                              No. 83-181
             IN THE SUPF?JIME COURT OF THE STATE OF MONTANA
                                  1984



STATE OF MONTAPJA,
              Plaintiff and Respondent,
      -vs-
KATHLEEN RACHEL WILRINSON ,
              Defendant and Appellant.




APPEAL FROM: District Court of the Fourth Judicial District,
             In and for the County of Missoula,
             The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD:
      For Appellant:

              Ferguson 6( Mitchell; Carol Plitchell argued,
              Plissoula, Montana

      For Respondent :
              Bon. Mike Greely, Attorney General, Helena, Montana
              Chris Tweeten argued, Asst. Atty. General, Helena
              Robert L. Deschamps, 111, County Attorney, (Karen
              Townsend, Deputy) Missoula, Montana



                              Submitted: 1/13/34
                                Decided: 3/26/84




                              Clerk
Mr Justice John Conway Harrison delivered the Opinion of the
Court.

         The appellant, Wilkinson, appeals from an order of the
Missoula County District Court, denying her motion either to
withdraw her plea of guilty to a reduced charge of negligent
homicide, or be sentenced in accordance with a plea bargain
struck by the parties.        We affirm the action of the District
Court.
         The facts surrounding the case involve the death of
19-month-old Paul Tucker Wilkinson, on February 23, 1982,
who was found dead in an East Missoula trailer, where he
resided with his mother, the appellant, and her boyfriend,
William R.ussel1 Sigler.        Within a month of the death, on
March 18, 1982, the appellant was charged with a negligent
homicide in connection with the death of her son.                     This
charge was      based   upon    her   failure to         secure medical
attention for her child.        Sigler was charged with deliberate
homicide.      When subsequent investigation convinced the
County Attorney's office that the accountability theory,
approved by this Court in State v. Powers (Mont. 1982), 645
P.2d   1357, 39    St.Rep.     989, might       apply,    the    negligent
homicide charge against the appellant was dismissed and a
new    information was    filed    charging     her    with     deliberate
homicide.
       The trials of the appellant and Sigler were bifurcated
upon motion of defense counsel for Sigler.             The Sigler trial
was scheduled to begin in early August of 1982, while that
of the appellant was set for a later date.                In July, 1982,
the appellant's      counsel approached          the     State about a
possible    plea   bargain.       While   the    State    was   generally
willing to accept a guilty plea to a reduced charge of
negligent homicide, the State was unwilling to agree to two
of appellant's demands.                Those demands were: (1) that the
State either           agree       to recommend     probation or make no
recommendation as to incarceration; (2) that a dependant and
a     neglected       child    action    relating    to     the   then-pregnant
appellant's unborn child be dropped.
        At the time the Sigler trial commenced on August 4,
1982, no plea bargain agreement had been reached between the
appellant and the State.
        The    State sought the appellant's                 testimony against
Sigler.        With this object, on August 7, 1982, the State
offered     to    reduce       the    charge   against      the   appellant    to
negligent homicide and to recommend a sentence of ten years
imprisonment with seven years suspended if the appellant
would    plead        guilty, give      a   sworn   statement      and   testify
against Sigler.              The prosecution furnished a chart to the
appellant        to    use    in    computing parole       eligibility     dates
within the various sentences then under consideration.                        The
appellant's counsel advised her that the court was not bound
by the prosecutor's recommendation.                  The appellant offered
to    accept     the prosecution's          proposal      if the recommended
suspended sentence was increased from seven to eight years,
since under a sentence of ten years with eight suspended she
would be eligible for release on parole before the birth of
her    baby.      The prosecution accepted                the offer, and      the
defendant      made     a     sworn   statement     and    testified     against
Sigler during his trial.
        Two days later, on August 13, 1982, the appellant, her
counsel    and        the Deputy      County Attorney, Karen Townsend,
t r a v e l e d t o Polson from Missoula t o a l l o w t h e a p p e l l a n t t o

c h a n g e h e r p l e a b e f o r e J u d g e G r e e n , who was s i t t i n g i n Lake
County.          During       the     trip,      Townsend            again     informed    the
defendant          that      neither         her      sentence           nor    parole    was
guaranteed,         and t h a t t h e c o u r t was f r e e              to disregard      the

recommenda.tion o f            the    State.         Townsend         also     informed    the
appellant        that     Judge      Green      had       not    followed        prosecution
s e n t e n c e recommendations i n s i m i l a r c a s e s .

         During t h e h e a r i n g i n Polson, M s .                Townsend s p r e a d t h e
e l e m e n t s o f t h e p l e a b a r g a i n on t h e r e c o r d :
                 "MS. TOWNSEND: Your Honor, I t h i n k p r i o r
                 t o t h e time Miss W i l k i n s o n a n s w e r s t h i s ,
                 I would l i k e t o s t a t e f o r t h e r e c o r d ,
                 which I t h i n k t h e C o u r t i s p r o b a b l y a w a r e
                 of t h r o u g h media c o v e r a g e , t h a t t h e r e h a s
                 been, i n f a c t , a p l e a b a r g a i n t h a t h a s
                 b e e n e n t e r e d by m y s e l f a n d M s . M i t c h e l l
                 with respect t o t h i s p a r t i c u l a r charge.
                 P a r t of t h a t p l e a b a r g a i n h a s been
                 f u l f i l l e d by t h e f i l i n g o f t h i s Amended
                 Information w i t h a reduced charge.

                  " S e c o n d l y , I h a v e a g r e e d t o recommend t o
                  t h e Court a t t h e t i m e of s e n t e n c i n g a
                  s e n t e n c e f o r Miss W i l k i n s o n which would
                  be no more t h a n t e n y e a r s i n t h e Montana
                  State           Prison       with        all   but   eight
                  suspended.

                 "Further,           the      bargain           is     that      Ms.
                 Mitchell--
                  "THE     COURT:        You       said     all       but      eight
                  suspended?
                  "MS.   TOWNSEND :        I'm    sorry,         eight
                  suspended.    I n o t h e r w o r d s , w i t h two
                  left.
                 " F u r t h e r , M s . M i t c h e l l and M s . Ferguson
                 a r e f r e e t o argue t o the Court f o r a
                 complete p r o b a t i o n a r y s e n t e n c e i f t h e y
                 would w i s h t o .       So t h e y a r e n o t bound t o
                 agree t o that.
                 " F i n a l l y , Your Honor, I t h i n k t h e C o u r t
                 d o e s know t h e r e i s a s o r t o f a companion
                 c i v i l case i n connection with t h i s
                 particular incident.                T h e r e h a s been no
                 a g r e e m e n t t o w h e t h e r we w i l l d r o p o r
              continue, and that case will proceed as
              is. "
      The     appellant's    counsel   agreed    that    Townsend's
statement covered       the terms of   the plea bargain.         Judge
Green then questioned the appellant as to her understanding
of the plea bargain:
              "THE COURT: Well, Miss Wilkinson, you
              understand that the Court had no part in
              this agreement?
              "THE DEFENDANT: Yes, I do, Your Honor.
              "THE COURT: The Court has not bound
              itself to follow the recommendations of
              the county attorney.   I haven't done it
              in this case, and I never will.  It's up
              to the Court to determine the proper
              sentence after I have received the
              pre-sentence   report   and   considered
              everything that is pertinent in your
              case.
              "THE DEFENDANT: Yes, I do, Your Honor.

              "THE COURT: So there have been no
              promises made to you outside of the
              recommendation that the county attorney
              will make to the Court.
              "THE DEFENDANT: Yes, Your Honor.
              "THE COURT: You understand that?   Now
              knowing this, do you wish to withdraw
              your plea of guilty as charged at this
              time?
              "THE DEFENDANT: No, Your Honor."

      The court further advised the defendant that under her

guilty plea she could be sentenced to up to ten years in
prison   and    fined    $50,000.      She   responded    that    she
understood.     The court ordered a presentence report and set

sentencing for September 10, 1982.
      At sentencing, the appellant called as witnesses Joe
Sobansky, the probation officer, and Dr. Will Stratford, a
psychiatrist who had examined the appellant.            Sobansky had
recommended a ten year sentence with none suspended, and
defense counsel's examination of him, covering some eight
pages     of    transcript,    attempted        to    show   that    he   had
inadequately investigated the case, in part by failing to
consult Dr.       Stratford.      Townsend's         cross-examination     of
Sobansky, covering less than two pages of the transcript,
brought out the reason Stratford had not been contacted--he
had made no report--and retraced Sobansky's reasons for his
recommendation,        which    had      been    elicited       on    direct
examination.        Defense counsel had          no objection        to   this
cross-examination.        Defense counsel's examination of Dr.
Stratford, covering some seven pages of transcript, focused
on Stratford's opinion of the appellant's mental condition
and     the appropriateness of           the    recommended      sentence.
Townsend's cross-examination, covering approximately three
pages    of    transcript,    inquired    as    to    the    likelihood    of
rehabilitation, the fact that counseling would assist the
appellant and that appellant would need vocational training
as a condition of her suspended sentence, and what other
conditions the doctor would              recommend.          The court in
addition cross-examined Dr. Stratford.
        Townsend then unequivocally recommended a sentence of
ten years with eight suspended, as agreed under the plea
bargain.       Her recommendation discussed her reasons in depth
and at length.        Defense counsel then argued for the plea
bargain, although suggesting that               a lesser sentence was
appropriate, particularly recommending that the appellant
receive no jail time.         The court then imposed a sentence of
ten years with two years suspended.
        Thereafter the appellant moved on September 20, 1982,
to withdraw her guilty plea, or in the alternative that her
sentence     be    vacated     and   that    she    be    resentenced         in
compliance with the prosecutor's recommendation.                      The court
set the motion for hearing on October 22, 1982.                         At the
hearing, defense counsel withdrew the motion to withdraw the
plea and sought only a new sentence of ten years with eight
suspended.     Appellant testified that she had agreed to the
plea bargain only because            she wanted      to be       released on
parole before the birth of her child.               She acknowledged to
the court that she had been advised by Ms. Townsend and by
Judge Green        that    the sentence recommendation was not
binding, but stated that she thought the judge would go
along, and that the judge's inquiry at the plea proceeding
was but a formality.
      The     appellant      also    presented      testimony         from    an
eight-time felony convict and two public defenders to the
effect that most defendants would subjectively believe the
prosecutor's recommendation would be followed.                    One of the
appellant's attorneys, Paulette Ferguson, testified that the
appellant accepted the plea bargain because she wanted to be
paroled before the birth of her baby.                   Ferguson told the
appellant      that    Judge      Green     was    not        bound    by    the
recommendation,        and   that    parole       eligibility         did    not
guarantee that the appellant would be paroled.                        Ferguson
admitted    that     the   plea   bargaining      did    not     prevent     Ms.
Townsend      from    cross-examining         defense         witnesses       at
sentencing and that the prosecution had no prior notice of
the   recommendation       that   defense    counsel      w ~ u l d offer     at
sentencing.
       Following the sentencing, Judge Green entered detailed
findings     and     conclusions     in   support        of    his    decision
r e j e c t i n g t h e a p p e l l a n t ' s motion.            The c o u r t f o u n d a s f a c t

t h a t t h e a p p e l l a n t had b e e n a d v i s e d by Townsend, by h e r own

counsel         twice,        and    by     Judge       Green,      that       the    prosecutor's

recommendation            d i d n o t bind             the court.          The c o u r t      further

found t h a t M s .        Townsend had made t h e r e c o m m e n d a t i o n a g r e e d

upon     in the plea bargaining.                         The c o u r t c o n c l u d e d t h a t t h e

appellant's            plea     was       knowingly         and    voluntarily             made,     and

that     in particular               s h e was a d v i s e d      t h a t t h e c o u r t was n o t

bound      by    the     recommendation,                 and     that    the    prosecutor           had

f u l l y complied w i t h t h e p l e a b a r g a i n i n g .

          A t the t i m e t h i s case arrived,                    t h e r e was a l s o p e n d i n g

t h e c a s e of S t a t e v.          Cavanaugh (Mont. 1 9 8 3 )                    673 P.2d       482,

40     St.Rep.         2007,         wherein           this     Court      adopted          the     ABA

Standards          requiring              the      sentencing           court        to    inform      a

defendant         if     it    is     not        going    to     accept        the    entire       plea

bargain,         and     then        give        the     defendant        an    opportunity           to

affirm or         withdraw           the     guilty       plea.          See,    ABA       Standards

R e l a t i n g t o The A d m i n i s t r a t i o n o f C r i m i n a l J u s t i c e ; F u n c t i o n

of     the      Trial         Judge,        section            4.l(c)      (1974),          and     ABA

Standards,         supra,           Pleas    of        Guilty,     sections          2.1    and    3.3,

(1974).         A s n o t e d i n t h a t o p i n i o n a m a j o r i t y of o t h e r s t a t e

jurisdictions            as     well        as    the     federal        courts       follow       this

procedure.          S e e , F e d e r a l R u l e s of*%                Procedure, l l ( e ) ( 4 ) .
                                                              z
                                                               Crrm.
                                                               c_ .
                                                                 .

          This Court s p l i t four t o t h r e e .                  However, t h e d e c i s i o n

in    Cavanaugh          concluded               that     the     standards           were     to     be

adopted,         but      the        decision           would     be     prospective              only.

Therein we stated:

                  "We t h e r e f o r e          adopt     the      previously
                  d i s c u s s e d s t a n d a r d s o f t h e American B a r
                  A s s o c i a t i o n and F . R . w , P .    l l ( e ) ( 4 ) , and
                  r e q u i r e t h e t r i a l juhf4'&' who a c c e p t s a
                  p l e a b u t r e j e c t s any o t h e r p o r t i o n of t h e
                  plea bargain, t o afford the defendant the
              opportunity to withdraw his guilty plea
              and enter a plea of not guilty.
              "The decision in this case shall have
              prospective application only.         The
              decision applies to defendant James
              Cavanaugh and all who are sentenced after
              the effective date of this decision. In
              support of this prospective holding, see
              State v. Campbell (1979), 182 Mont. 521,
              597 P.2d 1146."     673 P.2d at 485, 40
              St.Rep at 2011.
      There, we established a new procedural requirement for
sentencing.     In accordance with the requirement in effect at
the time of the sentencing, the experienced trial judge
carefully advised the appellant that he would not be bound
by the recommendation of the prosecution.          Her own counsel,
several   times,    so   advised   her,   as did   the   prosecuting
attorney in the case.      We find that criminal justice would
be   seriously     hampered   by   requiring   conformity     to   an
unannounced new procedure of any trial judge in this state.
      As stated by       this Court in the unanimous opinion,
State v. Campbell (1979), 182 Mont. 521, 597 P.2d 1146:
              "It should be obvious that retroactive
              application of this rule would seriously
              retard its operation.   Litigants have a
              right to rely on the law in effect at the
              time.   The administration of justice
              would be seriously hampered by requiring
              conformity to an as yet unannounced new
              procedural requirement.   Law enforcement
              agencies and courts are entitled to rely
              on the rules pertaining to guilty pleas
              in effect at the time the guilty plea was
              entered and to determine voluntariness on
              the basis of such law."     182 Mont. at
              526, 597 P.2d at 1149.
In addition      in -   -
                    Campbell, supra, we referred to prior
decisions of this Court and the United States Supreme Court,
in denying retroactive application of the decision.
      We note in addition, that the appellant now is on
parole, having been given credit for time she served in the
county jail, has been employed and is under supervision of
state authorities.   The crime for which she entered a plea
was serious, homicide, and reviewing the entire transcript
and   file on this case, we are of the opinion that she
received "substantial fairness" by the judicial system of
this state.
       The decision is affirmed.




We concur:


  &d&&
Chief Justice




Justices



Hon. Chan Ettien, District
Judge, sitting in place of Mr.
Justice Frank B. Morrison, Jr.



 Mr. Justice Daniel J. Shea dissents and will file a written
 dissent later.
Honorable Chan Ettien, District Judge, dissenting:
       I dissent.
       In State v. Cavanaugh (Decided December 23, 1983),
P.2d        ,   40 St.Rep. 2007, Cavanaugh was sentenced September
19, 1977.
       Wilkinson was sentenced August 13, 1982.
       The Cavanauqh ruling is retroactive in favor of its
subject to September 19, 1977, but on the way back by-passes
a judgment on Wilkinson imposed five years later.
       The logic of the majority escapes me when both cases
were pending before this Court at the same time.
       The Cavanauqh rule     should be retroactive from the da.te
of its judgment, September 19, 1977.
       While     it   appears, practically,   that   Wilkinson   has
nothing to gain by reversal-, I would reverse and remand for
her option to change her plea if she wishes, in keeping with
the doctrine of fundamental fairness.



                                  91&(          (&
                                                E;
                                  Honora e Chan Ettien,      is-
                                  trict Judge, sitting in place
                                  of Mr. Justice Frank B.
                                  Morrison, Jr.
Justice John C. Sheehy, dissenting:
         I dissent to the manifest injustice done by this deci-
sion to Kathleen Rachel Wilkinson.
         Kathleen without dispute here had an invincible wish to
bear the child she was then carrying outside the prison
walls.     To achieve this, she consented by plea bargain to
provide the evidence without which the State coul-d not have
convicted Sigler, but the evidence incriminated herself.              Now
the State, worse than Shylock, has extracted the benefit of a
fine quillet of the law--Judge Green told her before her
sentencing, but after she had fully performed her part of the
agreement, that he was not bound by the plea bargain.                It is
not enough here, as it was in Cavanaugh, cited above in the
majority opinion, that she be given a chance to withdraw her
plea of guilty.        Her prior evidence given in Sigl-er would
convict her now.           As Brandeis said in Omstead v. United
States    (1928),    277   U.S.    438, 48 S.Ct.    564, 7 2 L.Ed.     944
(Brandeis, J., dissenting) , our government teaches the whole
people by its example.            The teaching here is, beware of the
State:     it. will trick you if it can.           We should order the
District Court in this instance to follow scrupulously the
terms of the agreement the State was so eager to procure
(even though the result she sought to obtajn is now beyond
our power).    Only then can this Court wrap itself in the robe
of "substantial fairness."
         T also disagree that we must not apply the Cavanaugh
rule here because of our prospective-only line in that case.
Wilkinson got to this Court before Cavanaugh, and in a proce-
dural      process     beyond       Wikinson's     control,   Cavanauqh
leap-frogged Wilkinson.            Injustice is injustice.    She sus-
tained a greater injustice than did Cavanaugh.           Are we power-
less to remedy injustice?
                 D I S S E N T OF MR.   J U S T I C E D A N I E L J. SHEA


NO.   83-181

S T A T E O F MONTANA,

       Plaintiff and R e s p o n d e n t ,

               VS.

KATHLEEN RACHEL W I L K I N S O N ,

       Defendant and Appellant.
Mr.    J u s t i - c e D a n i e l J . Shea, d i s s e n t i n g :



        I dissent.           I n S t a t e v . Cavanaugh (Mont. 1 9 8 3 ) , 673 P.2d

4 8 2 , 4 0 St..Rep.       2007, i n d i s s e n t , I s t a t e d o u r holding should

be g i v e n r e t r o a c t i v e a p p l i c a t i o n on due p r o c e s s grounds.             If
so,     d e f e n d a n t Wilkinson would be g i v e n t h e b e n e f i t                 of    our

h o l d i n g i n Cavanaugh.              But even i f          i t were n o t g i v e n f u l l

retroactive application,                     t h e h o l d i n g i n Cavanaugh s h o u l d a t

l e a s t a p p l y t o a l l p l e a e n t r y s i t u a t i o n s t h a t t o o k p l a c e on

o r a f t e r t h e d a t e Cavanaugh e n t e r e d h i s plea--September                        19,

1977.        If   a. v i o l a t i o n o c c u r r e d ,   and t h e m a j o r i t y c e r t a i n l y

h e l d a v i o l a t i o n o c c u r r e d by g i v i n g Cava.naugh r e l i e f ,             then

a l l v i o l - a t i o n s t h a t t o o k g l a c e on t h a t same d a t e o r on any

da.te a f t e r September 1 9 , 1977, would be g i v e n t h e b e n e f i t o f

t h e Cavanaugh r u l i n g . I f s o , t h e d e f e n d a n t Wilkinson would be

e n t i t l e d t o r e l i e f i n t h i s case.

        Another g r o s s i n e q u i t y e x i s t s h e r e .        Although we d e c i d e d

the     issue      i n Cavanauqh,            the    i s s u e was     not     raised      in that

case.       R a t h e r , it was f i r s t r a i s e d i n t h e p r e s e n t c a s e .          It

just     s o happened t h a t t h e Cavanaugh c a s e was d e c i d e d b e f o r e

t h e p r e s e n t c a s e , a l t h o u g h t h e p r e s e n t c a s e was t h e n pending

before       this      Court.           It     is     totally        unfair      not     to     give

Wilkinson t h e b e n e f i t o f             t h e very i s s u e she r a i s e d i n h e r

a p p e a l s i m p l y b e c a u s e w e d.ecided t h e i s s u e f i r s t i n a n o t h e r

c a s e i n which t h e i s s u e had n o t even
