                                             No.    80-351


                I N THE SUPREME COURT O THE STATE O M N A A
                                       F           F OTN


                                                    1981




STATE O MONTANA,
       F

                            P l a i n t i f f and R e s p o n d e n t ,

                -vs-

AUGUST LEE WHITE,

                            D e f e n d a n t and A p p e l l a n t .




Appeal from:       D i s t r i c t Court o f t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
                   I n and f o r t h e County o f C u s t e r , The H o n o r a b l e
                   A l f r e d B. C o a t e , J u d g e p r e s i d i n g .


Counsel o f Record:

      For A p p e l l a n t :


                   Leo J . G a l l a g h e r , H e l e n a , Montana


      F o r Respondent :


                   Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a ,
                   Montana
                   K e i t h D. Haker, County A t t o r n e y , M i l e s C i t y ,
                   Montana




                                             S u b m i t t e d on B r i e f s :   May 8 , 1 9 8 1
                                                                  Decided?        August 31, 1 9 8 1
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     Defendant appeals from an order of the Sixteenth
Judicial District, Custer County.     The order appealed from
denies defendant's motion to withdraw his plea of guilty to
the crime of deliberate homicide.     On August 6, 1980, prior
to the filing of the motion to withdraw, defendant was
sentenced to 50 years in the Montana State Prison and designated
a "dangerous offender."    Defendant received an additional
consecutive sentence of 10 years pursuant to section 46-18-
221(1), MCA, for committing the crime with a knife.
     It is undisputed that August Lee White, also known as
"Dusty" White, stabbed to death his friend, Dallas Haley.
At approximately 2:30 p.m., on January 29, 1980, August
White, Dallas Haley, Joe Root and Rick Woods met at the
Olive Hotel in Miles City, Montana.    The purpose of the
meeting was to allow White to purchase certain valuable
coins from Dallas Haley.    In fact, White planned to obtain
the coins from Dallas Haley, not pay for them, and drop
Haley off some place out of town, thus giving White a
headstart to flee to Las Vegas, Nevada.     Prior to picking up
Haley, White had voluntarily consumed liquor and LSD.       The
group proceeded to the Twelve Mile Dam on the Tongue ~ i v e r
south of Miles City.   A short conversation occurred in which
Dallas Haley was apprised of the fact that White was not
going to pay for the coins and that the group was going to
abandon Haley at the Twelve Mile Dam.      Haley told White
that he was going to report him to law enforcement officers
in Miles City.   White, who had been cleaning his fingernails
with an open pocket knife, stabbed Haley twice in the left
side, just below the shoulder, and once again in the back.
White and Joe Root dragged Haley's body to a hole in the ice
of the Twelve Mile Dam and threw the body into the water.
The body did not sink immediately so White and Root returned
to shore and picked up rocks with which to sink the body.
When they returned to the hole in the ice, the body had
sunk.
     August White, Joe Root and Rick Woods then returned to
Miles City.    White did not go to Las Vegas because Haley,
who would have reported the theft of coins, was now dead.
     White was arrested in Miles City in the early morning
hours of January 30, 1980.      He was arraigned in District
Court on the charge of deliberate homicide on January 31,
1980.      On April 3, 1980, White underwent a psychiatric
evaluation which showed that he was competent to stand
trial.    On June 23, 1980, White requested that the Court
allow him to change his plea from not guilty to guilty.        The
Court interrogated White extensively on the voluntariness of
the plea, his understanding of the charge, the consequences
of his plea, and the factual basis of his plea.
        The issue on appeal is whether the District Court erred
in denying defendant's motion to withdraw his guilty plea.
We find no error.
        Defendant's contentions are:    (1) that his plea was not
made by him intelligently and voluntarily, (2) that he was
not adequately advised by his attorney prior to entering his
guilty plea, (3) that there is no evidence that he understood
the crime of deliberate homicide at the time of his guilty
plea, (4) that he should be allowed to withdraw his guilty
plea under the holdings in State v. Huttinger (1979),
       ,
Mont. - 595 P.2d 363, 36 St.Rep. 945; State v. Nelson

(1979) - Mont
      I            .     ,   603 P.2d 1050, 36 St.Rep. 2228; and
State v. Azure (1977), 175 Mont. 189, 573 P.2d 179, and (5)
that the District Court did not adequately ascertain the
defendant's understanding of the charge against him before
accepting his guilty plea.
        Section 46-12-204 (2), MCA, states:
     "The court may refuse to accept a plea of
     guilty and shall not accept the plea of guilty
     without first determining that the plea is
     voluntary with an understanding of the charge."
     Section 46-16-105(2), MCA, provides:
     "At any time before or after judgment the
     court may, for good cause shown, permit the plea
     of guilty to be withdrawn and a plea of not
     guilty substituted."
     The standard for application of these statutes to
White's motion to withdraw his guilty plea can be found in
                                ,  .
State v. Haynie (1980), - Mont - 607 P.2d 1128, 1131,


    "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 (citation omitted). Each case
    must be examined on its own record.   The motion
    rests within the District Court's discretion, and
    the exercise of that discretion will not be disturbed
    absent an abuse of discretion (citation omitted)."
     State v. Haynie, supra, is in agreement with Nelson,
Huttinger, and Azure, upon which the defendant relies.
     The record clearly reveals that White was neither
ignorant of his rights nor of the consequences of pleading
guilty to the crime of deliberate homicide.    White had
previously pled not guilty at the arraignment on January 31,
1980.    He changed his plea to guilty at a hearing held on
June 23, 1980.     The district judge questioned the defendant
extensively before accepting his plea of guilty.    He also
examined the defendant's attorney.     The examination is too
lengthy to set out verbatim, however, it is important to
note its breadth.     It established the following facts:
     1.     Defendant was satisfied with the services of his
attorney.
     2.     Defendant was not under the influence of drugs or
alcohol at the time he changed his plea.
     3.     Defendant was not physically ill when he entered
his plea.
     4.     Defendant had recently discussed the plea with his
attorney.
     5.     Defendant knew that by pleading guilty he waived
his rights to a trial (by jury or otherwise), to confront
and cross-examine witnesses, and to remain silent.
     6.     Defendant's attorney felt there was no communication
problem between himself and his client.
     7.     Defendant's attorney believed he had discussed with
the defendant all of the constitutional rights to which the
defendant was entitled and that the defendant understood
those rights.
     8.     Defendant was aware that by pleading guilty to a
felony he may be barred from certain occupations and professions.
     9.     Defendant knew that a plea of guilty is one of the
strongest proofs known to criminal law.
     10. Defendant knew that by pleading guilty, he waived
any factual disputes.
     11. Defendant was not changing his plea because of a
promise or threat from a member of the law enforcement.
     12. Defendant in fact believed he was guilty of the

crime of deliberate homicide.
     13. Defendant had not been promised that he would be
sentenced to a particular period of time as a result of
pleading guilty to deliberate homicide.
     Before asking any questions, the district judge told
the defendant that he may have as much time as necessary to
answer and that he was free at any time to consult his
attorney, who was present.
     In addition, the following exchange occurred prior to
the acceptance of the guilty plea:
     "THE COURT: But there is a possibility that
     the jury could find that you're not guilty
     of the crime charged, but of some lesser included
     offense. There is also a possibility that the
     jury could find that you were guilty of the crime
     charged. The difference being, that if you were
     found guilty by the verdict of a jury for a lesser
     included offense, the punishment might be less
     than for deliberate homicide. Now do you understand
     that?
     "THE DEFENDANT:   Yes sir."
Although the words "mitigated deliberate homicide" do not
appear in the transcript of the hearing at which the defendant
entered his plea, it is clear from the above-quoted language
that the defendant knew that if he were to have a trial, he
could be convicted of some lesser-included offense and
possibly receive a lesser sentence.   Defendant chose not to
take that chance.
     Following the examination of the defendant, the district
judge conducted an extensive discussion to determine a
factual basis for acceptance of the guilty plea.
     The District Court findings state:


     "That defendant was advised of the elements of
     deliberate homicide and of the lesser included
     offense of mitigated deliberate homicide by his
     counsel.


