State v. Knox, 99-702.

• Decision Date: 29 November 2001
• Docket Number: No. 99-702.,99-702.
• Citation: 2001 MT 232,36 P.3d 383,307 Mont. 1
• Parties: STATE of Montana, Plaintiff and Respondent, v. Richard Frank KNOX, Defendant and Appellant.
• Court: Montana Supreme Court

36 P.3d 383

2001 MT 232

307 Mont. 1

STATE of Montana, Plaintiff and Respondent, v. Richard Frank KNOX, Defendant and Appellant.

No. 99-702.

Supreme Court of Montana.

Submitted on Briefs October 12, 2000.

Decided November 29, 2001.

For Appellant: John R. Quatman, Quatman & Quatman, Whitefish, MT.

For Respondent: Joseph P. Mazurek, Montana Attorney General, Mark W. Mattioli, Assistant Montana Attorney General, Helena, MT; Thomas J. Esch, Flathead County Attorney, Eric Hummel, Deputy Flathead County Attorney, Kalispell, MT.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Richard Frank Knox (Knox) pleaded guilty to one count of sexual assault in violation of § 45-5-502, MCA. Prior to sentencing, Knox made a motion to withdraw his plea, pursuant to § 46-16-105(2), MCA, arguing the Flathead County Attorney's Office (the State) violated his plea agreement. The District Court denied the motion, finding no violation of the plea agreement. The court then sentenced Knox to 40 years with 18 years suspended. Knox appeals the District Court's denial of his motion to withdraw his plea. Knox also appeals the denial based on the argument that the probation officer violated the terms of the plea agreement. We affirm.

¶ 2 We address the following issue on appeal:

Did the District Court abuse its discretion when it denied Knox's motion to withdraw his guilty plea by finding that the State did not violate the plea agreement?

¶ 3 We decline to address the second issue raised by Knox, whether the probation officer breached the plea agreement in his presentence investigation report (PSI), because Knox did not properly preserve this issue for appeal. Issues not raised before the trial court are not considered by this Court because it is unfair to fault the trial court on an issue it was never given an opportunity to consider. Unified Indus., Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, ¶ 15, 961 P.2d 100, ¶ 15 (citing Day v. Payne (1996), 280 Mont. 273, 276, 929 P.2d 864, 866). Knox cites no authority to indicate that an exception to the general rule applies in this case.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 On August 8, 1998, Knox was visiting his friend Jim M. (Jim)¹ in Columbia Falls, Montana. Knox was visiting for the weekend from Spokane with C., his five-year-old son. Jim and Knox went to Raceway Park and returned home late in the evening. Jim told his wife Ruth M. (Ruth) that Knox consumed seven buckets of beer at the races. Soon after returning to the house, Knox went upstairs and into the bedroom of Jim's five-year-old daughter L., where L. and C. were staying. Thinking she heard a car leave, Ruth went to look for Knox. She then went to check on the children and when she opened the bedroom door, she observed Knox quickly get up. Knox said he was trying to get the kids to go to sleep and that C. was being a brat. Ruth also noticed L. pull her nightgown down. Ruth took L. downstairs and questioned her about what occurred upstairs. L. explained that Knox placed his fingers in her private parts ten times and kept putting her hand on his penis. Ruth had L. tell Jim what occurred. Jim and Knox went outside, Jim came back a few minutes later, told Ruth to call the police and Knox left with C. Knox was arrested on August 9, 1998, in Washington.

¶ 5 On August 11, 1998, Knox was charged with sexual intercourse without consent. Later, the information was amended to change the sexual intercourse without consent charge to two charges of sexual assault pursuant to § 45-5-502, MCA, with the sentence options designated by § 45-5-502(3), MCA, due to the age of the victim relative to Knox's age.

¶ 6 On May 24, 1999, right before opening statements at trial, Knox and the State reached an oral plea agreement regarding the charges against him. In exchange for Knox's guilty plea, the State agreed to recommend a 30-year suspended sentence and to drop the second count of sexual assault. In addition, the State indicated that Jim and Ruth (the victim's parents) would not recommend incarceration in the victim impact statement of the PSI.

¶ 7 After the terms of the plea were set out before the District Court, the court proceeded with the colloquy required by § 46-12-210, MCA, in order to inform Knox of his rights, options, and the consequences of his plea. During this colloquy, the District Court also informed Knox that, like the court itself, the victim's parents were not parties to the plea agreement, were not bound by it, and could change their minds at any time as far as recommending future imprisonment in the PSI. The court added that if the victim's parents did change their minds and recommend imprisonment, this fact would not suffice as grounds for withdrawal of his plea. Knox then entered his guilty plea and a sentencing hearing was set.

