State v. Ereth

• Decision Date: 11 August 1998
• Docket Number: No. 97-584,97-584
• Citation: 290 Mont. 294,964 P.2d 26,1998 MT 197
• Parties: , 1998 MT 197 STATE of Montana, Plaintiff and Respondent, v. Dianne ERETH, Defendant and Appellant.
• Court: Montana Supreme Court

Page 26

964 P.2d 26

290 Mont. 294, 1998 MT 197

STATE of Montana, Plaintiff and Respondent, v. Dianne ERETH, Defendant and Appellant.

No. 97-584.

Supreme Court of Montana.

Submitted on Briefs June 11, 1998.

Decided Aug. 11, 1998.

J. Kim Schulke, Great Falls, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, Mark W. Mattioli, Ass't Attorney General, Helena, Brant S. Light, Cascade County Attorney, Great Falls, for Plaintiff and Respondent.

LEAPHART, Justice.

¶1 Appellant Dianne Ereth (Ereth) appeals from the denial of her motion to withdraw her Alford plea and from her conviction in the Eighth Judicial District Court, Cascade County. We reverse and remand.

¶2 Ereth raises the following issues:

¶3 1. Did the District Court err in refusing to allow Ereth to withdraw her guilty plea?

¶4 2. Did the District Court err in ordering Ereth to pay $10,000 in restitution to the victims?

¶5 Because we find issue one dispositive, we will not address issue two.

Factual and Procedural Background

¶6 On August 31, 1994, Ereth was charged by information with three counts of sexual intercourse without consent and two counts of sexual assault, all felonies. The charges involved J.A., an eleven-year-old boy, and K.A., a nine-year-old girl. Ereth lived with J.A., K.A., and their mother for a period of time and babysat the children. The information alleged that Ereth fondled J.A.'s genitalia and penetrated K.A.'s vagina with her fingers and with a crochet hook. Ereth obtained representation from the Cascade Public Defender's Office.

¶7 In September of 1995, at the suggestion of one of her public defenders, Ereth underwent a "sex offender evaluation." She was evaluated by Lily Kravcisin (Kravcisin), a licensed professional counselor with InterConnections Counseling Group, Inc. (InterConnections). Kravcisin's evaluation indicated that Ereth was willing to undergo counseling and psychotherapy to determine whether she was repressing memories of the offenses.

¶8 On December 6, 1995, Ereth filed a signed plea agreement and a notice of acknowledgment and waiver of rights. The District Court issued an order stating that it would likely reject the agreement. Therefore, the State and Ereth entered into a second plea agreement. Under the terms of this agreement, Ereth agreed to enter an Alford plea to two counts of felony sexual assault. In return, the State agreed to recommend that Ereth receive a five-year sentence with three years suspended on each offense and to dismiss the two charges of felony sexual intercourse without consent and one felony assault charge. The agreement also stated: "The Court in it [sic]discretion may reject a waiver of the mandatory minimum for these charges and impose a sentence upon the Defendant of up to ten (10) years in the Montana State Prison with six (6) years suspended on both counts."

¶9 This agreement and Ereth's acknowledgment and waiver of rights were filed on February 5, 1996. Scott Albers (Albers), Chief Cascade Public Defender, wrote to the District Court, explaining that he could only convince Ereth to enter an Alford plea, not a guilty plea. Albers stated: "I do not believe that the defendant in this case is capable of admitting guilt. Although the facts of the case are against her the only plea which the defense will be able to bring forward is an Alford Plea."

¶10 After filing the plea agreement, Ereth began sex offender counseling with InterConnections. On April 12, 1996, the District Court held a change of plea hearing. At the hearing, Ereth testified that she understood the nature of the proceedings and had received ample counseling from the Public Defender's office regarding the options available to her. She described her understanding of an Alford plea as follows: "That I believe that the facts are overwhelming against me and I would be found guilty in a trial, but at this point I cannot admit to that guilt."

¶11 Ereth testified that when she entered the Alford plea, she was not sure whether she committed the offenses charged. She stated:

Just in talking with the other members of my group [her InterConnections counseling group], I have come to believe that there is a possibility I could have done this. And I truly want to find out if I did do this. And that is my main goal right now in therapy.

Further, when questioned by Albers, Ereth replied as follows:

Q: Is it your belief at this time that you may have committed the offenses involved and simply have blocked them out of your memory?

A: Yes, it is.

Q: Do you feel that's a substantial possibility?

A: Yes, it is.

