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                                                                No. 99-119



                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                               2000 MT 7N




STATE OF MONTANA,

Plaintiff and Respondent,



v.



EVERETT C. NELSON,



Defendant and Appellant.




APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Thomas A. Olson, Judge presiding.




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COUNSEL OF RECORD:



For Appellant:



Anne H. Watson, Herman A. Watson, III; Watson Law Office, Bozeman, Montana



For Respondent:



Hon. Joseph P. Mazurek, Attorney General; Chris D. Tweeten,

Chief Counsel; Helena, Montana



Marty Lambert, Gallatin County Attorney; Todd Whipple, Deputy

Gallatin County Attorney, Bozeman, Montana




Submitted on Briefs: September 30, 1999

Decided: January 11, 2000

Filed:




__________________________________________

Clerk


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Justice Karla M. Gray delivered the Opinion of the Court.




    1. ¶Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
       Operating Rules, the following decision shall not be cited as precedent but shall be
       filed as a public document with the Clerk of the Supreme Court and shall be
       reported by case title, Supreme Court cause number, and result to the State Reporter
       Publishing Company and to West Group in the quarterly table of noncitable cases
       issued by this Court.
    2. ¶Everett Nelson (Nelson) appeals from the order of the Eighteenth Judicial District
       Court, Gallatin County, denying his motion to withdraw the guilty plea he entered in
       Gallatin County Justice Court (Justice Court). We affirm.
    3. ¶The sole issue on appeal is whether the District Court abused its discretion in
       denying Nelson's motion to withdraw his guilty plea.

                                                           BACKGROUND

    1. ¶On July 17, 1997, Nelson was arrested and charged in the Justice Court with
       partner or family member assault under § 45-5-206(c), MCA. He was taken to the
       Gallatin County Detention Center (Detention Center) for processing, where he
       inquired about posting bond to be released and was told that he could not post bond
       on this type of charge. He called his mother and subsequently was unable to call his
       attorney because the detainees' phone was "dead."
    2. ¶After being incarcerated overnight, Nelson was arraigned in Justice Court and,
       together with other detainees, generally advised of his rights. When his case was
       called, the Justice Court more specifically advised him of his rights. Nelson stated
       he wanted to plead guilty and signed a waiver of right to counsel. The Justice Court
       accepted his guilty plea and sentenced him.
    3. ¶After his release, Nelson sought the advice of counsel. On August 22, 1997, he
       filed a motion to withdraw his guilty plea and the Justice Court subsequently denied
       the motion.
    4. ¶Nelson immediately filed a notice of appeal in the District Court. He moved to


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        withdraw the guilty plea he had entered in the Justice Court and, after a hearing, the
        District Court denied his motion. Nelson appeals the District Court's denial of his
        motion to withdraw his guilty plea.

                                                   STANDARD OF REVIEW

    1. ¶We review a court's refusal to allow a defendant to withdraw a guilty plea for
        abuse of discretion; absent an abuse of that discretion, we will not disturb the court's
        decision. State v. Skroch (1994), 267 Mont. 349, 352, 883 P.2d 1256, 1259 (citations
        omitted). In determining whether a district court abused its discretion in denying a
        defendant's motion to withdraw a guilty plea, we consider the following three
        factors:

(1) the adequacy of the court's interrogation at the time the plea was entered regarding the
defendant's understanding of the consequences of the plea;



(2) the promptness with which the defendant attempts to withdraw the plea; and



(3) the fact that the [defendant's] plea was the result of a plea bargain in which the guilty
plea was given in exchange for dismissal of another charge.



State v. Schaff, 1998 MT 104, ¶ 18, 288 Mont. 421, ¶ 18, 958 P.2d 682, ¶ 18 (citations
omitted).

                                                             DISCUSSION

    1. ¶Did the District Court abuse its discretion in denying Nelson's motion to
       withdraw his guilty plea?
    2. ¶The parties agree that Nelson's motion to withdraw his guilty plea was timely and
       that no plea agreement was involved. Therefore, the second and third factors in our
       review of the court's decision are not at issue here. Nelson contends, however, that
       the Justice Court's interrogation regarding his understanding of the consequences of
       his plea was inadequate.

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    3. ¶With respect to the first factor, a trial court's interrogation of a defendant seeking to
        enter a guilty plea is sufficient if the judge

"examines the defendant, finds him to be competent, and determines from him that his
plea of guilty is voluntary, he understands the charge and his possible punishment, he is
not acting under the influence of drugs or alcohol, he admits his counsel is competent and
he has been well advised, and he declares in open court the fact upon which his guilt is
based."



Skroch, 267 Mont. at 354, 883 P.2d at 1260 (quoting State v. Mahoney (1994), 264 Mont.
89, 94-95, 870 P.2d 65, 69). Relying on this Court's long standing principle that "[a] plea
of guilty should be entirely voluntary, by one competent to know the consequences, and
should not be induced by fear, persuasion, promise, or ignorance" (State v. McBane
(1954), 128 Mont. 369, 371, 275 P.2d 218, 219 (citations omitted)) and pointing out that
he was not represented by counsel, Nelson advances a number of theories in contending
that the Justice Court's interrogation relating to the voluntariness of his plea was
inadequate.

    1. ¶Nelson first contends his plea was not voluntary because he was not adequately
       advised of his rights, the charge against him and the maximum penalty. Relying on
       State v. Jenni (1997), 283 Mont. 21, 25, 938 P.2d 1318, 1321, where we determined
       the city court record generally indicated that the defendant was informed of his
       rights but did "not delineate the specific rights of which he was advised," Nelson
       urges that the Justice Court record is insufficient to establish the adequacy of that
       court's advisements.
    2. ¶The Justice Court record before us, however, is distinguishable from the city court
       record in Jenni. Here, the record contains a checklist on which the court indicated
       that it advised the defendant of each of the specific rights listed--including the right
       to remain silent, the right to have the charges against him proved beyond a
       reasonable doubt, the right to a trial, and the right to confront witnesses against him
       and produce evidence in his own defense--and one right--the right to one jury trial
       either in justice court or on appeal to the district court--added by handwritten
       notation, as well as the maximum possible penalty and a caution that a guilty plea
       cannot be appealed. The court also checked off that it determined the defendant
       understood his rights and the charge against him. Moreover, during the District
       Court hearing on Nelson's motion to withdraw his guilty plea, Justice of the Peace

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        Scott Wyckman, before whom Nelson was arraigned, testified that it was his habit to
        collectively advise the detainees of these rights, and Nelson testified that he
        remembered the judge reading the charge against him and advising him of the
        maximum possible penalty.
   3.   ¶Nelson next asserts that the Justice Court did not advise him of his right to obtain
        pretrial release, urging that this failure to advise resulted in an involuntary guilty
        plea entered in reliance on Detention Center information that he could not post bond
        on the charge of partner or family member assault. Although the Justice Court
        should have advised Nelson regarding the circumstances under which he could
        obtain pretrial release, this requirement arises under § 46-7-102(1)(d), MCA, which
        applies to initial appearances rather than to the acceptance of guilty pleas. Nelson
        did not challenge the lack of proper procedure during his initial appearance under §
        46-7-102(1)(d), MCA, in the District Court and has not done so on appeal. Instead,
        he relied--and continues to rely--on § 46-12-210(1), MCA, which specifies the
        rights of which a defendant must be advised before a plea of guilty can be accepted,
        and which does not include rights regarding pretrial release. Therefore, no issue
        involving § 46-7-102(1)(d), MCA, is before us.
   4.   ¶Nelson also suggests that the Justice Court record erroneously indicates he was
        represented by counsel and, on that basis, he urges that the Justice Court record is
        inaccurate and unreliable. We disagree that the record indicates that Nelson was
        represented by counsel. The line in question reads "[d]efendant appeared / / pro
        se; / / with counsel _____________." The "with counsel" box was marked, but "with
        counsel" was lined out, and the court wrote "in custody" on the blank line. This
        portion of the record indicates that defendant appeared while in custody. It does not
        say that Nelson appeared with counsel. Thus, Nelson has not established that the
        Justice Court record is inaccurate or unreliable.
   5.   ¶As an additional argument that his plea was not voluntary, Nelson asserts the
        Justice Court did not use its form entitled Acknowledgment of Waiver of Rights by
        Plea of Guilty in accepting his guilty plea. However, while § 46-12-210(2), MCA,
        provides that a defendant's understanding of the charge, the maximum penalty and
        his rights may be accomplished by the defendant filing a written acknowledgment of
        waiver of rights, neither the statute nor our case law requires the use of such a form
        to establish the voluntariness of a guilty plea. Therefore, the Justice Court's failure
        to use its written acknowledgment form does not render Nelson's guilty plea
        involuntary.
   6.   ¶Nelson next asserts that his guilty plea was not voluntary because he had little
        sleep the night before and was confused throughout the entire arraignment

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        proceeding at which he entered a guilty plea. At the time he entered his guilty plea,
        however, the Justice Court determined--and indicated in the record--that Nelson
        understood his rights and the charge against him, stated sufficient facts to satisfy the
        elements of the charge, and entered his plea knowingly and voluntarily.
        Additionally, Judge Wyckman testified Nelson was given an opportunity to clarify
        any misunderstandings he may have had, but did not attempt to do so. While the
        dissent suggests that Nelson cannot be expected to inquire about pretrial release
        after being informed by Detention Center personnel that it was unavailable, Nelson
        did not raise any confusion or questions in the Justice Court in response to the
        opportunity provided for him to do so. He simply pled guilty and recited the events
        leading to his arrest.
   7.   ¶Moreover, Nelson testified about events at the Detention Center during the District
        Court hearing on his motion to withdraw his guilty plea, including what time he ate
        breakfast and how many other detainees were taken to the Justice Court with him.
        He also recited the maximum penalty for the charged offense. Nelson's specific
        recall of certain events at the time in question does not support his assertion that he
        was confused because of lack of sleep when he entered his guilty plea.
   8.   ¶Finally, relying on State v. Doty (1977), 173 Mont. 233, 566 P.2d 1388, Nelson
        argues that the absence of his counsel at the time he entered his plea renders the
        guilty plea involuntary. We disagree.
   9.   ¶In Doty, the defendant appeared with counsel and entered a not guilty plea. Doty,
        173 Mont. at 234, 566 P.2d at 1389. A few days before trial, the defendant met with
        the prosecutor without his counsel and, two hours later, appeared in justice court and
        changed his plea to guilty. The court accepted his guilty plea and sentenced him.
        Doty, 173 Mont. at 235, 566 P.2d at 1390. The defendant subsequently moved the
        justice court to withdraw his guilty plea and his motion was denied. Doty, 173 Mont.
        at 235-36, 566 P.2d at 1390. On appeal, the district court reversed the justice court
        and remanded for a trial on the merits. Doty, 173 Mont. at 236, 566 P.2d at 1390.
 10.    ¶The State then petitioned this Court to exercise supervisory control and direct the
        district court to enter an order affirming the justice court's denial of the defendant's
        motion to withdraw a guilty plea. We declined to do so. Doty, 173 Mont. at 238, 566
        P.2d at 1391. The justice court record from the change of plea proceeding indicated
        the defendant had actively sought the advice of his counsel of record before both
        meeting with the prosecutor and changing his plea; he also steadfastly maintained
        his innocence until the moment he changed his plea. In addition, both the prosecutor
        and the justice court were aware that the defendant was represented by counsel of
        record and, yet, the justice court failed to ascertain if the defendant had consulted

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        his attorney and the reason his attorney was not present. Doty, 173 Mont. at 237,
        566 P.2d at 1391. On that basis, we determined there was serious doubt regarding
        the voluntariness of the plea. Doty, 173 Mont. at 237-38, 566 P.2d at 1391.
  11.   ¶The facts in the present case are distinguishable from Doty. In Doty, the defendant
        had previously appeared with an attorney and his representation by counsel was a
        matter of record. Here, Nelson was making his first appearance before the Justice
        Court. Moreover, although Nelson asserts that he made it clear at his arraignment
        that he was represented by counsel, his testimony at the District Court hearing on his
        motion to withdraw his guilty plea was that he told the Justice Court he did not feel
        he needed an attorney or that he thought he told the Justice Court he could not reach
        his attorney. In either case, he did not have an attorney of record as was the case in
        Doty.
  12.   ¶Furthermore, Nelson recalled being asked at the time of his arraignment in Justice
        Court if he wanted a lawyer and signing a waiver which he understood to "waive
        [his] rights to have an attorney present with [him]." We conclude that Nelson
        voluntarily and knowingly waived his right to counsel. Having done so, Nelson
        cannot now rely on his lack of counsel to establish that his guilty plea was not
        voluntary.
  13.   ¶We conclude that Nelson entered his guilty plea voluntarily. On that basis, we hold
        that the District Court did not abuse its discretion in denying Nelson's motion to
        withdraw his guilty plea.
  14.   ¶Affirmed.



/S/ KARLA M. GRAY



We concur:



/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ JIM REGNIER


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Justice W. William Leaphart, dissenting.




    1. ¶I dissent on the issue of whether Nelson was advised of his right to pretrial release
         on bail.
    2.   ¶ It is undisputed that while Nelson was in the Detention Center, jail personnel
         advised him that he could not post bail on the charge of partner or family member
         assault. Section 46-9-302(1), MCA. Nelson contends that, having been so advised,
         he was under the misimpression that the only way he could obtain release from jail
         was to plead guilty and get the matter concluded.
    3.   ¶Section 46-9-302(1), MCA, provides that "[a] person may not be released on bail
         without first appearing before the judge when the offense is any assault on a partner
         or family member . . . ."
    4.   ¶Section 46-7-102(1)(d), MCA, requires that a defendant be advised upon initial
         appearance of "the general circumstances under which the defendant may obtain
         pretrial release[.]" Although Nelson was advised of numerous rights listed on the
         Justice Court's "checklist," he was not advised by the court that release on bail was a
         possibility that could be discussed in his appearance before the judge. The State
         contends that, if Nelson was confused about the possibility of release on bail, the
         burden was on him to make inquiry of the judge for clarification. I disagree. The law
         does not presume that a defendant will know what questions to ask the court.
         Rather, the statute clearly puts the onus on the court to advise the defendant of his
         rights with regard to pretrial release on bail. This obligation is particularly
         compelling in a situation, such as this, where the defendant has previously been
         advised that he cannot be released on bail and has no reason to question that advice.
    5.   ¶The Court's opinion points out that § 46-7-102(1)(d), MCA, applies to initial
         appearances rather than to the acceptance of guilty pleas. However, if a defendant,
         having not been properly advised of his rights regarding release on bail, enters a
         plea of guilty in order to obtain release from jail, it cannot be said that his plea is
         voluntarily entered. The Justice Court's failure to comply with § 46-7-102(1)(d),
         MCA, at the initial appearance, taints the voluntariness of the plea subsequently
         accepted by the District Court.
    6.   ¶I would reverse and allow Nelson to withdraw his guilty plea.

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/S/ W. WILLIAM LEAPHART




Justice Terry N. Trieweiler and Justice William E. Hunt, Sr., join in the foregoing
dissenting opinion.




/S/ TERRY N. TRIEWEILER

/S/ WILLIAM E. HUNT, SR.




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