¶ 8 After receiving a copy of the PSI, Knox made a motion to withdraw his plea, arguing that the State breached the plea agreement because in the victim impact statement, both the victim's parents recommended imprisonment. The District Court heard oral argument on the motion prior to sentencing, denied the motion, and handed down its sentence. The District Court based its denial on the transcript of the colloquy it gave prior to entry of Knox's plea, in which it informed Knox that the victim's parents were not parties to the plea agreement. Knox now appeals the denial of his motion to withdraw his guilty plea.

II. STANDARD OF REVIEW

¶ 9 In order for a guilty plea to be a valid waiver of numerous constitutional rights and protections, the defendant's guilty plea must be a voluntary, knowing, and intelligent choice among options. State v. Radi (1991), 250 Mont. 155, 159, 818 P.2d 1203, 1206 (citing North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162); see also § 46-12-210, MCA. The defendant must be aware of the rights waived including such rights as the right to challenge the sufficiency of the information; to object to evidence obtained in violation of law; the right to a speedy and public trial by jury; the right to effective assistance of counsel; the right to confront and cross-examine witnesses; the right to testify; the right to call and have witnesses testify; the right against self-incrimination; the right to prove guilt beyond a reasonable doubt; and the right of appeal. State v. Yother (1992), 253 Mont. 128, 130, 831 P.2d 1347, 1348.

¶ 10 A district court may permit the withdrawal of a guilty plea upon a showing of good cause. Section 46-16-105(2), MCA. The determination of good cause is discretionary and each case must be considered on its own facts. State v. Bowley (1997), 282 Mont. 298, 304, 938 P.2d 592, 595. A change of plea is allowed if it appears the defendant was "in ignorance of his rights and of the consequences of his act, or if influenced unduly and improperly either by hope or fear in making it, or if it appears that the plea was entered under some mistake or misapprehension." State v. Schaff, 1998 MT 104, ¶ 17, 288 Mont. 421, ¶ 17, 958 P.2d 682, ¶ 17. Doubts that suggest a plea is involuntary should be resolved in favor of the defendant. Schaff, ¶ 17. However, a plea is not involuntary simply because it was entered to avoid the possibility of a greater punishment at trial. State v. Milinovich (1994), 269 Mont. 68, 71, 887 P.2d 214, 216 (citing Brady v. United States (1970), 397 U.S. 742, 751, 90 S.Ct. 1463, 1470, 25 L.Ed.2d 747). "The fundamental purpose of allowing the withdrawal of a guilty plea is to prevent the possibility of convicting an innocent [person]." State v. Johnson (1995), 274 Mont. 124, 127, 907 P.2d 150, 152 (citations omitted).

¶ 11 This Court reviews denial of a motion to withdraw a guilty plea for abuse of discretion. Bowley, 282 Mont. at 304, 938 P.2d at 595. We consider three factors in this review:

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;

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.

Bowley, 282 Mont. at 304, 938 P.2d at 595. Review of these factors ensures that a guilty plea meets the constitutional standard of a voluntary, intelligent, and knowing choice among options. However, this Court shows deference to a district court's determinations of credibility. Bone v. State (1997), 284 Mont. 293, 308-09, 944 P.2d 734, 743 (citing State v. Blake (1995), 274 Mont. 349, 352-53, 908 P.2d 676, 678).

III. DISCUSSION

¶ 12 Did the District Court abuse its discretion when it denied Knox's motion to withdraw his guilty plea by finding that the State did not violate the plea agreement?

¶ 13 In this case, it is undisputed that the second charge of sexual assault was dismissed when Knox entered his plea and that the State recommended a 30-year suspended sentence at sentencing. Therefore, the only issue for review is whether it was an abuse of discretion for the District Court to find that the victim's parents' recommendation of additional prison time in the PSI did not breach the plea agreement and therefore did not constitute good cause for Knox to withdraw his plea. In this case, there is no written plea agreement. Therefore, in order to consider the three factors to determine whether the District Court's denial was an abuse of discretion, we reviewed the transcript of the oral proceedings in detail.

¶ 14 In outlining the plea agreement for the District Court, Knox's counsel stated that:

It's been indicated to us by the county attorney that the family of the victim is going to say, in the victim impact portion of the PSI ... what the impact on the family has been, and that they will say nothing as to [prison] time and leave that up to the judge—or to ultimate sentencing and leave that up to the judge.

This excerpt is the only...