                            NO.    96-414

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1997



STATE OF MONTANA,
          Plaintiff and Respondent,
    v.
DANNY GRUENDEMANN,
         Defendant and Appellant.




APPEAL FROM:   District Court of the Thirteenth Judicial District,
               In and for the County of Yellowstone,
               The Honorable Russell C. Fagg, Judge Presiding.


COUNSEL OF RECORD:
          For Appellant:
               L. Sanford Selvey 11, Chief Public Defender,
               Billings, Montana

         For Respondent:
               Honorable Joseph P. Mazurek, Attorney General;
               Tammy Plubell, Assistant Attorney General,
               Helena, Montana
               Dennis Paxinos, County Attorney; John Kennedy,
               Deputy County Attorney, Billings, Montana



                           Submitted on Briefs:    February 13, 1997
                                            Decided: April 1, 1997
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
     Danny Gruendemann pled guilty in the Thirteenth Judicial
District Court, Yellowstone County, to sexual intercourse without
consent. He appeals from the court's order denying his motion to
withdraw that plea.    We affirm.
     The issues are whether the District Court abused its discre-
tion when it refused to allow Gruendemann to withdraw his guilty
plea, and whether the State of Montana is barred from prosecuting
Gruendemann for sexual intercourse without consent following his
prosecution and conviction in Wyoming for endangering the welfare
of children.
      On June 21, 1995, Gruendemann met a fourteen-year old girl,
A.W. , at a convenience store in Laurel, Montana.    A.W . informed
Gruendemann that she wanted to run away from home.     Gruendemann
offered to help her, but told her that he wanted to have sex with
her first.     Gruendemann engaged in sexual intercourse with A.W.,
who was incapable of legally consenting because of her age.
     A.W. then accompanied Gruendemann to Wyoming.     On June 24,
1995, Gruendemann and A.W. appeared at a homeless shelter in
Casper, Wyoming.     They were taken into custody after a shelter
worker became suspicious of Gruendemann's story that A.W. was his
daughter.    Gruendemann subsequently pled guilty in the State of
Wyoming to charges of child endangerment and was sentenced to serve
six months in the Natrona, Wyoming, County Jail.
     In July 1995, Gruendemann was charged in Yellowstone County
District Court with two counts of sexual intercourse without
consent upon A.W. outside Laurel, Montana, on or about June 21,
1995. Gruendemann pled guilty to one of those counts in December
1995.    He later moved to be allowed to withdraw his guilty plea,
based upon his Wyoming conviction.    The court denied Gruendemann's
motion and sentenced him to serve twenty-five years at the Montana
State Prison. Gruendemann appeals.
                               ISSUE 1
       Did the District Court abuse its discretion when it refused to
allow Gruendemann to withdraw his plea?
       Section 46-16-105 , MCA, provides that " [a] any time before
                        (2)                        t
or after judgment the court may, for good cause shown, permit the
plea of guilty to be withdrawn and a plea of not guilty substi-
tuted." In doing so, the court must consider:
            1. the adequacy of the court's interrogation at the
       time the plea was entered regarding the defendant's
       understanding of the consequences of the plea;
            2. the promptness with which the defendant attempts
       to withdraw the plea; and
            3. the fact that the plea was the result of a plea
       bargain in which the guilty plea was given in exchange
       for dismissal of another charge.
State v. Moddison (Mont. 1996), 926 P.2d 253, 257, 53 St.Rep. 961,
963.    This Court's standard of review on a denial of a motion to
withdraw a guilty plea is whether the court abused its discretion.
State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177.
       The record establishes that at the time he entered his guilty
plea, Gruendemann was adequately advised as to the consequences of
the plea.    He does not contend otherwise, except to argue that he
was not adequately informed of the consequences of his Wyoming
conviction.    As to the second factor listed above, the State
acknowledges that Gruendemann's request to withdraw his guilty plea
was promptly made prior to his sentencing.
     As to factor number three, Gruendemann argues that he has not
received any benefits of the plea agreement. The record does not
support that argument.   In exchange for Gruendemann's guilty plea,
the State dismissed one count of sexual intercourse without consent
and agreed to recommend a twenty-five-yearprison sentence on the
remaining count.   In dismissing one of the two counts of sexual
intercourse without   consent, the State reduced Gruendemann's
maximum potential prison sentence by half, from eighty years to
forty years.   In light of the nature of Gruendemann's offense, the
bleak results of his psychological and sex offender evaluations
(severe and chronic substance abuse, a "morally indiscriminate
sexual abuser," rehabilitation prognosis "quite guarded," and high
risk to reoffend), his criminal history, and the recommendations
set forth in the presentence investigation, we conclude that the
plea agreement represented a significant benefit to him.
    We hold that the District Court did not abuse its discretion
in denying Gruendemann's motion to withdraw his guilty plea.
                              ISSUE 2

     Is the State of Montana barred from prosecuting Gruendemann
for sexual intercourse without consent following his prosecution
and conviction in Wyoming for endangering the welfare of children?
     Section 46-11-504,MCA, provides:
    When conduct constitutes an offense within the concurrent
    jurisdiction of this state and of the United States or
     another state or of two courts of separate, overlapping,
     or concurrent jurisdiction in this state, a prosecution
     in any other jurisdiction is a bar to a subsequent
     prosecution in this state under the same circumstances
     barring further prosecution in this state if:
            (1) the first prosecution resulted in an acquittal
     or in a conviction and the subsequent prosecution is
     based on an offense arising out of thesame transac-
     tion [ . I
The court must determine whether the following three factors are
present: (1) the defendant's conduct constitutes an offense within
the jurisdiction of the court where the first prosecution occurred
and within the jurisdiction       the court where the subsequent
prosecution is pursued; (2) the first prosecution results in an
acquittal or a conviction; and (3) the subsequent prosecution is
based on an offense arising out of the same transaction.   State v.
Tadewaldt (Mont. 1996), 922 P.2d 463, 465, 53 St.Rep. 635, 636.
All three factors must be present before a subsequent prosecution
is barred.   Tadewaldt, 922 P.2d at 466.
     In the present case, the State concedes that the Wyoming
prosecution resulted in a conviction, so that factor        (2) is
present.   The parties disagree on whether factors (1) and (3) are
present.
     Factor (1) is whether the defendant's conduct constitutes an
offense within the jurisdiction of the court where the first
prosecution occurred (here,Wyoming) and within the jurisdiction of
the court where the subsequent prosecution is pursued (Montana).
Gruendemann points out that the State of Montana could have charged
him with endangering children, the offense with which he was
charged in Wyoming.   The State points out that, on the other hand,
there is no indication that the State of Wyoming had any basis upon
which       to   charge Gruendemann with   sexual   intercourse without
consent.
       Gruendemann cites State v. Zimmerman (1977), 175 Mont. 179,
187, 573 P.2d 174, 179, for the idea that             [tlhe measure of
concurrent jurisdiction is whether defendant's conduct subjected
him to prosecution in both jurisdictions." Gruendemann asserts,
citing Zimmerman, that if conduct gives rise to offenses chargeable
in both jurisdictions, concurrent jurisdiction lies regardless of
the particular offense ultimately charged in each jurisdiction.
       Zimmerman was charged in Montana state court with multiple
counts of embezzlement.        While he could have been charged with
embezzlement under federal statutes as well, he was instead charged
in federal district court with making false statements to secure
funds. Zimmerman therefore does not stand for the proposition that
concurrent jurisdiction exists when the two jurisdictions lack the
ability to charge the same offense.        In the present case, as the
State has noted, there is no indication that the State of Wyoming
had the ability to charge Gruendemann with the offense of which he
was convicted in Montana, sexual intercourse without consent.
Concurrent jurisdiction did not exist as to that offense.
       Because concurrent jurisdiction did not exist, we conclude
that we need not address whether factor (3) is present.         We hold
that    §   46-11-504,MCA, does not bar Gruendemann's prosecution in
Montana .
     Finally, Gruendemann argues that his conviction in Montana is
barred under          §       46-11-503 (b), MCA:
                                       (1)
     (1) When two or more offenses are known to the prosecu-
     tor, are supported by probable cause, and are consummated
     prior to the original charge and jurisdiction and venue
     of the offenses lie in a single court, a prosecution is
     barred if:
              .   *       .

     (b) the former prosecution resulted in a conviction that
     has not been set aside, reversed, or vacated[.]
 In order for         §       46-11-503,MCA, to apply, venue and jurisdiction of
the offenses must lie in a single court.                   Gruendemann maintains
this is true because both offenses could have been charged in
Montana district court.                 But both offenses were not charged in
Montana   district                court--Gruendemann was   charged   with   child
endangerment only in Wyoming, not in the "single courtu in which he
asserts venue and jurisdiction lie.                 We hold that Gruendemann's
Montana conviction of sexual intercourse without consent is not
barred under          §       46-11-503 (b), MCA.
                                       (1)
     We affirm the judgment of the District Court.




W e concur:
