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.

The District Court erred in denying Deserly’s motion to withdraw his guilty plea.

2008 MT 242
STATE OF MONTANA,v.
CHARLES V. DESERLY,
1. Did the District Court err in denying Deserly’s motion to withdraw his guilty plea?
2. Was the factual basis for Deserly’s guilty plea sufficient?
3. Did Deserly receive ineffective assistance of counsel because his lawyer advised him to enter into a plea bargain that contemplated an illegal sentence?
Because we reverse the District Court’s judgment under Issue 1, we do not address Issues 2 or 3.
Deserly was induced to enter into the plea agreement by a misrepresentation—albeit, one which was unintentional. We conclude, therefore, that Deserly’s guilty plea was not voluntary. Involuntariness constitutes good cause for withdrawal of a plea under § 46-16-105(2), MCA. Lone Elk, ¶ 19. Accordingly, Deserly is entitled to withdraw his guilty plea.
The District Court erred in denying Deserly’s motion to withdraw his guilty plea. We reverse the District Court’s judgment and remand this matter to the court with instructions to grant Deserly’s motion.
Reversed and remanded for further proceedings consistent with this Opinion.

Withdraw guilty plea

2007 MT 40
STATE OF MONTANA, v.GARY GENE FRAZIER, JR.,
Did the District Court err in denying Frazier’s motion to withdraw his guilty plea?
The Justice Court’s interrogation was inadequate to determine whether there was
any factual basis for Frazier’s guilty plea. Since any doubts as to whether a plea was voluntary should be resolved in favor of the defendant, we hold that the District Court erred by not allowing Frazier to withdraw his guilty plea. Therefore, we reverse and remand this matter to the District Court for further proceedings consistent with this Opinion.

guilty pleas were entered without counsel and without a valid waiver

2008 MT 193
WILLIAM M. HALLEY,v.
STATE OF MONTANA,
Did the District Court err in denying Halley’s Petition for Post-Conviction Relief?
Halley was deprived of his constitutional right to counsel during critical stages of the criminal proceeding. Craig, 274 Mont. at 148, 906 P.2d at 688.
L astly, as Halley’s guilty pleas were entered without counsel and without a valid waiver of counsel, his pleas are invalid and must be vacated. State v. Browning, 2006 MT 190, ¶ 15, 333 Mont. 132, ¶ 15, 142 P.3d 757, ¶ 15.
While a district court has discretion to appoint, or refuse to appoint, substitute counsel after an initial Gallagher inquiry and hearing, if required, it does not have discretion to ignore a defendant’s allegations of ineffective counsel and refuse to conduct an inquiry. In the case before us, the District Court abused its discretion in failing to comply with the Gallagher guidelines when presented with a claim of ineffective counsel and a request for substitute counsel. It further erred in failing to inquire adequately whether Halley’s waiver of his right to counsel and request to represent himself was voluntarily, knowingly and intelligently made.
As a result, the District Court’s Opinion and Order Denying Petitioner’s Petition for Post-Conviction Relief is based on incorrect conclusions of law.

Santobello error, specific performance

2001 MT 85
STATE OF MONTANA,v.
DANIEL MUNOZ,

Upon remand, does Munoz have the right to choose the remedy, either specific
performance of the agreement or the right to withdraw his guilty plea, due to the State's breach of the plea agreement /
Further, the state has failed to present one compelling reason why this choice should not rest in the hands of the defendant. Rather, the State focusses squarely and repeatedly on its preferred scenario here, that specific performance is appropriate because the
sentencing court is not bound by the State's recommendation--inferring that although the State concededly breached and may be ordered to "perform," Munoz should not be
afforded any remedy. We view this particular posture as unpersuasive in light of the
"fundamental rights" that are "flouted" by a prosecutor's breach of a plea bargain. See Santobello, 404 U.S. at 267, 92 S.Ct. at 501 (Douglas, J., concurring).
We conclude that, in light of the underlying principles of contract law, a nonbreaching defendant must be afforded the initial right to choose from available remedies where the State breaches a plea agreement. The State must therefore bear the substantial burden, as the breaching party, of demonstrating with clear and convincing evidence that the defendant's choice of remedy would result in a miscarriage of justice. Only upon such a showing may a district court, in its discretion, disallow a defendant's choice of remedy.
To the limited extent that our prior decisions in Persak and Rardon conflict with our holding here today, we overrule those cases. We hold that upon remand, Munoz should be granted his chosen remedy of withdrawal of his guilty plea.
Accordingly, we reverse and remand for further proceedings consistent with this
opinion.

Breached Plea Agreement

No. 00-844
STATE OF MONTANA
2002 MT14
STATE OF MONTANA,v
JAMES AFTERBUFFALO.
The issue on appeal is whether the District Court abused its discretion in denying
Afterbuffalo's motion to withdraw his guilty plea.
We conclude, therefore, that the District Court's additional requirement that Afterbuffalo be placed in either a prerelease or intensive supervision program was outside the scope of the plea agreement and constitutes a rejection by the court of the agreement. As a result, we further conclude that, pursuant to § 46-12-211(4), MCA, the District Court was required to allow Afterbuffalo to withdraw his guilty plea.
We hold that the District Court abused its discretion in denying Afterbuffalo's motion to withdraw his guilty plea.
Reversed and remanded for further proceedings consistent with this opinion.

Prior conviction enhancement infirm

2002 MT 276
STATE OF MONTXNA, v.
NANETTE MAAUREEN HOWARD,
The sole issue on appeal is uhether thc Distrcct Court erred in denying
motion to dismiss the felony DUl charge.
We coneltide that the District Court's ruling that t-loxard validly waived her right to counsel was incorrect as a matter of law: bvaiver of the right to counsel must be express and must he secured before the entcring of a guilty plea. Therefore, we hold that Howard's 1997 DUL conviction was constitutionally infirm and may not serve to enhance the October 2000 DlUI conviction.
Accordingly, we reverse the District Court's holding.

Boykin violation

2002 MT 286
STATE OF MONTANA,v.
EDWARD WAYNE TWEED,
I. Did the District Court err by granting Tweed an out-of-time appeal?
II. Did the District Court abuse its discretion by denying Tweed’s motion to withdraw his guilty pleas?
In view of the irregularities in the interrogation at the change of plea hearing, we conclude that any doubt about whether Tweed was precluded from entering a knowing, voluntary and intelligent plea due to a misunderstanding about the consequences of his act should be resolved in favor of a trial on the merits. We hold that the District Court abused its discretion in denying Tweed’s motion to withdraw his guilty pleas.
Reversed and remanded for further proceedings consistent with this Opinion.

Guilty plea withdraw

STATE v. FRAZIER

DA 06-0271

2007 MT 40

2/13/2007

The Justice Court’s interrogation was inadequate to determine whether there was

any factual basis for Frazier’s guilty plea. Since any doubts as to whether a plea was
voluntary should be resolved in favor of the defendant, we hold that the District Court erred by not allowing Frazier to withdraw his guilty plea. Therefore, we reverse and remand this matter to the District Court for further proceedings consistent with this Opinion.