                                              No.    81-273

                   I N THE SUPREME COURT O THE STATE O M N A A
                                          F           F OTN

                                                     1982




STATE OF MONTANA,

                    P l a i n t i f f and Respondent,



MIKE WELLING,

                    D e f e n d a n t and A p p e l l a n t .




Appeal f r o m ;    D i s t r i c t Court o f t h e Ninth J u d i c i a l D i s t r i c t ,
                    I n and f o r t h e County o f G l a c i e r , The H o n o r a b l e
                    R. D. M c P h i l l i p s , J u d g e p r e s i d i n g ,


C o u n s e l o f Record:

       For Appellant:

                   C h a r l e s L. J a c o b s o n T Conrad, Montanq


      For Respondent:

                   Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a ,
                   Montana
                   James C . N e l s o n , County A t t o r n e y , C u t Bank,
                   Montana

                                                                                              . , . .

                                             Submitted on B r i e f s :       February 4 , 1982

                                                                Decided;      J u l y 8 , 1982



Filed :
                   -
            JUL. 8 1982
M r . J u s t i c e D a n i e l J. Shea d e l i v e r e d t h e Opinion of t h e
Court.


        Defendant a p p e a l s from a G l a c i e r County D i s t r i c t C o u r t

judgment o f c o n v i c t i o n f o r b u r g l a r y and from a f i n d i n g a t

s e n t e n c i n g t h a t h e was a p e r s i s t e n t f e l o n y o f f e n d e r .

        F i r s t , he c l a i m s t h a t an i n s t r u c t i o n i m p e r m i s s i b l y allowed

t h e jury t o i n f e r t h a t he acted with a c r i m i n a l i n t e n t .                 (The

j u r y was p e r m i t t e d t o i n f e r t h a t he i n t e n d e d t o commit a t h e f t

by t h e f a c t t h a t he was apprehended w h i l e u n l a w f u l l y i n a b a r

a f t e r it had c l o s e d . )      Second, he c l a i m s t h a t t h e p r o s e c u t o r

u n f a i r l y p r e j u d i c e d t h e j u r y a g a i n s t him by a s k i n g a w i t n e s s ,

who was a lawyer, i f he had e v e r defended t h e d e f e n d a n t .                         Third,

h e c l a i m s t h a t b e c a u s e he chose t o go t o t r i a l r a t h e r t h a n p l e a d

g u i l t y , t h e t r i a l judge was v i n d i c t i v e i n imposing a 1 3 y e a r

sentence.         F o u r t h , he c l a i m s t h a t w e s h o u l d o r d e r a r e s e n t e n c i n g

b e c a u s e t h e S t a t e had n o t p r o p e r l y n o t i f i e d him a f t e r t r i a l of

i t s i n t e n t t o have him d e c l a r e d a p e r s i s t e n t f e l o n y o f f e n d e r .

W e a f f i r m on a l l t h e i s s u e s e x c e p t t h e l a s t ; w e remand f o r

resentencing.

        A t a p p r o x i m a t e l y 3:00 a.m.      on September 7 , 1980, t h e

d e f e n d a n t was a r r e s t e d i n t h e Wagon Wheel Bar i n Cut Bank,

Montana, a f t e r w i t n e s s e s o b s e r v e d him k i c k i n t h e b a r ' s d c o r .

H e was c h a r g e d w i t h b u r g l a r y i n G l a c i e r County ~ i s t r i c t o u r t ,
                                                                                     C

and on September 2 4 , 1980, d e f e n s e c o u n s e l was n o t i f i e d i n

w r i t i n g of t h e S t a t e ' s i n t e n t i o n t o have t h e d e f e n d a n t

designated a p e r s i s t e n t felony offender f o r sentencing

purposes.         P l e a n e g o t i a t i o n s t o o k p l a c e , b u t when no agreement

was r e a c h e d , a t r i a l w a s s c h e d u l e d f o r J a n u a r y 1 2 , 1981.         On

t h e morning b e f o r e t r i a l , t h e S t a t e m e t w i t h t h e d e f e n d a n t

and d e f e n s e c o u n s e l a t d e f e n s e c o u n s e l ' s r e q u e s t and p r e s e n t e d
a brief synopsis of the State's case.   The parties then
selected a jury and the State made its opening statement.
     At this point, defense counsel requested a recess and
presented the court with an executed, written plea bargain
agreement in which the defendant agreed to plead guilty to
burglary in exchange for the State's recommendation that he
be imprisoned for five years.   After extensive questioning
by the court, defense counsel moved to withdraw the not
guilty plea and substitute a guilty plea, pursuant to the
written plea bargain agreement.   Upon further questioning by
the court, the defendant admitted that he broke down the
bar's door and entered the bar after hours, but that it
wasn't his purpose to commit an offense therein.   He explained
that he had broken into the bar to look for his lost wallet.
After more questioning, the defendant stated that he wanted
to plead not guilty to burglary, but guilty to breaking into
the bar.   The trial judge advised him that the court couldn't
prevent him from pleading guilty, and that the court preferred
that he go to trial if he wanted to tell the jury his story.

