                                          !\lo.   83-253

                  I N THE SUPREME COURT OF THE STATE O F M N A J
                                                          O T ZA

                                                  1983




STATE O MONTANA,
       F

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

     -vs-

J O H N T I C E IiXNDRICKS ,

            Defendant and A p p e l l a n t .




APPEAL FROPI:      D i s t r i c t Court of t h e Nineteenth J u d i c i a l D i s t r i c t ,
                   I n a n d f o r t h e County o f L i n c o l n ,
                   The H o n o r a b l e R o b e r t M. H o l t e r , J u d g e p r e s i d i n g .


COUNSEL O RECORD:
         F

        For Appellant:

                   Rerry N.      Newcomer,        Roundup, Montana


        For Respondent:

                   IIon. Mike G r e e l y , A t t o r n e y G e n e r a l , FTelena, Nontana
                   W i l l i a m A. D o u g l a s , County A t t o r n e y , L i b b y , Montana




                                          S u b m i t t e d on E r i e f s r   S e p t e m b e r 22, 1 9 8 3

                                                              Decided:         February 2 7 ,      1984




                                          Clerk
Mr. Justice John C.         Sheehy delivered the Opinion of the
Court.


       On his plea of guilty, John Tice Hendricks was convicted
of four counts of burglary in the District Court, Nineteenth
Judicial District, Lincoln County.          He was sentenced to three
years     on   each   of    the    four   offenses,    to   be     served
consecutively, but his sentence of imprisonment was suspended
upon certain conditions.          One of the conditions was that he
make    restitution   for    an    automobile    valued. at      $12,000.
Hendricks appeals from that portion of the sentence requiring
him to make restitution for the value of the automobile.
       The issue in this case is similar to that of recent
cases plaguing this Court where the District Court iudge
refuses to accept in whole or in part the terms of a plea
bargain negotiated between the defendant and the State, upon
which the defendant changes his plea from not guilty to
guilty.
       Hendricks was charged in District Court with eleven
criminal charges.      The first four counts included charges
that he burglarized the Asa Wood School, the Libby Junior
High School, the office of Dentist Richard S. Wood, and the
automobile business of Higdem Auto Sales, all in Libby.              The
fifth count against him was           that he committed theft of
property at the Asa Wood School; the sixth that he committed
theft of property from the Libby Junior High School; the
seventh    that he    committed     theft   of   a   1982 Capri    motor
vehicle, the automobile we are here discussing; the eighth
that he committed theft in the tools taken from Higdem Auto
Sales; the ninth that he committed theft in the property
ta.ken from the dentist's office; the tenth that he destroyed
property in the Asa Wood School; and the eleventh that he
destroyed property in the Libby Junior High School.
     Hendricks' attorney and the county attorney of Lincoln
County     entered   into    a   plea    bargain    agreement, whereby
Hendricks agreed      to plead      guilty to the four counts of
burglary, and the county attorney asreed to dismiss all the
remaining counts on the information.               They agreed that the
appellant should not be held accountable for the destruction
of a 1982 Capri automobile.         The parties also agree that the
county attorney would make no sentencing recommendation or
present any aggravating circumstances at Hendricks sentencing
hearing.     Hendricks was to make restitution of approximately
$612 for tools taken from the Higdem Auto Sales premises.
     As background information, it should be stated that on
September 3, 1982, Hendricks and Barry Williams entered the
Higdem Auto Sales building in Libby.            Williams threw a rock
through a rear window, and climbed through the window and
then opened the door for Hendricks.             Once inside, Hendricks
and Williams siphoned gasoline from vehicles in the shop area
and placed the gasoline in the gas tank of a yellow 1982
Capri automobile.     They then placed tool boxes with mechanics
tools inside the Capri.          Hendricks rolled up the shop door,
Williams drove the car outside, and Hendricks shut the door
behind him.
    Williams then drove the couple to Glacier National Park.
At Glacier Park, they met with a youth, J.P.            The three drove
around     and   stopped    in   the    early   morning,   leaving   the
automobile in a field near a lodge for park workers.
     Later J.P.,     apparently independently of Hendricks and
Williams, returned to the 1982 Capri, poured gasoline on it
and set it afire.
     In accordance with a plea. bargain, the county attorney
dismissed, and the District Court ordered dismissal of, all
of the counts against Hendricks, except for the first four
burglary charges.       On February 14, 1983, also in accord with
a plea bargain agreement, Hendricks changed his plea from not
guilty to guilty of the four burglary counts contained in an
amended information.
     When Hendricks appeared in court for his change of plea,
the District Court judge interrogated him extensively with
respect     to   his    understanding      of    the   possibility      of
punishment, and the sentences applicable.              He also informed
the defendant, and the defendant said he understood that the
district judge is not a participant in the plea bargain
agreement and that the judge did not have to follow the
recommendations    of     the     county   attorney    or    the   defense
attornev.        The     defendant     then     specifics-lly      admitted
committing the offense of burglary in each of the four places
named in the amended information against him.               In the course
of that interroga.tion, he informed the judge tha.t he and
Williams had taken the 1982 Capri from the Higdem Auto Sales
premises.
    At the change of plea hearing, the following colloquy
occurred with respect to restitution:
     "THE COURT:    I notice there was something about
     restitution, in the Agreement, in the amount of
     Four Hundred Eighty-some Dollars. Is that --
    "MR. NEWCOMER :        Four Hundred Ninety-Five Dollars,
    Your Honor.
     "THE COURT:        Is that the value of the tools             --
     "THE DEFENDANT:       Yes.
     "THE COURT:       --tha.t were not recovered?"
At the end of the change of plea hearing there was further
discussion of restitution:
    "THE COURT: Now, Mr. Hendricks, I notice that your
    Plea Bargain Agreement calls for restitution. Are
    you working?
        "THE DEFENDANT:    Yes, I am, Your Honor.
    "THE COURT: All right. I expect, then, that you
    make a maximum effort to make that restitution. I
    think your attorney will tell you that, too, it's
    very important to me.
        "THE DEFENDANT:    Yes, Your Honor.
        "THE COURT:   Okay.     Good enough."
    There was no          further discussion at     that point with
respect to restitution and the hearing ended on that note.
    The next appearance of Hendricks before the District

