State v. Reynolds

• Decision Date: 28 May 1992
• Docket Number: No. 91-533,91-533
• Parties: STATE of Montana, Plaintiff and Respondent, v. Charles Lee REYNOLDS, Jr., Defendant and Appellant.
• Court: Montana Supreme Court

Page 153

833 P.2d 153

253 Mont. 386

STATE of Montana, Plaintiff and Respondent, v. Charles Lee REYNOLDS, Jr., Defendant and Appellant.

No. 91-533.

Supreme Court of Montana.

Submitted on Briefs May 7, 1992.

Decided May 28, 1992.

James G. Hunt, Dix & Hunt Law Firm, Helena, for defendant and appellant.

Marc Racicot, Atty. Gen., John paulson, Asst. Atty. Gen., Mike McGrath, Lewis & Clark County Atty., Helena, for plaintiff and respondent.

HARRISON, Justice.

This is an appeal from the District Court of the First Judicial District, Lewis and Clark County, concerning the withdrawal of a guilty plea. We affirm.

The sole issue presented for review is whether the District Court erred by denying appellant's motion to withdraw his guilty plea.

The appellant, Charles Lee Reynolds, Jr. (Reynolds), was charged by complaint in the Justice Court of Lewis and Clark County, on January 4, 1990, with the offense of issuing a bad check (common scheme), a felony. On January 25, 1990, a second complaint was filed against Reynolds in Justice Court, charging him with the offense of criminal trespass, a misdemeanor; intimidation, a felony; and forgery, a misdemeanor. At that time an arrest warrant was issued and Reynolds was arrested on that date. Reynolds posted bond in the amount of $2,500.

On March 22, 1990, Reynolds waived a preliminary hearing on the charges in Justice Court and was bound over to District Court. The Lewis and Clark County Attorney filed an information on April 23, 1990, charging Reynolds with the offenses of issuing a bad check, a felony; and forgery, a misdemeanor. Although the record is unclear, it appears that the Lewis and Clark County Attorney dropped the criminal trespass and intimidation charges in the transmission from Justice to District Court.

Four separate short transcripts of the court proceedings are filed in this matter: (1) The May 3, 1990, transcript of Reynolds' initial appearance, arraignment and sentencing in District Court; (2) the April 5, 1991, transcript of the County Attorney's petition to revoke Reynolds' suspended sentence; (3) the July 11, 1991, transcript entitled "Review Hearing;" and (4) the July 25, 1991, transcript of Reynolds' motion to withdraw his guilty plea.

The various transcripts reveal that in early 1990, while Reynolds was under arrest and being held in the county jail, he initiated contact with Sgt. Les Hathcock of the Helena Police Department about becoming a drug informant. After Sgt. Hathcock discussed this matter with the Lewis and Clark County Attorney, they agreed to use Reynolds as an informant. Reynolds acted as an informant for the county between the end of January, 1990 until April, 1990. During that time, he became well acquainted with the police officers and the prosecution staff of Lewis and Clark County. The record indicates that while working as an informant Reynolds testified at several trials which resulted in over twenty drug convictions.

On May 3, 1990, Reynolds appeared before the District Court, without counsel, for his arraignment. At that time the court advised him that by appearing without counsel he was waiving a right to which he was entitled, and the court asked whether he was ready to proceed. Reynolds stated that he did not wish to be represented by counsel. On appeal, Reynolds indicated that one of the reasons he felt he did not need an attorney when he entered his guilty plea was that he had considerable faith in the Lewis and Clark County Attorney.

Before the court accepted Reynolds' guilty plea, Reynolds explained to the court that he and his wife broke up, and as a result of the break up, he was doing considerable drinking and gambling. He further testified that before the charges were brought against him, he issued a number of bad checks to various Helena area merchants knowing his deposits were insufficient to cover the amount of checks he wrote. As to the second charge of forgery, Reynolds testified that he sold a clock for $60 but altered the check by inserting a one before the six thereby making the amount payable appear to be $160. He cashed the check for $160.

After reading the charges in the information to Reynolds, the court said to him:

THE COURT: ... And at the time, you knew that [the $60 check] was made or altered in such a manner that it purported to have been made by Fae Tickler. Do you generally understand what's charged in each count?

CHARLES LEE REYNOLDS: Yes, sir.

Thereafter, the court set forth the maximum possible punishment for each offense, and after explaining the same the District Court Judge asked Reynolds, "Do you understand what the maximum possible punishment is?" To which Reynolds replied "Yes, sir."

Then, the court asked Reynolds:

THE COURT: Now, ... You are also entitled to be represented by an attorney. You appear here without an attorney and do you wish to be represented by an attorney?

CHARLES LEE REYNOLDS: No, I don't believe so.

THE COURT: You feel that under the circumstances you will represent yourself; is that correct?

CHARLES LEE REYNOLDS: Yes.

All of this information was available to the trial judge when he sentenced Reynolds, and the May 3, 1990, transcript reveals considerable discussion between the court and Reynolds prior to his entering a plea.

During the May 3, 1990, proceeding, Reynolds entered his guilty plea and the court proceeded directly to sentencing Reynolds. Accepting the County Attorney's recommendation, Judge Honzel sentenced Reynolds to three years in the state prison and suspended all but time served on the conditions the County Attorney recommended. Judge Honzel stated:

THE COURT: ... First of all, you make restitution, and it will probably be in the neighborhood of $3,800, and the restitution officer will get a final amount. We won't leave that hanging forever. And, then, we'll have a final amount probably in thirty days and we'll set that as the time. So, whatever [the restitution officer] comes up with in thirty days, that's what you'll be responsible for. If, for some reason, you think [the restitution officer is] way out of line, you're entitled to a hearing on that, and, then, I'll determine what the exact amount is. Otherwise, we'll go with the figure [the restitution officer] comes up with. And you'll be a law-abiding citizen.

In addition, you'll be given credit for the time that you've already served. I guess the way to do that is, we'll suspend all of it but eight days and you'll be given credit for the time that you served. I guess that's the easiest way to handle that.

As far as the reasons, it does comply with the plea agreement and you have previously had a deferred sentence and you're not entitled to another one and this is the type of an offense which requires restitution. From your standpoint, the one thing that you need to understand is that if you goof up and you don't make restitution or you get into further trouble with the law, the county attorney can ask that your suspended sentence be revoked and that you begin to serve that sentence.

. . . . .

Approximately one year later, on March 18, 1991, the Lewis and Clark County Attorney petitioned the court to revoke Reynolds' suspended sentence for his failure to make a good faith effort to pay the restitution as required by the judgment of the court. The court held a hearing on that motion on April 5, 1991, wherein the County Attorney elicited testimony that Reynolds made little or no effort to comply with the conditions of his suspended sentence; that he did not make himself available to the restitution officers of Lewis and Clark County; and, as noted by the restitution officer, Reynolds' cooperation with the restitution program was not very positive.

The transcript reveals that the year after Reynolds pled guilty, he had earned income of approximately $16,000, gross, and during December of 1990, and January, February and half of March, 1991, he had drawn unemployment. Out of those funds, a large percentage was taken to pay child support and other expenses, however, Reynolds paid nothing toward fulfilling his restitution obligation.

After that hearing, Reynolds filed a motion to withdraw his guilty plea on June 7, 1991. The court set July 25, 1991, for hearing on that motion.

The record reveals that following Reynolds' guilty plea and sentencing in 1990, he was charged in United States District Court, State of Montana, with a violation of 18 U.S.C. Sec. 922(a)(6), making a false statement on Alcohol, Tobacco and Firearms Form 4473; and violation of 18 U.S.C. Sec. 922(g)(1), being a felon in possession of a firearm for allegedly purchasing a firearm on June 14, 1990. Apparently, Reynolds' motion to withdraw his guilty plea a year later was somewhat influenced by the charges in United States District Court.

The standard of review in cases involving a district court's refusal to allow a defendant to withdraw a guilty plea is whether the district court abused its discretion. State v. Cameron (Mont.1992), --- Mont. ----, 830 P.2d 1284, ----. Absent an abuse of discretion, we will not disturb the district court's decision. Cameron, --- Mont. ----, 830 P.2d at ----.

Section 46-16-105(2), MCA, allows the court to permit the withdrawal of a guilty plea and substitute in its place a plea of not guilty upon a showing of good cause. This Court considers the following three factors when determining whether a district court erred in refusing to allow a defendant to withdraw his 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 consequences of his plea; (2) the promptness with which the defendant attempts to withdraw the prior plea; and (3) the fact that the defendant's plea was the result of a plea bargain.

State v. Walker (1986), 220 Mont. 70, 72, 712 P.2d 1348, 1350 (citation omitted). Here, we carefully considered the above factors in determining whether the District Court abused its...