                            No.   92-062

          IN THE SUPREME COURT OF THE STATE OF MONTANA




STATE OF MONTANA,
         Plaintiff and Respondent,
    v.
JAMES JOHN PERSAK,
         Defendant and Appellant.



APPEAL FROM:   District Court of the First Judicial District,
               In and for the County of Lewis and Clark,
               The Honorable Jeffrey M. Sherlock, Judge presiding
               and The Honorable Dorothy Mccarter, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Charles A. Graveley, Attorney at Law,
               Townsend, Montana
          For Respondent:
               Hon. Marc Racicot, Attorney General,
               Cregg W. Coughlin, Assistant Attorney General,
               Helena, Montana; Mike McGrath, Lewis and
               Clark County Attorney, Carolyn A. Clemens,
               Deputy County Attorney, Helena, Montana


                              Submitted on Briefs:    August 6, 1992
                                           Decided:   February 11, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
     Defendant James Persak appeals from an order of the First
Judicial District Court of the State of Montana, denying his motion
to withdraw his guilty plea and refusing to dismiss the charges
against him.   We affirm the District Court.
     There is one issue on appeal.    Did the District Court abuse
its discretion when it denied defendant's motion to withdraw his
plea and ordered that defendant be resentenced by a different judge
after the State breached a plea agreement?
     Defendant was charged by information on August 31, 1990, with
three counts of felony sexual assault.         On April 18, 1991,
defendant was charged by amended information with a total of four
counts of sexual assault.     Defendant pleaded not guilty to all
counts on May 2, 1991.
     Subsequently, the State entered into an oral plea bargain
agreement with defendant.     The parties agreed that if defendant
would plead guilty to Counts I11 and IV, the State would dismiss
Counts I and I1 of the amended information.      Additionally, the
State agreed that if a report from a local psychiatric social
worker   indicated   that community treatment was    feasible for
defendant, the prosecutor would not seek the imposition of a prison
sentence before the District Judge.
     On July 15,     1991,   a change of plea hearing was held.
Defendant entered pleas of guilty to Counts I11 and IV, and upon
the State's motion, the court dismissed Counts I and I1 of the
amended information. After being clearly advised by the court that

                                  2
it would not be bound by the terms of defendant's plea agreement
with the State, defendant represented to the court that he
understood and that his guilty pleas were voluntary.     The court
accepted the pleas and set a date for sentencing.
        During the October 4, 1991, sentencing hearing before Judge
Jeffrey Sherlock, the social worker testified that he recommended
probation in conjunction with outpatient treatment for defendant.
At the same hearing, however, the prosecutor violated the plea
agreement.      In contravention of   the parties'   bargain, the
prosecutor recommended a long prison sentence for defendant,
despite the social worker's opinion that community treatment was
feasible.
     Because of the prosecutor's breach, defendant moved, on
October 17, 1991, (1) to set aside the judgment; (2) for withdrawal
of his guilty pleas; and (3) for dismissal of the charges against
him. These motions were denied by the District Court. However, to
remedy the prosecutor's breach, Judge Sherlock disqualified himself
from the case, vacated the prior judgment, sealed the record, and
ordered that defendant be immediately resentenced by another local
District Judge, Dorothy McCarter.
     Defendant was resentenced by Judge McCarter on November 8,
1991.    Prior to that sentence, the prosecutor abided by the terms
of the plea     agreement and made    no recommendation regarding
imprisonment.     However, Judge McCarter (after noting lack of
support from the prosecutor) sentenced defendant to two consecutive
15-year terms.   Defendant was designated a dangerous offender for
purposes of parole eligibility.
     Defendant appeals from Judge Sherlock's refusal to allow a
withdrawal of guilty pleas and from his refusal to dismiss the
charges against defendant.    Additionally, defendant appeals from
Judge McCarter1s order of incarceration.
     On appeal, defendant asserts that because he relied on the
prosecutor's promises, and because the prosecutor breached the plea
agreement, the charges against him should be dismissed.      As an
alternative, defendant asserts that he should be allowed to
withdraw his pleas of guilty which were entered in reliance on a
promise that was broken.      At the very least, defendant seeks
specific performance of the plea agreement, which he contends would
bind the District Court by the social worker's recommendation.
     The parties do not dispute that defendant was entitled to some
remedy because of the prosecutor's breach of the plea agreement.
Neither does the court.      Central to this appeal is defendant's
dissatisfaction with the District Court's choice of remedies to
cure the prosecutor's breach.
     The two remedies that are available for the government's
breach of a plea agreement in connection with sentencing are the
withdrawal of a guilty plea or specific performance of the plea
agreement. Santobellov.NewYork (1971), 404 U.S. 257, 263, 92 S. Ct.

495, 499, 30 L. Ed. 2d 427, 433. The law is clear that the choice
of remedy for a breach of a plea agreement is within the sound
discretion of the trial court. United States v Nelson (11th Cir. 1988),
                                             .

837 F.2d 1519, 1525; Santobello, 404 U.S. at 263.

     We conclude that when Judge Sherlock refused to dismiss the
charges against defendant, he did not abuse his discretion.
Neither did he abuse his discretion when he (1) vacated the
judgment: (2) sealed the record: (3) ordered that defendant be
resentenced before a different judge who was untainted by the
breach of the plea agreement; and (4) specifically directed the
prosecutor "to stick with the plea agreement in front of Judge
McCarter1'during the subsequent hearing.
     By his order, Judge Sherlock effectively mandated the remedy
of   specific performance    of   the   plea   agreement.        Specific
performance entitles a defendant to a resentencing by a different
judge in accordance with the plea         agreement.        United States v.

Tobon-Hernandez (11th Cir. 1988), 845 F.2d 277, 280; Santobello, 404

U.S. at 263.   At the new sentencing hearing, the prosecution must
perform the promise it made in the plea agreement.          Gamble v State
                                                                   .
(Nev. 1979),    604 P.2d    335, 338.     This remedy of         specific
performance is an alternative remedy to allowing defendant to
withdraw his guilty plea.    Santobello, 404 U.S. at 263.

     Contrary to defendant's assertion, specific performance does
not entitle defendant to the implementation of the State's
recommendation. The court is not bound by the plea agreement and
required to follow the recommendations of the prosecutor because
the court is not a party to the plea agreement.      The plea bargain
is between the state and the defendant.        It binds the parties, not
the court.    State v Jacobson (l992), 252 Mont. 94, 96, 826 P.2d 555,
                    .

556. Judge McCarter was free to disregard the recommendations of
the   parties    and    to    sentence    defendant   according    to    her
determinations. See Benjamin V. McComick ( 1 9 9 0 ) , 243 Mont. 252, 792

P.2d 7.   She did just that.
      Despite    Judge       McCarterVs    final   decision   to        order
incarceration, defendant was afforded relief from the prosecutor's
breach.      Defendant received specific performance of the plea
bargain because        (1) he was resentenced by       a judge who was
unprejudiced by the breach ; and (2) at resentencing, the prosecutor
complied with the plea agreement by not requesting that defendant
be sentenced to a prison term.       In short, defendant was placed in
the position he would have been in had the State not breached the
plea agreement. Any prejudice as a result of the State's breach of
the plea agreement was cured at the resentencing.          Consequently,
defendant is not entitled to additional relief.
      We affirm Judge Sherlock's order for the resentencing of
defendant before a different judge.         We also affirm the sentence




We concur:
