                                                NO.     91-468
                           IN THE SUPREME COURT OF THE STATE OF MONTANA




      STATE OF MONTANA,
                                    Plaintiff and Respondent,
                  -vs-
      MICHAEL JOSEPH "MICK" JACOBSON,
                                    Defendant and Appellant.


      APPEAL FROM:                  District Court of the Second Judicial District,
                                    In and for the County of Silver Bow,
                                    The Honorable Mark P. Sullivan, Judge presiding.


      COUNSEL OF RECORD:
                           For Appellant:
                                    Leonard J. Haxby and Christine D. Somers, Butte,
                                    Montana
                           For Respondent:
                                    Hon. Marc Racicot, Attorney General, Helena, Montana
                                    Elizabeth L. Griffing, Assistant Attorney General
                                    Robert M. McCarthy, County Attorney; Brad Newman,
                                    Deputy, Butte, Montana



                                                      Submitted on Briefs:   Jan. 16, 1992
                                                                  Decided:   February 25, 1992




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      S'iAI'E OF MirNl'ANA
Chief Justice J. A. Turnage delivered the Opinion of the Court.
    Michael Joseph "MickIvJacobsen (Jacobsen) appeals a judgment
of the Second Judicial District of the State of Montana, Butte-
Silver Bow County, which imposed a sentence on Jacobsen greater
than what was recommended in a plea-bargain agreement. We affirm.
    Jacobsen presents the following issue:
     Did the District Court err by imposing a sentence greater than
that recommended in the plea-bargain agreement?
     On April 18, 1991, Jacobsen was charged by information with
two counts of burglary. By separate information on April 18, 1991,
Jacobsen was charged with one count of criminal possession of
dangerous drugs with intent to sell.   On April 18, 1991, Jacobsen
pled not guilty to these charges and was released on bond pending
trial.
     On June 17, 1991, Jacobsen was charged by information with one
count of misdemeanor assault. On June 17, 1991, Jacobsen executed
an acknowledgment of waiver of rights by plea of guilty and a pre-
trial agreement.   In the pre-trial agreement, Jacobsen agreed to
plead guilty to one count of burglary, one count of criminal
possession of dangerous drugs with intent to sell, and one count of
misdemeanor assault. In turn, the State in the pre-trial agreement
agreed to 1) move to dismiss one burglary count and 2) recommend to
the court a ten-year prison sentence with five years suspended for
criminal possession of dangerous drugs with intent to sell and
burglary, and six months in the county jail for the misdemeanor
assault charge, these sentences to run concurrently.
     At the sentencing hearing on July 12, 1991 and following a
review of the presentence investigation report, the District Court
chose not to follow the State's recommended sentences.         Instead,
the District Court sentenced Jacobsen to ten years imprisonment in
Montana State Prison for criminal possession of dangerous drugs
with intent to sell, ten years imprisonment in Montana State Prison
for burglary and six months imprisonment in county jail for
misdemeanor assault, these sentences to run concurrently.         From
these sentences, Jacobsen appeals.


     Did the District Court err by imposing a sentence greater than
that recommended in the plea-bargain agreement?
     Jacobson seeks specific performance of the plea-bargain
agreement.      Such a remedy is not available because the District
Court is not a party to the plea-bargain agreement and is not bound
by its terns.
     At the time Jacobsen executed the plea-bargain agreement, 5
46-22-204   ( 3 ) (a),   MCA   (1989)   ,   read as follows:
     A plea bargain agreement is an agreement between a
     defendant and a prosecutor that in exchange for a
     particular plea the prosecutor will recommend to the
     court a particular sentence. A judge may not participate
     in the making of, and is not bound by, a plea bargain
     agreement,    If a judge does not impose a sentence
     recommended by a prosecutor pursuant to a plea bargain
     agreement, the judge is not required to allow the
     defendant to withdraw a plea of guilty.
In State v. Buckman (l989), 236 Mont. 37, 42-43, 768 P.2d 1361,
1364, this Court held that because the judge is not a party to the
plea-bargain agreement, the remedy of specific performance is not
available. Furthermore, in Benjamin v. McCormick (1990), 243 Mont.
252, 255, 792 P.2d    7, 9, this Court, in considering whether
specific performance could bind a court to comply with a plea-
bargain   agreement, held   that lr[u]nder the present law, the
sentencing court was not a party to the bargain and was not subject
to its terms. The enforceabi.lityof the bargain is, therefore, not
an issue.
     Jacobsen further argues that because the judge stated at the
end of the June 17, 1991 arraignment hearing that "[rlight now it
looks like I'll go along with your plea agreement[, 1 " the judge
became a party to the plea-bargain agreement. The judge's comment,
made in passing and prior to the receipt of the ordered presentence
investigation report and the issuance of a final written judgment,
did not indicate the judgersunequivocal and binding acceptance of
the sentence recommended in the plea-bargain agreement.   When the
statement is read in the context of the entire record, it becomes
clear that sentencing remained conditional upon the judgersreview
of the presentence investigation report.       We also note that
Jacobsen was made aware on two occasions that sentencing was in the
sole province of the judge, once when he executed the acknowledg-
ment of waiver of rights by plea of guilty and once verbally by the
judge during the June 17, 1991 arraignment hearing.      We therefore
hold that the District Court committed no error when it imposed a

sentence upon Jacobsen greater t h a n t h a t recommended in the plea-
bargain agreement.




                                           Chief Justice

W e concur:
                                   February 25, 1992

                             CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


LEONARD J. HAXBY
CHRISTINE D. SOMERS
Attorneys at Law
P.O. Box 3008
Butte, MT 59702-3008


HON. MARC RACICOT, Attorney General
Elizabeth L. Griffing, Assistant
Justice Building
Helena, MT 59620


Robert M. McCarthy, County Attorney
Brad Newman, Deputy County Attorney
155 West Granite Street, Courthouse
Butte, MT 59701




ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTAN4    ,



BY:
 Depu
