                                                                                        November 19 2014


                                         DA 13-0512
                                                                                        Case Number: DA 13-0512

                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2014 MT 305



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JUSTIN ALLEN CLEVELAND,

              Defendant and Appellant.



APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DC 12-0664
                       Honorable Russell C. Fagg, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                       Kirsten H. Pabst, Attorney at Law; Missoula, Montana

               For Appellee:

                       Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant
                       Attorney General; Helena, Montana

                       Scott Twito, Yellowstone County Attorney; Billings, Montana



                                                    Submitted on Briefs: September 3, 2014
                                                               Decided: November 19, 2014

Filed:




                                            Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1     Justin Allen Cleveland appeals the judgment of the Thirteenth Judicial District Court,

Yellowstone County, sentencing him to a three-year suspended sentence, a fine, and

participation in Adult Impaired Driving Court upon his guilty pleas to felony criminal

endangerment, driving under the influence of alcohol, and operating a motor vehicle as a

habitual traffic offender. We affirm.

¶2     The issues on appeal are as follows:

       1. Whether Cleveland’s felony criminal endangerment charge qualified as an
       exception to the prior felony conviction rule, allowing him to receive a
       deferred sentence.

       2. Whether Cleveland was entitled to specific performance of the original plea
       agreement that recommended a three-year deferred sentence, when he had a
       prior felony conviction that was not discovered until after the plea agreement
       was executed.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     On October 25, 2012, Cleveland was observed driving erratically at 99 miles per hour

in a 75-mile-per-hour zone. After being pulled over, Cleveland was found to be under the

influence of alcohol. Cleveland’s six-month-old child, O.C., was in the vehicle.

¶4     Cleveland was charged by information on November 2, 2012, with one felony count

of criminal endangerment, and three misdemeanors: (1) driving under the influence of

alcohol, (2) being a habitual traffic offender operating a motor vehicle, and (3) operating a

motor vehicle with plates assigned to another vehicle.

¶5     On April 5, 2013, Cleveland signed an acknowledgement of waiver of rights and plea

agreement, in which he pled guilty to the charges of criminal endangerment, driving under


                                              2
the influence, and being a habitual traffic offender operating a motor vehicle. The State

agreed to move to dismiss the charge of operating a motor vehicle with plates assigned to

another vehicle. The plea agreement recommended a $500 fine, and a three-year deferred

sentence on the condition that Cleveland complete the Adult Impaired Driving Court.

¶6     On June 4, 2013, the District Court held Cleveland’s sentencing hearing at which the

State presented a modification to Cleveland’s recommended sentence because it discovered

in his pre-sentence report that Cleveland had a prior felony which precluded him from

receiving a deferred sentence under § 46-18-201(1)(b), MCA. Because of this discovery, the

State recommended Cleveland receive a suspended sentence instead of a deferred sentence.

Alternatively, the State agreed that Cleveland should have the opportunity to withdraw his

guilty plea.

¶7     Cleveland argued that he was still eligible for a deferred sentence under an exception

to the prior felony conviction rule, § 46-18-222(5), MCA, and that he was entitled to specific

performance of the plea agreement. However, the District Court ruled that the exception to

the prior felony conviction rule under § 46-18-222(5), MCA, did not apply to Cleveland’s

case. Having determined that Cleveland was not statutorily eligible for a deferred sentence

under § 46-18-201(1)(b), MCA, the District Court refused to grant Cleveland specific

performance of the plea agreement.

¶8     The District Court issued a sentencing order on July 10, 2013, in which it sentenced

Cleveland to a three-year suspended sentence with credit for time served, a $500 fine, and

participation in the Adult Impaired Driving Court on the charges of felony criminal



                                              3
endangerment, driving under the influence of alcohol, and being a habitual traffic offender

operating a motor vehicle.

¶9     Cleveland appeals the District Court’s July 10, 2013 sentencing order.

