                                            No. 96-093

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                1997



STATE OF MONTANA,

         Plaintiff and Respondent,

 v.

LLOYD F. LONE ELK,

         Defendant and Appellant.




APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and for the County of Yellowstone,
                       The Honorable Todd Baugh, Judge presiding.



COUNSEL OF RECORD:

                For Appellant:

                       Roberta A. Drew, Deputy Public Defender, Billings, Montana

                For Respondent:

                       Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant
                       Attorney General, Helena, Montana; Stacy Farmer, Deputy Yellowstone
                       County Attorney, Billings, Montana


                                                               Submitted on Brief: August 7, 1997

                                                                             Decided: December 18, 1997
Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the Court.


       Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal

Operating Rules, this decision shall not be cited as precedent and shall be published by its

filing as a public document with the Clerk of this Court and by a report of its result to the

West Group and to State Reporter Publishing Company.

       In proceedings before the Thirteenth Judicial District Court, Yellowstone County,

Lloyd F. Lone Elk pled guilty to a charge of felony domestic abuse of his wife. He now

appeals,arguing that his wife’s extra-judicial statement may not be admitted into evidence

as an excited utterancewithout independentevidence of the underlying startling event, and

that a conviction based on hearsay violates the right to confrontation under the U.S. and

Montana Constitutions. We affirm, basedon our conclusionthat when Lone Elk enteredhis

guilty plea, he waived appealof both issueswhich he now raises.

       On May 27, 1995, Lone Elk’s wife approached two police officers on a Billings,

Montana street, yelling hysterically that her husbandhad beenbeating her up and pushedher

down. Moments later, Lone Elk approachedand identified himself, whereupon he was

arrestedfor domestic abuse. Lone Elk’s wife subsequentlydecidednot to testify againsthim.

       The information tiled againstLone Elk allegedthat “he fought with and pushedto the

ground Beverly Lone Elk, his wife, scaringher.” The State proposed to offer into evidence

the police officers’ testimony concerning Mrs. Lone Elk’s statement to them when she first

approachedthem. Lone Elk’s position was that this statement must be suppressed.

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       On September6, 1995, Lone Elk entereda plea of guilty, reserving the right to argue

his yet-to-be-filed motion to dismiss based upon his contention that Mrs. Lone Elk’s

statement to the two police officers must be suppressed. At the top of the written plea

agreement form was a handwritten “NOTE”:

       State and Defendant and the Ct. agree that if the Defense prevails on their
       Motion regarding confrontation of accuserand hearsay exceptions the D will
       be allowed to w/draw plea.

The written plea agreement also included the hand-written notation: “Conditional plea ct.

retains jurisdiction to settle legal issues.”

       At the end of the change of plea hearing, the court sentencedLone Elk to two years

in prison, all suspended. Subsequently, agreedand anticipated under the plea agreement,
                                      as

Lone Elk filed his motion to dismiss. In December 1995, after briefing and a hearing on the

legal issues,the court denied the motion to dismiss. Lone Elk appeals.

       Our review of the record concerningthe plea agreementas discussedin open court on

September6, 1995, and as memorialized in the written plea agreementestablishesthat the

agreementhad nothing to do with reserving any issuefor appeal. Rather, the agreementwas

that Lone Elk would be allowed to withdraw his guilty plea if he prevailed on the motion to

dismiss which he planned to file in District Court

       No mention was made in the court below that Lone Elk was reserving any issuesfor

appealunder 5 46-12-204(3), MCA. Therefore, we conclude that the general rule applies:

all allegednonjurisdictional defects, including claims of constitutional violations, are waived


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upon entry of a guilty plea. The defendant may only attack the voluntary and intelligent

characterof his plea. &   Stilson v. State(1996), 278 Mont. 20,22,924 P.2d 238,239. Lone

Elk doesnot claim on appealthat his guilty plea was not voluntarily or intelligently entered.

       BecauseLone Elk failed to reserveany issuesfor appealunder 5 46-12-204(3), MCA,

when he pleaded guilty, he waived appeal concerning the admissibility of his wife’s

statement, and his conviction is affirmed.


                                                                       Justice


We Concur:




            Justices
