                              NO.    91-259

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1992



THE STATE OF MONTANA,
            Plaintiff and Respondent,
     -vs-
LAWRENCE EDWARD OWENS,
            Defendant and Appellant.



APPEAL FROM:     District Court of the Eighth Judicial District,
                 In and for the County of Cascade,
                 The Honorable Joel G. Roth, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 Billy B. Miller, Attorney at Law, Great Falls,
                 Montana
            For Respondent:
                 Hon. Marc Racicot, Attorney General, George Schunk,
                 Assistant Attorney General, Helena, Montana
                 Patrick L. Paul, Cascade County Attorney,
                 Stephen Hagerman, Deputy County Attorney, Great
                 Falls, Montana


                              Submitted on Briefs:       February 20, 1992
                                              Decided:   August 20, 1992
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
        Defendant appeals the sentences and judgment of the District
Court of the Eighth Judicial District, Cascade County, sentencing
him to 25 years in prison for theft and forgery.       The basis for
defendant's appeal is the State's alleged failure to honor a plea
agreement.
        Defendant was charged in two informations, alleging theft and
forgery.     The charges were brought separately and assigned to
different judges.      Defendant and the Cascade County Attorney's
office entered into a plea agreement on February 2, 1991, that
encompassed both charges.     The plea agreement states in pertinent
part:
             (1) Defendant agrees to plead guilty to the charge
        of THEFT, A FELONY and FORGERY, A FELONY.
             (2) In return, the County Attorney will recommend a
        15 year sentence for both charges and agrees to not
        designate the Defendant as a persistent offender.
        Defendant entered a change of plea to the forgery charge on
February 27, 1991. At that hearing, the District Judge asked about
the recommendation the prosecution intended to give at sentencing.
The court asked if the defendant's understanding was that the
State's recommendation would be for a total of 15 years for the two
charges, the sentences running concurrently.       Defendant replied
that that was his understanding, and the State did not contest
defendant's conclusion.     The court accepted defendant's change of
plea and set sentencing for March 28, 1991.




                                   2
      Defendant appeared for sentencing before Judge McKittrick on
the   scheduled   date.    The   prosecution   was   asked   for   its
recommendation. The State recommended the defendant be sentenced
to 15 years imprisonment on the forgery charge, with five      years
suspended. The State noted that the defendant was to be sentenced
on the theft charge by Judge Roth immediately following Judge
McKittrick's sentence on the forgery charge.         The prosecution
stated that if its recommendation on the forgery charge was
followed, that it would recommend a ten-year sentence with five
years suspended on the theft charge to run consecutively with the
forgery charge.   Thereafter, the court sentenced the defendant to
15 years imprisonment with five years suspended.
      Immediately following sentencing on the forgery charge, the
defendant appeared before Judge Roth for sentencing on the theft
charge. The court asked for a recommendation from the State. The
State recommended that the defendant receive a ten-year sentence
with five years suspended, to be served consecutively to the
previous sentence.   The prosecutor stated that the net effect of
the sentence would be a 15-year sentence.
      The court then asked the defendant if he wished to make a
statement regarding the sentence.    The following discussion took
place:
      THE DEFENDANT: I have one thing to say, your Honor. I
      signed a Plea Agreement in as much as I would get 15
      years in both courts, this Court would sentence me to 15
      and that Court with 15 with the understanding they would
      both run concurrently. My understanding was not that if
      one court didn't give me 15 years, that the other Court
      should give me 15 years consecutively. Do you follow

