                                                                                              July 8 2008


                                           DA 07-0143

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2008 MT 242



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CHARLES V. DESERLY,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twelfth Judicial District,
                        In and For the County of Hill, Cause No. DC-2006-013
                        Honorable David G. Rice, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jim Wheelis, Chief Appellate Defender; Roberta R. Zenker, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Hon. Mike McGrath, Montana Attorney General; Jesse A. Laslovich,
                        Assistant Attorney General, Helena, Montana

                        Cyndee L. Peterson, Hill County Attorney; Gina Bishop, Deputy County
                        Attorney, Havre, Montana



                                                    Submitted on Briefs: January 23, 2008

                                                                Decided: July 8, 2008


Filed:

                        __________________________________________
                                          Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     Charles Deserly appeals from the judgment of conviction entered by the District

Court for the Twelfth Judicial District, Hill County, on his plea of guilty to assault with a

weapon. We reverse and remand for further proceedings consistent with this Opinion.

                                     BACKGROUND

¶2     On February 1, 2006, officers with the Havre Police Department responded to a

report of disturbance in a residence. Upon arriving, they encountered an upset girl who

stated that a man had tried to kill her. The girl identified Deserly as the assailant and

indicated that he was still inside the residence. The officers then spoke with the girl’s

mother, who stated that Deserly had “pulled a knife on my girl.” The officers located

Deserly in the bathroom, where he had apparently pulled a knife on a second individual.

The officers eventually subdued Deserly and placed him under arrest.

¶3     The State charged Deserly with two counts of felony assault with a weapon, in

violation of § 45-5-213(1), MCA (2005). A person convicted of this offense may be

imprisoned in the state prison for a term not to exceed 20 years. Section 45-5-213(2)(a),

MCA.     On August 21, 2006, Deserly and the State entered into a plea agreement,

pursuant to which Deserly agreed to plead guilty to one count of felony assault with a

weapon, and the State, in exchange, agreed to dismiss the second assault charge and

forego a bail-jumping charge. In addition, the State agreed to recommend commitment to

the Department of Corrections (“DOC”) “for a period of ten (10) years,” and Deserly

acknowledged that he would be designated a persistent felony offender.


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¶4     The District Court accepted Deserly’s guilty plea and ordered a presentence

investigation. The court also scheduled a bond-reduction hearing, at which time the court

released Deserly on a number of conditions. On September 5, 2006, the State filed a

Petition for Revocation of Release, alleging that Deserly had violated the terms and

conditions of his release.       Meanwhile, the probation/parole officer preparing the

presentence investigation report (“PSI”) determined that a commitment to the DOC “for a

period of ten (10) years,” which Deserly and the prosecutor had agreed to recommend at

sentencing, was not allowed by statute. Pursuant to § 46-18-201(3)(d)(i), MCA, “all but

the first 5 years of [a] commitment to the department of corrections must be suspended.”

Thus, a commitment to the DOC “for a period of ten (10) years” was not a sentence that

the District Court could impose. Until the probation/parole officer filed the PSI on

September 21, 2006, it appears that the prosecutor, defense counsel, Deserly, and the trial

judge were not cognizant of this fact.

¶5     At the sentencing hearing on September 27, 2006, the State announced that it was

withdrawing from the plea agreement based on Deserly’s violation of the conditions of

his release. At the same time, Deserly stated that he wanted to withdraw his guilty plea.

As he later explained in his written motion to withdraw his guilty plea, he had “entered

into the plea bargain unaware of the fact that he could not get the benefit of the bargain -

a sentence the Court could not impose under Montana law.” He argued on this basis that

good cause existed for the District Court to permit the withdrawal of his guilty plea. The

court denied Deserly’s motion.




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¶6      The District Court entered judgment on January 3, 2007. The court adjudged

Deserly guilty of felony assault with a weapon and designated him a persistent felony

offender. The court sentenced Deserly to the Montana State Prison for a period of fifteen

years with five years suspended. Deserly now appeals.

                                          ISSUES

¶7      Deserly sets forth three issues on appeal, which we restate as follows:

        1. Did the District Court err in denying Deserly’s motion to withdraw his guilty

plea?

        2. Was the factual basis for Deserly’s guilty plea sufficient?

        3. Did Deserly receive ineffective assistance of counsel because his lawyer

advised him to enter into a plea bargain that contemplated an illegal sentence?

¶8      Because we reverse the District Court’s judgment under Issue 1, we do not address

Issues 2 or 3.

                                STANDARD OF REVIEW

¶9      We review a district court’s denial of a motion to withdraw a guilty plea de novo.

State v. Warclub, 2005 MT 149, ¶ 17, 327 Mont. 352, ¶ 17, 114 P.3d 254, ¶ 17. The

question of whether a plea was entered voluntarily is a mixed question of law and fact,

which we review de novo. State v. McFarlane, 2008 MT 18, ¶ 8, 341 Mont. 166, ¶ 8,

176 P.3d 1057, ¶ 8.

                                       DISCUSSION

¶10     Did the District Court err in denying Deserly’s motion to withdraw his guilty
        plea?



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¶11    At any time before judgment or within one year after judgment becomes final, a

trial court may, “for good cause shown,” permit a plea of guilty or nolo contendere to be

withdrawn and a plea of not guilty substituted. Section 46-16-105(2), MCA (2005).

“Good cause,” as used in § 46-16-105(2), MCA, includes the minimal constitutional

requirement that a guilty plea be voluntary and intelligent. See State v. Lone Elk, 2005

MT 56, ¶¶ 13, 17, 326 Mont. 214, ¶¶ 13, 17, 108 P.3d 500, ¶¶ 13, 17. Furthermore, we

determined in Lone Elk that “good cause” may include criteria in addition to

voluntariness. See Lone Elk, ¶ 19 (“Involuntariness and discovery of new exculpatory

evidence constitute good causes for withdrawal of a plea under § 46-16-105(2), MCA

(2001), but others may exist.”); see also § 46-16-105(2), MCA (referring to “a claim of

innocence . . . supported by evidence of a fundamental miscarriage of justice”).

¶12    We need not consider any additional criteria for “good cause” in the case at hand

since the issue here is the voluntariness of Deserly’s plea. In Lone Elk, we observed that

this Court had been following a voluntariness standard that was less protective of

individual rights than the United States Constitution. See Lone Elk, ¶ 22 (discussing

State v. Miller, 248 Mont. 194, 810 P.2d 308 (1991)). We thus overruled that standard,

under which a plea of guilty would be deemed involuntary “ ‘where it appears that the

defendant was laboring under such a strong inducement, fundamental mistake, or serious

mental condition that the possibility exists he may have pled guilty to a crime of which he

is innocent.’ ” Lone Elk, ¶ 22 (quoting Miller, 248 Mont. at 197, 810 P.2d at 310)

(emphasis in Miller). In its stead, we adopted the following standard set forth by the




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Supreme Court in Brady v. United States, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472

(1970):

              [A] plea of guilty entered by one fully aware of the direct
       consequences, including the actual value of any commitments made to him
       by the court, prosecutor, or his own counsel, must stand unless induced by
       threats (or promises to discontinue improper harassment), misrepresentation
       (including unfulfilled or unfulfillable promises), or perhaps by promises
       that are by their nature improper as having no proper relationship to the
       prosecutor’s business (e.g. bribes). [Brackets in original, internal quotation
       marks omitted.]

See Lone Elk, ¶ 21 (summarizing this standard).1

¶13    In adopting the Brady standard, we also jettisoned the balancing test articulated in

State v. Huttinger, 182 Mont. 50, 595 P.2d 363 (1979). See Lone Elk, ¶¶ 12, 23. Under

that test, we balanced the following three factors to determine whether good cause existed