Q: And for that reason and that reason alone you're unable to lay a factual basis yourself that you subjected these children to sexual contact?

A: Yes.

¶12 Debra Baumgart (Officer Baumgart), a deputy with the Cascade County Sheriff's Department, testified regarding her videotaped interviews with J.A. and K.A. On the tape, J.A. and K.A. both describe being abused by Ereth. The State also introduced into evidence the report of Dr. Nancy Maynard, who performed a physical examination of the children. Dr. Maynard reported K.A. had vaginal tissue findings consistent with having been sexually abused.

¶13 Kravcisin also testified at the hearing. Kravcisin testified that Ereth was unable to remember the events surrounding this case, but that Ereth was horrified that she may have committed these crimes and wanted treatment. Kravcisin explained that she had been helping Ereth to explore her memory on both a conscious and unconscious level and that Ereth was close to "realizing" that she had abused J.A. and K.A. When asked by the District Court whether she had concerns about implanting false memories through hypnosis, Kravcisin replied, "I believe that for an untrained therapist, that a therapist can interogenically place into a client a memory ..." but explained how the method she employed avoided implanting false memories.

¶14 Ereth then pled guilty to two counts of sexual assault and pled not guilty to one count of sexual assault and two counts of sexual intercourse without consent. The District Court entered the pleas and set sentencing for July 23, 1996.

¶15 On July 19, 1996, Ereth filed a motion to withdraw her guilty pleas. In an attached affidavit, Ereth stated that she had always been uncomfortable about pleading and that through counseling, she had come to the "clear understanding" that she did not do the crimes with which she was charged. A hearing was held on the motion in October of 1996. Kravcisin again testified at the hearing. She stated that Ereth had not received treatment since July 1996. When asked by the District Court if she still believed that Ereth had suppressed a memory of committing the abuse, Kravcisin replied: "I don't know quite frankly if she's suppressed it or not. I believe there's a possibility that she could have. I have not yet, in the work that I've had with her, found that suppression."

¶16 Ereth testified that she had never been comfortable with the plea. She stated that Albers had told her if she went to trial, she would go to prison, and that she thought that a jury would never believe that she did not commit the crimes. She stated that when she entered the plea, she did not believe that she was guilty of the crimes charged and did not understand that an Alford plea was an admission of guilt.

¶17 Regarding her therapy with Kravcisin, Ereth testified that she had entered therapy on the advice of Albers--"On the chance that I had committed these crimes and had repressed it, the therapy would, would let me know that I had--you know, it would bring that out if I had committed it." However, she testified that she never reached a point in therapy where she believed she had committed the offenses. Ereth stated that in May of 1996, she attempted suicide and, after being released from the hospital, told Kravcisin that she could no longer live with the fact that she had pled guilty to something she did not do.

¶18 The District Court denied Ereth's motion, holding that Ereth had entered her plea voluntarily and intelligently. The court found that Ereth knew what she was doing when she entered her plea and had simply changed her mind. The District Court set sentencing for March 20, 1997 and ordered Ereth to undergo a psychiatric evaluation to determine, for purposes of sentencing, whether she was suffering from a mental disease or defect.

¶19 Ereth was evaluated by Dr. John Mendenhall (Dr. Mendenhall). Dr. Mendenhall filed a report with the District Court on March 18, 1997. Dr. Mendenhall found that, unlike most female sex offenders, Ereth does not suffer from a psychotic disorder. He found that Ereth "suffers from no dissociative or other mental disorder which statutorily or psychiatrically ought to give pause to the Court in passing sentence."

¶20 Dr. Mendenhall also sent a letter to the court, outlining the concerns he had about the treatment program at InterConnections. Dr. Mendenhall stated:

The reports from InterConnections Counseling are based on non-scientific tenets. The methods used by that facility are not scientifically valid. The contentions of that facility that hypnosis can be useful in cases of this sort are dead wrong, known to be dead wrong, and are disavowed by every reputable professional organization in the field of mental health.

The contention of Lily Kraviscin [sic] that false memories can be implanted is correct. Her further contention that they cannot be implanted, by virtue of her advanced methods of hypnosis, by her, is not.... The implantation of false memories is, actually, quite easy .... 25% of normal adult research probands can be made to believe, without hypnosis, without therapy, after a single exposure to a single oral story, that they personally experienced the events of the story. This number, in children, by the bye, approaches 100%.

....

The notion that Dianne Ereth, or anybody else, may have committed sexual crimes and "repre...