The court also informed the defendant that the plea bargain
agreement did not mention the fact that the State was seeking
to have him designated a persistent felony offender, and
that this designation could increase his sentence.   The

defendant, however, chose to proceed with trial.
     At trial, the arresting officer testified that the
defendant stated at the scene that he had passed out or
fallen asleep in the bar and had become locked in.   When the

defendant took the stand, however, he testified that he had
lost his wallet earlier in the evening on September 6 , 1980,
and remembered that he used the bathroom in the Wagon Wheel
Bar sometime during the course of the evening.       He testified
that he had kicked in the bar's door to look for his wallet.
But when the police booked the defendant into the jail, the
defendant had a wallet in his possession. The defendant
explained that upon realizing that he had lost his wallet,
he took an older wallet from his home and habitually put it
in his pocket, after checking to see if he had left any
extra money in it.
     On February 4, 1981, the day of sentencing, the State
filed its first written notice of intent to have the defendant
designated a persistent felony offender.      The court took
judicial notice of the fact that it had previously entered a
judgment against this same defendant on May 8, 1975, after
he had been convicted of theft in Toole County, Montana.
The court also found that it had sentenced the defendant to
imprisonment after revoking his suspended sentence for that
crime on October 7, 1976.      The court found that the notice of
intent had been given to defendant's counsel in sufficient time
to invoke the persistent felony offender statute.      The court
then sentenced him to 13 years of imprisonment as a nondangerous,
persistent felony offender.
     First, the defendant contends that it was reversible
error for the trial court to instruct the jury that it may or
may not infer that the defendant intended to commit a theft
while inside the Wagon Wheel Bar.      The trial court instructed
the jury:   ".   . .   if you find that the defendant was unlawfully
                                        -----
in the Wagon Wheel Bar in the nighttime you may or may not
infer, as you find the evidence to be, that he was there for
the purpose of committing a theft."       (Emphasis added.)
Defendant claims that the instruction unconstitutionally shifted
the burden to him to prove that he was not acting with this
intent.   We disagree.
     A criminal state of mind is rarely susceptible of
direct proof, and therefore, must usually be inferred from
the facts as established by witnesses, and the circumstances
as developed by the evidence.     See e.g., State v. Hardy

(1980) - Mont .         ,   604 P.2d 792, 37 St.Rep. 1.     Further,
in State v. Pascgo (1977), 173 Mont. 121, 125, 566 P.2d 802,
we recognized the   ". . . obvious inference that a person
found unlawfully on the premises of another in the nighttime
is there for the purpose of committing a theft."        Here the
defendant was not only found in the Wagon Wheel Bar at approx-
imately 3:00 a.m., but witnesses saw him kicking in the bar
door, and the defendant offered inconsistent explanations
for his presence in the bar.
     The real question is whether this challenged jury
instruction was a permissive rather than a mandatory inference,
for a court should uphold a permissive inference.        See State
v. Olson (1979), 39 0re.App. 383, 592 P.2d 273; State v.
Durning (1967), 71 Wash.2d 756, 430 P.2d 546.     Cf.     Gaines v.
State (1980), 96 Nev. 561, 613 P.2d 409 (A court should not
uphold a mandatory instruction).     In this case, however, the
challenge was clearly worded as a permissive inference:      ". . .
you may- - -not infer, as you find the evidence to
    - or may                                               be . . ."
(Emphasis added.)   In addition, other instructions properly
explained the term "infer," and clearly instructed the jury to
presume the defendant innocent, until the prosecution established
each essential fact beyond a reasonable doubt.     Therefore,
the instruction was proper.

     Second, defendant contends the prosecutor unfairly
prejudiced the jury by asking a rebuttal witness, who was
also an attorney, whether he had ever defended the defendant.
Although this question was interrupted by defense counsel,
and no answer was given, the defendant still argues that this
question c o n s t i t u t e d r e v e r s i b l e e r r o r because it e f f e c t i v e l y

prejudiced t h e jury a g a i n s t t h e defendant.                      We reject this

contention.
        During t h e t r i a l , a q u e s t i o n a r o s e c o n c e r n i n g whether

t h e d e f e n d a n t had been i n t h e nearby town o f S h e l b y , Montana,
a few h o u r s b e f o r e h e had broken i n t o t h e b a r i n Cut Bank.

The d e f e n d a n t answered t h a t h e had n o t been i n Shelby t h a t
n i g h t . The S t a t e , i n r e b u t t a l , c a l l e d J a m e s A . Johnson, a

p r i v a t e a t t o r n e y and a p a r t t i m e d e p u t y a t t o r n e y f o r Toole
County.        I n an a t t e m p t t o evoke J o h n s o n ' s t e s t i m o n y t h a t h e

had spoken w i t h t h e d e f e n d a n t i n a Shelby b a r a few h o u r s

b e f o r e t h e d e f e n d a n t had broken i n t o t h e Cut Bank b a r , t h e
p r o s e c u t o r asked Johnson i f h e had e v e r defended t h e d e f e n d a n t .
The d e f e n d a n t c o n t e n d s t h e q u e s t i o n was a s k e d s o l e l y t o

i n f o r m t h e j u r y t h a t he had been i n t r o u b l e b e f o r e and t o
t h e r e f o r e e f f e c t i v e l y c a s t doubt on h i s c r e d i b i l i t y .     W do
                                                                                            e
n o t f i n d t h e q u e s t i o n t o be r e v e r s i b l e e r r o r h e r e .       W e do,

however, c a u t i o n a g a i n s t t h e u s e o f t h i s s u b t l e method f o r

bringing t h e j u r y ' s a t t e n t i o n t o t h e f a c t t h a t t h e defendant
may have been c o n v i c t e d o r charged w i t h o t h e r c r i m e s .

