                               No.    91-596

             IN THE SUPREME COURT OF THE STATE OF MONTANA




THE STATE OF MONTANA,

            Plaintiff and Respondent,


BRIAN E .   BARKER,
             Defendant and Appellant.



APPEAL FROM:      District Court of the Thirteenth Judicial District,
                  In and for the County of Yellowstone,
                  The Honorable G. Todd Baugh, Judge presiding.


COUNSEL OF RECORD:
             For Appellant:
                  Brian E. Barker, Pro Se, Deer Lodge, Montana
             For Respondent:
                  Hon. Marc Racicot, Attorney General,
                  Elizabeth L. Griffing, Assistant Attorney
                  General, Helena, Montana; Dennis Paxinos,
                  Yellowstone County Attorney, Shelley Briney,
                  Deputy County Attorney, Billings, Montana


                                Submitted on Briefs:   August 13, 1992

Filed:


                                      i
                                     Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
     Defendant Brian Barker entered a plea of guilty to two counts
of possession of dangerous drugs and misdemeanor domestic abuse.
On October 18, 1991, his motion to withdraw his guilty plea and his
petition for post-conviction relief were denied by order of the
Thirteenth Judicial District Court in Yellowstone County.            He
appeals that order.    We affirm.
     The issues before this Court are restated as follows:
     1.    Did the District Court abuse its discretion when it
denied    defendant's motion   to    allow withdrawal     of   the plea
agreement?
     2.    Did the District Court err when it denied defendant's
petition     for   post-conviction       relief   which   claimed   that
methamphetamine was improperly classified as a controlled substance
under Montana law?
     Brian Barker was a passenger in a vehicle which was stopped on
the morning of March 26, 1989, after a registration check indicated
that there was an outstanding arrest warrant for the vehicle's
registered owner.     When the police officers approached the car,
they observed Barker apparently placing items under the car seat.
After a search of the vehicle, officers discovered a marijuana
cigarette and a pouch containing methamphetamine under the seat
where Barker had been sitting. Barker was subsequently charged by
information with      felony and     misdemeanor   counts of    criminal
possession of dangerous drugs for possession of the methamphetamine
                                     2
and marijuana, respectively.      The affidavit accompanying the
information inaccurately described methamphetamine as a Schedule I
drug, when in fact, it is designated as a Schedule I1 drug under
1 50-32-224, MCA.

     On April 6, 1989, the State's motion to consolidate the drug
charges with three other pending cases in which Barker was charged
with theft was granted after a hearing, and without Barkerls
objection.   In addition, there were several misdemeanor charges
pending a g a i n s t Barker i n justice court, including a charge of
domestic abuse, four traffic violations, and a drug paraphernalia
charge.
     ~ollowinghearings on April 20 and 23, 1990, Barker entered
into a plea agreement with the State in which Barker agreed to
plead guilty to the two counts of possession of dangerous drugs and
the misdemeanor domestic abuse charge, and the State agreed to
dismiss all remaining charges pending against Barker. According to
the plea hearing transcript, this plea bargain was proposed by
Barker and accepted by the State.      Barker received a five-year
suspended sentence for his felony conviction of possession of
dangerous drugs, and for the two misdemeanor convictions of
domestic abuse and possession of dangerous drugs, he was sentenced
to the amount of time he had already served in the Yellowstone
County Detention Facility.
     The State filed petitions seeking revocation of Barker's
suspended sentence on October 31, 1990, and May 1, 1991, due to
                                  3
repeated parole violations, and Barker was subsequently arrested
and incarcerated.   The District Court later revoked the suspended
sentence and the original five-year prison sentence was imposed.
Following his arrest, Barker filed a petition for post-conviction
relief and a motion to withdraw his guilty plea.     On October 18,
1991, the District Court denied both of these requests.    From this
order, Barker appeals.
                                 I
     Did the District Court abuse its discretion when it denied
Barker's motion to allow withdrawal of the plea agreement?
     Section 46-16-105(2), MCA, allows the district court to permit
the withdrawal of a guilty plea and substitute in its place a plea
of not guilty upon a showing of good cause. The determination of
good cause is a matter of discretion for the district court, and
absent an abuse of that discretion, this Court will uphold the
district court's refusal to permit the withdrawal of a guilty plea.
Statev.Reynohs (Mont. 1992), 833 P.2d 153, 155, 49 St. Rep. 463, 465;

Statev. Cameron (Mont. 1992), 830 P.2d 1284, 1288, 49 st. Rep. 150,


     After reviewing the record and considering Barker's arguments,
we conclude that the District Court did not abuse its discretion
when it denied Barker's motion.      There is adequate evidence to
justify the District Court's finding that the plea was entered
knowingly and voluntarily, and that Barker fully understood the
consequences of, and the benefits he would receive, under the plea.
Furthermore, the record clearly supports the court's determination
that Barker was not prejudiced nor misled by the erroneous
description   of   methamphetamine   as   a   Schedule   I controlled
substance.
     Barker contends on appeal that his plea was not entered
knowingly or voluntarily and sets forth several arguments in
support of this claim. Barker raises such issues as the failure of
the court to rule on his earlier motions concerning suppression of
evidence and severing the charges; an allegation that the court
established no factual basis for the plea; and the State's filing
of a notice of persistent felony offender after the plea was
entered. We find no merit in these arguments and note that some of
these claims are raised for the first time on appeal and are,
therefore, not properly before this Court.
     A review of the record demonstrates that the court went
through a very careful and thorough process to assure that Barker
understood the nature and consequences of his plea, and was not
acting under coercion or duress when the plea was entered.        The
court did not accept Barker's guilty plea at the first hearing held
on April 20, 1990, because it wanted to have the terms of the plea
agreement set down in writing and signed by all parties.       At the
second plea hearing, there was considerable discussion of the
consequences of the plea bargain and Barker's understanding of the
rights he waived by entering a plea of guilty.           The voluntary
                                 5
nature of the plea is apparent from the discussion that took place,
and we find nothing in the record to suggest that Barker was
unwilling to enter into the agreement, or did not understand the
disadvantages of pleading guilty.
     Barker next contends that he was laboring under a fundamental
mistake   when      the    plea   was    entered   because   the   affidavit
accompanying the          information described methamphetamine       as a
Schedule I rather than Schedule I1 drug. We have clearly stated in
the past that when a guilty plea is based upon a fundamental
mistake or misunderstanding, a court may allow the defendant to
withdraw the plea. Statev. Miller (lggl), 248 Mont. 194, 810 P.2d 308;

Benjamin v. McCormick (1990), 243 Mont. 252, 792 P.2d 7. However, in
this case, we do not find that the mistake affected Barker's plea
agreement, and therefore, does not provide grounds for withdrawal
of the plea.
     The information charged Barker with one count of "Criminal
Possession     of   Dangerous     Drugs    (felony)" for     possession   of
"methamphetamine, a controlled substance," pursuant to 5 45-9-102,
MCA, and 5 5 50-32-101 through -232, MCA. Methamphetamine is listed
as a proscribed drug under Schedule I1 in 5 50-32-224(3)(c), MCA.
Thus, there was no error in the information charging Barker with a
felony. The only place where Schedule I was ever referred to was
in the affidavit; Barker's              plea referred only to      "criminal
possession of dangerous drugs," as did the sentencing order.
     The statute Barker was charged under,     §   45-9-102 (I), MCA
states: "[a] person commits the offense of criminal possession of
dangerous drugs if he possesses any dangerous drug, as defined in
50-32-101.11 Section 50-32-101, MCA, defines dangerous drug as 'a
                                                                l
drug, substance, or immediate precursor in Schedules I through V
hereinafter set forth."   Whether methamphetamine was described as
a Schedule I or I1 drug was not the dispositive factor; the crime
Barker was charged with, pled guilty to, and was sentenced for was
the criminal possession of methamphetamine, a dangerous drug. Had
methamphetamine been properly described as a Schedule I1 substance,
the criminal charge would have been exactly the same. We fail to
see how Barker was prejudiced by this error or entered his plea
under a fundamental mistake or misapprehension as to the charges.
     Barker finally argues that he should have been allowed to
withdraw the plea because it contained an unlawful provision which
required him to permanently leave the State of Montana when he was
released from prison. We hold that because this provision was not
part of the sentence, it is not enforceable against Barker.       As
such, that provision does not invalidate the plea nor give cause to
withdraw it.
     After reviewing the record in this case, we conclude that
there was no abuse of discretion when Barker's motion to withdraw
his guilty plea was denied.
     Did the District Court err when it denied Barkerts petition
for post-conviction relief which claimed that methamphetamine was
improperly classified as a controlled substance under Montana law?
     Barker contends that methamphetamine was improperly classified
as   a   controlled   substance because   two   products   containing
methamphetamine, a Vickf brand inhaler and a Rynal brand nasal
                        s
spray, were available aver the counter at the time of the offense.
Under Montana law, Barker argues that the State is barred from
prosecuting him for possession of a drug if a product containing
the drug is legal to sell and possess without a prescription. His
claim for relief is premised on the assertion that he was convicted
of something which was not a crime.
     We reject this argument for two reasons.         First, Barker
misconstrues the pertinent statute.        Section 50-32-205, MCA
provides :
     The board [of pharmacy] shall exclude any nonnarcotic
     drug from a schedule if the druq may, under the Federal
     Food, Drug, and Cosmetic Act and 50-31-307(2)(b) of the
     Montana Food, Drug, and Cosmetic Act, be lawfully sold
     over the counter without a prescription.       [Emphasis
     added. ]
Contrary to Barker's assertion, this explicit statutory condition
has not been satisfied with respect to the drug methamphetamine.
Although the two nasal products Barker refers to do contain
minuscule amounts of methamphetamine and are available without a
prescription, Barker cannot demonstrate that either state or
federal law allows over the counter sale of the drug itself.
      Second, this same argument has been soundly rejected in other
jurisdictions, and we find the reasoning adopted by these courts
persuasive.     In UnitedStatesv. C p r l (9th Cir. 19911, 938 F.2d 975,
                                   aeel

the Court of Appeals, unpersuaded by the "Vick's/RynalN defense,
stated:
      [Mlethamphetamine is only one ingredient of the
      substances in question. It is ludicrous to believe that
      authorization for sale over the counter of a product
      containing a small amount of a controlled substance
      renders that controlled substance lawful and exempt from
      the schedule in all Eoms.
C p r l , 9 38 F .2 d at 979
 aeel                              ( quoting   U i e S a e v. Housley
                                                n t d tts               (D   . Nev . 1990) ,
751 F. Supp. 2446, 1447, afftd 955 F.2d 622 (9th Cir. 1992)).                        Seeah
U i e S a e v Coyote (loth Cir. 1992), 963 F.2d 1328; U i e S a e v.
 n t d tts .                                           ntd tts

Youngblood (10th Cir. 1991), 949 F.2d 1065; United S a e v Roark (8th
                                                    tts .

Cir. 1991), 924 ~ . 2 d
                      1426.

      We hold that the ~istrict Court properly concluded that
methamphetamine is not barred from classification as a controlled
substance pursuant to          §    50-32-205, MCA, and did not err when it
denied Barker's petition for post-conviction relief.
      The decision of the District Court is affirmed.
We concur:
