                            No.     94-330
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1996


STATE OF MONTANA,
          Plaintiff and Respondent,
     v.                                            FILPO
RUSSELL R. MODDISON,                                   OCT "'8 1996
          Defendant and Appellant.
                                                       c'e' ::'~nifh
                                                  et:;!ltA~~ 'f~3~fAWit1R1




APPEAL FROM:   District Court of the Eighth Judicial District,
               In and for the County of Cascade,
               The Honorable Margaret Johnson, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               William F.   Hooks,         Appellate   Defender        Office,
               Helena, Montana
          For Respondent:
               Joseph P. Mazurek, Attorney General,      Jennifer
               Anders, Assistant Attorney General i Brant Light,
               Cascade County Attorney, Great Falls, Montana


                              Submitted on Briefs:         August I, 1996
                                               Decided:    October 18, 1996
Filed:



                                  Cl'erk
Justice William E. Hunt/ Sr. delivered the Opinion of the Court.

     Russell    R.   Moddison   (Moddison)   was   charged by information

filed in the Eighth Judicial District Court/ Cascade County/ with

sexual intercourse without consent/          a felony/    and obstructing a

peace officer/ a misdemeanor.       Moddison pled guilty to the felony

charge as part of a plea        ~greement/   then subsequently moved the

District Court to withdraw his guilty plea.              The District Court

denied Moddison's motion.       Moddison appeals.

     We affirm.

     The issue for our review is whether the District Court abused

its discretion when it denied Moddison's motion to withdraw his

guilty plea.

                                   FACTS

     The charges filed against Moddison resulted from an incident

which occurred in February 1992 in the vicinity of Great Falls/

Montana.   Moddison/    Robert Gould/      Ian Johnson/    Jordan Mattfeld/

Tammy Archer/     and Janetta Jo Clark had been drinking for a few

hours at the Black Eagle Country Club when they all decided to go

to the residence of Johnson and Mattfeld.          At the residence/ Clark
and Mattfeld had a drinking contest which led to Clark drinking
nearly half of a bottle of whiskey.           Clark had already had nine

drinks at the Black Eagle Country Club.
     Clark soon "passed out" in one of the bedrooms.              Moddison/

Gould/ and Johnson then had sex with Clark individually.          All three

men claimed that Clark consented.



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     About two hours later' Moddison returned to the bedroom to

check on Clark and discovered that she was cold to the touch and

had no discernable pulse.          The coroner later determined that Clark

had died at 4:30 a.m., and at the time of death had a blood alcohol

level of 0,42 gm/dl.          The cause of Clark's death was asphyxia,

prompted by the extraordinarily high level of alcohol in her body.

     Moddison and Gould left the residence in Moddison's truck, but

soon abandoned the truck and ran when they saw a Cascade County

Sheriff's vehicle.         Moddison was later found by authorities in the

basement of his mother's house.           Moddison, Gould, and Johnson were

ultimately charged in a joint information with sexual intercourse

without consent, or,        alternatively,       attempted sexual intercourse

without consent.        Moddison and Gould were also charged with the

misdemeanor       offense    of    obstructing         a   peace     officer.      The

information was later amended to delete the alternative charge of

attempted sexual intercourse without consent,

     Each    defendant       was   appointed         separate    counsel     and   each

defendant pled "not guilty" to the charges.                 Counsel believed that

a joint defense would be in their clients' best interests because

each defendant admitted to having sex with Clark but claimed that

she had consented to the acts.                 Later,      after a    review of the

evidence    and    a   discussion    with      the    Cascade    County Attorney's

Office, counsel concluded that it would be in their clients' best

interests   to     enter    into a   plea agreement          deal.      Counsel    were

particularly       concerned       that       evidence      of     Clark's      extreme




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                                                                       "


intoxication would prevent a jury from finding that she consented

to intercourse with the three defendants.

       The plea agreement offered by the State required Moddison and

Gould to plead guilty to the charge of sexual intercourse without

consent, and required Johnson to plead guilty to an amended charge

of obstructing a peace officer.              In return,     the State agreed to

drop   the   misdemeanor      charges    against    Moddison     and       Gould,     and

recommend to the court that Moddison and Gould each receive a ten

year   sentence   with   five    years    suspended.        However,        the     State

refused to stipulate during plea negotiations that Moddison and

Gould would not have to undergo sexual offender treatment, despite

the    defendants'    adamant     belief     that    the    treatment        was      not

appropriate for them.         The parties eventually entered into a non-

binding plea      agreement     in which     the    issue   of   sexual      offender

treatment was left to the court's discretion.

       The record reveals that the plea agreement was attractive to

counsel because counsel believed that the State's leniency toward

Johnson would effectively prevent the court from punishing Moddison

and Gould too harshly.        Counsel also believed that the non-binding

nature of the plea agreement would allow them to recommend a lesser
prison term than the State would recommend.                 Further, Moddison's

attorney hoped that if his recommendation of a suspended prison

term was accepted by the court, then the sexual offender treatment

program,     if it were imposed, could be completed by Moddison in a

local community program.




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                                                                        "



       The    record also revea:ls that Moddison' s           attorney informed

Moddison of the possibility that he might be sentenced to prison

and ordered to undergo a sexual offender program there.                     Moddison' s

attorney testified that he explained to Moddison that his admission

that he committed a           sexual crime was required before he                  could

successfully complete the program.             Moddison steadfastly refused to

make that admission, and according to Moddison's attorney said "if

he had to [admit to the crime] he would sit at the prison until he

was discharged."            Moddison intended to enter an Alford plea of

guilty, in which he could concede· the strength of the State's case

against him without admitting that he committed a crime.                     See North

Carolina v. Alford (1970), ,400 U.S. 25,              91 S.Ct. 160, 27 L.Ed.2d

162.

       Moddison's attorney apparently realized the potential dilemma

Moddison would face if, after he entered his Alford plea, the court

sentenced him to a prison term and ordered him to undergo sexual

offender      treatment      there:   by   refusing   to   admit   to       his   crime,

Moddison would be unable to complete the program and thus would

likely be ineligible for parole.               Moddison's attorney therefore

advised Moddison that if such a sentence were imposed,                        he could
choose       from   among    three    remedies:   appeal    the    sentence,        seek

sentence review, or withdraw the plea.

       At the October 18, 1993 change of plea hearing, Gould fired

his attorney, withdrew from the plea agreement, and announced his

intention to go to trial.              Gould was later convicted of sexual




                                           5
intercourse        without       consent,     and   this    Court       affirmed      his

conviction.        State v. Gould (1995), 273 Mont. 207, 902 P.2d 532.

       Moddison and Johnson conformed to the plea agreement,                          and

Moddison entered an Alford plea of guilty to the charge of sexual

intercourse without consent.                Moddison had previously signed the

plea agreement and an "Acknowledgment of Waiver of Rights by Plea

of Guilty," and at the hearihg Moddison's attorney went through the

waiver of rights and the plea agreement to confirm that Moddison

understood their terms.             Moddison testified that:            he understood

that   the   issue    of     a   sexual     offender program was         left    to   the

discretion of the court; he understood that the court did not have

to abide by the plea agreement; he understood that the court could

impose the maximum penalty provided by law; he understood that if

the court did not abide by the plea agreement he could not then

withdraw his        guilty plea;       he    understood    that   the    court     could

designate him a dangerous offender as well as limit his eligibility

for parole; he understood that he had the option of going to trial;

he voluntarily signed the plea agreement; he was satisfied with the

services of his attorney; and, he believed he would be convicted of

the charge if he went to trial.
       Moddison's plea was accepted by the court and sentencing was

set for a later date.            In the meantime, the court ordered Moddison
to undergo     a    sexual       offender evaluation       in Missoula,         Montana.

Moddison missed three appointments with the Missoula evaluator,

claiming that he did not have the money to purchase bus fare from

Great Falls to Missoula.             Because Moddison had not undergone the


                                             6
evaluation,         and because ad¢itional offenses were brought to the

court's     attention         which       did    not   appear    in     the    presentence

investigation,         the sentencing hearing was continued to May 19,

1994.     At the May hearing, the court sentenced Moddison to a ten

year prison term with five years suspended.                     The court also ordered

Moddison       to    complete      sexual       offender treatment       and a       chemical

dependency          program   at    the     prison     before   being    considered       for

release.

        Moddison arrived at the Montana State Prison on May 25, 1994.

He soon learned that the sexual offender treatment program had an

extensive waiting list and that the program itself took at least

three years to complete.              On June 9, 1994, Moddison filed two pro

se   motions,        entitled      "Notice       for   Appointment      of    Counsel"    and

"Notice of Appeal," with the District Court.                       After the District

Court failed to act on Moddison's motions, Moddison filed a motion

and brief with this             Court.          We ordered the        District Court       to

conduct    a    hearing       regarding Moddison' s         appointment         of    counsel

motion.        The court appointed counsel from the Montana Appellate

Defender's Office to represent Moddison.                   This Court again remanded
Moddison's case to the District Court after we determined that
Moddison's pro se motions were an attempt to withdraw his guilty

plea.     After an October 24, 1995 hearing on Moddison's request to

withdraw his guilty plea,                 the court denied Moddison' s               request.

Moddison appealed.




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                            STANDARD OF REVIEW

     We explained the applicable standard of review in State v.

Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177:

     No set rule or standard exists under which a trial court
     addresses a request to withdraw a guilty plea; each case
     must be considered in light of its unique record.    Our
     standard in reviewing a district court's denial of a
     motion to withdraw a guilty plea is whether the court
     abused its discretion. (Citations omitted.)


                               DISCUSSION

     Did the District Court abuse its discretion when it denied

Moddison's motion to withdraw his guilty plea?

     Moddison has four bases for his argument that the court abused

its discretion:    first,   the court failed to inform him that his

parole eligibility would be restricted by the requirement that he

complete   the   sexual   offender   program;   second,   his   request   to

withdraw was timely and was based on advice of counsel; third, his

plea was an Alford plea that was part of a package plea deal; and

fourth, his plea was based on the mistaken advice of his attorneys.

Moddison's first three bases track the language of three factors

which this Court will balance in determining whether a defendant

has established the "good cause" required by        §   46-16-105(2), MCA,
which would allow him to withdraw a guilty plea:
      (1) the adequacy of the court's interrogation at the time
     the    plea  was   entered  regarding    the  defendant's
     understanding of the consequences of the plea;

     (2) the promptness with which the defendant attempts to
     withdraw the plea; and

     (3) the fact that the plea was the result of a plea
     bargain in which the guilty plea was given in exchange
     for dismissal of another charge.

                                     8
Enoch, 887 P.2d at 177.

      With respect to factor (1), Moddison argues that the court's

interrogation was inadequate because it failed to inform him that

his   parole   eligibility could be      restricted by   his   failure    to

complete   the   sexual   offender program at   the prison.      Moddison

contends that the interrogation should have specifically informed

him of the conflict posed by his refusal to admit guilt and the

likely sentencing condition that he admit guilt--the first step

toward completing the sexual offender program--in order to gain

parole eligibility.       To support his argument, Moddison cites   §    46-

12-210, MCA, which provides, in relevant part:

      (1) Before accepting a plea of guilty, the court shall
      determine that the defendant understands the following:



      (iii) the maximum penalty provided by law, including the
      effect of any penalty enhancement provision or special
      parole restrictionj


Moddison also argues that the interrogation was inadequate because

the court had little active involvementj Moddison's own attorney

conducted the interrogation.

      That Moddison's attorney, rather than the court, conducted the

interrogation in the presence of the court is not reversible error,

in light of our determination that the interrogation achieved its

fundamental purpose: the determination of Moddison's understanding

of the consequences of entering his plea.       The record reveals, as

Moddison correctly points out,       that the District Court was not

actively involved in Moddison's interrogation at the change of plea


                                     9
                                                                 ..

hearing.    However,   the    record    also   reveals    that        Moddison's

attorney, who conducted the interrogation, asked Moddison the same

questions which we have held constitute an adequate interrogation.

In State v. Allen (1994), 265 Mont. 293, 876 P.2d 639, where the

court denied defendant's request to withdraw his Alford plea, we

stated:

     The transcript of the.hearing following Allen's guilty
     plea shows that the court carefully questioned him
     concerning the sufficiency of his legal counsel, his
     feelings concerning his decision, his lack of alcohol or
     drug influence, his understanding of the nature of the
     mitigated deliberate homicide charge, the consequences to
     pleading guilty to this charge, the fact that the judge
     would not be bound by any recommendation from the
     parties, his understanding of the loss of his rights in
     a trial situation. The court also had Allen confirm the
     reason why he felt he was guilty of one count of
     mitigated deliberate homicide.       Within the court's
     detailed questioning of Allen, the court explicitly
     informed Allen that the sentence carried a maximum
     sentence of 40 years. The judge then informed Allen that
     as the sentencing judge he could put any restrictions on
     a possible parole that he wished and that he would not be
     bound by any suggestions from anyone. Further, the court
     explained in great detail what a guilty plea meant to
     Allen in terms of foregoing rights such as confrontation
     of witnesses against him.
           In the present case, the court specifically told
     Allen that he could be denied parole totally and as a
     consequence would have· to serve all 40 years, or that he
     could be labeled a dangerous offender and that if so
     designated he would have to serve 20 of the 40 years for
     the offense.   The court clearly informed Allen that it
     was under no responsibility to accept the conditions of
     the plea agreement reached by the parties. We conclude
     that the District Court sufficiently interrogated and
     informed Allen of the ramifications of his guilty plea.

Allen, 876 P.2d at 641.      The extent of information covered in the

Allen interrogation is almost exactly the same as that which was

covered in Moddison's interrogation.       Furthermore,    §   46-12-210(2),

MCA, provides that the interrogation requirements of subsection (1)

                                   10
"may    be    accomplished   by    the     defendant    filing    a    written

acknowledgment of the information contained in subsection                    (1)."

Moddison signed an "Acknowledgment of Waiver of Rights by Plea of

Guilty" which addressed all of the requirements of          §   46-12-210(1),

MeA, except one--that Moddison understood the court was not bound

by any plea agreement.       Moddison was well aware of the court's

discretion, as evidenced by his answers at the interrogation and by

the plea agreement, which he signed.

       Moddison argues, however, that because he was not questioned

about the precise ramifications of his Alford plea in regard to the

length of his sentence and limitation on parole, the interrogation

was inadequate.     We disagree.

       The   record demonstrates    that    Moddison was    aware     that    his

admission that he committed a crime was a necessary element of

successful completion of the sexual offender treatment program.

Moddison's attorney testified that

       [Moddison] understood that to progress through a sexual
       offender program he would have to admit to the offense.
       He felt      and I believe he took it as a matter of
       personal honor -- that he would not admit to the offense,
       and if he had to, he would sit at the prison until he was
       discharged.

The record also demonstrates that Moddison was informed by his

attorneys that the sentencing judge did not have to abide by the

plea agreement, that Moddison could receive the maximum sentence of

40   years   imprisonment,   and   that    Moddison    could be   ordered       to

undergo the sexual     offender program.         In addition,     during the

interrogation at the change of plea hearing Moddison stated that he


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                                                                          •


understood    that    the    judge    did not       have   to    abide    by    the   plea

agreement and that his eligibility for parole could be limited by

the sentencing judge.        As it turned out, Moddison's eligibility for

parole was limited by the sentencing judge when he ordered that

Moddison undergo       the    sexual    offender program,           a    program which

Moddison knew from the earliest plea discussions with his attorneys

would be     impossible      to complete without           his    admission that        he

committed a crime.      We conclude that, despite Moddison's statements

to the contrary,       he did know of the consequences of his Alford

plea, specifically that his parole eligibility could be limited by

the requirement that he complete the sexual offender program, and

further limited by his decision not to admit that he committed a

crime.     Factor     (1)    weighs    in   favor    of    the    court's      denial   of

Moddison's request to withdraw his plea.

     As to the promptness factor, Moddison argues that the length

of time between the entry of his Alford plea and his motion to

withdraw his plea is within this Court's allowable time frame.

Moddison moved to withdraw his plea on June 9, 1994, approximately

eight months after he entered his Alford plea on October 18, 1993.

We have held that a ten month period between entry of the plea and
the request to withdraw the plea is relatively prompt.                          State v.

Laverdure (1984), 212 Mont. 31, 34-35, 685 P.2d 375, 377.

     Alternatively, Maddison argues that his attempt to withdraw

his plea was exceedingly prompt when measured from the time that he

was sentenced.       Moddison argues that the court's imposition of his

sentence     should   be     the   measuring     point      for    purposes      of     the


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"



promptness factor because his counsel advised him that sentencing

would trigger a plea withdrawal.          The State has not addressed the

promptness factor in its brief, and because Moddison's request to

withdraw his plea was made within this            Court's allowable      time

frame, we need not discuss the merits of his alternative argument.

The promptness factor weighs in Moddison's favor.

        As to factor (3), Moddison argues that because his plea was a

part of a "package" plea agreement, the court was under a duty to

carefully     examine   the     voluntariness      of    Moddison's   plea.

Essentially, Moddison argues that his decision to enter a plea was

influenced by and conditioned on the deals struck with the other

two   defendants,   Johnson    in particular.      Moddison cites United

States v. Caro (9th Cir. 1993), 997 F.2d 657, 659, to support his

contention that the voluntariness of a defendant's plea is at best

questionable when his plea        is a    part   of a   "package deal"   and

conditioned on the pleas entered by the other participants in the

deal.

        Moddison's argument,    however, misses some important points.

First, Gould withdrew from the plea agreement on the day of the

change of plea hearing, yet Moddison and "Johnson were allowed to go

ahead with their pleas.        Moddison's attorneys testified that they
understood that when Gould withdrew, there was no longer a "package
deal" and Moddison was free to do as he wished.              The attorneys

discussed this with Moddison,        and he entered his       Alford plea.

Moddison's plea ultimately 'was not a part of a package deal with

the other defendantsi his plea was not conditioned on their pleas.


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                                                                                   "
.'


        Second,    our   review    of   the     record     shows     that    Moddison's

decision to enter an Alford plea was due in large part to the

overwhelming evidence against him.               Moddison's attorneys informed

him of their conclusion that proving consent would be next                                  to

impossible due       to Clark's extreme          intoxication at            the    time of

sexual intercourse.        In the "Acknowledgment of Waiver of Rights by

Plea of Guilty", Moddison explained why he was entering an Alford

plea:

        I admit to have sex with Janetta Jo Clark [sic].       I
        believed that she had consented. However, after reading
        police report [sic] and considering the evidense [sic]
        against me I believe that the State of Montana can prove
        my guilt.
             Therefore I am pleading guilty.


 Moddison was looking after his own interests when he decided to

enter his plea, a plea that was not a part of a "package deal."

        Finally, we have stated that" [t]he third factor is intended

to prohibit a criminal from 'escaping the obligations of his                               [or

her] plea agreement after accepting the benefits thereof. '"                             State

v.   Milinovich      (1994),      269   Mont.    68,     74,   887    P.2d        214,     217

(citations omitted). The plea agreement here certainly conferred

some    benefits    upon Moddison:        the   State     dropped     the     charge        of
obstructing a peace officer; the State recommended a much lesser
sentence than the maximum sentence provided by law; and, the State

did not recommend sexual offender treatment, but left that issue to

the court's discretion.            We conclude that factor             (3)    weighs in

favor of the court's denial of Moddison's request to withdraw his

plea.


                                          14
        Moddison has raised another "good cause" indicator, one not

specifically provided for by statute or within the three factors.

Moddison contends that his ·guilty plea was based on the mistaken

advice of his attorneys.         Specifically, Moddison explains that his

attorneys represented to him that if he were sentenced to prison

and ordered to undergo the sexual offender program there, he would

be able to get into the program quickly, due to his probable short

term     of   imprisonment.       This    information    turned    out   to    be

inaccurate, as Moddison discovered upon his arrival at the prison

that he would be placed on a long waiting list for the program.

Moddison also notes that his attorneys advised him that if he were

sentenced and ordered to undergo the sexual offender program that

he would have three remedies:            he could appeal on constitutional

grounds; he could pursue sefltence review; or he could withdraw his

plea.     Moddison argues that this advice was mistaken.

        While we can concede that some of this advice was inaccurate,

we cannot conclude that this "good cause" factor tips the balance

in Moddison's favor.       The plea agreement, the "Acknowledgment of

Waiver of Rights," and Moddison's responses to the interrogation

clearly show that Moddison had a              solid understanding that        his

sentence      was   ultimately     subject    to   the   court's    unfettered
discretion,     Moddison understood that the court could impose any
sentence within the range of the statutory minimum and maximum,

that the court could restrict his eligibility for parole, and that

the court could order him to. undergo sexual offender treatment.               We

cannot see how Moddison can reasonably argue that any inaccuracies


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...   ..
      in the advice described above mean that his decision to enter into

      a plea agreement was based on a misunderstanding so fundamental as

      to render that decision an uninformed one.         The record shows that

      the evidence against Moddison was overwhelming and that this was

      the reason that his attorneys advised him to enter a plea.           The

      record also shows that Moddison was always aware that his sentence

      was subject to the court's discretion.          By advising Moddison as

      they did, the attorneys were merely explaining what they thought

      potential remedies were for one sentence out of many that Moddison

      could potentially have received.

              After weighing these factors,      we conclude that Moddison did

      not establish the "good cause" necessary for withdrawal of a guilty

      plea as required by   §   46-16-105(2), MCA, and as elaborated in Enoch

      and its predecessor cases.       The District Court did not abuse its

      discretion when it denied Moddison's motion to withdraw his guilty

      plea.

              Affirmed.




                                        /




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