                                 NO.    93-122
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                       1994

THE STATE OF MONTANA
               Plaintiff and Respondent,
         -v-
                                                                 n+
KEITH S. STRECKER
                                                            OCT 23 1994
               Defendant and Appellant.




APPEAL FROM:        District
                           Court of the Thirteenth Judicial District,
                    In and for the County of Yellowstone,
                    The Honorable Robert W. Holmstrom, Judge presiding.


COUNSEL OF RECORD:
               For Appellant:
                    Keith Scott Strecker, Deer Lodge, Montana (pro se)
               For Respondent:
                    Hon. Joseph P. Mazurek, Attorney General, John
                    Paulson,  Assistant    Attorney   General,  Helena,
                    Montana:   Dennis   Paxinos,    Yellowstone  County
                    Attorney, Billings, Montana


                                   Submitted on Briefs:     August 4, 1994
                                                 Decided:   October 27, 1994
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

      This is an appeal from a Thirteenth Judicial District Court,
Yellowstone     County,     order denying Defendant Keith S. Strecker's
(Strecker) motion to withdraw his guilty plea. We affirm.
      The following are issues on appeal:
      I . Did the District Court err in denying Strecker's motion to
withdraw his guilty plea?
      II.   Did    counsel        for   the   defendant   render   ineffective
assistance of counsel?
      III. Was the guilty plea colloquy conducted by the trial court
inadequate?
                    FACTUAL AND PROCEDURAL BACKGROUND
      An information and affidavit and motion for leave to file an
information were filed by the Yellow&one County Attorney's Office
on   November     15,     1990,    alleging that Strecker had committed
deliberate homicide.         On June 14, 1991, Strecker pled guilty to the
charge of deliberate homicide, having signed an Acknowledgement of
Waiver of Rights by Plea of Guilty on the previous day.                    The
Acknowledgement of Waiver of Rights by Plea of Guilty stated that
the County Attorney "has agreed to recommend to the Court a
sentence of 50 years in MSP (40 years + 10 for use of a weapon)
but I realize that such a recommendation is not binding upon the
Court in passing sentence."
      Strecker was sentenced to 60 years for the commission of the
offense of deliberate homicide and 10 years for the use of a
firearm while engaged in the commission of the offense of
                                          2
deliberate homicide on September 13, 1991.                  Strecker filed notice
of his appeal to the Montana Supreme Court from his conviction and
sentence on November 18, 1991.

        On January 15, 1992,         Strecker filed a motion for an order

granting him transcripts, minutes, exhibits and documents in his

case.    On January 27, 1992, that motion was denied by the District

Court because his appeal had not been filed within the appropriate

time limitation.          He filed a motion for reconsideration on February

6,   1992,    and that motion was denied on February 7, 1992.

        Strecker's appeal to this Court was dismissed on May 5, 1992,

for failure to prosecute.           Strecker filed a motion to withdraw his

guilty plea on June 24, 1992, and a motion for the appointment of
counsel to represent him at the hearing on the motion to withdraw

his guilty plea and any pending appeal.                    The   Yellowstone   County

Public       Defender's    Office   was   appointed   to    represent   Strecker   in

connection with his motion on December 11, 1992.
        The State filed its response brief to Strecker's motion to

withdraw the guilty plea on January 22, 1993, and on that same day,

the District Court denied Strecker's motion.                 Strecker's notice of

appeal was filed on January 28, 1993.             By letter filed on March 16,

1993,    Strecker stated that L.          Sanford Selevy and Gary E. Wilcox

were the attorneys appointed to handle his appeal for him.                     Wilcox

also filed a letter on the same day, stating that his office was

not appointed to represent Strecker and that he had advised the

court that the statute upon which the defendant was relying for his

appeal was not in existence at the time of the sentencing and that


                                            3
he, therefore, believed the trial court's ruling was proper.            This

Court      remanded    the   cause   back   to   the   trial   court   for   a

determination as to whether Strecker was in need of the appointment
of counsel.

        Counsel was appointed by the trial court on April 5, 1993, and

at some point, Gary Wilcox took over the defense of the case. On

April 20, 1993,        Wilcox filed a motion in the Supreme Court of

Montana to withdraw as Strecker's counsel with a brief stating that

he felt there were no meritorious issues to support the appeal.
Strecker filed a response to the motion on May 14, 1993, and on

June 1, 1993, this Court ordered that the cause be remanded for the

appointment     of    counsel   for Strecker in the cause.        William F.

Hooks,     State Appellate Defender, was appointed on June 7, 1993, by
the trial court.

         On October 28, 1993, Hooks filed a motion with this Court for

leave to withdraw as counsel, contending that he had been "unable
to find any nonfrivolous issue to raise on appeal, after review of

the entire record and discussions with appellant Strecker."             Hooks

filed the requisite Anders brief.              Strecker filed a response to

counsel's motion to withdraw on December 30, 1993, and on March 1,

1994,     this Court granted Hook's motion to withdraw as counsel.

                                     ISSUE I

         Strecker asserts in his motion to withdraw his guilty plea

that the District Court failed to apply g 46-12-211(4), MCA, which

requires that the court inform the defendant that the court is not

bound by the plea agreement: afford the defendant the opportunity


                                        4
to withdraw his guilty plea;      and advise the defendant that the

disposition of the case, if he persists in the guilty plea, may be

less favorable to the defendant than contemplated by the plea

agreement.    Section 46-12-211(4), MCA (1991). However, the statute

cited in Strecker's motion to withdraw his guilty plea was not in

effect at the time that Strecker pled guilty.

       The statute provides as follows:

             (4) If the court rejects the plea agreement, the
       court shall, on the record, inform the parties of this
       fact and advise the defendant that the court is not bound
       by   the   plea agreement,   afford   the   defendant an
       opportunity to withdraw the plea,        and advise the
       defendant that if the defendant persists in the guilty
       plea, the disposition of the case may be less favorable
       to the defendant than that contemplated by the plea
       agreement.

       Section 46-12-211(4),   MCA.       Section    46-12-211,     MCA,   was

enacted during the Legislative Session of 1991. The effective date
of the statute was October 1, 1991.       See 1991 Legislative Review at

405.    Strecker pled guilty on June 14, 1991, approximately three

and    one   half months   before the      statute    went   into     effect.

Therefore, the statute upon which Strecker bases his argument was

not in existence at the time he pled guilty and thus, it can have

no bearing whatsoever upon his case.

       The applicable statute in effect at the time Strecker pled

guilty, 5 46-12-204(3)(a) and (b), MCA, provides in pertinent part:

             (3)(a) A plea bargain agreement is an agreement
             between a defendant and a prosecutor that in
             exchange for a particular plea the prosecutor will
             recommend to the court a particular sentence. A
             judge may not participate in the making of, and is
             not bound by, a plea bargain agreement. If a judge
             does not impose a sentence recommended by a
             prosecutor pursuant to a plea bargain agreement, the
                                      5
             judge is not required to allow the defendant to
             withdraw a plea of guilty.
             (b) Before a judge accepts a plea of guilty, he must
             advise the defendant:
             (i) of all the provisions of subsection (3)(a);
             (ii) of the punishment as set forth by statute for
             the crime charged;
             (iii) that prior to entering a plea of guilty, the
             defendant and his counsel should have carefully
             reviewed Title 46, chapter 18, and considered the
             most severe sentence that can be imposed for a
             particular crime; and
              (iv) that the judge may impose any sentence allowed
             by law.
        Section 46-12-204(3), MCA, specifically states that "the judge
is not required to allow the defendant to withdraw a plea of
guilty."       The   specific   purpose   of    the legislature enacting
subsection (3) of 5 46-12-204, MCA, was to overturn State v.
Cavanaugh (1983),      207 Mont. 237, 673 P.2d 482.       State v. Buckman

(1989) r 236 Mont. 37, 768 P.2d 1361.           In Cavanauqh, we concluded
that if a trial judge accepts only a portion of a plea bargain, he
must allow the defendant an opportunity to withdraw the guilty plea
he made.    Cavanauoh, 673 P.2d at 485.        When the legislature amended
5 46-12-204, MCA,       by adding subsection (3), it insured that the
District Court is not bound by the plea agreement and that if the
trial court does not follow the plea bargain, it is not required to
allow the defendant to withdraw his guilty plea.          Buckman, 768 P.2d
at 1364.
        This was.the    State of Montana law at the time Strecker pled
guilty in June of 1991, as regards the withdrawal of a guilty plea
if the plea bargain was not followed.           Section 46-12-211(4), MCA,
on which Strecker relies was not in effect at the time that he

Pled,    so his argument that the trial court did not apply the
                                     6
statute is without merit and cannot stand.     The District Court did
not err in denying Strecker's motion to withdraw his guilty plea.

                           ISSUES II AND III

      Strecker   also argues that his trial counsel was ineffective
and that the District Court's plea bargain colloquy was inadequate.

However, these arguments were not presented to the District Court

in   Strecker's motion to withdraw his guilty plea          and   are,
therefore, not properly before this Court at this time.    We decline
to address these issues.    State v. Webb (1992), 252 Mont. 248, 251,
828 P.2d 1351, 1353.

     AFFIRMED.




We Concur:




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