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 29 1991 

C!.ER1< OF SUPREME COURT 

STATE OF MONTANA 

APPEAL FROM: District Court of the Thirteenth Judicial District. 

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, 1991 
Justice R. 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 

withdraw his plea of guilty. The issue raised on appeal is whether 

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 earlier plea of 

not guilty and replace it with a guilty plea. 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 

sentencing was scheduled to take place on May 29, 1990. On that 

date, Miller's attorney, Gary Spaeth, moved to withdraw as 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 the matter 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 follow the 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 of nine years. The court then suspended 

all of the sentence except for one year. 

Miller moved the court for a stay of execution of the sentence 

pending appeal of the court's order denying the motion to withdraw 

the guilty plea. The court granted the stay. We now consider 

Miller's appeal of the court Is denial of the motion to withdraw his 

plea. 

Section 46-16-105, MCA, provides: 

46-16-105. Plea of guilty. (1) Before or during 

trial, a plea of guilty may 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 law which may be imposed upon acceptance of 

such plea. 

(2) At any time before 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 accepted 
pursuant 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 recommended by the prosecutor. At the hearing on his 

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, he would 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's guilty 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 that the defendant s plea was apparently the 

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 the withdrawal 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 fully 
informed the defendant of the consequences of his plea and of the 

maximum penalty provided by law which could be imposed upon 

acceptance of the plea. 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 misunderstanding as 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 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. 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 State v. Mesler (1984) , 210 Mont. 

92, 96, 682 P.2d 714, 716. The fundamental purpose of allowing a 

defendant to withdraw a guilty plea is to prevent the possibility 

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, or 
serious mental condition that the possibility exists he may have 

pled guilty to a crime of which he is innocent. State ex re1 

Gladue v. 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 failedto recognize that the sexual offender 

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 affirmed the court's order releasing defendant on parole 

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 the defendant 

had always maintained his innocence and 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 the defendant 

felt that he could not prove himself innocent after the codefendant 

in the case had pled guilty. This Court held that such evidence 

raised serious questions about whether defendant's guilty 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 in denying the defendant's motion to withdraw 

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 probation under 

6 
the deferred sentences. Miller allegedly understood that such 

terms would 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 thought he would receive pursuant 

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: