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No. 99-361 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 118

299 Mont. 442

2 P. 3d 233

STATE OF MONTANA, 

Plaintiff and Respondent,

v.

DAVID A. MELONE,

Defendant and Appellant.

APPEAL FROM: District Court of the Second Judicial District, 

In and for the County of Silver Bow,

The Honorable John W. Whelan, Judge presiding. 

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Assistant Appellate Defender, Appellate Defender Office,

Helena, Montana

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For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Micheal S. Wellenstein,

Assistant Attorney General; Helena, Montana

Robert McCarthy, Silver Bow County Attorney; Brad Newman,

Deputy County Attorney, Butte, Montana

Submitted on Briefs: December 16, 1999 

Decided: May 4, 2000

Filed: 

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.¶

1 David A. Melone appeals from the Judgment of the Second Judicial District Court, 

Silver Bow County, dated April 29, 1999, sentencing him to 20 years in the Montana State 

Prison. We reverse and remand.

¶2 Melone raises the following issue:

¶3 Whether the District Court abused its discretion by denying Melone's motion to 

withdraw his guilty plea?

FACTUAL BACKGROUND

¶4 On November 4, 1998, the State filed an Information charging Melone with felony 

assault in violation of § 45-5-202(2)(a), MCA (1997). The State alleged that Melone 

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purposely or knowingly caused bodily injury to Thomas Brosovic with a weapon, 

specifically by slashing or cutting his face. On November 12, 1998, Melone entered a plea 

of not guilty. The court set Melone's case for jury trial to be held on March 2, 1999. 

¶5 On February 19, 1999, Melone filed a Motion to Reduce Charge and a Motion to 

Dismiss. On February 22, 1999, the court denied both motions. As a result, Melone 

offered an Alford plea. See North Carolina v. Alford (1970), 400 U.S. 25, 91 S. Ct. 160, 27 

L. Ed. 2d 162 (upholding the constitutionality of a plea of nolo contendere). The court 

took Melone's request for a change of plea under advisement and set a change of plea 

hearing for the following day.

¶6 Prior to the change of plea hearing, Melone filed an Acknowledgment of Waiver of 

Rights by a Plea of Guilty. In his acknowledgment, Melone stated that he fully understood 

that the maximum possible punishment by law for felony assault was ten years and/or a 

$50,000 fine, that a dangerous weapon enhancement of up to five additional years for use 

of a weapon might apply, and that "[t]he County Attorney's office also gave notice of 

Persistent Felony Offender Status if the matter proceeded to trial, which carries an 

additional five (5) to one hundred (100) year sentence, consecutive." Melone also stated 

that he understood that his sentence could be enhanced on the basis of his previous 

criminal record. 

¶7 During the change of plea hearing, the court informed Melone that the weapon 

enhancement statute was no longer applicable to Melone and stated that the maximum 

penalty for felony assault was "ten years in the Montana State Prison or a $50,000 fine."(1)

Melone testified regarding his version of the facts underlying the felony assault charge. 

The court allowed Melone to withdraw his previous plea and enter an Alford plea. 

¶8 On March 25, 1999, the District Court sentenced Melone to the Montana State Prison 

for a term of ten years for felony assault and an additional ten years to be served 

consecutively as a persistent offender. On March 26, 1999, Melone filed a motion 

requesting that the court hold a hearing regarding the imposition of a persistent felony 

offender enhancement and that the court allow him to withdraw his plea. In this motion, 

Melone denied:

[H]e was aware at the time of his entry of an Alford plea that he could be sentenced 

to more than ten (10) years for the Assault. Defendant states that he understood that 

the persistent designation was not going to be imposed since it was not 

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discussed . . . .

¶9 By Order dated April 20, 1999, the court rejected Melone's motion to withdraw his 

plea, but granted his motion for a new sentencing hearing and vacated its previous 

sentence and judgment. On April 29, 1999, the court held another sentencing hearing. 

