                                                                                          February 17 2015


                                          DA 13-0758
                                                                                          Case Number: DA 13-0758

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 47N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

ROBERT ZLAHN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 11-0653
                        Honorable Mary Jane Knisely, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender, Koan Mercer, Assistant
                        Appellate Defender; Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant
                        Attorney General; Helena, Montana

                        Scott D. Twito, Yellowstone County Attorney, Rod Souza, Deputy County
                        Attorney; Billings, Montana



                                                    Submitted on Briefs: December 31, 2014
                                                               Decided: February 17, 2015


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of this 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 and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Robert Zlahn appeals from a judgment of the Thirteenth Judicial District Court,

Yellowstone County, sentencing him to a five-year suspended commitment to the

Department of Corrections (DOC). The issue on appeal is whether a defendant is permitted

to withdraw a guilty plea when the State mistakenly recommends a sentence in excess of the

plea agreement, and the court adopts it, but the court later corrects the mistake to conform

the sentence to the plea agreement. We affirm.

¶3     Zlahn and the State entered into a plea agreement under which the parties agreed that

a five-year suspended commitment to the DOC was the appropriate disposition of the case.

The plea agreement was made under § 46-12-211(1)(b), MCA, and pleas under that

subsection may be withdrawn pursuant to subsection (4) if the district court does not follow

the plea agreement’s stipulated sentence. Prior to the plea agreement and sentencing,

counsel for the parties met with the judge, and the judge agreed to be bound by the plea

agreement’s stipulated sentence. At sentencing, however, the prosecutor inadvertently

requested a five-year suspended sentence to MSP (Montana State Prison), rather than DOC.

The District Court adopted the mistake and sentenced Zlahn to a five-year suspended

commitment to MSP.




                                             2
¶4     Zlahn subsequently filed a motion to withdraw his guilty plea, arguing that the

commitment to MSP was less favorable than the sentence to the DOC listed in the plea

agreement. The District Court denied the motion, finding that the sentence committing

Zlahn to MSP rather than the DOC was factually erroneous and could be corrected pursuant

to § 46-18-116(3), MCA. The District Court then corrected Zlahn’s sentence so his

commitment was to the DOC rather than MSP, in conformance with the plea agreement.

Zlahn appeals the denial of his motion to withdraw his guilty plea.

¶5     We review de novo the denial of a motion to withdraw a guilty plea, as well as

questions of whether a plea agreement was breached. State v. Shepard, 2010 MT 20, ¶¶ 7–8,

355 Mont. 114, 225 P.3d 1217.

¶6     When the court accepted the plea agreement, it necessarily agreed to sentence Zlahn

to the five-year suspended DOC commitment provided for in the plea agreement. Section

46-12-211(3), MCA, provides: “If the court accepts a plea agreement [providing for a

specific, agreed-upon sentence], the court shall inform the defendant that it will embody in

the judgment and sentence the disposition provided for in the plea agreement.” In this case,

the District Court informed counsel for both parties that it agreed to be bound by a plea

agreement that provided for a specific sentence.

¶7     Section 46-12-211(4), MCA, allows a defendant to withdraw his guilty plea if the

court rejects a plea agreement made pursuant to § 46-12-211(1)(b). The court did not reject

the plea agreement in this case. On the contrary, it informed the parties before the plea

agreement was reached that it would agree to be bound by a plea agreement that provided for

a specific sentence, pursuant to § 46-12-211(1)(b), MCA.

                                             3
¶8     The District Court’s mistaken MSP sentence was no more than a factual error. The

court properly corrected the factual error, so that Zlahn received exactly the sentence he and

the State agreed to in the plea agreement. Section 46-18-116, MCA, states: “The court may

correct a factually erroneous sentence or judgment at any time.”

¶9     The State and the court mistakenly using the wrong acronym and then correcting the

mistake before any prejudice accrued to Zlahn does not amount to a breach of the plea

agreement by the State, or a rejection of the plea agreement by the court. Zlahn entered into

a plea agreement for a specific sentence, and received exactly the sentence to which he had

agreed.

¶10    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for memorandum opinions. The Appellant has not

demonstrated error for which he is entitled to relief. Affirmed.


                                                  /S/ JAMES JEREMIAH SHEA

We Concur:

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




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