. The determination of 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 knew he was entitled to an attorney at sentencing. 

Haynie was not a novice to the criminal justice system. 

Haynie's past criminal record is extensive, and Haynie had 

previously appeared before this particular sentencing judge 

on at least two similar but unrelated charges. Thus, the 

sentencing judge was familiar with 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. 

Haynie was offered counsel at the sentence hearing 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: 

"THE COURT: 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. 

"THE COURT: Are you ready now? 

"MR. HAYNIE: Yes." 

Upon appeal, Haynie claims he believed he would only 

be allowed a few minutes to talk with Barron and nothing 

could be accomplished in such a short time. Yet, both 

Barron and Clary, the prosecuting attorney, testified at the 

post-conviction hearing that they understood Haynie would 

be given as much 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 the post-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 sentence procedure. 

Haynie next contends he should be allowed to withdraw 

his guilty plea to count 9 since the District Court failed 

to inform him of the maximum possible sentence for rape. We 

do not agree. 

A change of plea will be permitted only if it fairly 

appears the defendant was ignorant of his rights and the 

consequences of his 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 some mistake 

or misapprehension. State v. McAllister (1934), 96 Mont. 

348, 353, 30 P.2d 821, 823. Each case must be examined 

on its own record. The motion rests within the District 

Court's discretion, and the exercise of that discretion will 

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 

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understanding of the plea, (2) the promptness of the 

motion to withdraw the plea and, (3) the fact the plea 

resulted from plea bargaining. State v. Nelson, supra, 603 

P.2d at 1053, 36 St-Rep. at 2232. 

The District Court'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. Haynie was 

also not informed by the District Court of the maximum 

possible sentence for rape. Nor did the District Court 

find out whether Haynie was dissatisfied with his defense 

counsel. Finally and most importantly, the District Court 

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 dissatisfaction with his plea was on April 2, 1979, the day 

the motion to withdraw the guilty plea was filed. Haynie 

has not explained this delay of over five years. 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 State v. Lewis (1978) , Mont . , 582 

P.2d 346, 35 St-Rep. 1089. 

Haynie's plea was entered after extended plea negotiations. 

Although no written record of the plea bargain was kept, 

the State dismissed the 10 remaining charges against Haynie 

in exchange for Haynie's guilty plea to the charge of rape. 

At the time of the plea, the District Court explained to 

Haynie at great length that he would merely be given an 

opportunity for treatment and whatever treatment Haynie did 

or did not receive in California would not be determinative 

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of the Montana sentence he received. Haynie expressed his 

understanding several times. There is no question Haynie 

was competent to bargain or that he was satisfied with 

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 allow Xal~nie to escape the obligations of his 

bargain. However, this Court will not aid an accused to 

escape the obligations of a plea bargain agreement after 

accepting the benefits thereof. State v. 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 the plea. Moreover, Haynie voluntarily 

and understandingly entered the plea bargain with the 

sentence open. Haynie may not now seek to avoid the obligations 

of that bargain 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 his motion to withdraw his 

guilty plea. 

p--g:--* Justice ------ 

We Concur: 

hief Justice 

A 

........................... Justices 

I concur in the result. 

- ............................ Justice