        The p r o s e c u t i o n p r e s e n t e d ample e v i d e n c e t o p r o v e t h e

d e f e n d a n t ' s g u i l t y a b s e n t s u c h methods.       Therefore, i f t h e
S t a t e - e f f e c t i v e l y d i m i n i s h d e f e n d a n t ' s c r e d i b i l i t y by
          did
s u c h methods, t h e r e s u l t i n g e f f e c t on t h e j u r y would n o t

have changed t h e v e r d i c t .           The r e c o r d shows t h a t d e f e n d a n t

h i m s e l f had e s t a b l i s h e d h i s l a c k of c r e d i b i l i t y . I n h i s
testimony, t h e defendant n o t only admitted t h e unlawful
e n t r y , b u t s o u g h t t o e x p l a i n it by a s c e n a r i o a b o u t h i s l o s t

wallet.        Y e t , when c o n f r o n t e d w i t h t h e e v i d e n c e t h a t h e had

a w a l l e t on h i s p e r s o n when a r r e s t e d , he c o u l d o n l y e x p l a i n

t h a t h e had gone home t o o b t a i n a n o t h e r w a l l e t b e f o r e he

broke i n t o t h e bar.           However, t h e r e c o r d shows t h e d e f e n d a n t
told the arresting officer, at the scene of the crime,
that he had fallen asleep, or passed out in the bar and
had been mistakenly locked in.     The defendant gave the
jury ample inconsistent statements by which it could dis-
believe his testimony, and therefore we do not find the
defendant's argument sufficient to order a new trial.
     Third, the defendant contends that the trial court acted
vindictively by sentencing him to 13 years of imprisonment
after persuading him to abandon the plea bargain.    We find
that the trial court acted properly by letting the defendant
proceed to trial.   After extensive questioning, the trial
judge was unsatisfied that the defendant intended to commit
a theft while inside the Wagon Wheel Bar.    Further, the
defendant stated several times during the questioning that
this was not his intent.     Therefore the trial court was
understandably hesitant to accept a guilty plea.
     The defendant relies upon the principle announced in
North Carolina v. .Alford (1970), 400 U.S.   25, 91 S.Ct. 160,
27 L.Ed.2d 162, that a court may accept a guilty plea if
satisfied that there was strong evidence of guilt, even
though the defendant, while offering to plead, denies that
he was in fact guilty.     But Alford does not require the
court to accept a guilty plea under such circumstances.      In

dicta, the Court explicitly rejected that notion.    400 U.S.
at 38, n. 11.   Consequently, the decision to accept a
guilty plea is left to the sound discretion of the trial
court and we find no abuse of discretion here.      The
trial court fully satisfied the requirements this Court
set forth in previous cases for determining the voluntariness
of a guilty plea.    See e.g., State v. Huttinger (19791,
       ,
Mont. - 595 P.2d 363, 36 St.Rep. 945; State v. Lewis
(1978), 177 Mont. 474, 582 P.2d 346; State v. Azure (1977),
175 Mont. 189, 573 P.2d 179.    If a trial court doubts whether
an accused is voluntarily entering a guilty plea, it should
resolve the doubt by proceeding to a trial on the merits.
Huttinger, supra, 595 P.2d at 367.   See State v. Doty (1977),
173 Mont. 233, 566 P.2d 1388.
     Fourth and finally, the defendant contends, and the State
concedes, that this case should be remanded for resentencing
because the trial court was without jurisdiction to sentence
the defendant as a persistent felony offender.   Section 46-
18-503, MCA, provides that if the accused is convicted of a
felony with which he has been charged, the State must file
written notice of it's intention to have the defendant
sentenced as a persistent felony offender, so the defendant
receives at least three days notice before the sentencing
hearing.   This was not done here, and we therefore remand
for resentencing with proper notice given to the defendant.
Upon remand, since this is a new sentencing hearing, the
trial court must comply with our holding in State v. Baldwin

                 ,
(19811, - Mont. - 629 P.2d 222, 38 St.Rep. 882.        Baldwin
held that a judge who participates in plea bargaining, must,
if the bargain is not completed, state for the record the
reasons supporting a sentence greater than the defendant offered
prior to trial.   Here, the trial court stated that it would
have given the defendant the State's recommended five year
sentence if he had pled guilty, but gave no clear reasons
for imposing the 13 year sentence.
     Accordingly, we affirm the conviction but remand for
resentencing.
We Concur:
