                                                                                              09/19/2017


                                          DA 16-0462
                                                                                          Case Number: DA 16-0462

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2017 MT 233N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MICHAEL HENRY,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC-2015-334
                        Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Paul M. Leisher, Paoli Law Firm, Missoula, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Ryan W. Aikin, Assistant
                        Attorney General, Helena, Montana

                        Kirsten H. Pabst, Missoula County Attorney, Suzy Boylan, Deputy
                        County Attorney, Missoula, Montana



                                                    Submitted on Briefs: July 19, 2017

                                                               Decided: September 19, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     In June 2015, Henry was charged with felony aggravated assault and the following

misdemeanor charges: partner or family member assault (PFMA), criminal destruction or

tampering with a communication device, and obstructing a peace officer. On July 10,

2015, Henry entered an initial plea of not guilty. On October 16, 2015, the Fourth

Judicial District Court, Missoula County, conducted a change-of-plea hearing at which

Henry entered into a plea agreement, pleading guilty to the aggravated assault and PFMA

charges. There was initial confusion at the hearing regarding whether Henry’s plea

agreement was made pursuant to § 46-12-211(1)(b) or (1)(c), MCA. The District Court

clarified that the agreement was made pursuant to (1)(c) and Henry would not have the

right to withdraw his plea in the event the District Court did not accept the State’s

recommendation or request. The court then gave Henry the opportunity to withdraw his

plea at the hearing but the record reflects further confusion ensued at this stage with the

court, the lawyers, and Henry talking over one another. Nonetheless, Henry subsequently

indicated his understanding and based upon his response, the court ordered the

pre-sentence investigation and scheduled the sentencing hearing. Per the agreement, the


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State dismissed the remaining charges and recommended a five-year commitment to the

Department of Corrections and allowance for the defense to argue for a lesser sentence.

However, four months later and a few weeks prior to the scheduled April 2016

sentencing hearing, Henry moved to withdraw his guilty plea. The District Court denied

his motion.      Subsequently, the court adopted the State’s recommended disposition.

Henry appeals the District Court’s denial of his motion to withdraw his guilty plea. We

affirm.

¶3        The only issue before us is whether the District Court erred in denying Henry’s

motion. The record supports the court’s ruling. It is evident from the record that the

court adequately clarified the earlier confusion pertaining to Henry’s right to withdraw

his plea. Consequently, the District Court’s findings are not clearly erroneous and its

conclusion is not incorrect.

¶4        We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. In

the opinion of the Court, the case presents a question controlled by settled law or by the

clear application of applicable standards of review. The District Court’s interpretation

and application of the law were correct.

¶5        Affirmed.


                                                 /S/ MICHAEL E WHEAT




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We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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