                                         No.      95-185
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                 1997


STATE OF MONTANA,
          Plaintiff             and Respondent,


WALTER PAUL HOPPE,
          Defendant             and Appellant.



APPEAL FROM:     District  Court of the Twenty-First   Judicial                             District,
                In and for the County of Ravalli,
                The Honorable    Ed McLean, Judge presiding.


COUNSEL OF RECORD:
          For    Appellant:
                      William      F. Hooks,        State     Appellate         Defender,
                      Helena,      Montana
          For    Respondent:
                      Hon. Joseph P. Mazurek,                 Attorney     General,
                      Jennifer  Anders, Ass't                Attorney     General,          Helena
                      Montana
                      George Corn,        Ravalli       County      Attorney,        Hamilton
                      Montana



                                         Submitted          on Briefs:     November          21,        1996
                                                              Decided:      January         30,     1997
Filed:
Justice           W. William                  Leaphart                 delivered                the      Opinion             of         the     Court.

           Pursuant                to    Section                I,     Paragraph                3 (c),         Montana             Supreme             Court
1995       Internal               Operating                Rules,          the         following               decision                 shall       not     be

cited       as precedent                      and shall                be published                   by its        filing               as a public

document              with        the     Clerk           of         the   Supreme              Court      and by a report                          of     its

result           to     State            Reporter                    Publishing             Company             and          West          Publishing

Company.

           The Appellant,                      Walter                Hoppe        (Hoppe),            appeals            from            the      Twenty-

First           Judicial                 District                    Court's            revocation                 of             his         five-year
deferred              imposition                   of      sentence              for       felony          assault                 and        six-month

deferred              imposition                   of     sentence             for       domestic               abuse.                  We affirm.

           The issues                   before            this         Court         are        as follows:

1)         Did         the District       Court  have authority                                                 to enforce     the
           terms           of Hoppe's  deferred    imposition   of                                              sentence   before
           the        written    judgment    had been filed?

2)         Did the                District               Court abuse its    discretion                                       in         denying
           Hoppe's            motion               to    withdraw  his guilty      plea?

                                                                       BACKGROUND

           In        November            of        1991,             the   State           of     Montana               (State)               moved        the

District              Court,            Ravalli             County,              for       leave          to     file         an Information

against              Hoppe.             The Information                        charged             Hoppe         with             committing               the

crimes          of     misdemeanor                      domestic           abuse         and felony               assault.                      Hoppe was

arraigned              in     District                  Court         and entered                pleas         of not             guilty          to      both

offenses.                   In July           of        1992,          a plea          agreement               was executed                     by Hoppe

and counsel                  of     record.                Hoppe withdrew                       his      pleas          of        not      guilty          and

entered              pleas         of    guilty




                                                                               2
           On July              21,         1992,        the          District                      Court         conducted                 a hearing                in
which       it     deferred                 imposition                    of Hoppe's                   sentence                for        three         years        on

the       felony          assault                 charge              and            six        months             on     the         domestic                   abuse

charge.             The         terms             of     the         deferment                       were         to     run         concurrently                    on

certain           conditions,                    including                    the         condition               that         Hoppe            "not       possess

or consume               any intoxicants."                                    After            the     hearing,                Hoppe was released

and placed               under             the        supervision                     of       the     Adult             Probation                 and Parole

Division            of     the         Department                    of        Institutions.                            The District                       Court's

written           Judgment                 was not                filed            with         the      clerk            of     court            until           July

31,      1992.

           On July              23,        1992,         eight                days         before            the        written              judgment              was

filed,           Hoppe pled                 guilty            to     driving                   under        the         influence.                     The State

petitioned                 to         revoke             Hoppe's                     deferred                    imposition                  of         sentence

alleging             that             his         conviction                         for        driving                 under             the          influence

constituted                a violation                       of     his            conditions                of probation                        and parole.

On August            18,        Hoppe appeared                            with         counsel              before             the        District               Court

for      disposition.                        At        the         hearing,                    Hoppe        attempted                 to         justify           his
behavior           by explaining                        that         he was merely                          having             his        last         drinks        of

alcohol            as he was not                         going                to      be able               to      drink            for         three         years

(the       length           of         his        deferral                     term).                 Following                 the         hearing,               the

District            Court             found            Hoppe              guilty               of     violating                 the         terms           of     the

deferred           imposition                    of     sentence                   and revoked                    the     deferred                 imposition

of    sentence.                 Hoppe was sentenced                                       to    a five-year                    prison            term       on the

felony            assault              charge                and          a        six-month                term          on         the         misdemeanor

domestic            abuse             charge.

           In     a September                     of         1992 hearing,                           Hoppe          moved            to     withdraw               his

guilty           pleas.               In      support               of         his         request,               Hoppe          alleged                that       his

                                                                                      3
attorney             told         him that                his        wife          would           be convicted                       of perjury                   if     he

went       to     trial.                Hoppe alleged                         that        his            counsel               told      him         that          "if         I

did       not        plead            guilty              to        the       charges                of         the        state,             that          my wife

would           be      charged                with            perjury              and            that          she        would             go      to      jail."
Hoppe's              counsel              denied                this          characterization.                                        Hoppe's              counsel
stated           that          he had           explained                     to     the           Hoppes               that          since         Mrs.           Hoppe

had       previously                   given              a tape-recorded                                statement,                   and      that           if         her

trial        testimony                  were          contrary                to         the        taped            statement,                    there           was a

possibility                    the      State         would               elect          to        charge             her       with        perjury.                     The

District             Court             orally             denied            Hoppe's                 motion.

           Two years                   later,             Hoppe             filed             a petition                    for        post-conviction

relief.               In        January              of        1995,          the        District                    Court            ordered              that          the

petition               for           post-conviction                           relief                be         dismissed                on         procedural

grounds,               "as       all         grounds                asserted                  in     the         Petition                are         appealable

issues           and,           thus,          Mr.        Hoppe            may not                 seek          relief               on those              grounds

pursuant             to        a Petition                  for         Post-Conviction                               Relief."                 However,                   the

District             Court            also      granted                Hoppe leave                        to     file          an amended                  petition
"regarding                  any        ineffective                     assistance                    of         counsel               claims          Mr.          Hoppe

may        wish           to         raise           in         this          matter."                         After             reviewing                  Hoppe's

petition,                 the        District                  Court          concluded                    that          Hoppe          had         been           given

effective                  assistance                     of        counsel.                       The         District                Court           issued              a

Second          Amended               Judgment                 in     December                of     1995,              declaring              Hoppe guilty

of violating                    the      terms            and conditions                            of     the          deferred              imposition                  of

sentence             and designating                            Hoppe a non-dangerous                                       offender.                  Following

the       disposition                   of      these               matters              before                the      District               Court,              Hoppe

filed            the            instant               appeal                  challenging                            the          District                  Court's



                                                                                     4
jurisdiction                     to revoke            his deferred                     imposition                of sentence                  and the
District               Court's            denial       of      his     motion               to withdraw                  his        guilty         plea.


                                                       STANDARD OF REVIEW

           Both             issues              in    this           case           involve                the      District                  court        's

interpretation                       of     the       law.           The        standard              of     review            of         a district

court's           conclusions                   of    law      is whether               the        court's           interpretation                      of

the        law         is        correct.              Carbon           County               v.       Union         Reserve                 Coal        Co.

(1995),           271 Mont.                 459,       898 P.2d                 680;        Steer,          Inc.         v.     Department               of

Revenue            (1990),            245 Mont.              470,      474-75,                803 P.2d             601,         603-04.             This

Court           reviews            a district                court's             sentencing                 decision                for      legality

only       and will                 not     disturb            the     decision                   unless           the        district             court

abused           its        discretion.                      State         v.       DeSalvo             (1995),               273     Mont.         343,

346,       903 P.2d               202,      204       (citing          State           v.     Blanchard                  (1995),            270 Mont.

11,     17,       889 P.2d                1180,        1182).



                                                                 DISCUSSION

1)         Did the District       Court   have authority       to                                                    enforce   the
           conditions     of Hoppe's    deferred    imposition                                                       of sentence
           before     the written  judgment    had been filed?

           At          a    July          21,        1992       hearing,                the          District                 Court          deferred

imposition                  of     sentence            by explaining:

                   No cause        appearing      why sentence          should      not     be
           imposed,      it   is hereby       the judgment        of this      Court    that
           you're      guilty      of   the     underlying        offenses,       to    wit:
           Assault,      a felony,     and domestic        abuse,     a misdemeanor.
                    It is further       the judgment        of this      Court   that     the
           imposition       of sentence      be deferred       for a period       of three
           years on each count.            The sentences       are to run concurrent
           to each other        on the following          conditions:

            .           .

                                                                                5
                 You will                    not consume any intoxicants.        You will not
         possess      any                  intoxicants.        You will    not   go into  any
         establishment                       whose principal      business    is the sale  of
         intoxicants;                      that    includes  bars and casinos.

Following            the      hearing,                    the     court        placed          Hoppe under                   the        supervision

of Adult            Probation                 and Parole                and ordered                  him        subject            to     all       of       its

terms       and conditions.                               Next,         Hoppe          met with             his        probation                   officer

and     read         and      signed                the         Montana          rules        of         probation.                     The Montana

rules          of         probation                   signed              by         Hoppe           included                the              following

condition:

         You shall        comply  with     all     city,     county,      state,       and
         federal      laws and ordinances          and conduct        yourself       as a
         good citizen.        You shall     report       any arrests     or contacts
         with    law enforcement        to your       Probation/Parole          Officer
         within     72 hours.

           Two days                after            the         hearing,             Hoppe          was        arrested                 for        driving

under       the      influence                 of         alcohol         and subsequently                        pled        guilty               to    that

charge.              In     light             of     this         arrest,             the      State            petitioned                    to    revoke

Hoppe's             deferred                  imposition                  of         sentence,                 alleging                 that            Hoppe
violated            one of              the         conditions                 of     deferment                 by driving                    under          the

influence.                 On the             same day the                     State        petitioned                 to     revoke               Hoppe's

sentence,            the      District                    Court       signed           and filed                the     written                 judgment

with       the      clerk          of      court.

           Hoppe          contends                 that         the   District               Court's            oral         sentence               had no

final        effect.                     He         contends               the         District                 Court         did             not        have

jurisdiction                 to      enforce                the       conditions               of        the      deferred                imposition

of      sentence            since              it         had     not       yet        been          reduced            to     writing.                        In

support             of      this           contention,                     Howe             cites          to      State            v.          Enfinger

(1986),             222 Mont.                 438,         722 P.2d                 1170.           In    Enfinser,                 the         district
court        failed           to        include                 a dangerous                  offender             designation                       at       the


                                                                                6
oral        sentencing.                           On the           same day it                        orally             sentenced                     Enfinger,              and

before            filing                its            written              judgment,                       the         district                   court          brought
Enfinger               back             into            court             for         an         additional                    hearing.                        The        court

explained               that            it        had failed                     to     state            its           reasons              for         imposing              the

sentences                   earlier                 and       that          it        was necessary                            to        do so.                Enfinser,

722 P.2d               at        1171.                 Over        Enfinger's                     objections,                        the          district                court

found            Enfinger                    to        be         a dangerous                         offender.                          In       affirming                   the

district                court's                        sentence,                      the         Court                 held,              "I [ilt              is         well

established                      that          an oral               ruling             by the                 trial           court              is     not         a final

judgment,                   and that                   the        trial           court               can       change              such           ruling             at     any

time        before               the         entry           of     written                 judgment."                        Enfinaer,                  722 P.2d                 at
1174          (quoting                   State               v.      Diaz              (N.M.                19831,                 673        P.2d           501,           502.

However,              this            Court's                holding              in        Enfinser                   that         an oral              sentence                 is

not        "final"               is     not            dispositive                     of        the        issue             in     this          appeal.

            In       contrast                  to       Enfincfer,                    the        present                case         presents                  the        issue

of whether                  the         court            has the             authority                      to enforce                   orally            pronounced

conditions,                       rather                  than            whether                     the         district                     court            has           the

authority                   to         modify                a      sentence.                          Here,             Hoppe                had         been            fully

informed               of         the         conditions                    of        deferment                     orally               "rendered                in        open

court"            as        required                    by        law.            Section                   46-18-102,                     MCA.                Hoppe         was

present           during                the         District               Court's                oral          pronouncement,                            he met with

his      probation                      officer,                  and       read                and     signed                the        Montana                rules             of

probation.                        Hoppe                was        fully               informed                 of        the         conditions                      of      his

deferment               and he violated                                   those             conditions.                        We hold                  that         Hoppe's

conditions                   of        deferment                   were          effective                     upon           pronouncement                          in     open

court         and subject                         to      enforcement                       from         that           point            on.            Accordingly,



                                                                                            7
we affirm                the         District            Court's           decision                to      enforce                  the      conditions
of     Hoppe's               deferred             imposition               of        sentence.



2)             Did the          District             Court abuse its    discretion                                             in      denying
               Hoppe's          motion            to withdraw  his guilty     plea?