     "That defendant was advised of the mental state
     required to commit the offense charged 'purposely
     or knowingly' by his counsel."
These findings are based on the testimony of the defendant's
attorney.   This Court is satisfied that there is sufficient
evidence in the record to sustain the findings.
     The state cites the recent case of McGuirk v. Fair (1st
                                            ,
Cir. 1980), 622 F.2d 597, cert.den. - U.S. - 101 S.Ct.
233, - L.Ed.2d         ,   in support of its position that trial
counsel's advice to a defendant concerning a charge should
be considered before allowing the defendant to withdraw his
plea of guilty.   If defendant's "'real notice' of the offense
to which he pleaded" is the pivotal question in withdrawal
of a guilty plea, as it appears to be in McGuirk and Henderson
v. Morgan (1976), 426 U.S. 637, 96B S.Ct. 2253, 49 L.Ed.2d
108, then this Court must affirm the District Court's finding
of real notice to the defendant.     We hold that the combination
of the district judge's examination of the defendant and the
explanation by the defendant's attorney were sufficient to
show that the defendant was informed of all that was required
to make a voluntary and understanding plea of guilty to the
crime of deliberate homicide.
     Section 45-5-103(1), MCA, defines mitigated deliberate
homicide as follows:
     "Criminal homicide constitutes mitigated deliberate
     homicide when a homicide which would otherwise be
     deliberate homicide is committed under the influence of
     extreme mental or emotional stress for which there is a
     reasonable explanation or excuse.. .     ."
Thus, deliberate homicide and mitigated deliberated homicide
require the same mental state:      "purposely or knowingly."
Section 45-5-102(1)(a), MCA.     Further, section 45-2-203,
MCA, provides :
     "A person who is in an intoxicated or drugged
     condition is criminally responsible for conduct
     unless such condition is involuntarily produced
     .. ..   An intoxicated or drugged condition may
     be taken into consideration in determining the
     existence of a mental state which is an element
     of the offense."
These statutes indicate that the intoxicated or drugged
condition of the defendant cannot be used to show "extreme
mental or emotional stress," since an intoxicated or drugged
condition does not remove criminal responsibility unless the
requirements of section 45-2-203, MCA, are met.   With
regard to proving the requisite mental state, "purposely or
knowingly," the defendant's own recitation of the facts
surrounding the homicide at the time of entry of a guilty
plea indicates a clear case of criminal responsibility.      These
facts plainly show he knew what he was doing in stabbing the
victim repeatedly, dragging the body to a hole in the ice,
planning to weight it down with rocks, and, after the crime,
riding back to Miles City thinking his crime was secure
because the body was hidden.   Even if failure of the District
Court specifically to discuss mitigated deliberate homicide
was error, which we do not grant in this case, no withdrawal
of his guilty plea could be allowed here because such error
would not be prejudicial to the defendant under the circumstances
of the homicide.   Section 46-20-701, MCA.
     The defendant relies most heavily upon State v. Azure
(1977), 175 Mont. 189, 573 P.2d 179, stating that it requires
that a defendant have a full understanding of the charge
admitted by pleading guilty.   We are satisfied that the
present case meets the requirements of Azure and that the
disparate outcomes of this case and Azure are mandated by
the different circumstances of each case.
     First, and most important, in Azure, there was sub-
stantial evidence of mitigating circumstances.    The defendant
in Azure, in addition to being under the influence of drugs
and alcohol at the time he committed the crime, was said to
have been emotionally depressed.   175 Mont. 189, 193, 573
P.2d 179, 181-182.    There is no evidence of emotional stress
in the present case.    In Azure, we pointed out that if the
case had gone to trial, the defendant would have been
entitled to an instruction on the law of mitigated deliberate
homicide.   175 Mont. 189, 194, 573 P.2d 179, 182.    On the
facts of the present case, had there been a trial, it would
have been error for a trial judge to have presented an
instruction on mitigated deliberate homicide to the jury.
     Second, in Azure, the District Court order denying
defendant's motion to withdraw his guilty plea was made by
minute entry with no explanation for the ruling.     There, we
stated that "[a] District Court's failure to provide even a
skeletal record of its reasoning in support of its ruling on
such a motion may of itself call into question the soundness
of the court's exercise of its discretion."   Azure, 175
Mont. 189, 193, 573 P.2d 179, 182.    In the present case, the
District Court made extensive findings and conclusions in
support of its denial of the defendant's motion to withdraw
his plea of guilty.    Upon reviewing these findings and
conclusions, we hold that the District Court did not abuse
its discretion.
     Third, as discussed earlier, the record in this case
demonstrates that the defendant was sufficiently informed to
enter a plea that was "voluntary with an understanding of
the charge."   Section 46-12-204, MCA.   The defendant in
Azure was not so informed.
     Having found no merit in defendant's contention, we
affirm the District Court order denying the defendant's
motion to withdraw his guilty plea.



                                              Justice          L.'
W Concur:
 e




       Chief J u s t i c e
