NO. 90-608 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

STATE OF MONTANA, Plaintiff and Respondent,

-vsEDWARD F. MILLER, Defendant and Appellant. 

### APR

### 291991

C!.ER1<OF SUPREMECOURT STATEOFMONTANA

APPEAL FROM: DistrictCourt of theThirteenth JudicialDistrict. In and for the County of Carbon, The Honorable Maurice R. Colberg, Jr., Judge presiding.

COUNSEL OF RECORD: For Appellant: Arthur J. Thompson, Billings, Montana For Respondent: Hon. Marc Racicot, Attorney General; Paul D. Johnson, Assistant Attorney General, State of Montana, Helena, Montana; A. W. Kendall, County Attorney, Red Lodge,Montana.

Filed: Submitted 

### on Briefs: March 14, 1991 Decided: April 29, 1991JusticeR. C. McDonough delivered the Opinion of the Court.

The defendant Edward F. Miller appeals the order of the Montana Thirteenth Judicial District Court denying his motion to withdrawhisplea of guilty. The issue raised onappeal iswhether such denial constitutes an abuse of discretion by the District Court. We affirm. Miller was charged with one count of assault and two counts of sexual assault, all felonies. He appeared before the District Court on April 23, 1990 and moved to withdraw his earlierplea of not guilty and replace itwith aguiltyplea. The record indicates that Miller and the State had entered a plea bargain agreement whereby in exchange for Miller's plea of guilty, the county attorney agreed to recommend two three-year deferred sentences for sexual assault, and one four-year deferred sentence for assault, all to run consecutively. Miller entered pleas of guilty to all counts pursuant to North Carolina v. Alford (1970)

## , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d. 162, maintaining his innocence but conceding that the State had sufficient evidence to convict him. A presentence investigation and report was ordered, and sentencingwas scheduled to take place on May 29, 1990. On that date,Miller'sattorney,Gary Spaeth,moved towithdrawas counsel. The motion was granted, Miller asked for appointed counsel, and Arthur J.Thompson was appointed as counsel of record. Miller also indicated at this time that he wished to change his plea to not guilty. On June 18, 1990,Miller's new counsel filed a motion to withdraw his guilty plea.A hearing was held on June 25, 1990, before the District Court. Originally scheduled as a sentencing hearing, the court now took up the matter of Miller's motion to withdraw his guilty plea, and scheduled an evidentiary hearing on thematter for July 23, 1990. After the hearing the court denied the motion to withdraw the plea on August 2, 1990. At sentencing on October 22, 1990,the court took note of the plea agreement and sentencing recommendation in the pre-sentence report. The court chose not to followthe recommendations made by the county attorney. It sentenced ~iller to three years in the Montana State prison on each of the three charges, to run consecutively, for a total ofnineyears. Thecourt then suspended all of the sentence except for one year. Millermoved thecourt fora stay of execution of the sentence pending appeal of the court'sorder denying themotion towithdraw the guilty plea. The court granted the stay. We now consider Miller's appeal of thecourtIsdenial of themotion towithdrawhis plea.Section 46-16-105, MCA, provides: 46-16-105. Plea of guilty. (1) Before or during trial, a plea of guiltymay be accepted when: (a) the defendant enters a plea of guilty in open court; and (b) the court has informed the defendant of the consequences of his plea and of the maximum penalty provided by lawwhich may be imposed upon acceptance of such plea. (2) At any timebefore or after judgment the court may, for sood cause shown,permit the guilty plea to be withdrawn and a plea of not guilty substituted. It is important to note that when a plea of guilty is acceptedpursuant to an agreement between the defendant and the State, the trial court is not bound by that agreement. Section 46-12- 204 (3)

### (a)

### , MCA. However, in this case, Miller moved to 

### with drab^ his plea prior to the District Court imposing a different sentence than the one recommendedby theprosecutor. At thehearing onhis motion to withdraw, Miller alleged that he had first retained a Colorado attorney, Rowe Stayton, as counsel, and then Mr. Spaeth