       1
         We note here that in overruling the Miller standard, we did not identify all of the
cases in which that standard had been set out as the applicable law. As a result, the
standard has appeared in subsequent cases. Accordingly, so as to preclude any further
confusion as to the proper standard for reviewing the voluntariness of a guilty plea, we
explicitly overrule the following cases to the extent they may be read as supporting
application of the Miller standard: State v. Milligan, 2008 MT 36, ¶ 10, 341 Mont. 316,
¶ 10, 177 P.3d 500, ¶ 10, State v. Chase, 2006 MT 13, ¶ 15, 331 Mont. 1, ¶ 15, 127 P.3d
1038, ¶ 15, State v. Tweed, 2002 MT 286, ¶ 26, 312 Mont. 482, ¶ 26, 59 P.3d 1105, ¶ 26,
State v. Kellames, 2002 MT 41, ¶ 11, 308 Mont. 347, ¶ 11, 43 P.3d 293, ¶ 11, State v.
Sanders, 1999 MT 136, ¶ 21, 294 Mont. 539, ¶ 21, 982 P.2d 1015, ¶ 21, State v. Ereth,
1998 MT 197, ¶ 27, 290 Mont. 294, ¶ 27, 964 P.2d 26, ¶ 27, State v. Schaff, 1998 MT
104, ¶ 33, 288 Mont. 421, ¶ 33, 958 P.2d 682, ¶ 33, State v. Skroch, 267 Mont. 349, 356,
883 P.2d 1256, 1261 (1994), State v. Barker, 257 Mont. 31, 35, 847 P.2d 300, 303
(1993), State v. Cameron, 253 Mont. 95, 100–01, 830 P.2d 1284, 1288 (1992), State v.
Milinovich, 248 Mont. 373, 376–77, 812 P.2d 338, 340–41 (1991), Benjamin v.
McCormick, 243 Mont. 252, 256, 792 P.2d 7, 10 (1990), State v. Nelson, 184 Mont. 491,
496, 603 P.2d 1050, 1053 (1979), State v. Hilton, 183 Mont. 13, 17, 597 P.2d 1171, 1173
(1979), State v. Campbell, 182 Mont. 521, 525, 597 P.2d 1146, 1148 (1979), State v.
Huttinger, 182 Mont. 50, 55, 595 P.2d 363, 367 (1979), State ex rel. Gladue v. Eighth
Judicial District, 175 Mont. 509, 511, 575 P.2d 65, 66 (1978), State v. Griffin, 167 Mont.
11, 18, 535 P.2d 498, 502 (1975), State v. LeMay, 144 Mont. 315, 320, 396 P.2d 83, 85–
86 (1964), and State v. Pelke, 143 Mont. 262, 271, 389 P.2d 164, 169 (1964).

                                             6
to permit withdrawal of a guilty plea:           (1) whether the district court adequately

interrogated the defendant to determine his understanding of his plea; (2) whether the

defendant promptly filed his motion to withdraw the prior plea; and (3) whether the

defendant’s plea was the result of a plea bargain in which the prosecutor dismissed

another charge. See Lone Elk, ¶ 11; Huttinger, 182 Mont. at 54, 595 P.2d at 366. This

test, we noted, “neither lists all the factors [bearing on voluntariness], nor are all the

factors it lists necessary.” See Lone Elk, ¶ 14. Yet, although we “relegate[d] that test to

history,” we nevertheless stated that “two of the criteria from the Huttinger test (the

adequacy of colloquy and the existence of plea bargain) bear on the question of

voluntariness.” Lone Elk, ¶ 23; accord State v. McFarlane, 2008 MT 18, ¶ 26, 341 Mont.

166, ¶ 26, 176 P.3d 1057, ¶ 26. We also stated that “numerous other case-specific

considerations may also bear on that question.” Lone Elk, ¶ 23. One consideration, for

example, is the defendant’s mental competency to enter a plea, including any medication

he or she is taking. See Lone Elk, ¶ 21.

¶14    In the case at hand, Deserly contends that his guilty plea was not voluntary

because he was induced into entering the plea “by a promise that could not be

performed.” Although the plea agreement stated that the sentencing judge “is not bound”

by the parties’ sentencing recommendation (see § 46-12-211(1)(c), MCA), and although

the judge also advised Deserly of this fact before he entered his guilty plea, Deserly still

understood that the sentence agreed upon by the parties and set out in the agreement was

at least possible. In other words, he pleaded guilty with the expectation that the sentence

not only would be recommended by the prosecutor and defense counsel, but also could be


                                             7
imposed by the District Court; yet, it was subsequently determined that the sentence was

illegal and could not be imposed. On this basis, Deserly maintains that his guilty plea

was involuntary and that he should have been allowed to withdraw it.

¶15    We agree that Deserly should have been allowed to withdraw his plea.               A

defendant’s plea is not voluntary if “the court, the prosecutor, his own counsel, or some

other party, induced the plea, however slightly, by . . . misrepresentation, including

unfulfilled or unfulfillable promises.” Lone Elk, ¶ 21 (citing Brady, 397 U.S. at 753, 755,

90 S. Ct. at 1471–72). Here, Deserly was induced, at least in part, by the prospect of

being able to receive the sentence that he and the prosecutor had negotiated and agreed to

recommend. Yet, that sentence, because it was an illegal sentence, could not have been

imposed by the District Court—a fact which came to the parties’ attention after Deserly

had entered his plea. It is true that, except in circumstances not at issue here, sentencing

courts are not bound by plea agreements and that Deserly was advised of this fact.

However, the critical issue here is the inducement, and it is not enough to say that Deserly

knew he might not receive the specific sentence recommended by the parties. At the time

he entered his guilty plea, it was reasonable for Deserly to expect that the District Court

could at least consider, if not actually impose, the recommended sentence.             This

expectation informs the question of inducement.        Notably, once he learned that the

sentence was not statutorily authorized, he promptly moved the court to withdraw his

guilty plea.

¶16    Our conclusion is consistent with the general rule that a defendant, who has

entered a guilty plea pursuant to a plea bargain which contemplates a particular sentence,


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is entitled to withdraw the plea if it is subsequently determined that the sentence is illegal

or unauthorized. See Christopher Vaeth, Guilty Plea as Affected by Fact That Sentence

Contemplated by Plea Bargain Is Subsequently Determined to Be Illegal or

Unauthorized, 87 A.L.R.4th 384, 388 (1991). In United States v. Greatwalker, 285 F.3d

727 (8th Cir. 2002), the court stated:

              There can be no plea bargain to an illegal sentence. Even when a
       defendant, prosecutor, and court agree on a sentence, the court cannot give
       the sentence effect if it is not authorized by law. Thus, when a defendant
       has entered a plea bargain contemplating an illegal sentence, the defendant
       is generally entitled to withdraw the guilty plea. Because the plea bargain
       is based on a promise the trial court lacks authority to fulfill, and the
       defendant was induced to plead guilty by that promise, plea withdrawal is
       necessary to return the parties to their initial positions.

Greatwalker, 285 F.3d at 729–30 (citations omitted). Similarly, in State v. Brown, 606

N.W.2d 670 (Minn. 2000), the court stated:

             A guilty plea cannot be induced by unfulfilled or unfulfillable
       promises, including a promise of a sentence unauthorized by law. Where a
       sentence is illegal and therefore invalidly imposed, the voluntariness of the
       plea is drawn into question. But a plea agreement calling for an
       unauthorized sentence cannot be specifically enforced.

Brown, 606 N.W.2d at 674 (citations omitted).          Along these same lines, the court

observed in Ford v. State, 69 P.3d 407 (Wyo. 2003), that “[i]f the prosecutor’s

performance of the terms of a plea agreement is not possible, a withdrawal of the plea is

the correct remedy.” Ford, ¶ 18; cf. Thomas v. State, 327 So. 2d 63, 63–64 (Fla. 1st Dist.

App. 1976) (holding that the defendants had bargained not just for the prosecutor’s “mere

act of recommending probation,” but also for the court’s either imposing that sentence or

allowing them to withdraw their guilty pleas). Other courts are in accord with these



                                              9
general principles. See e.g. People v. Ramirez, 39 Cal. Rptr. 2d 374, 384 (Cal. App. 2d

Dist. 1995) (“Since defendant pleaded guilty with the understanding he would receive a

seven-year sentence [which is not authorized], he must be given the opportunity to

withdraw his guilty plea, if he chooses to do so.”); Shelton v. State, 739 So. 2d 1235,

1237 (Fla. 4th Dist. App. 1999) (“[A] defendant cannot be bound to an agreement to

accept an illegal sentence.”).