Court    was   for    sentencing, on       Ma-rch 14,   1983.     After
proceeding routinely with that portion of the proceedings
respecting whether there was any legal rea-son not to impose
sentence and after hearing some testimony, the court again
raised the question of restitution:
    Q.    (Mr. Newcomer)  How about -- now the County
    Attorney's Office and I sat down and we tried to
    portion out the restitution and we agreed that Six
    Hundred Twelve Dollars would be your restitution.
    You paid One Hundred Seventy-Five Dollars this
    morning.   How -- what's your plan for paying off
    the remaining amount?
     "THE COURT:         Counsel, something's      troubling me
     right there.      Let's stop.
    "Let me ask you how you explain Six Hundred Twelve
    Dollars restitution. This is a joint and several
    obligation of these people who destroyed this car,
    is it not?
        "MR. NEWCOMER.:    No    --   well, this -- Your Honor.
        "THE COURT: Now wait a minute! My -- senses, as a
        lawyer, kind of got stomped on there.   Tell me.
     "MR.. NEWCOMER:       The car was taken by Mr. Williams
     and. my client.
        "THE COURT:   Okay.
        "MR. NEWCOMER : -- and it was left with this John
        Page. My client and Mr. Williams had no idea that
        they were going to trash the car out--or have it
        destroyed.
        "THE COURT:   It doesn't make any difference to me
        because they all participated in it, and all I can
        say is 'Yep, it's joint and several and everybody's
        stuck with the whole amount'   . . ."
        Thereafter, throughout the sentencing hearing, the court
remained fixed in its position that restitution for the Capri
would have to be made and inserted that in the sentencing
order.
        No   discussion was had    at the sentencing hearing or
thereafter about a withdrawal of the plea and no motion was
made by the defendant Hendricks to withdraw his plea.
        In the recent case of State v. Cavanaugh (Mont. Decided
December 23, 1983) , - P.2d - 40 St.Rep. 2007, this Court
                             ,
pointed      out that when    there is a disparity between the
anticipated punishment and the actual punishment meted out by
the District Court, the plea ba.rgain into which the defendant
thought he was entering is not the plea bargain that is
accepted by the trial judge.       This Court in that case further
adverted to the Federal Rule of Crimina.1 Procedure, ll(e) ( 4 ) ,
under which the federal court which decides not to accept a
plea bargain gives the defendant a chance to withdraw his
plea.        We also adverted to the American Law Institute, A
Model Code of Pre-arraignment Procedure, 5 350.6 (Adopted May
20, 1975) and to th.e American Bar Association Standards
Relating to the Administra.tion of Criminal Justice:                The
Function of the Trial Judge, S 4.1 (c) (1974)         .   In Cavanaugh,
this Court decided that because the concept of "fairness" has
been     added   by   the   United. State   Supreme   Court    to   the
"voluntary" and "knowing" test used to determine whether you
should be allowed to withdraw a guilty plea, that it would be
fundamentally unfair not to allow the defendant to withdraw
his guilty plea under circumstances where the District Court
refuses to accept the concessions granted by the State in a
plea bargain agreement.
     In this case, Hendricks was not given the opportunity to
withdraw his plea of guilty of the four counts of burglary.
Consonant with our holding in Cavanaugh, Hendricks should
have been given that opportunity.
     The complication of this case is that the State has
already dismissed the remaining counts against Hendricks with
prejudice.     It would be manifestly unfair to allow Hendricks
to withdraw his plea of guilty to those four charges which he
has been convicted, and not to allow the State to refile
against the defendant the remaining charges dismissed under
the plea bargain agreement.
     Accordingly, we remand this case to the District Court
for the following proceedings:
     1.   On remand to the District Court, the defendant shall
he returned for further proceedings before the District Court
in connection with his sentence.     If the trial judge decides
that the final disposition of this case should not include
the restitution concessions contemplated by the plea bargain
agreement, he shall so advise the defendant and then call
upon the defendant to either affirm or withdraw his plea of
guilty.   American Bar Association    standard.^ Relating to the
Administration of Criminal Justice:       Pleas of Guilty,    §