Melone requested and was granted the right to represent himself. The court allowed 

Melone to present evidence regarding the applicability of the persistent felony offender 

enhancement. Melone did not contest the existence of his prior convictions. The court 

affirmed its original sentence. Melone appeals.

STANDARD OF REVIEW

¶10 Pursuant to § 46-16-105(2), MCA, a court may for good cause shown permit a 

defendant to withdraw a plea of guilty. See State v. Keys, 1999 MT 10, ¶ 11, 293 Mont. 

81, ¶ 11, 973 P.2d 812, ¶ 11. We review a district court's denial of a motion for the 

withdrawal of a guilty plea for an abuse of discretion. See Keys, ¶ 11 (citing State v. 

Bowley (1997), 282 Mont. 298, 304, 938 P.2d 592, 595). 

DISCUSSION

¶11 Whether the District Court abused its discretion by denying Melone's motion to 

withdraw his guilty plea?

¶12 Melone contends that a voluntary and knowing waiver of constitutional rights when a 

defendant pleads guilty to a crime, includes the right to be informed of the maximum 

possible sentence not only for the crime charged, but also for collateral sentencing 

enhancements. Melone claims that the District Court did not inform him that he could 

receive an additional sentence of up to 100 years because of his potential status as a 

persistent felony offender. As a consequence, Melone asserts that his plea was not 

knowing and voluntary.

¶13 The State contends that a review of the court's interrogation of Melone, as well as 

Melone's acknowledgment, reveals that at the time of his plea he understood that he faced 

the persistent felony offender enhancement provision. The State contends that the 

following evidence indicates that Melone's plea was voluntary, knowing, and intelligent: 

Melone received a persistent felony offender notice from the State; the prosecutor 

informed Melone of a possible persistent felony penalty immediately prior to the court's 

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questioning of Melone; and, Melone's acknowledgment indicates that he understood that 

he faced a possible enhancement because of his prior record.

¶14 The test for determining the validity of a guilty plea is whether the plea represents a 

"voluntary, knowing, and intelligent choice among the alternative courses of action open 

to the defendant." See Keys, ¶ 12 (citing State v. Radi (1991), 250 Mont. 155, 159, 818 

P.2d 1203, 1206). If there is any doubt that a guilty plea was not voluntarily or 

intelligently made, the doubt must be resolved in favor of the defendant. See Keys, ¶ 12 

(citing State v. Enoch (1994), 269 Mont. 8, 18, 887 P.2d 175, 181). 

¶15 Pursuant to § 46-16-105(2), MCA, a court may for good cause shown, permit a 

defendant to withdraw a plea of guilty. See Keys, ¶ 11. To determine whether good cause 

was shown and whether the court abused its discretion, we consider the following factors: 

(1) the adequacy of the district court's interrogation at the time of the plea regarding the 

defendant's understanding of the consequences of the plea; (2) 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; and (3) the promptness with which the defendant attempted to withdraw 

the plea. See Keys, ¶ 11 (citing State v. Johnson (1995), 274 Mont. 124, 127-28, 907 P.2d 

150, 152). Both parties agree that our determination of whether the District Court abused 

its discretion by denying Melone's motion to withdraw his plea depends on the adequacy 

of the court's interrogation at the time of the plea regarding Melone's understanding of the 

consequences of his plea. 

¶16 We have stated that prior to accepting a guilty plea, the trial court must satisfy the 

requirements of §§ 46-12-210 and 46-16-105, MCA. See State v. Roach, 1999 MT 38, ¶ 9, 

293 Mont. 311, ¶ 9, 975 P.2d 817, ¶ 9. Section 46-12-210(1)(a)(iii), MCA, provides, in 

relevant part, that "[b]efore accepting a plea of guilty or nolo contendere, the court shall 

determine that the defendant understands . . . the maximum penalty provided by law, 

including the effect of any penalty enhancement provision." (Emphasis added.) Section 46-

16-105, MCA, provides, in relevant part, that a court may accept a plea of guilty or nolo 

contendere when "the court has informed the defendant . . . of the maximum penalty 

provided by law that may be imposed upon acceptance of the plea."

¶17 Upon a review of the court's oral questioning, we are convinced that the court did not 

adequately inform Melone of the maximum penalty Melone faced as a result of his change 

of plea. The court informed Melone that the maximum penalty he could receive for the 

offense of felony assault was "ten years in the Montana State Prison or a $50,000 fine." 

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The court also informed Melone that the weapon enhancement provision did not apply to 

his case. However, the court did not mention the fact that Melone faced a potential 

enhancement as a persistent felony offender of up to 100 years. 

¶18 The State contends the fact that the prosecutor informed Melone of a possible 

persistent felony offender enhancement penalty immediately prior to the court's 

questioning of Melone is sufficient to cure any defect in the court's colloquy. Just prior to 

the court's oral questioning of Melone, the prosecutor stated that "[Melone] would still 

face the potential penalty as a repeat offender." This statement is insufficient to meet the 

requirements of § 46-16-105, MCA. The plain language of § 46-16-105(1)(b), MCA, 

expressly requires that the court inform the defendant of the maximum penalty that might 

be imposed as a result of the plea. The prosecutor's statement was insufficient because it 

was not information provided by the court, nor did it inform Melone of the maximum 

penalty he faced. 

¶19 Nevertheless, to determine whether a trial court adequately informed a defendant 

regarding the consequences of his plea, we have reviewed not only the court's oral 

questioning of the defendant, but also the defendant's written acknowledgment. See State 

v. Walker (1986), 220 Mont. 70, 72-73, 712 P.2d 1348, 1350; see also § 46-12-210(2), 

MCA. In his acknowledgment, Melone states that "[t]he County Attorney's office also 

gave notice of Persistent Felony Offender Status if the matter proceeded to 

trial." (Emphasis added.) Melone also stated that "[m]y sentence can be enhanced or 

lengthened because I have a previous record of criminal offenses." 

¶20 The statements in Melone's acknowledgment regarding the applicability of the 

persistent felony offender enhancement are insufficient to resolve our doubts regarding 

whether Melone was aware that his sentence could be enhanced by up to 100 years as a 

result of his plea. Rather, it appears that Melone was under the mistaken belief that he 

risked a persistent felony offender enhancement only if he proceeded to trial. As we have 

already noted, any doubt that a guilty plea was not voluntarily or intelligently made must 

be resolved in favor of the defendant. See Keys, ¶ 12.

¶21 Lastly, the State contends that Melone has not shown good cause to withdraw his plea 

because Melone received a persistent felony offender notice from the prosecution. We 

conclude that this notice does not comply with the express language of the statutes which 

govern a trial court's acceptance of a plea. This notice is not evidence that the court 

determined that Melone understood that the persistent felony offender enhancement was 

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applicable to his case as required by § 46-12-210(1)(a)(iii), MCA, nor is it evidence that 

the court informed the Defendant of the maximum possible penalty he faced as required 

by § 46-16-105(1)(b), MCA. Rather, the notice is simply evidence that the prosecutor 

informed Melone that the prosecution intended to seek a persistent felony offender 

enhancement.

¶22 We conclude that the District Court abused its discretion by denying Melone's motion 

to withdraw his guilty plea. The court did not adequately inform Melone of the 

applicability of the persistent felony offender enhancement or the maximum penalty 

Melone faced as a result of his plea as required by the statutes governing a district court's 

acceptance of a guilty plea.

¶23 We reverse and remand to the District Court to permit Melone to withdraw his plea. 

/S/ JIM REGNIER 

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER 

1. Section 45-5-202(3)(a), MCA (1997), actually provides for a sentence of up to 10 years in prison or a 

$50,000 fine, or both, for a felony assault conviction. 

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