¶17    The State asserts that Deserly’s claim is “moot.” The State opines that Deserly

only wanted to withdraw his guilty plea because the State decided to withdraw from the

plea agreement, thereby preventing him from receiving the agreed-upon sentence.

According to the State, because it was entitled to withdraw from the plea agreement,

“Deserly cannot now argue that his guilty plea should be withdrawn due to the illegal

recommendation because once he violated his conditions of release, no Agreement

existed.”

¶18    That the parties were no longer bound by the plea agreement once the State

withdrew from it is inapposite. The issue in this case is whether, at the time Deserly

entered his guilty plea, he was induced to do so by any of the circumstances

contemplated by Brady or Lone Elk. What occurred subsequent to Deserly’s change of

plea does not determine whether the plea was voluntary at the time it was entered. Thus,

the fact that the State later withdrew from the plea agreement has no bearing on whether

Deserly’s guilty plea was voluntary.

¶19    The State also maintains that “there is nothing in the record that shows Deserly

was laboring under strong inducement or fundamental mistake.” As stated above in ¶ 12,


                                          10
however, this is not the correct standard for determining the voluntariness of a plea.

Where, as in the case at hand, a defendant is induced, “however slightly,” by a

misrepresentation, including an unfulfilled or unfulfillable promise, the plea is not

voluntary. Lone Elk, ¶ 21.

¶20    Lastly, the State observes that the parties were not aware that the recommended

sentence was illegal until the author of the PSI pointed out that it was not authorized by

statute. It is of no consequence, however, that the recommended sentence was not an

intentional misrepresentation. Deserly was induced to plead guilty by what amounts to

an unfulfillable promise: that the District Court could consider and impose the sentence

which the prosecutor agreed to recommend. Accordingly, his plea was not voluntary, and

good cause existed for the District Court to permit him to withdraw his guilty plea.

¶21    Before concluding, it is necessary to acknowledge that there are exceptions to the

general rule discussed above, i.e., the rule that a defendant is entitled to withdraw his

guilty plea if he entered the plea pursuant to a plea bargain which contemplated a

sentence subsequently determined to be illegal or unauthorized.          As described in

Greatwalker:

       Withdrawal of the plea may be unnecessary when the agreed-on sentence
       exceeds the sentence authorized by law and the government accepts a
       sentence reduced to the legal term, when the sentence can be reconciled
       with the plea agreement or otherwise corrected to give the defendant the
       benefit of the bargain, or when the defendant is willing to accept a legal
       sentence in place of the promised one.

Greatwalker, 285 F.3d at 730. One justification for these exceptions is the concern that,

should the defendant withdraw his plea and stand trial, “the State may no longer be able



                                            11
to produce witnesses or other evidence necessary to proceed with a prosecution.” Vaeth,

87 A.L.R.4th at 388. Another rationale is the fact that the defendant may not wish to

withdraw his plea. See Vaeth, 87 A.L.R.4th at 388, 397–404.

¶22    While it may be appropriate to adopt and apply these exceptions in some future

case, we conclude that doing so here is unwarranted. Given that the State has already

withdrawn from the parties’ plea agreement, it is appropriate simply to return the parties

to their initial positions.

                                     CONCLUSION

¶23    Deserly was induced to enter into the plea agreement by a misrepresentation—

albeit, one which was unintentional. We conclude, therefore, that Deserly’s guilty plea

was not voluntary. Involuntariness constitutes good cause for withdrawal of a plea under

§ 46-16-105(2), MCA. Lone Elk, ¶ 19. Accordingly, Deserly is entitled to withdraw his

guilty plea.

¶24    The District Court erred in denying Deserly’s motion to withdraw his guilty plea.

We reverse the District Court’s judgment and remand this matter to the court with

instructions to grant Deserly’s motion.

¶25    Reversed and remanded for further proceedings consistent with this Opinion.


                                                       /S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ BRIAN MORRIS


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