3.3 (h) (1974).
     2.      Before the defendant is given the opportunity to
withdraw his plea, however, the county attorney shall be
allowed to present evidence, if any, of prejudice to the
State resulting from its inability to prosecute the charges
which had been dismissed under the plea bargain.           If the
court finds prejudi-ce to the State such that withdrawal of
the guilty plea would result in injustice, the convictions
now existing shall be affirmed.
      3.     If   the   county   attorney   does not present   such
evidence of prejudice, or if the District Court finds no
prejudice to the State in reinstating the dismissed charges,
the defendant must, if he decides to withdra.~his plea of
guilty, agree as a condition thereto that the county attorney
may   refile in the District Court the dismissed criminal
charges against him which were subject to the plea bargain
agreement, and further agree that in subsequent criminal
proceedings as to those charges he will not raise the issue
of estoppel, res judicata, double jeopardy or any other
defense which attacks the propriety of refiling the dismissed
criminal charges.
      4.   If the defendant decides not to withdraw his guilty
plea and to stand upon his plea of guilty to the four charges
of burglary upon which he has been convicted, the sentence of
the District Court, including restitution for the Capri
automobile is hereby affirmed.

                                    //
                                    \
                                    '-.,




We Concur:
      Justices




Mr. Justice L.C. Gulbrandson dissenting.


      I respectfully dissent.
      The majority relies upon State v. Cavanaugh, supra,
for its order remanding this case for further proceedings.
      I     respectfully   dissented    in   Cavanaugh, but     I    now
accept that holding as Montana law.           However, that opinion
clearly states that it was to be applied prospectively only,
and   its     use   retroactively      appears   to   me   to   be    a
misapplication of the law.
      In my view, Judge Holter was correct in requiring that
full restitution be made to the innocent victim, and I would
Mr. Justice Daniel J. Shea concurring and dissenting:
     I   join the opinion holding that defendant Hendricks
should have been given the opportunity to withdraw his plea
of guilty to the four counts of burglary.      However, I do not
agree with    that part    of   the   opinion giving the   county
attorney the power to prevent withdrawal of the pleas by
presenting evidence of prejudice to the State if a trial were
required.
     The    question   of whether defendant    should have been
granted the right to withdraw his pleas of guilty is a due
process question and cannot be tied to the State's ability to
prosecute once the pleas are withdrawn.       Therefore I would
grant to the defendant the choice of whether he will withdraw
his pleas of guilty and go to trial.        I do agree, however,
that if defendant makes this choice, it is fair that the
State should be permitted to reinstate and proceed with the
dismissed charges.
               I N THE SUPREME COURT O F THE STATE O MONTANA
                                                    F



                                            No.     83-258


STATE O MONTANA,
       F

        D e f e n d a n t and Respondent,                               -.

                VS    .
J O H N TICE HENDRICKS,
                                                                                    D E C 3 l 1384
        p l a i n t i f f and A p p e l J - a n t -
                                                                        &fL@! Yb/          -j   ;Ef*$*~$@ay

                                                                             CLERK OF SUPWEPVfE COURT
                                                                                8 m - E OF MORITAMA
                                    ORDER ON R.EHEARING




        This      Court      handed         down      its    original          opinion      in     this

c a u s e on F e b r u a r y 27, 1984, r e p o r t e d i n 4 1 St.Rep.                   315.