                               STANDARD OF REVIEW

¶10    This Court reviews a criminal sentence only for legality (i.e., whether the sentence is

within the parameters provided by statute). State v. Montoya, 1999 MT 180, ¶ 15, 295 Mont.

288, 983 P.2d 937.

                                      DISCUSSION

¶11 1. Whether Cleveland’s felony criminal endangerment charge qualified as an
exception to the prior felony conviction rule, allowing him to receive a deferred sentence.

¶12    Section 46-18-201(1)(b), MCA, states: “Except as provided in 46-18-222, imposition

of sentence in a felony case may not be deferred in the case of an offender who has been

convicted of a felony on a prior occasion.” Relevant to the present dispute is the exception

set forth at § 46-18-222(5), MCA, which provides in pertinent part that a defendant qualifies

for a subsequent deferred sentence “in a case in which the threat of bodily injury or actual

infliction of bodily injury is an actual element of the crime, [but] no serious bodily injury

was inflicted on the victim unless a weapon was used in the commission of the offense.”

¶13    Cleveland argues that his crime should be included in the exception to the prior felony

conviction rule because criminal endangerment is a crime in which the risk of bodily injury

is an element, § 45-5-207, MCA, but no bodily injury actually occurs. Section 46-18-222(5),

MCA. The State disagrees, arguing that this exception only applies to violent crimes

involving the “threat” of bodily injury, § 46-18-222(5), MCA, whereas criminal

                                              4
endangerment involves the “risk” of bodily injury pursuant to § 46-5-207, MCA.

Essentially, the State argues that as used in these respective statutes, “threat” and “risk” are

not synonymous. We agree.

¶14    Section 45-2-101(76)(a), MCA, defines “threat” as “a menace, however

communicated, to . . . inflict physical harm on the person threatened or any other person or

on property.” By contrast, a “risk” is defined as “someone or something that creates or

suggests a hazard.” Merriam-Webster’s Collegiate Dictionary 1076 (Frederick C. Mish ed.,

11th ed. 2012).    Plainly, a “threat” of bodily injury, § 46-18-222(5), MCA, is not

synonymous with a “risk” of bodily injury as used in § 45-5-207, MCA. A threat involves

an affirmative act in which the actor communicates a menace to inflict harm. Section 45-2-

101(76)(a), MCA. As used in § 45-5-207, MCA, “risk” is the possibility of death or injury

resulting from a hazard created by the defendant. Relevant to the present case, Cleveland

obviously did not “threaten” to inflict harm upon his six-month-old child. He did, however,

create a hazard from which harm to the child may have resulted by driving under the

influence.

¶15    It may seem incongruous that arguably more serious offenses may qualify for an

exception to the prior felony conviction rule under § 46-18-222(5), MCA, while criminal

endangerment pursuant to § 45-5-207, MCA, does not. Nevertheless, Cleveland’s offense

clearly did not qualify for the recommended deferred sentence in the original plea agreement.

¶16 2. Whether Cleveland was entitled to specific performance of the original plea
agreement that recommended a three-year deferred sentence, when he had a prior felony
conviction that was not discovered until after the plea agreement was executed.



                                               5
¶17    “Plea bargaining agreements are subject to contract law standards.” State v.

Dinndorf, 202 Mont. 308, 311, 658 P.2d 372, 373 (1983). In State v. Allen we noted:

       Prosecutors who engage in plea bargaining must meet strict and meticulous
       standards of both promise and performance as a plea of guilty resting in any
       significant degree on an unfulfilled plea bargain is involuntary and subject to
       vacation. Prosecutorial violations, even if made inadvertently or in good faith
       to obtain a just and mutually desired end, are unacceptable.

State v. Allen, 199 Mont. 204, 209, 645 P.2d 380, 382 (1981) (citations omitted).

¶18    A contract is unlawful if it is “contrary to an express provision of law.” Section

28-2-701(1), MCA. If a contract has several distinct objects, and at least one object is lawful

and one is unlawful, then “the contract is void as to the latter and valid as to the rest.”

Section 28-2-604, MCA.

¶19    As discussed above, Cleveland was not eligible for a deferred sentence because of his

prior felony conviction. The State argues, therefore, that there was no breach of the plea

agreement because the agreement was voided by the illegal provision—i.e., the deferred

sentence, citing § 28-2-701, MCA, and § 28-2-603, MCA. Cleveland argues that the State

should have allowed him to nevertheless choose between specific performance of the plea

agreement or withdrawal of his guilty plea, relying on State v. Munoz, 2001 MT 85, 305

Mont. 139, 23 P.3d 922; and State v. Rardon, 2002 MT 345, 313 Mont. 321, 61 P.3d 132

(Rardon II).

¶20    In Munoz, the defendant pled guilty to one count of sexual assault, and entered a plea

agreement for a three-year sentence. Munoz, ¶¶ 3-4. However, at the sentencing hearing the

prosecution urged the District Court to adopt the probation officer’s recommendation of a

five-year sentence. Munoz, ¶ 5. The District Court sentenced him to five years, and ordered
                                              6
that Munoz would be ineligible for parole until he completed every phase of the prison’s sex

offender treatment program. Munoz, ¶ 6. Munoz moved to withdraw his guilty plea because

the State breached the plea agreement, but his motion was denied. Munoz, ¶¶ 7-8.

¶21    On appeal, we held that because the State breached the plea agreement, Munoz should

have been allowed to choose from available remedies as the non-breaching party. Munoz,

¶¶ 10, 38. The burden then fell on the State, as the breaching party, to show by clear and

convincing evidence that the defendant’s choice of remedy would result in a miscarriage of

justice. We therefore held that Munoz should have been given the option to withdraw his

guilty plea. Munoz, ¶ 38. In Rardon II, we gave the defendant the option to withdraw his

guilty plea or obtain specific performance of his plea agreement after the state breached the

plea agreement. Rardon II, ¶ 26.

¶22    Cleveland’s case is distinguishable from Munoz and Rardon II because the terms of

Cleveland’s plea agreement were illegal under § 46-18-201(1)(b), MCA, due to Cleveland’s

prior felony conviction which made him ineligible to receive a deferred sentence. Because

that provision of the original plea agreement was illegal, the object of the plea agreement—

the deferred sentence—was void and unenforceable. Sections 28-2-701, -604, MCA.

¶23    We reiterate that the State has an obligation to “meet strict and meticulous standards

of both promise and performance” when engaged in plea bargaining and that “[p]rosecutorial

violations, even if made inadvertently or in good faith to obtain a just and mutually desired

end, are unacceptable.” Allen, 199 Mont. at 209, 645 P.2d at 382. However, these

obligations cannot include the enforcement of an illegal, and therefore unenforceable,

provision. Therefore, Cleveland was not entitled to specific performance of the plea
                                             7
agreement, and the State correctly gave him the option to either withdraw his guilty plea or

agree to the suspended sentence in accordance with § 46-18-201(1)(b), MCA.

¶24    Affirmed.


                                                   /S/ JAMES JEREMIAH SHEA


We Concur:

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




Justice Laurie McKinnon, specially concurring.

¶25    I agree with the Court’s holding as to Issue 1. With respect to Issue 2, however, it is

unnecessary to invoke provisions of Title 28, pertaining generally to contracts, when we

already have precedent clearly stating that there can be no plea bargain to an illegal sentence.

State v. Deserly, 2008 MT 242, ¶ 16, 344 Mont. 468, 188 P.3d 1057, overruled on other

grounds by State v. Brinson, 2009 MT 200, ¶ 9, 351 Mont. 136, 210 P.3d 164. I would

affirm the District Court on this basis and would not apply Title 28 statutes or State v.

Munoz, 2001 MT 85, 305 Mont. 139, 23 P.3d 922, in resolving this issue.1




       1
         The legality of the sentence was not at issue in Munoz. The State had recommended a
sentence different from what had been agreed upon in the plea agreement. The State conceded
breach of the plea agreement, and the issue concerned the proper remedy. Munoz, ¶¶ 3-11.
                                                8
¶26    The notion that a plea agreement is a contract subject to contract law standards is well

established in our caselaw. Opinion, ¶ 17; State v. Lewis, 2012 MT 157, ¶ 16, 365 Mont.

431, 282 P.3d 679. This principle can be traced back to Santobello v. New York, 404 U.S.

257, 92 S. Ct. 495 (1971). There, the Supreme Court held that “when a plea rests in any

significant degree on a promise or agreement of the prosecutor, so that it can be said to be

part of the inducement or consideration, such promise must be fulfilled.” Santobello, 404

U.S. at 262, 92 S. Ct. at 499. We acknowledged this holding in State v. Allen, 685 P.2d 333

(Mont. 1982) (Allen II), observing that it “was based in part on analogies to contract law.”

685 P.2d at 335 (emphasis added). We noted, however, that “there appears to be a recent

trend away from a strict contract characterization of a plea bargain agreement.” Allen II, 685

P.2d at 335 (citing Cooper v. United States, 594 F.2d 12 (4th Cir. 1979)). In Cooper, for

example, the court explained that plea bargaining implicates constitutional rights and, thus,

there is a limit on the extent to which contract law may be relied on in this context. Cooper,

594 F.2d at 15-18. More recently, the Supreme Court stated that while “plea bargains are

essentially contracts,” this “analogy may not hold in all respects.” Puckett v. United States,

556 U.S. 129, 137, 129 S. Ct. 1423, 1430 (2009).

¶27    Since Allen II, and indeed Santobello, this Court and courts across the country have

struggled with fitting the “broken plea bargain” into the context of contract law and defining

the remedy to be allowed. E.g., Munoz, ¶¶ 12-38. In my view, because a defendant’s plea of

guilty involves the waiver of various constitutional rights, a plea bargain is an agreement

between the State and an individual having as its ultimate goal the advancement of criminal

justice, rather than the commercial marketplace. Contract principles, which undisputedly
                                              9
derive from the free market and involve arm’s length transactions in the business world, are

inapt analogies of a defendant’s relationship to the State. True, the analogy may provide

context to the Supreme Court’s struggle in Santobello to implant legal principles into “an

essential component of the administration of justice”—i.e., plea bargaining. 404 U.S. at 260,

92 S. Ct. at 498. The constitutional underpinnings to the Supreme Court’s decision,

however, are beyond dispute. “[A] guilty plea is a serious and sobering occasion inasmuch

as it constitutes a waiver of the fundamental rights to a jury trial, to confront one’s accusers,

to present witnesses in one’s defense, to remain silent, and to be convicted by proof beyond

all reasonable doubt.” Santobello, 404 U.S. at 264, 92 S. Ct. at 500 (Douglas, J., concurring)

(citations omitted). Use of contract law to define the rights and relationship between the

State and the defendant ignores the fact that a conviction founded on an improperly induced

guilty plea deprives the plea of its constitutionally required voluntariness. Brinson, ¶ 8.

¶28    I agree, therefore, with our prior observations that “prosecutors must meet strict and

meticulous standards of both promise and performance relating to plea agreements, because

a guilty plea resting on an unfulfilled promise in a plea bargain is involuntary and

prosecutorial violations, even if made inadvertently or in good faith to obtain a just and

mutually desired end, are unacceptable.” State v. Rardon, 2002 MT 345, ¶ 18, 313 Mont.

321, 61 P.3d 132 (brackets and internal quotation marks omitted); accord State v. LaMere,

272 Mont. 355, 359, 900 P.2d 926, 929 (1995); State v. Allen, 197 Mont. 64, 69, 645 P.2d

380, 382 (1981) (Allen I).2 However, addressing the enforceability of a plea agreement

based on strict adherence to contract principles can be misleading and may cause us to lose



                                               10
sight of the fundamental principle recognized in Santobello: that the defendant must be

treated with fairness throughout the process. 404 U.S. at 261, 92 S. Ct. at 498.3 I believe

strongly that the law of contracts is inadequate to define the limits of a defendant’s

constitutional rights, and I find the use of contract principles to resolve the instant dispute

inappropriate.

¶29    Indeed, as stated at the outset, resort to Title 28 and the principles of contract law

discussed in Munoz is unnecessary. Cleveland’s arguments for specific performance pertain

to plea agreements contemplating lawful sentences where the prosecutor breached his

obligations under the plea agreement, which is not the situation here. This case instead

involves a plea bargain to an illegal sentence. Our precedent already recognizes that

“‘[t]here can be no plea bargain to an illegal sentence. Even when a defendant, prosecutor,

and court agree on a sentence, the court cannot give the sentence effect if it is not authorized

by law.’” Deserly, ¶ 16 (quoting United States v. Greatwalker, 285 F.3d 727, 729-30 (8th

Cir. 2002)).     “‘[A] plea agreement calling for an unauthorized sentence cannot be

specifically enforced.’” Deserly, ¶ 16 (quoting State v. Brown, 606 N.W.2d 670, 674 (Minn.

2000)). Furthermore, because a guilty plea cannot be induced by unfulfillable promises, the

voluntariness of the plea is drawn into question where the plea agreement contemplates a



       2
         Allen I is also reported at 199 Mont. 204, 209.
       3
         See also Cooper, 594 F.2d at 15-16 (“Both before and since Santobello, the courts have
understandably drawn heavily on the ready analogies of substantive and remedial contract law to
supply the body of doctrine necessary to order plea bargaining practices and to afford relief to
defendants aggrieved in the negotiating process. To the extent therefore that there has evolved any
general body of ‘plea bargain law,’ it is heavily freighted with these contract law analogies. When
Santobello made it plain, however, that the core concept here is the existence of a constitutional right
in the defendant to be treated with ‘fairness’ throughout the process, this presaged inevitably the
                                                  11
sentence unauthorized by law. Deserly, ¶ 16. If a plea bargain is based on a promise that the

trial court lacks authority to fulfill, and the defendant was induced to plead guilty by that

promise, then the defendant is entitled to withdraw the plea and the parties are returned to

their initial positions. Deserly, ¶ 16.

¶30    Given our adoption in Deserly of the foregoing well-recognized principles, it is not

necessary, or advisable, to apply Title 28 statutes in resolving the instant appeal. The

presentence investigation revealed that Cleveland has a prior felony conviction. Thus, upon

learning that the sentence contemplated by the parties in the plea agreement is illegal, the

District Court gave Cleveland the option of withdrawing his guilty plea at the June 4, 2013

sentencing hearing (a critical fact that we have failed to mention in our Opinion). The

District Court advised Cleveland that if he chose not to withdraw his guilty plea, the court

would impose a suspended sentence rather than a deferred sentence. Cleveland, after being

properly advised, stated: “[N]o, I wouldn’t withdraw my guilty plea, because obviously, I did

the crime. So there’s no point in dragging that out any longer.” Cleveland instead chose to

insist on specific performance of the plea agreement, which the District Court correctly

determined was not an option.

¶31    I would affirm the District Court based on the rationale that there can be no plea

bargain to an illegal sentence, Deserly, ¶ 16, and that Cleveland declined to withdraw his

plea when given the opportunity to do so. I therefore specially concur as to Issue 2.




question of the extent to which contract law may be drawn upon to define the limits of this
constitutional right.” (footnote omitted)).
                                             12
     /S/ LAURIE McKINNON




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