file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-844%20Opinion.htm




                                                               No. 00-844

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                               2002 MT14



                                                     STATE OF MONTANA,

                                                     Plaintiff and Respondent,

                                                                     v..

                                                   JAMES AFTERBUFFALO,

                                                     Defendant and Appellant.

                           APPEAL FROM: District Court of the Eighth Judicial District,

                                                In and for the County of Cascade,

                                     The Honorable Marge Johnson, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                        Carl B. Jensen, Jr., Office of Public Defender, Great Falls, Montana

                                                            For Respondent:

                              Hon. Mike McGrath, Attorney General; Steven C. Bullock,

                                       Assistant Attorney General, Helena, Montana

                          Brant S. Light, Cascade County Attorney; Susan Weber, Deputy

                                            County Attorney, Great Falls, Montana



file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-844%20Opinion.htm (1 of 6)1/18/2007 8:31:14 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-844%20Opinion.htm

                                                Submitted on Briefs: May 10, 2001
                                                   Decided: January 29, 2002

                                                                    Filed:

                                    __________________________________________

                                                                    Clerk


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

¶1 James Afterbuffalo (Afterbuffalo) appeals from the judgment entered by the Eighth
Judicial District Court, Cascade County, on his conviction of the offense of criminal
endangerment. We reverse and remand.

¶2 The issue on appeal is whether the District Court abused its discretion in denying
Afterbuffalo's motion to withdraw his guilty plea.

                                                          BACKGROUND

¶3 The State of Montana (State) charged Afterbuffalo by information with the offense of
felony assault. The parties subsequently entered into a plea agreement whereby
Afterbuffalo agreed to plead guilty to the offense of criminal endangerment. In return, the
State agreed to amend the felony assault charge to criminal endangerment and dismiss a
bail jumping charge brought against Afterbuffalo in a separate case. The State also agreed
to recommend that the District Court impose a three-year suspended sentence.
Afterbuffalo then appeared before the District Court and entered his guilty plea. The court
accepted the plea, scheduled a sentencing hearing and ordered a presentence investigation
(PSI).

¶4 At the sentencing hearing, the State recommended--in conformity with the plea
agreement--that Afterbuffalo be given a three-year suspended sentence, and the District
Court accepted the recommendation. In light of concerns raised in the PSI report regarding
his past failure to successfully comply with probation conditions, however, the court
added to the suspended sentence a requirement that Afterbuffalo be placed in either a
prerelease or intensive supervision program. Afterbuffalo then moved to withdraw his
guilty plea on the basis that the additional requirement was outside the scope of the plea


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-844%20Opinion.htm (2 of 6)1/18/2007 8:31:14 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-844%20Opinion.htm


agreement. The District Court denied the motion and entered judgment on the conviction
and sentence. Afterbuffalo appeals.

                                                  STANDARD OF REVIEW

¶5 We review a district court's denial of a motion to withdraw a guilty plea to determine
whether the court abused its discretion. State v. Osterloth, 2000 MT 129, ¶ 21, 299 Mont.
517, ¶ 21, 1 P.3d 946, ¶ 21 (citation omitted).

                                                            DISCUSSION

¶6 Did the District Court abuse its discretion in denying Afterbuffalo's motion to withdraw
his guilty plea?

¶7 Section 46-12-211, MCA, provides, in pertinent part, that:

        (1) The prosecutor and the attorney for the defendant, or the defendant when acting
        pro se, may engage in discussions with a view toward reaching an agreement that,
        upon the entering of a plea of guilty or nolo contendere to a charged offense or to a
        lesser or related offense, the prosecutor will do any of the following:

        (a) move for dismissal of other charges;

        (b) agree that a specific sentence is the appropriate disposition of the case; or

        (c) make a recommendation, or agree not to oppose the defendant's request, for a
        particular sentence, with the understanding that the recommendation or request may
        not be binding upon the court.

        ....

        (4) 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.


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-844%20Opinion.htm (3 of 6)1/18/2007 8:31:14 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-844%20Opinion.htm


The plea agreement in the present case expressly provided that, because the parties agreed
to make a specific sentencing recommendation to the District Court, the agreement was of
the type described in § 46-12-211(1)(b), MCA, and Afterbuffalo would be allowed to
withdraw his guilty plea should the court refuse to adopt the agreement.

¶8 As stated above, Afterbuffalo entered--and the District Court accepted--his guilty plea
based on the plea agreement. At the subsequent sentencing hearing, the parties
recommended that the District Court sentence Afterbuffalo to a three-year suspended
sentence and further agreed that the standard conditions of probation as set forth in the PSI
report would apply. The District Court adopted this sentencing recommendation, but
added the requirement that Afterbuffalo complete either a prerelease or intensive
supervision program. When Afterbuffalo moved to withdraw his guilty plea on the basis
that the additional requirement was outside the scope of the plea agreement because it was
not a standard condition of probation, the court stated that the requirement was a standard
condition and denied the motion.

¶9 Afterbuffalo contends that the District Court abused its discretion in denying his
motion. He argues that the prerelease or intensive supervision program requirement
materially changes the nature of his sentence because it would place him in a more
restrictive setting than the "plain" suspended sentence for which he bargained in the plea
agreement. Thus, according to Afterbuffalo, by including a requirement which would
restrict his liberty while on probation to a greater degree, the District Court went outside
the scope of the plea agreement in sentencing and he should have been allowed to
withdraw his guilty plea pursuant to § 46-12-211(4), MCA.

¶10 The State responds that, in adding the prerelease or intensive supervision program
requirement, the District Court was adhering to the parties' agreement that the probation
conditions recommended in the PSI report be included in Afterbuffalo's sentence and,
therefore, the court did not exceed the scope of the plea agreement. We disagree.

¶11 The PSI report listed numerically sixteen conditions that it recommended be imposed
on Afterbuffalo during the period he was to be on probation. Afterbuffalo agreed to these
conditions. The recommendation that Afterbuffalo be placed in a prerelease or intensive
supervision program was contained in two paragraphs of the PSI report completely
separate from the numerical listing of probation conditions. Moreover, these paragraphs
referenced the fact that, pursuant to the plea agreement, Afterbuffalo would receive a
suspended sentence requiring that he be placed on standard probation and stated that this

 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-844%20Opinion.htm (4 of 6)1/18/2007 8:31:14 AM
 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-844%20Opinion.htm


would be insufficient in light of his past failure to comply with probation conditions. Thus,
on its face and by its terms, the PSI report recognizes that the prerelease/intensive
supervision recommendation was an unusual requirement, rather than a standard condition
of probation as contemplated by the plea agreement.

¶12 The State also cites State v. Therriault, 2000 MT 286, 302 Mont. 189, 14 P.3d 444, in
support of its contention that the intensive supervision program requirement is a condition
of probation to which Afterbuffalo agreed when he agreed that the conditions listed in the
PSI report would apply to his sentence. There, we stated that "persuasive authority . . .
suggests that the [intensive supervision program] is merely a rigid condition imposed on
certain probationers . . ." and held that a person participating in such a program is a
probationer rather than a parolee. Therriault, ¶¶ 40-44. At the very least, our language in
Therriault implies that participation in an intensive supervision program is not a standard
condition placed on all suspended sentences, but a special condition imposed on those
probationers who require a greater degree of supervision. Nor does the State dispute that a
prerelease or intensive supervision program would negatively impact Afterbuffalo's liberty
while on probation.

¶13 In entering into the plea agreement with the State, Afterbuffalo bargained for the
benefit of an ordinary suspended sentence. He also agreed to the standard conditions of
probation as set forth in the PSI report. The additional requirement of participation in a
prerelease or intensive supervision program is not a standard condition of probation, and it
materially changes the impact of Afterbuffalo's suspended sentence. We conclude,
therefore, that the District Court's additional requirement that Afterbuffalo be placed in
either a prerelease or intensive supervision program was outside the scope of the plea
agreement and constitutes a rejection by the court of the agreement. As a result, we further
conclude that, pursuant to § 46-12-211(4), MCA, the District Court was required to allow
Afterbuffalo to withdraw his guilty plea. We hold that the District Court abused its
discretion in denying Afterbuffalo's motion to withdraw his guilty plea.

¶14 Reversed and remanded for further proceedings consistent with this opinion.

                                                      /S/ KARLA M. GRAY

                                                               We concur:

                                                    /S/ JAMES C. NELSON


 file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-844%20Opinion.htm (5 of 6)1/18/2007 8:31:14 AM
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-844%20Opinion.htm


                                                        /S/ JIM REGNIER

                                               /S/ TERRY N. TRIEWEILER

                                                            /S/ JIM RICE




file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/00-844%20Opinion.htm (6 of 6)1/18/2007 8:31:14 AM