                                 3
     what I'm saying?     I signed the Plea Agreement for
     concurrent sentence, and I would ask the Court that any
     sentence I get would run concurrent with the sentence
     that I just received across the hall, instead of
     consecutive. My understanding of the Plea Agreement is
     that I receive concurrent sentences, not consecutive
     sentences.
     THE COURT: Do you have the Plea Agreement in front of
     you, Steve?
     PROSECUTOR:   Yeah, I do, your Honor.
     THE COURT:    Could you read the provision he is talking
     about?
     PROSECUTOR:    It's not what he is saying.         First,
     "Defendant agrees to plead guilty to the charge of theft,
     a felony, and forgery, a felony." Of course, those were
     in two different courts.       Two, "In return, County
     Attorney would recommend 15-year sentence with both
     charges and agrees not to designate Defendant as
     persistent offender."
     THE DEFENDANT: Your Honor, the way that's worded and it
     was asked across the hall when I changed my plea, Judge
     McKittrick asked if they were to run concurrently. They
     did say yes. Lady from the County Attorney's Office said
     any sentence I would be given in either court would run
     concurrent, not consecutive.
     Following further discussion, the District Court sentenced the
defendant to ten years in the Montana State Prison, with five years
suspended. The sentence was ordered to run consecutively with the
prior sentence, so that defendant received a combined 25 year
sentence, with ten years suspended. From the sentences, defendant
appeals.
     The defendant contends that the State violated the terms of
the plea agreement, and deprived him of his due process rights.
Specifically, defendant contends that the plea agreement reached



                                 4
between the parties was that the defendant would receive no more
than a 15-year sentence on both counts.           Instead, defendant
received a 25-year sentence, with ten years suspended.       Defendant
asserts that he stated his understanding of the plea agreement in
court at his change of plea hearing.        At that time, defendant
stated that the agreement was that the sentences were to run
concurrently, and the State did not dispute defendant's contention.
However, in the sentencing hearings on the theft charge, the State
recommended a consecutive sentence to the sentence for forgery,
which the court followed over the defendant's objection.
     It is clear from the discussion that occurred in Judge
McKittrick's   court   that     defendant   believed   the   agreement
contemplated concurrent sentencing, and that the State did not
disagree.   The court asked the defendant what he understood the
State's recommendation to be, and the following dialogue took
place:

     THE DEFENDANT:    Fifteen years for both counts.
     THE COURT:   And that's concurrent or consecutive?

    MR. MILLER:   Your Honor, as you noticed, we have two
    cases here. One case is in Judge McCarvel's court         --
    Judge Roth's court and one case is in your court.        ...
    And basically, he has entered a plea in that area, and
    the 15 years is for both charges, pursuant to the plea
    agreement.
     THE COURT:   Concurrent?
    MR. MILUR:   Well, yes, basically because the 15 years is
    going to be f o r both charges, not 15 years per charge to
    run concurrent, they're going to recommend a flat 15
    years for both counts then.



                                   5
     THE COURT: Well, there has got to be a specific sentence
     on each case.
     MR. MILLER:    Yes.
     THE COURT:    I assume it's 15 years concurrent.
     MR. MILLER:     It would be basically concurrent, you're
     right.
     THE COURT:     Is that your understanding?
     MS. SCHULKE: Your Honor, this is Mr. McAllister's case,
     and if Mr. Miller says    ...
     THE COURT:    There is no language in here to clarify.
     MS. SCHULKE:     It's not clear.
     MR. MILLER:     But that basically is the understanding,
     your Honor.
     MS. SCHULKE: We'll recommend a total of 15 years for the
     two charges.
     THE COURT: Mr. Owens, is that your understanding, it's
     going to be a concurrent sentence?
     THE DEFENDANT:    Yes.
     THE COURT:       All right.       Anything else, any other
     promises?
     THE DEFENDANT:    No.
     It is clear from the foregoing discussion that the parties
agreed to concurrent sentences for the two charges.           The State
tacitly agreed to the concurrent sentence; it cannot claim that its
silence as to the sentence acts as anything but an agreement. The
defendant premised his guilty plea on the agreement by the State
that his sentences would run concurrently.        In Santobello v New York
                                                                .
(1971), 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427, the Supreme
Court held that:

                                   6
        [The plea-bargaining] phase of the process of criminal
        justice, and the adjudicative element inherent in
        accepting a plea of guilty, must be attended by
        safeguards to insure the defendant what is reasonably due
        in the circumstances. Those circumstances will vary, but
        a constant factor is that when a plea rests in any
        significant degree on a promise or agreement of the
        prosecutor, so that it can be said to be part of the
        inducement or consideration, such promise must be
        fulfilled.
             On this record, petitioner "bargained" and
        negotiated for a particular plea in order to secure
        dismissal of more serious charges, but also on condition
        that no sentence recommendation would be made by the
        prosecutor.   It is now conceded that the promise to
        abstain from a recommendation was made, and at this stage
        the prosecution is not in a good position to argue that
        its inadvertent breach of agreement is immaterial. The
        staff lawyers in a prosecutor's office have the burden of
        "letting the left hand know what the right hand is doing"
        or has done.       That the breach of agreement was
        inadvertent does not lessen its impact.
Santobello,   404   U.S. at 262.

        In this case, the prosector at the change of plea hearing
before Judge McKittrick agreed that the sentences were to be
imposed concurrently. However, a different prosecutor recommended
that they be served consecutively before Judge Roth. The defendant
entered his plea of guilty after it was determined that the State
would recommend concurrent sentences.      Clearly, the prosecution's
initial agreement that the sentences would run concurrently was
part of the inducement or consideration for the defendant's
decision to plead guilty.
      The defendant t'bargainedt'for concurrent sentences totalling
15 years.      Instead, he received consecutive sentences totalling 25
years, with ten years suspended.        The two sentences are not the
same.    Once the defendant has discharged his prison sentence, the
                                    7
latter sentence continues to impose upon him ten more years of the
restraints on freedom that often accompany a suspended sentence.
These include the defendant's acquiescence to searches at all hours
of his domicile and person, and restrictions on his travel and
associations.
       This Court stated in Statev.AIlen (1981), 197 Mont. 64, 69, 645

P.2d 380, 382:

            Prosecutors who engage in plea bargaining must meet
     strict and meticulous standards of both promise and
     performance as a plea of guilty resting in any
     significant degree on an unfulfilled plea bargain is
     involuntary and subject to vacation. Correale v. United States
     (1st Cir. 1973) 479 F.2d 944. Prosecutorial violations,
     even if made inadvertently or in good faith to obtain a
     just and mutually desired end, are unacceptable. Correale
                                                                     .
     v. United States, supra: Santobello v. New York [Citation omitted]

          In this case both parties acknowledge the existence
     of a plea bargain of some kind. The problem is that
     there is an unresolved factual dispute concerning both
     the terms of the plea bargain agreement and whether the
     prosecutor violated the agreement.            . . .
                                                     Was the
     agreement orally amended by some further agreement
     between the prosecutor and defense counsel       ..
                                                     .? What
     promise was made by the prosecutor and what did the
     defendant understand the promise to be when he entered a
     plea of guilty to the amended charge?           Did any
     unfulfilled promises of the prosecutor induce the
     defendant to enter a guilty plea or only affect the
     sentence imposed? Did the prosecutor violate the plea
     bargain by his conduct at the sentencing hearing?
          These unresolved factual issues rest upon the intent
    of the parties and must be resolved by the District Court
    in an evidentiary hearing for that purpose. United States v
                                                              .
    Amett (9th Cir. 1979), 628 F.2d 1162.

    This Court further stated in State v. Dinndorf (1983), 202 Mont.

308, 311, 658 P.2d 372, 373 that:



                                     8
                                    August 20, 1992

                               CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


Billy B. Miller
ATTORNEY AT LAW
600 Central Plaza, Suite 300
Great Falls, MT 59401

Hon. Marc Racicot, Attorney General
George Schunk, Asst. Attorney Gen.
Justice Building
Helena, MT 59620

Patrick Paul, Cascade County Attorney
Stephen Hagerman, Deputy County Attorney
Cascade County Courthouse
Great Falls, MT 59401

                                                ED SMITH
                                                CLERK OF THE SUPREME COURT
                                                STATE OF MONTANA
                                                      ,'I