        Hendricks          was     convicted          of     burglary          in    the   District

Court, Ninteenth Judicial. D i s t r i c t ,                   L i n c o l n County.            He w a s

sentenced        to       three years          in     each of      four        offenses,         to    be

served      consecutively,             but h i s       s e n t e n c e of     imprisonment wa-s

suspended upon c e r t a i n c o n d i t i o n s .            One o f t h e c o n d i t i o n s was

t h a t h e make r e s t i t u t i o n f o r a n a u t o m o b i l e v a l u e d a t $12,000.

H e n d r i c k s a p p e a l s from t h a t p o r t i o n o f t h e s e n t e n c e r e q u i r i n g

him    to      make       restitution         for     the    value     of: t h e a u t o m o b i l e .

        Because t h e S t a t e and H e n d r i c k s had e n t e r e d i n t o a p l e a

bargain,        through t h e i r         respective counsel,                  and b e c a u s e      the

District        Court       chose      not     to     follow t h e      t e r m s of       the     plea

bargain,        this        Court      in     its      original       opinion,           under        our

h o l d i n g i n S t a t e v . Cavanaugh (Mont. 1 9 8 3 ) , 673 P.2d                        482,      40

St.Rep.        2007,      remanded t h e c a u s e t o t h e D i s t r i c t C o u r t f o r

f u r t h e r proceedings.             I n o u r o r i g i n a l o p i n i o n h e r e , we s a i d

that      if    on        remand     the      District        Court          decided       on    final
disposition          of     the     case      not     to      agree   to    the        restitution

concessions          involving t h e            1982 C a p r i a u t o m o b i l e ,    i.t    should

g i v e t h e d e f e n d a n t a chance e i t h e r t o a f f i r m o r withdraw h i s

p l e a of g u i l t y .     However, we a l s o p r o v i d e d t h a t i f t h e c o u n t y

attorney         presented          evidence          of       prejudice        to      the        State

r e s u l t i n g from i t s i n a b i l i t y t o p r o s e c u t e o t h e r c h a r g e s which

have been d i s m i s s e d under t h e p l e a b a r g a i n , t h e n t h e s e n t e n c e

would b e a f f i r m e d .

        The     oriqinal         opinion        in    this      c a u s e was    d e c i d e d by      a

p a n e l of    f i v e J u s t i c e s assigned t o t h e case.                  Three of           the

i u s t i c e s a g r e e d t o t h e remand f o r f u r t h e r p r o c e e d i n g s on t h e

basis just          stated.         A    f o u r t h i u s t i c e agreed t h a t Hendricks

s h o u l d have t h e o p p o r t u n i t y t o withdraw h i s p l e a o f g u i l t y ,

b u t t h a t t h e county a t t o r n e y s h o u l d n o t b e a b l e t o p r e v e n t

t h e w i t h d r a w a l of h i s p l e a of g u i l t y by p r e s e n t i n g e v i d e n c e

of p r e j u d i c e t o t h e s t a t e i f a t r i a l were r e q u i r e d .               A fifth

j u s t i c e d i s s e n t e d i n any e v e n t t o t h e remand.

        The     State petitioned                f o r a rehearing,           contendinq t h a t

only t h r e e      justices        of    t h e C o u r t had d e c i d e d t o a l l o w t h e

S t a t e t o show e v i d e n c e a s t o t h e d i s m i s s e d c h a r g e s ,             i f the

d e f e n d a n t withdrew h i s p l e a .           The S t a t e contended t h e r e f o r e ,

that      the     opinion         as     written         was    not    a   decision           of     the

m a j o r i t y of t h e C o u r t .

        W e granted         r e h e a r i n g and o r a l argument was had on t h e

matter         before       this        Court       on       September     24,         1984.          On

r e c o n s i d e r a t i o n by t h e f u l l C o u r t ,

        IT I S NOW HEREBY ORDERED:

        1.      The s e n t e n c e imposed upon t h e d e f e n d a n t John T i c e

Elendricl;~ i s modified                 by   s t r i k i n g therefrom all- provisions

r e l a t i n g t o r e s t i t u t i o n t o be made by him f o r o r on a c c o u n t
of   the   1982 Capri   automobile, and    as   so modified,   the
iudgrnent of the District Court is affirmed.
      2.   This Order is prospective only, and shall apply only

to payments not heretofore made by Hendricks relating to said
1-982 Capri automobile.
     DATED this   213   day of December, 1984.




We Concur:


 %&,%& Justice
   Chief




           Justices


Mr. Justice L. C. Gulbrandson, dissenting:
     I dissent for the same
the Opinion in this cause.


                                          ustice
