Withdraw Guilty plea, no mens re

DA 07-0673
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 32
STATE OF MONTANA,
v.
SHAUN WAYNE WISE, a/k/a SHANADOA JOHNSON,
Appellant Shaun Wise pled guilty to criminal mischief in the Twenty-First Judicial
District Court, Ravalli County. He later moved to withdraw his guilty plea, and the
District Court denied his motion. We reverse and remand.
The sole issue presented for our review is whether the District Court erred in
denying Appellant’s motion to withdraw his guilty plea.
Here, the colloquy was clearly inadequate and Wise made a timely request for
withdrawal. We have said that “[a] significant part of the voluntariness inquiry is an evaluation of the court’s plea colloquy with the defendant . . . .” State v. Chase, 2006 MT 19, 331 Mont. 1, 127 P.3d 1038 (overruled on other grounds, Deserly, Wise simply did not “own up” to a criminal intention required by the charge. Although the State cites to the affidavit filed in support of the Information, the information provided therein was either directed toward the dismissed exploitation charge, or simply discussed the damage Wise caused, again without indicating that there was a criminal design to cause the damage.
The District Court incorrectly concluded that there was a factual basis for Wise’s
plea, a violation of § 46-12-212(1), MCA, which casts doubt on the voluntariness of
Wise’s plea, and which he timely moved to withdraw. Because we resolve doubt about
the voluntariness of a plea in a defendant’s favor, we hold that the case-specific
considerations warrant withdrawal of the plea. We reverse the District Court’s denial and
remand the case to the District Court so that it may grant Wise’s motion.
Reversed and remanded for further proceedings consistent herewith.

annual laboratory certification document

DA 07-0759
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 26
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CAROL F. WHITE,
The dispositive issue on appeal is whether the District Court abused its discretion in
admitting the results of the breath analysis over White’s objection that the prosecution did
not lay a proper foundation for the evidence.
While there may be few instances in which the State laboratory certification of a
breath analysis instrument is an issue at trial after the required notice is given, the requirements of M. R. Evid. 803(6) are specific and clear. The notice requirement of the Rule is self-executing; it is a mandatory duty of the prosecution that does not depend upon a pretrial motion, demand, or objection by the defendant.
The notice required by 803(6) in time to obtain depositions or subpoena the report’s author for trial. When the prosecution offered the State laboratory report into evidence at trial, White made a timely and appropriate foundation objection that was overruled by the District Court. This was error and neither the evidence of the annual testing nor the results of the breath test should have been admitted.
Reversed and remanded for a new trial.

“on probation” was not admissible under Rule 404(b)

DA 08-0107
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 27
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JAMES DERBYSHIRE,
James Derbyshire was convicted in the Eighth Judicial District Court, Cascade
County, of one count of criminal possession of dangerous drugs (marijuana) with intent to distribute, a felony, in violation of § 45-9-103, MCA (2005). He appeals, arguing that the District Court erred in denying his pretrial motion to exclude evidence of his status as a probationer. We agree with Derbyshire and further conclude that the State has not demonstrated the error was harmless. We accordingly reverse Derbyshire’s conviction, vacate the District Court’s judgment, and remand this case for a new trial.
CONCLUSION
Testimony by the State’s witnesses that they were “probation officers” and that
Derbyshire was “on probation” was not admissible under Rule 404(b) or the transaction
rule. Thus, the District Court erred in denying Derbyshire’s motion to exclude evidence
of his status as a probationer. The State has not demonstrated that this error was
harmless. We accordingly reverse Derbyshire’s conviction, vacate the District Court’s
judgment, and remand this case for a new trial.
Reversed and remanded for a new trial.

alcohol-related restrictions are not “reasonably related”

DA 07-0631
IN THE SUPREME COURT OF THE STATE OF MONTANA
2009 MT 1
STATE OF MONTANA,
Plaintiff and Appellee,
v.
FORREST SCOTT SMART,
The issues on appeal are:
Did the District Court err in requiring polygraph testing as a condition of Smart’s suspended sentence?
Did the District Court err in imposing drug and alcohol prohibitions as conditions of Smart’s suspended sentence?
Having determined that the alcohol-related restrictions are not “reasonably related” to Smart’s sexual offenses nor are they necessary to promote rehabilitation since Smart does not have a history of significant or chronic alcohol abuse, we reverse and remand with instruction to the District Court to strike the alcohol conditions from Smart’s sentence. However, we affirm the inclusion of the polygraph examination for the reasons set forth above.

New Sentencing Condition upon revocation illegal

DA 07-0758
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 464
STATE OF MONTANA,
v.
JODI MICHELLE WHITE,
The sole issue on appeal is whether the sentence imposed by the District Court in August 2007 is illegal.
CONCLUSION
We hold under § 46-18-203(7)(c), MCA, that the District Court had no authority to impose new conditions on White’s 1997 sentence and that the court, thus, has no authority to reimpose those illegal conditions on White’s 2007 sentence. Accordingly, we reverse the District Court’s August 2007 judgment to that narrow extent and remand this case with instructions that the court strike all conditions on White’s current sentence which are not contained in the court’s February 1994, August 1994, and July 1996 judgments. We affirm the District Court’s August 2007 judgment in all other respects.
Affirmed in part, reversed in part, and remanded with instructions.