State v. Radi, 91-046

• Decision Date: 08 October 1991
• Docket Number: No. 91-046,91-046
• Citation: 48 St.Rep. 903,818 P.2d 1203,250 Mont. 155
• Parties: STATE of Montana, Plaintiff and Respondent, v. Gary Eugene RADI, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1203

818 P.2d 1203

250 Mont. 155

STATE of Montana, Plaintiff and Respondent, v. Gary Eugene RADI, Defendant and Appellant.

No. 91-046.

Supreme Court of Montana.

Submitted on Briefs June 28, 1991.

Decided Oct. 8, 1991.

Gary Eugene Radi, pro se.

Marc Racicot, Atty. Gen., Jennifer Anders, Asst. Atty. Gen., Helena, Robert Deschamps, III, County Atty., Betty Wing, Deputy County Atty., Missoula for plaintiff and respondent.

HUNT, Justice.

Defendant Gary Eugene Radi pled guilty to two counts of burglary before the District Court of the Fourth Judicial District, Missoula County, on April 9, 1990. On May 22, 1990, the Honorable Jack L. Green, District Court Judge, sentenced defendant to 20 years in the Montana State Prison on each count, the two terms to run consecutively. Defendant, appearing pro se, made a motion before the District Court on October 3, 1990, to withdraw his guilty plea. Defendant appeals from the District Court's order of November 29, 1990, denying his motion to withdraw the guilty plea. We affirm.

The sole issue before this Court on appeal is whether the District Court erred in denying defendant's motion to withdraw his plea of guilty.

Between the hours of 5 p.m. on November 21, 1989, and 6:20 a.m. on November 22, 1989, 2J's Produce in Missoula was unlawfully entered. Once inside 2J's Produce, the individuals gained entrance to an adjacent business, A & I Distributing. Various items, including a VCR recorder, a radio, a safe, a number of chain saws, an acetylene cutting torch, a 2J's Produce van, and a variety of food items, were stolen from both premises.

On November 22, 1989, a confidential informant gave the police information concerning the burglaries. The informant told the police that three individuals were involved in the burglaries and gave the police additional details concerning the crimes. He identified one of the participants as an individual recently released from the Montana State Prison, known to him as "Dan." He gave police a description of the individual, as well as his address. With this information, and the assistance of the Adult Probation and Parole Office, the individual was identified as Dan Gochanour by the police. The informant said the second individual involved was "Big Brad." He related that Big Brad was an ex-convict and gave police a detailed description of the man. Police checked with personnel at the Life Skills Center in Missoula who indicated that Brad Eisenman was known to them as Big Brad and that he fit the description given by the informant. The informant did not know the identity of the third individual involved.

Information by this informant also led the police to an individual named Monte Anderson. On November 28, 1989, the police interviewed Anderson. He recounted that a day or so before Thanksgiving he was staying over at his sister's apartment and had passed out on her couch in the evening. Around midnight, three individuals entered the apartment. Anderson overheard the individuals discussing 2J's Produce and a van, and saw the individuals bringing a number of food items and a chain saw into the apartment. Anderson identified the three individuals as Dan Gochanour, Brad Eisenman, and a man he did not know, named Gary. From a Probation and Parole photograph of defendant Radi, Anderson identified him as the Gary he had seen on the night in question.

The police obtained a search warrant for each of the residences of Radi, Eisenman, and Gochanour. Some of the stolen items were found at each residence. At the residence of the defendant the police found a chain saw, VCR recorder, and a roll of pennies with writing on it indicating it was the property of A & I Distributing. Additionally, the police found six dozen Cascade Poultry eggs, three pounds of Darigold unsalted butter with 2J's stickers, seven packages of Montana Legend meat, and several bags of coffee. These food items matched the description of items stolen from 2J's Produce. Similar quantities and types of food items were found at the Eisenman and Gochanour residences.

On December 13, 1989, defendant was charged by information with two counts of burglary in violation of Sec. 45-6-204, MCA. Charges were also filed against Gochanour and Eisenman. Defendant entered a plea of not guilty to the charges on December 21, 1989. On the morning his trial was to begin, April 9, 1990, defendant appeared with counsel and requested that he be allowed to withdraw his plea of not guilty. The District Court then accepted defendant's guilty plea and ordered the matter set for sentencing. Following a pre-sentencing investigation on May 22, 1990, defendant was sentenced to 20 years in the Montana State Prison on each of the two counts, the terms to run consecutively. On October 3, 1990, defendant appeared pro se and filed a motion to withdraw his guilty plea in the Missoula County District Court. This motion was denied on November 19, 1990.

Defendant contends the District Court erred in not allowing him to withdraw his guilty plea. At trial, defendant was to rely upon several witnesses to establish alibi as a defense. Defendant alleges that action by the prosecutors for the State effectively prohibited him from calling these witnesses to establish his innocence, and that as a result his guilty plea was not voluntary.

Before discussing the particular details of defendant's contention, we first state some general principles governing the withdrawal of a guilty plea. Concerning pleas in general, Sec. 46-12-204, MCA states in part:

46-12-204. The plea--plea bargains. (1) The defendant shall enter a plea of guilty or not guilty to the indictment, information, or complaint. If the defendant refuses to plead to the indictment, information, or complaint, a plea of not guilty must be entered.

(2) The court may refuse to accept a plea of guilty and shall not accept the plea of guilty without first determining that the plea is voluntary with an understanding of the charge.

Additionally, Sec. 46-16-105, MCA, provides that:

46-16-105. Plea of guilty. (1) Before or during trial, a plea of guilty may be accepted when:

(a) the defendant enters a plea of guilty in open court; and

(b) the court has informed the defendant of the consequences of his plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea.

(2) At any time before or after judgment the court may, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. [Emphasis added.]

This Court has consistently stated that "[t]here is no set rule or standard which can be relied on in any given case where a motion is made to withdraw a guilty plea." State v. Huttinger (1979), 182 Mont. 50, 55, 595 P.2d 363, 366. Each case involving a motion to withdraw a guilty plea must be considered in light of the specific record of the case. State v. Griffin (1975), 167 Mont. 11, 21, 535 P.2d 498, 503.

Initially, the grant or denial of a motion to withdraw a plea of guilty is within the sound discretion of the trial court. Matter of Hardy (1980), 188 Mont. 506, 614 P.2d 528. "A denial of a request to withdraw a guilty plea is subject to review only when there has been an abuse of discretion by the trial court." State v. Wilson (1982), 198 Mont. 305, 314, 645 P.2d 958, 963.

The process of pleading guilty to a criminal charge involves a waiver by the criminal defendant of numerous constitutionally based rights and protections. In light of the importance of the rights waived, it is a well-settled legal principle that a guilty plea must be a voluntary, knowing, and intelligent choice among the alternative courses of action open to the defendant. North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.

This concept is expressed in the Montana statutes governing pleas. Additionally, this Court has added if "there is any doubt that a plea is not voluntary, the doubt should be resolved in the defendant's favor. On application to change a plea, all doubts should be resolved in favor of a trial on the merits." Huttinger, 595 P.2d at 367. "The fundamental purpose of allowing the withdrawal of a guilty plea is to prevent the possibility of convicting an innocent man." State v. Arledge (1987), 228 Mont. 225, 232, 741 P.2d 781, 785.

There are at least three factors which this Court has determined should be considered in every case in which a defendant attempts to withdraw a guilty plea:

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

2. The promptness of the motion to withdraw the 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. Long (1987), 227 Mont. 199, 201, 738 P.2d 487, 489.

Defendant alleges that prior to trial he intended to rely on the testimony of his common-law wife Jeannie Roberts and co-defendant Dan Gochanour to establish the defense of alibi. Shortly before trial the State entered into a plea agreement with co-defendant Gochanour. Defendant claims that Gochanour was not to be sentenced until after defendant's trial, and that the State's agreement with Gochanour would have been withdrawn if he had given evidence during the trial exonerating defendant. Additionally, defendant claims that Roberts was precluded from testifying on his behalf. He argues that if Roberts had testified truthfully as to his whereabouts on the night in question she would somehow have been forced to implicate Gochanour in the crime. By so doing, she would have subjected defendant and his son, who is currently incarcerated in the Montana State Prison, to potential retaliation for having assisted the authorities in convicting Gochanour.

Defendant contends that upon realizing his two crucial witnesses had been placed in a situation in which they could not testify without...