                                                                                       September 9 2014


                                          DA 13-0812

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 239



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

ROBERT AARON ZUNICK,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC 12-94
                        Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Mathew M. Stevenson, Attorney at Law, Missoula, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Brenda K. Elias, Assistant
                        Attorney General, Helena, Montana

                        Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana



                                                   Submitted on Briefs: July 30, 2014
                                                              Decided: September 9, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     In February 2012, Robert Zunick was charged with felony criminal endangerment and

misdemeanor aggravated driving under the influence. In June 2012, he entered into a plea

agreement with the State, pleading guilty to both counts. The Fourth Judicial District Court

entered Judgment on September 17, 2012. The court declined to adopt the sentence

recommendation contained in the plea agreement. On September 17, 2013, Zunick moved to

withdraw his guilty plea. The District Court denied the motion. Zunick appeals. We vacate

Zunick’s sentence and remand in accordance with this Opinion.

                                          ISSUE

¶2     Did the District Court err when it did not provide Zunick the opportunity to withdraw

his guilty plea at sentencing pursuant to § 46-12-211(4), MCA, and in subsequently denying

Zunick’s motion to withdraw his plea?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     On February 14, 2012, officers with the Missoula County Sheriff’s Department

responded to a call of a possible impaired driver on Highway 93 near Bird Lane. Upon

arriving at the location, officers found Zunick and his vehicle in a roadside ditch. Zunick

displayed signs of intoxication and admitted to being drunk. At the detention center

Zunick’s blood alcohol measured 0.202. He was charged with felony criminal endangerment

and aggravated driving under the influence, a high misdemeanor. This was his third DUI.

Zunick pleaded not guilty to both counts on March 13, 2012.

¶4     On June 19, 2012, and after obtaining counsel, Zunick entered into a plea agreement

pursuant to § 46-12-211(1)(b), MCA, under which the State agreed to seek a sentence of six


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years, three years suspended, for the criminal endangerment charge and one year with all but

time served suspended for the DUI charge. Zunick was entitled to recommend any sentence

allowed by law and intended to seek a deferred sentence.             Standard conditions of

supervision, as well as some special conditions, were included in the agreement.

¶5     According to the terms of the plea agreement, Zunick understood that the District

Court was not bound by the Agreement and had the authority to impose the maximum

penalty for the offenses charged, but if the court chose not to follow the plea bargain, Zunick

would be “so informed and allowed to withdraw [his] plea(s) of guilty.” The District Court

conducted a change of plea hearing on the day the plea agreement was signed, accepted

Zunick’s guilty pleas, and ordered a presentence investigation (PSI). The PSI report

supported the State’s sentence recommendation and recommended against a deferred

sentence. The PSI also recommended that Zunick be placed in the Missoula Intensive

Supervision Program.

¶6     On September 4, 2012, the District Court held a sentencing hearing at which both

Zunick and his counsel argued for imposition of a deferred sentence. The State, as agreed,

recommended a six year commitment to the Department of Corrections, with three years

suspended. The court sentenced Zunick to 10 years suspended with the conditions included

in the plea agreement. The court then asked if Zunick had any questions about the imposed

conditions and whether Zunick agreed with the sentence imposed by the court. Zunick had

no questions and stated that he agreed with the court’s sentence. The District Court issued

its written order of judgment on September 17, 2012.




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¶7    On September 17, 2013, Zunick moved to withdraw his guilty plea alleging that the

District Court failed to comply with § 46-12-211(4), MCA. Section 46-12-211(4), MCA,

provides:

             If the court rejects a plea agreement of the type specified in subsection
      (1)(a) or (1)(b), the court shall, on the record, inform the parties of this fact
      and advise the defendant that the court is not bound by the plea agreement,
      afford the defendant an opportunity to withdraw the plea, and advise the
      defendant that if the defendant persists in the guilty or nolo contendere plea,
      the disposition of the case may be less favorable to the defendant than that
      contemplated by the plea agreement.

Zunick argued that he did not understand at the time his sentence was imposed that his

ten-year suspended sentence constituted a rejection of the plea agreement. He asserted

that the District Court had not informed him that it was rejecting the agreement and had

not offered him the opportunity to withdraw his guilty plea. Zunick maintained that the

court’s error constituted good cause to withdraw his plea.

¶8    On October 28, 2013, the District Court denied Zunick’s motion. The court noted that

Zunick’s ten-year suspended sentence was both more severe and more lenient than the

State’s recommended six-year sentence—more severe because it was four years longer and

less severe because it did not require any incarceration time.          Additionally, while

acknowledging that a “better record” could have been made memorializing Zunick’s

acceptance of the sentence, the court concluded that a “fair reading of sentencing

proceedings, giving precedence to substance over form, leads to an inescapable conclusion

that [Zunick] understood the decision and knowingly and intelligently agreed to accept it.”

¶9    Zunick filed a timely appeal.

                               STANDARD OF REVIEW


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¶10    The District Court’s denial of Zunick’s motion to withdraw his guilty plea was based

upon the court’s interpretation of § 46-12-211, MCA. We review a court’s conclusions of

law and interpretation of statutes de novo for correctness. State v. Petersen, 2011 MT 22,

¶ 8, 359 Mont. 200, 247 P.3d 731.

                                       DISCUSSION

¶11     Did the District Court err when it did not provide Zunick the opportunity to
withdraw his guilty plea at sentencing pursuant to § 46-12-211(4), MCA, and in
subsequently denying Zunick’s motion to withdraw his plea?

¶12    The parties do not dispute that the plea agreement between Zunick and the State was a

“(1)(b)” agreement, meaning that it was entered pursuant to § 46-12-211(1)(b), MCA. Under

this statute, the prosecutor and the defendant may enter into a plea agreement under which a

prosecutor agrees that a specific sentence is the appropriate disposition of the case. As noted

above, if the court rejects a (1)(b) agreement, the provisions of § 46-12-211(4), MCA,

obligate the court to: (1) inform the defendant that it is rejecting the plea agreement; (2)

advise the defendant that the court is not bound by the plea agreement; (3) afford the

defendant the opportunity to withdraw his guilty plea; and (4) advise the defendant that if he

persists in the guilty plea, the disposition of the case may be less favorable to him than that

contemplated by the plea agreement. Zunick maintains the court failed to comply with this

provision at the sentencing hearing, and that it erred in denying his subsequent motion to

withdraw his plea.

¶13    The State counters that the District Court expressly informed Zunick at his change of

plea hearing that it was not bound by the plea agreement and that Zunick could withdraw his

guilty plea if the court chose to diverge from the sentence outlined in the plea agreement.


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Zunick acknowledged his understanding.            The State further argues that at Zunick’s

sentencing hearing, the court “explained its reasoning for departing from the terms of the

plea agreement, with the primary concern being Zunick’s daughter,” and asked Zunick if he

agreed. Zunick stated he did. Additionally, the State argues that the court complied with the

statutory requirements when it sentenced Zunick to a fully suspended sentence, which “is

precisely the type of sentence his attorney argued for” at sentencing. The State therefore

concludes that Zunick’s request to withdraw his guilty plea constitutes a “change of heart”

but not good cause.

¶14    In reply, Zunick asserts that his confusion at sentencing stemmed, in part, from not

knowing how the court’s suspended sentence differed from the deferred sentence referenced

in the plea agreement, other than in length. Zunick understood that at the time of sentencing

both he and his counsel argued for a deferred sentence. Appellate counsel for Zunick

acknowledges, however, that trial counsel misspoke at the sentencing hearing when she

stated “I guess what we would be asking of the court as outlined in our sentencing

memorandum, is to consider either a fully suspended sentence with [Intensive Supervision

Program], if that’s what the court so orders.” Appellate counsel maintains that this was a

“momentary misstatement, and from the beginning, Zunick’s counsel was pursuing a

deferred imposition of sentence – on his behalf.”

¶15    It is undisputed that the court informed Zunick at the June change of plea hearing that

it was not bound by the plea agreement and if it chose to reject the agreement, it would

inform Zunick and allow him the opportunity to withdraw his guilty plea. At the sentencing

hearing conducted 10 weeks later, however, the court did not tell Zunick that it was rejecting


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the plea agreement nor did it offer Zunick an opportunity to withdraw his guilty plea. At

neither hearing did the court explain to Zunick that if he persisted in his plea of guilty, the

disposition of the case could be less favorable than that provided in the plea agreement.

¶16    The question before us is one of first impression. We have not been previously called

upon to analyze the sufficiency of a § 46-12-211(4), MCA, colloquy, or to decide at what

point in the proceedings the colloquy must occur. What we must determine is whether a

district court is required to recite all requirements set forth in § 46-12-211(4), MCA, at the

time it rejects a § 46-12-211(1)(b), MCA, plea agreement, or whether partial recitation of the

requirements at different hearings is adequate. The wording of the statute answers the

question. It provides that “[i]f the court rejects a plea agreement . . . the court shall, on the

record, inform the parties of this fact” and provide the ensuing advisories. Clearly, the

statute compels the giving of the advisory on the record at the time the plea agreement is

actually rejected, and not before. The office of this Court is to ascertain and declare what is

contained in a statute. Section 1-2-101, MCA. The statute can reasonably be interpreted in

only one way.

¶17    The court told Zunick at the change of plea hearing that if it decided not to honor the

plea agreement, it would let him know and give him a chance to think about it, and let him

withdraw his plea if he wanted to do so. Nonetheless, when the court actually rejected the

plea agreement over two months later at sentencing, it did not give Zunick the options

promised at the change of plea hearing, nor did it comply in any respect with the requisites of

§ 46-12-211(4), MCA.




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¶18     We reject the notion that the statute has been satisfied when a district court advises a

defendant of the consequences of its possible rejection of a plea agreement in part at the

change of plea hearing and then in part at a later sentencing hearing. We hold that the full

statutory advisory required by § 46-12-211(4), MCA, must be given at the time the court

notifies the defendant that it is rejecting the plea agreement, as the statute affirmatively

requires.

¶19     Because the District Court departed from the plea agreement without providing

Zunick with the full advisory required under § 46-12-211(4), MCA, we must vacate his

sentence.

                                       CONCLUSION

¶20     For the foregoing reasons, we vacate Zunick’s sentence and reverse and remand this

matter to the District Court with instructions to conduct another sentencing hearing. If the

court accepts the plea agreement at this hearing, the court shall sentence Zunick within the

terms set forth in the plea agreement. If the court rejects the plea agreement again, it must

issue the full statutory advisement and give Zunick the opportunity to withdraw his guilty

plea.

                                                    /S/ PATRICIA COTTER

We Concur:

/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ MICHAEL E WHEAT



Chief Justice Mike McGrath, dissenting.



                                               8
¶21    I dissent. At the sentencing hearing on September 4, 2012, Zunick stated he agreed

with the ten-year suspended sentence imposed by the District Court.              He stated he

understood he could be sentenced to ten years in prison for violating the terms of that

suspended sentence. He stated he had reviewed the recommended conditions listed in the

presentencing investigation report, and had no questions about them. On March 26, 2013,

Zunick violated the conditions of his suspended sentence by driving without the

authorization of his probation officer, although a petition for revocation was not filed at that

time. On May 24, 2013, Zunick moved to modify the condition prohibiting him from driving

without authorization. The motion was denied June 18, 2013. Zunick did not move to

withdraw his plea until September 17, 2013, after he had already violated a condition of his

sentence and failed in his attempt to have that condition modified.

¶22    Zunick acquiesced in the sentencing proceedings and took advantage of the benefits

of a completely suspended sentence for a full year before moving to withdraw his plea.

Zunick was not in any way coerced or misled with respect to the consequences of his plea.

He simply found the conditions advantageous, until he didn’t. I would affirm the order of

the District Court denying Zunick’s motion to withdraw plea.


                                                   /S/ MIKE McGRATH




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