State v. Long, 87-049

• Decision Date: 11 June 1987
• Docket Number: No. 87-049,87-049
• Citation: 738 P.2d 487,227 Mont. 199
• Parties: STATE of Montana, Plaintiff and Respondent, v. Andrew C. LONG, Defendant and Appellant.
• Court: Montana Supreme Court

Page 487

738 P.2d 487

227 Mont. 199

STATE of Montana, Plaintiff and Respondent, v. Andrew C. LONG, Defendant and Appellant.

No. 87-049 Supreme Court of Montana.

June 11, 1987.

Rehearing Denied July 21, 1987.

Sol and Wolfe, Michael Sol, Missoula, for defendant and appellant.

Mike Greely, Atty. Gen., Barbara Claassen, Asst. Atty. Gen., Helena, Peter W. LaPanne, Musselshell Co. Atty., Roundup, for plaintiff and respondent.

WEBER, Justice.

Defendant, Andrew Carl Long appeals the order of the Fourteenth Judicial District Court, Musselshell County, denying his petition for post-conviction relief. We affirm.

The basic issue before us is whether the defendant's plea of guilty was properly accepted.

Defendant was charged by information with felony theft of a 1971 Sabrecraft 21' boat and boat trailer, registered in the name of Mr. and Mrs. Robert N. Watts, residents of the State of Washington.

The following facts are taken from defendant's testimony before the District Court after his plea of guilty to the charge of felony theft. For simplicity the facts will be set forth in the order in which they occurred. Defendant was at least an acquaintance of Mr. and Mrs. Watts during the time that he worked in Seattle as a roofer. Defendant loaned some money to Mr. Watts which apparently was used as a part of the purchase price of the boat. The boat was damaged in an accident when the trailer came unhitched from the truck. This occurred in the State of Washington. Defendant offered to have the boat repaired if Mr. Watts would allow him to use it for a few months. The repairs were to be made in the State of Washington. Mr. Watts helped the defendant load the boat and trailer and gave him the registration. A few days later defendant's employment opportunities in the State of Washington ended and he returned to Roundup, Montana, with both the boat and trailer. Defendant anticipated that friends in Montana would help him fix the boat. A few days after arriving in Montana defendant phoned Mr. Watts and told him where the boat was. Defendant told Mr. Watts that after the boat was repaired he (the defendant) would use the boat for the rest of the summer and return it to Watts in the State of Washington some time in the fall. Mr. Watts was upset because the boat had been financed in the State of Washington under an agreement which did not allow the boat to be removed from the State of Washington.

The theft charges were filed a few days later. At his arraignment, the defendant pled not guilty. Thereafter he changed attorneys and his plea. After the entry of his guilty plea, defendant stated that while he claimed part ownership of the boat, he acknowledged that he had exercised unauthorized control over the boat and trailer and had deprived Mr. Watts of the boat; but he also stated that he had every intent of repairing and returning the boat to Mr. Watts in the fall of the year. Even though defendant claimed to have a half ownership of the boat, he recognized that the title did not reflect that half ownership and he admitted that Mr. Watts had not given him authority to remove the boat from the State of Washington. He stated:

And my intentions were to take it back at the end of September, the first of October. And I understand at this period of time that I was depriving him of his half ownership of the boat. And that's what I'm pleading guilty to, Your Honor. I mean it was not for me to steal the boat from him and he was never going to see it again. It was not on those pretentions.

November 2, 1983, hearing transcript, p. 6, ln. 18-25.

Defendant's guilty plea was accepted. He was sentenced to five years in the Montana State Prison, suspended; and fined $5,000. A December 22, 1983, attempt to withdraw the guilty plea on the basis of inadequate representation by counsel was denied. Probation was subsequently revoked due to alcohol and firearms violations. Upon leaving Montana State Prison after 18 months incarceration, defendant pursued this petition for post-conviction relief. He contends that insufficient facts were presented to the District Court in support of the guilty plea and that the plea was not voluntary.

Three factors should be considered when determining whether a defendant's guilty plea should be withdrawn:

1. The adequacy of the District Court's interrogation as to the defendant's understanding of the plea;

2. The promptness of the motion to withdraw the prior plea; and

3. The fact that the defendant's plea was apparently the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge.

State v. Koepplin (Mont.1984), 689 P.2d 921, 923, 41 St.Rep. 1942, 1944, citing State v. Huttinger, (1979), 182 Mont. 50, 595 P.2d 363.

In its order denying the petition for post conviction relief, the District Court did not address the promptness of the motion to withdraw the plea. In addition, the record discloses that the defendant's plea was not given in exchange for dismissal of another charge so the third factor is not pertinent. We focus our analysis on the first factor, the adequacy of the District Court's interrogation as to the defendant's understanding of the plea.

Absent an abuse of discretion, a trial judge's decision not to allow the withdrawal of a guilty plea will be affirmed. Koepplin, supra, citing In the Matter of Brown (1980), 185 Mont. 200, 605 P.2d 185. Nevertheless, certain factors must be considered by the trial judge when determining whether the interrogation of defendant at the time of plea was adequate.

Where a District Court has done all that it can to determine from the defendant or otherwise, that the proposed plea of guilty is voluntarily made, the defendant understands what he is doing and is advised of the consequences of his plea, including the nature and extent of his punishment, has been adequately advised by counsel, and has been treated fairly at all stages of the prosecution against him, and that in fact the defendant states he is guilty of the charges made, then this Court has a duty to support the District Court when it allows a plea of guilty to be entered in place of a plea of not guilty.

State v. Lewis (1978), 177 Mont. 474, 484, 582 P.2d 346, 352.

Defendant was charged by information with violating Sec. 45-6-301(1)(a), MCA.

Theft. (1) A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and:

(a) has the purpose of depriving the owner of the property;

Section 45-2-101(19), MCA, defines deprive.

(19) "Deprive" means to withhold property of another:

(a) permanently;

(b) for such a period as to appropriate a portion of its value;

(c) with the purpose to restore it only upon payment of reward or other compensation; or

(d) to dispose of the property and use or deal with the property so as to make it unlikely that the owner will recover it.

The thrust of defendant's position is that Sec. 45-2-101(19), MCA, defining the term deprive, was not mentioned in the information or the warrant, by his attorney, or at the hearing where he pleaded guilty. Therefore, defendant contends that he did not properly understand the charge against him. Pursuant to State v. Huttinger (1979), 182 Mont. 50, 595 P.2d 363, he contends the guilty plea was involuntary and should be withdrawn.

It is undisputed that neither the information nor the warrant mentioned Sec. 45-2-101(19), MCA; and that the section was not discussed at the hearing. No evidence has been presented that defendant's counsel at the time of the entry of the guilty plea did or did not discuss this section with defendant. To avoid this...