was hired to act as local counsel. He further alleged that Mr. Stayton recommended that he enter the plea agreement, but failed to correctly inform him of some the consequences of his plea. In particular, Miller alleged that he was not informed that he would have to report to a probation officer,hewould be unable to leave the state freely, and that he might not be allowed to own a firearm. Three factors should be considered when determining whether a defendant'sguilty plea should be withdrawn: 1. The adequacy of the District Court's interrogation as to the defendant's understanding of the plea; 2. The promptness of the motion to withdraw the prior plea; 3. The fact thatthedefendant spleawas apparentlythe result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge. State v. Long (1987), 227 Mont. 199, 201, 738 P.2d 487, 489. Absent an abuse of discretion, a trial judge's decision not to allow thewithdrawal of a guilty plea will be affirmed. Lonq, 738 P.2d at 489. Here, the defendant's motion was promptly made. Also, there is no question that the District Court's interrogation of Miller regarding his plea was adequate. The court fullyinformed the defendant of the consequences of his plea and of the maximum penalty provided by law which could be imposed upon acceptance of theplea. The court also informed and the defendant understood that the court was not bound by the plea bargain agreement. Thus,we now consider the third factor, that the plea

was entered pursuant to a plea bargain agreement, and consider whether the defendant has shown "good cause1'for withdrawing his plea. Section 46-16-105(2), MCA. We recently reviewed the subject of a defendant's request to withdraw a guilty plea in Benjamin v. McCormick (1990), 243 Mont. 252, 792 P.2d 7. "When a guilty plea is based upon a fundamental mistake or misunderstandingas to its consequences, the sentencing court, at its discretion,may allow the defendant to withdraw the plea. Benjamin, 792 P.2d at 10. We further noted: A change of plea will be permitted only if it fairly appears thedefendantwas ignorant ofhis rights and the consequences of his act, orhe was unduly and improperly influenced eitherby hope orby fear inmaking the plea, or if it appears theplea was entered under some mistake or misapprehension. Each case must be examined on its own record. The motion rests with the District Court's discretion and the exercise of that discretion will not be disturbed absent an abuse of discretion. Benjamin, 792 P.2d at 10,quoting Statev. Mesler (1984)

### , 210Mont. 92, 96, 682 P.2d 714, 716. The fundamental purpose of allowing a defendant towithdraw a guilty plea is toprevent thepossibility of convicting an innocent man. State v. Pelke (1964), 143 Mont. 262, 271, 389 P.2d 164, 169. Accordingly, a plea of guilty will be deemed involuntary where it appears that the defendant was laboring under such a stronq inducement, fundamental mistake, orserious mental condition that the possibility exists he may have pled guilty to a crime of which he is innocent. State ex re1 Gladuev. Eighth Judicial District (1978),175 Mont. 509, 511, 575 P.2d 65, 66; Pelke, 389 P.2d at 169. In Benjamin, the record contained sufficient evidence to establish that the sentencing court, prosecutor, and defense counsel all apparently failedtorecognizethatthe sexualoffender program lasted two years after assuring the defendant he would be incarcerated for only one year pursuant to a plea agreement. We affirmed the District Court's holding that the plea was based on error,and affirmedthecourt'sorder releasingdefendantonparole after one year. Benjamin, 792 P.2d at 10. Similarly, in Gladue,

we allowed the defendant to withdraw his earlier plea of guilty. There, the record contained sufficient evidence that thedefendant had alwaysmaintained his innocenceand pled guilty only after his attorney told him that he did not feel that he had a very good chance in a jury trial. The evidence indicated that thedefendant felt thathe couldnotprove himself innocent after the codefendant in the case had pled guilty. This Court held that such evidence raised seriousquestions about whether defendant'sguilty plea was given voluntarily and not allowing the defendant to withdraw the plea was an abuse of discretion. Gladue, 575 P.2d at 67. In the case at bar, we hold that the District Court did not abuse its discretion indenying thedefendant'smotion towithdraw his plea. Here, the record does not contain similar evidence of

a fundamental mistake or stronq inducement. The fundamental mistake complained of by Miller was the alleged omission of relatively minor points regarding the terms of his probationunder 6the deferred sentences. Miller allegedly understood that such termswould have permitted him to travel freely from Montana into Wyoming, possibly own a firearm,and not require him to report to

a probation officer. Considering the nature of these terms, the mistake alleged in this case does not amount to a "fundamentalI1 mistake as in Benjamin, where the misunderstanding led the defendant to unknowingly subject himself to an additional year of incarceration. Nor can we find an abuse of discretion by the District Court in holding that these relatively minor terms of probation, that Miller allegedly thoughthewould receivepursuant to the plea bargain agreement, were significant enough to induce him to plead guilty to a crime of which he was innocent. The District Court did not abuse its discretion in refusing to allow the defendant to withdraw his plea of guilty. AFFIRMED.

We Concur: