                                                                                    January 18 2011
                                        DA 10-0328

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2011 MT 4N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

TERRY SCOTT MORRISSETTE,

              Defendant and Appellant.



APPEAL FROM:          District Court of the Nineteenth Judicial District,
                      In and For the County of Lincoln, Cause No. DC 09-02
                      Honorable Michael C. Prezeau, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Joslyn Hunt, Chief Appellate Defender; Matthew M. Wilcox,
                      Assistant Appellate Defender; Helena, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; Tammy K Plubell,
                      Assistant Attorney General; Helena, Montana

                      Bernard G. Cassidy, Lincoln County Attorney; Libby, Montana



                                               Submitted on Briefs: January 5, 2011

                                                          Decided: January 18, 2011


Filed:

                      __________________________________________
                                       Clerk
Justice Beth Baker delivered the Opinion of the Court.

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

Rules, this case is decided by memorandum opinion and shall not be cited as precedent.

We conclude the District Court’s findings of fact are supported by substantial evidence

and the legal issues are controlled by settled Montana law, which the District Court

correctly interpreted.

¶2     Terry Morrissette (Morrissette) appeals the denial of his request to withdraw a

guilty plea.

¶3     We affirm.

¶4     By information filed on January 6, 2009, the State charged Morrissette with

Sexual Assault and Sexual Intercourse Without Consent. On December 14, 2009, a

pre-trial hearing took place. The parties subsequently reached a plea agreement and a

change of plea hearing was held later that same day. Pursuant to the plea agreement,

Morrissette pled guilty to the charge of Sexual Assault.

¶5     On January 22, 2010, Morrissette filed a motion to withdraw his plea. He argued

that his plea was not voluntary. The District Court concluded that Morrissette voluntarily

entered his plea and denied his motion. Morrissette now appeals the denial of his motion

and argues that at the time of his plea he was under extreme emotional distress that

rendered his plea involuntary.

¶6     Since the issue whether a plea was voluntarily made is a mixed question of law

and fact, we review a district court’s denial of a motion to withdraw a defendant’s guilty

plea de novo. State v. Swensen, 2009 MT 42, ¶ 9, 349 Mont. 268, 203 P.3d 786 (citing

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State v. McFarlane, 2008 MT 18, ¶ 8, 341 Mont. 166, 176 P.3d 1057). We review the

District Court’s underlying factual findings to determine whether the findings are clearly

erroneous. Id. (citing State v. Warclub, 2005 MT 149, ¶ 23, 327 Mont. 352, 114 P.3d

254).

¶7      In determining the voluntariness of a guilty plea, this Court uses the standard set

forth in Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463 (1970). Swensen, ¶ 12

(citing State v. Lone Elk, 2005 MT 56, ¶ 21, 326 Mont. 214, 108 P.3d 500). In Warclub,

we reiterated that we will not overturn a district court’s denial of a motion to withdraw a

guilty plea if “the defendant was aware of the direct consequences of such a plea, and if

his plea was not induced by threats, misrepresentation, or an improper promise such as a

bribe.” Warclub, ¶ 32 (citing Brady, 397 U.S. at 755, 90 S. Ct. at 1472).

¶8      We have reviewed the record, including the transcripts of proceedings before the

District Court, and have considered both the District Court’s comments during the

motions hearing and the colloquy at the change of plea hearing. Applying the standards

set forth in Warclub and Swensen, we conclude that the District Court’s denial of

Morrissette’s motion to withdraw his guilty plea was correct.

¶9      The judgment of the District Court is affirmed.


                                                          /S/ BETH BAKER

We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ JIM RICE

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