               A trial               judge's           decision            not         to     allow             the          withdrawal                     of         a

guilty            plea        will         be affirmed               absent           an abuse                of        discretion.                      State
v.     Miller                 (1991),            248     Mont.           194,         197,          810         P.2d           308,             309.             The

standard                for          allowing           the        withdrawal                 of        a guilty                     plea        is      "good

cause."                 Section             46-16-105(2),                   MCA.             A change                   of      plea            should            be
permitted                only         if    it     appears          that        the         defendant               was ignorant                       of        his

rights             and          the         consequences                   of         his          act,            or        was            unduly               and

improperly                influenced                either          by hope or fear                         in making                     the     plea,           or

if        it       appears                 the         plea        was          entered                 under             some              mistake               or

apprehension.                          Miller,           810 P.2d               at     310.             The        three              factors            which

are       to      be considered                    when determining                         whether             a defendant's                          guilty

plea           should          be withdrawn                   include:

               1.   The adequacy     of                        the District                    Court's  interrogation
               as to the defendant's                            understanding                    of the plea;

               2.        The promptness                       of    the     motion             to       withdraw                    the      prior
               plea;

               3.    The fact   that   the defendant's      plea was apparently
               the result  of a plea bargain       in which the guilty     plea was
               given  in exchange    for dismissal     of another    charge.

Miller,                810      P.2d         at     309.            In     the         instant              case,              Hoppe             does            not

maintain               that          the     plea        bargain           he entered                    into           with          the        State           was

coercive.                 Rather,                Hoppe pled          guilty            believing                   that         if        he proceeded

to       trial,           and         if    his        wife        testified                she         would            be prosecuted                           for

perjury.                  Since            Hoppe         does       not         contend             that           the         plea          bargain              he


                                                                                8
entered            into         with           the        State         was       coercive,               we will          focus          on         the

adequacy                of     the         District                Court's               interrogation                as      to         Hoppe's
understanding                      of     the        plea.

            At     the         hearing               to      change           Hoppe's             plea       from     not        guilty                to

guilty,               the           District                 court            inquired               of      Hoppe          as           to          his
understanding                   of       the      consequences                    of his          change      of plea.              The court
asked        Hoppe whether                       he understood                    his      rights         and understood                      that         a

guilty            plea         was        a waiver                of      those          rights.             Further,              the         court

established                  the        specific             factual          basis         for      Hoppe's        plea       of        guilty.

Hoppe        explained                  that       he realized                he was waiving                  many of          his            rights

and admitted                  to having                committed              the        crime.           In addition,              the        court

asked        Hoppe           whether             he had been                  threatened,                 whether        he understood

the       terms         of     his        plea        change,            whether            his     plea      was voluntary,                         and

whether           he was under                     the       influence              of     medication.              Hoppe          explained

that        his    plea         was voluntary,                         and that           he had not           been        influenced                  in

making            the        plea.             Following                these           questions,            the     District                 Court

made the            following                   findings:

                   I'll     find     further       that he understands           the nature         of
            the charges and fully                understands      the consequences           of his
            guilty      pleas;      further,        that  there have been no promises
            made to him other               than the plea bargain             agreement;         that
            he understands           the sentencing          judge is not bound by that
            agreement;         that     there     have been no threats             made against
            him; that       this      is a voluntary          plea on his part;           that      he
            is satisfied          with the competence             of his counsel;          that he
            is not suffering              from any mental          or physical        disability
            such as he does not understand                    the proceedings         or such as
            might     induce him to plead guilty;                   further,     I'll    make the
            same finding         concerning         the medication         and that he is not
            under the influence                of any other        drugs or alcohol.

It     is     clear          from        the       record          that       Hoppe was fully                   advised            as to             the

consequences                   of       a change             of        plea       and proceeded               to    change           his         plea

voluntarily.

                                                                              9
           Two months              after       he was          originally                sentenced              and           one     month
after        revocation              of     his      deferred               imposition             of      sentence,                  HoPPe
moved       to     withdraw           his     guilty          plea.              Hoppe      contended              that         he pled

guilty        to     protect          his     wife        and        his     marriage             vows.            NOW that               his

wife       has left          the    jurisdiction               and he no longer                    feels         compulsion                to

protect          her,       he seeks          to     withdraw              his     guilty         plea.            The         District

Court        found         that      the     motion           was      not        timely        and       that           it     did       not

state       sufficient              reasons          to      allow         withdrawal             of     the       plea.              Aside

from       whether           the      motion           was      timely            or     not,      we      agree              with        the
District           Court's         holding         that      the      grounds           asserted          in     the          motion       do

not      warrant           a withdrawal              of      the     plea.             Hoppe's          original               plea       was

entered          after       a thorough            and adequate                  interrogation                 by the          District
Court       and was not               the     result          of      any        coercion         by the           State            or    his

counsel.                 Accordingly,              we affirm                the        decision           of       the         District

Court.




We concur:
