                                                                                         December 1 2009




                                           DA 09-0154

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2009 MT 412N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

WADE GLEN PETERSEN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Second Judicial District,
                        In and For the County of Butte/Silver Bow, Cause No. DC-2007-150
                        Honorable Brad Newman, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Brad Lee Belke, Attorney at Law, Butte, Montana

                        Gregory Jackson, Jackson Law Firm, P.C., Helena, Montana

                For Appellee:

                        Hon. Steve Bullock, Montana Attorney General, Sheri K. Sprigg,
                        Assistant Attorney General, Helena, Montana

                        Eileen Joyce, Silver Bow County Attorney, Butte, Montana



                                                    Submitted on Briefs: November 12, 2009

                                                               Decided: December 1, 2009


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2006, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2     Wade Glen Petersen appeals the decision of the Second Judicial District Court

pertaining to a plea agreement negotiated between Petersen and the State following a

hit-and-run accident in which Petersen struck 3 14-year-old girls, one of whom died from

her injuries. We affirm.

                                         ISSUES

¶3     A restatement of the issues on appeal is:

¶4     Did the District Court err when it rejected the negotiated plea agreement after

accepting Petersen’s guilty pleas?

¶5     Did the District Court improperly participate in the plea negotiation process?

¶6     Did the State breach the plea agreement when the Treasure State Correctional

Training Center (Boot Camp) denied admission to Petersen?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶7     At approximately midnight on October 28, 2007, Wade Petersen was driving on

Blacktail Lane in Butte-Silver Bow County, when he struck 3 juvenile girls who were

walking along a path parallel to the road. After realizing he struck something, he got out


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of his vehicle and walked to the roadside. At about that time, a second car drove up and

stopped. Petersen told the driver he had struck a deer. The driver observed that Petersen

was intoxicated and told Petersen to go home. Petersen then left the scene of the

accident. The driver of the second vehicle immediately discovered the girls and called

for help. All 3 girls were seriously injured, and one of the girls died later that morning as

a result of her injuries. Based on information provided by the driver who spoke with

Petersen, officers located Petersen shortly after attending to the victims of the accident.

Petersen insisted he had hit a deer. Later, he admitted that he never saw a deer and was

unsure of what he hit.

¶8      Petersen, after admitting he had been drinking, was arrested and transported to the

jail in Butte-Silver Bow County. Petersen claimed that other than a glass of water he had

had nothing to drink since the accident. Officers obtained a warrant for a legal blood

draw. Petersen’s blood was drawn approximately 5 hours after the accident and indicated

a blood alcohol content of .06. After learning that one of the girls had died, the State

charged Petersen with one count of felony vehicular homicide while under the influence,

two counts of felony negligent vehicular assault, and one count of felony hit and run

involving death or personal injury. Petersen entered a plea of not guilty on December 6,

2007.

¶9      In late August/early September 2008, the parties entered into substantive plea

negotiations. Initially, the State agreed that if Petersen pled guilty to all 4 charges, it

would recommend 20 years, 10 years suspended, for the homicide count, and 10 years for

each of the remaining counts, all sentences to run concurrently and to be served at the


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Montana State Prison (MSP). The State also agreed to recommend placement in the Boot

Camp, apply no restrictions on Petersen’s ownership or use of firearms during his

probation or parole, and to recommend suspension of the remainder of the sentence upon

completion of the Boot Camp program. Before reducing the agreement to writing, the

parties met with presiding Judge Brad Newman, to discuss the proposed agreement.

Judge Newman indicated the agreement was appropriate and scheduled a change of plea

hearing for October 2, 2008.

¶10     At the October 2 hearing, the District Court accepted Petersen’s plea changes, and

acknowledged that the “[c]ourt would be bound by the recommendation of the defense

and the State concerning sentencing” contained in the “binding plea agreement.” The

court also informed Petersen that it would order a presentence investigation (PSI) and

would review the information in the PSI before sentencing.

¶11     The PSI was subsequently prepared and delivered to the court. In addition, the

court was notified that the Boot Camp screening committee had denied Petersen’s

application for acceptance. A sentencing hearing was held on December 15, 2008. At

this hearing, premised upon the PSI and the unavailability of Boot Camp, the court

rejected the plea agreement and offered Petersen the opportunity to withdraw his guilty

pleas. Petersen’s attorney requested a continuance to allow additional time to conduct

research and further confer with his client. The hearing was continued until January 21,

2009.

¶12     On January 20, 2009, Petersen filed a Motion to Compel Performance of Plea

Agreement. Arguing that the court did not reserve acceptance of the plea agreement


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pending review of the PSI, Petersen maintained that the court had already accepted the

plea agreement and was bound by that acceptance. At the January 21 hearing, the court

denied Petersen’s motion to compel and explained that it had accepted Petersen’s guilty

pleas but had reserved acceptance of the agreement until after the PSI had been

completed and reviewed.        The court further explained that the plea agreement

contemplated Petersen’s placement in the Boot Camp program. Because the Boot Camp

denied Petersen’s application to participate in the program, the court observed that the

intended sentence under the plea agreement had become a “legal impossibility.”          It

submitted that it was not authorized to accept parts of the plea agreement and reject

others; in other words, “a binding plea agreement is not a piecemeal agreement.” The

District Court also stated that, based on concerns raised in the PSI, the plea agreement’s

provision allowing Petersen to retain ownership or use of firearms during probation or

parole was not appropriate.     For these reasons, the District Court rejected the plea

agreement. The judge thereafter explained that Petersen had a right to withdraw his

guilty pleas. Petersen, however, declined to do so. He averred that his decision was

made voluntarily, with assistance of acceptable and competent counsel, and that he was

not under the influence of alcohol or drugs.

¶13    The District Court sentenced Petersen to 20 years, 10 years suspended, for the

homicide charge, and 10 years for each additional charge, to run concurrently and to be

served at MSP. The sentence restricted his ownership or use of firearms during probation

or parole. The court also recommended that Petersen reapply to Boot Camp. If he was

accepted and successfully completed the program, he could then petition the court to


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consider suspending all or part of his remaining term of imprisonment. Petersen appeals.

We affirm.

                                STANDARD OF REVIEW

¶14    We review a district court’s decision on whether a plea agreement was breached

for an abuse of discretion. State v. Rahn, 2008 MT 201, ¶ 8, 344 Mont. 110, 187 P.3d

622 (citation omitted).

                                       DISCUSSION

¶15    Petersen argues that the District Court was bound by the terms of the plea

agreement at the time it accepted his guilty pleas, and that its subsequent rejection of the

sentencing provisions constituted a breach of the plea agreement which could be

remedied only by specific performance.

¶16    The procedure for reaching, accepting or rejecting a plea agreement is set forth in

§ 46-12-211, MCA (2007). Section 46-12-211(2), MCA (2007), provides that once the

parties reach an agreement they must disclose it to the court. The court may then accept

it, reject it, or defer its decision on acceptance or rejection until it has the opportunity to

review a PSI. Petersen claims the court adopted a “hybrid” procedure that was not

permissible. He claims that the court “told [him] that if the court accepted his guilty plea,

then it would be bound by the plea agreement terms. The court did accept [the] guilty

plea and ordered the plea agreement to be filed in the record. However, the court also

said that it could reject the recommended sentence in the plea agreement, but, if it did so,

it would have to give Mr. Petersen the option of withdrawing his guilty plea.”




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¶17    According to the transcript of the October 2 hearing, the court asked Petersen:

“You understand that, by the nature of a binding plea agreement, if you are, in fact, going

to plead guilty pursuant to this agreement and the [c]ourt accepts your guilty plea or pleas

that the [c]ourt would be bound by the recommendation of the defense and the State

concerning sentencing?” After Petersen answered this question affirmatively, the court

then stated: “Do you understand that I would order a presentence investigation in this

case to look at your background and any other relevant information that I would need

prior to sentencing?” Again Petersen answered “Yes,” and the court continued, “Do you

understand that because it’s a binding plea agreement, if the [c]ourt were to reject the

recommended sentence in the agreement I would have to notify you of that fact and I

would have to give you the opportunity to withdraw your guilty plea or guilty pleas?”

Petersen indicated that he understood.

¶18    The court then explained, among other things, what rights Petersen would waive

with a guilty plea, and confirmed that Petersen was satisfied with his counsel’s

performance and that his guilty pleas were voluntarily given. At that time, Petersen

changed his plea to guilty on each of the charges and the District Court accepted the pleas

and ordered that the plea agreement be filed. Immediately thereafter, counsel for both

parties agreed that a PSI would be ordered prior to sentencing.

¶19    While the District Court did not expressly state that it was accepting Petersen’s

guilty pleas but was deferring acceptance or rejection of the plea agreement until after

reviewing the PSI, in light of the lengthy discussion with Petersen and his counsel about

the agreement and the PSI, we conclude Petersen was adequately advised that the PSI


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could have an impact upon his sentencing. Moreover, at the subsequent hearing at which

the court stated it felt compelled to reject the plea agreement, Petersen nonetheless

voluntarily decided against withdrawing his plea. Under these circumstances, we cannot

conclude the court violated § 46-12-211, MCA (2007).

¶20   Petersen argues in the alternative that the District Court’s participation in the plea

negotiation process was improper, in that it led Petersen to believe the court agreed to be

bound by all the terms of the agreement. He maintains such participation by the court

induced him to plead guilty. He asserts that specific performance of the plea agreement

is the proper remedy for such improper conduct. Again, we disagree.

¶21   Montana law does not prohibit judicial participation in plea negotiations. See

Commission Comments to § 46-12-211, MCA (2007) (“The Commission believe[s] that

circumstances sometimes warrant judicial participation in such discussions.”). See also

State v. Milinovich, 269 Mont. 68, 72, 887 P.2d 214, 216 (1994). As in Milinovich, there

is nothing in the record here to establish that Judge Newman improperly inserted himself

into the plea negotiations in a manner that induced Petersen to plead guilty under the

erroneous notion that the District Court was bound absolutely by the terms of the

agreement.

¶22   Lastly, Petersen asserts that the Boot Camp interfered with the plea agreement,

putting the State in breach of the plea agreement. This argument is without merit. Under

the applicable rules of the Department of Corrections (DOC), a DOC screening

committee “shall have the final determination regarding the admission of any candidate

to the boot camp program.” Admin. R. M. 20.7.110(4). Exercise of this discretion by the


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DOC does not put the State in breach of the plea agreement. The State prosecutor

complied in full with the plea agreement and there is nothing in the record to indicate that

he attempted in any way to undermine it.

¶23    It is appropriate to decide this case pursuant to Section I, Paragraph 3(d) of our

1996 Internal Operating Rules, as amended in 2006, which provides for memorandum

opinions. It is manifest on the face of the briefs and the record that the appeal is without

merit because the issues are clearly controlled by settled Montana law which the court

correctly interpreted and there clearly was no abuse of judicial discretion.

¶24    We affirm.

                                                  /S/ JOHN WARNER

We concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART




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