                                      No. DA 06-0148

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 77

                                                  ____________________________________

STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

ANTHONY DEAN IAFORNARO,

              Defendant and Appellant.

                                                  ____________________________________

APPEAL FROM:         District Court of the Eighteenth Judicial District,
                     In and for the County of Gallatin, Cause No. DC 03-191,
                     The Honorable Holly Brown, Presiding Judge.


COUNSEL OF RECORD:

              For Appellant:

                     Chad Wright, Montana Appellate Defender Office, Helena, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Carol E. Schmidt, Assistant
                     Attorney General, Helena, Montana

                     Marty Lambert, Gallatin County Attorney, Bozeman, Montana

                                                  ____________________________________

                                                       Submitted on Briefs: January 24, 2007

                                                                    Decided: March 20, 2007

Filed:

                   _____________________________________________
                                       Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Anthony Dean Iafornaro (Iafornaro) appeals from the District Court’s denial of his

motion to withdraw his plea of nolo contendere. We affirm.

¶2     We review whether the District Court correctly denied Iafornaro’s motion to

withdraw his plea of nolo contendere?

                     FACTUAL AND PROCEDURAL HISTORY

¶3     The State charged Iafornaro on July 9, 2003, with felony attempted sexual assault

for accosting a 15-year-old girl while she was cleaning his motel room. Iafornaro entered

a plea of not guilty to the charge and requested that the court order a mental examination

to determine his fitness to proceed to trial. The court ordered the mental examination and

continued Iafornaro’s trial date.

¶4     The court determined at a hearing on December 23, 2003, that Iafornaro lacked

fitness to stand trial. The court committed Iafornaro to the Department of Health and

Human Services for as “long as the unfitness endures.” The court held another hearing

on March 11, 2004, where all parties agreed that Iafornaro was fit to proceed to trial on

the felony attempted sexual assault charge.

¶5     Iafornaro entered into a plea agreement with the State on July 28, 2004. The State

agreed to drop Iafornaro’s felony attempted sexual assault charge in exchange for

Iafornaro’s plea of nolo contendere to a charge of felony attempted kidnapping. The

agreement specified that the State would proceed to trial on the original felony charge of

attempted sexual assault if the court declined to accept Iafornaro’s plea of nolo

contendere to felony attempted kidnapping. The court accepted Iafornaro’s plea and

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sentenced Iafornaro on February 8, 2005, to Montana State Prison for ten years with no

time suspended.

¶6      Iafornaro filed a motion to withdraw his guilty plea on November 2, 2005.

Iafornaro argued that the court had failed to inform him of the “lesser included offense of

unlawful restraint” when the court accepted his plea of nolo contendere to his charge of

felony attempted kidnapping. He contended that his plea was involuntary in light of the

court’s omission and his “documented history of serious mental illness.” The State

responded that the lesser included offense of unlawful restraint was irrelevant to

Iafornaro’s decision in light of the fact that he had no possibility of going to trial on the

felony attempted kidnapping charge.        The State pointed out that Iafornaro’s plea

agreement stipulated that the State would proceed to trial on the charge of felony

attempted sexual assault if the court did not accept his plea of nolo contendere to felony

attempted kidnapping. The court determined that Iafornaro had failed to establish good

cause to withdraw his plea. This appeal followed.

                               STANDARD OF REVIEW

¶7      We review Iafornaro’s motion to withdraw his plea of nolo contendere to

determine whether his plea was voluntary. State v. Muhammad, 2005 MT 234, ¶ 12, 328

Mont. 397, ¶ 12, 121 P.3d 521, ¶ 12. Our determination of whether Iafornaro’s plea was

voluntary presents a mixed question of law and fact that we review de novo. Muhammad,

¶ 12.




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                                      DISCUSSION

¶8     Did the District Court correctly deny Iafornaro’s motion to withdraw his plea of

nolo contendere?

¶9     Section 46-16-105(2), MCA, authorizes a district court to permit a defendant to

withdraw his plea of nolo contendere upon a showing of “good cause.” Muhammad, ¶

14. Iafornaro argues that the District Court’s failure to inform him that unlawful restraint

is a lesser included offense of felony attempted kidnapping constitutes “good cause.” He

suggests that the court’s omission prevented him from entering a “knowing, intelligent

and voluntary” plea.

¶10    Iafornaro cites State v. Sanders, 1999 MT 136, 294 Mont. 539, 982 P.2d 1015, and

State v. Rave, 2005 MT 78, 326 Mont. 398, 109 P.3d 753, for the proposition that a

district court’s failure to inform a defendant of an “applicable lesser included offense[]”

establishes “good cause.” The defendants in Sanders and Rave both waived their right to

submit an applicable lesser included offense instruction to a jury when they entered guilty

pleas pursuant to their respective plea agreements with the State. Sanders, ¶¶ 4-5; Rave,

¶¶ 16-17. The courts had not informed the defendants, however, as to what lesser

included charges that they would be waiving. Sanders, ¶¶ 20-21; Rave, ¶¶ 17-18. The

Court determined that these defendants could not have knowingly and intelligently

waived their right to convince a jury that they were guilty of a lesser included offense

when the defendants had not been informed of what those lesser included offenses might

have been. Sanders, ¶¶ 22-23; Rave, ¶ 19. The Court held that these defendants had

established “good cause” to withdraw their pleas. Sanders, ¶¶ 23, 32; Rave, ¶ 19.

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¶11    Iafornaro argues that he also waived his right to submit a lesser included offense

instruction to a jury without first being informed of what those lesser included offenses

might have been. Iafornaro’s plea agreement stipulated, however, that the State would

proceed to trial on the felony attempted sexual assault charge if the court did not accept

his plea of nolo contendere to the felony attempted kidnapping charge. Only those lesser

included offenses applicable to his charge of felony attempted sexual assault would have

been relevant to Iafornaro’s decision. Iafornaro does not allege that the court failed to

inform him as to any of the lesser included charges applicable to felony attempted sexual

assault.

¶12    We cannot fault the court or the State for failing to inform Iafornaro of any lesser

included offense not relevant to his decision to enter a plea of nolo contendere. Iafornaro

had no right to be informed of the possibility of submitting a lesser included offense

instruction to the jury when no such possibility existed. State v. Thee, 2001 MT 294, ¶

24, 307 Mont. 450, ¶ 24, 37 P.3d 741, ¶ 24.

¶13    Iafornaro also argues that his “mental illness and confusion rendered his plea

unknowing, unintelligent, and involuntary.” The court took care to ensure, however, that

Iafornaro’s mental illness did not interfere with the voluntariness of his plea agreement.

The court ordered Iafornaro to be placed in the care of the Department of Health and

Human Services on December 23, 2003, until he was deemed fit to proceed. Iafornaro,

his doctors, his counsel, and the court later agreed at a hearing on March 11, 2004, that

Iafornaro was fit to proceed.



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¶14   The record indicates that no omission, misinformation, or mental incapacity

hindered Iafornaro’s ability to enter knowingly and intelligently into his plea agreement.

The District Court correctly decided that Iafornaro had failed to establish good cause for

withdrawing his plea of nolo contendere.

¶15   Affirmed.

                                                       /S/ BRIAN MORRIS


We Concur:


/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ JIM RICE




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