State v. Yother

• Decision Date: 01 May 1992
• Docket Number: No. 91-364,91-364
• Citation: 831 P.2d 1347,253 Mont. 128
• Parties: STATE of Montana, Plaintiff and Respondent, v. Kenneth YOTHER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1347

831 P.2d 1347

253 Mont. 128

STATE of Montana, Plaintiff and Respondent, v.Kenneth YOTHER, Defendant and Appellant.

No. 91-364.

Supreme Court of Montana.

Submitted on Briefs March 26, 1992.

Decided May 1, 1992.

Marcey Femling Schwarz, Schwarz & Gustafson, P.C., Billings, for defendant and appellant.

Marc Racicot, Atty. Gen., Patricia J. Jordan, Asst. Atty. Gen., Helena, Keith Haker, Custer County Atty., Miles City, for plaintiff and respondent.

WEBER, Justice.

The District Court for the Sixteenth Judicial District, Custer County, denied defendant's motion to withdraw his plea of guilty to the offense of sexual intercourse without consent.Defendant appeals.We affirm.

The issues for our consideration are:

1.Did the District Court abuse its discretion in denying defendant's motion to withdraw his plea of guilty?

2.Were defendant's constitutional rights to due process violated by the denial of his motion to withdraw his plea of guilty?

The State charged defendant, Kenneth Yother, with sexual intercourse without consent, sexual assault, and incest, all committed against the defendant's thirteen-year-old daughter, B.Y.The affidavit in support of the information stated:

The Court is further informed that through investigation it was determined that BY, a minor youth, was at her residence tending to other children when the Defendant, who was known to the youth, came to her residence at approximately 3:00 o'clock [sic] A.M. and invited her to go for a ride in an automobile which he was intending to purchase.The minor youth, BY, accepted the invitation for the ride and went with the Defendant.The Defendant left the neighborhood and drove to a secluded area where he parked the vehicle.BY requested that he take her back to her residence.This request was ignored and the Defendant began talking about young girls that he had sexual contact with when he was younger.BY attempted to leave the vehicle with the intent to walk home but was stopped by the Defendant.He grabbed her by the hair and pulled her face down to the area of his crotch, where his pants were open, and she pulled away.The Defendant proceeded to pull her closer, pulling off her boot and one of her pants legs.The Defendant held BY down, and, according to BY, he was able to penetrate her vagina with his penis.

At the arraignment, the District Court advised the defendant of the charges against him, the maximum penalties, appointed an attorney and advised defendant of his constitutional rights.The court further informed the defendant:

You should be advised that if you make a plea agreement with the County Attorney, that that would be an agreement between you and the County Attorney and for you to enter a certain plea and for the County Attorney to make a certain recommendation to the Court.The Court is not a party to any such agreement and the Court would not be bound by such an agreement.Should the Court accept a plea of guilty pursuant to an agreement or otherwise the Court would contain [sic] the right to sentence up to maximum allowable by law.Also, you would not have a right to withdraw your guilty plea....

The defendant pled not guilty to all charges.

On January 21, 1991, the defendant, his attorney, the County Attorney, B.Y. the victim, and the mother of the victim executed the Acknowledgment of Rights and Plea Agreement.In the agreement defendant acknowledged his right to challenge the sufficiency of the information, his right to object to any evidence obtained in violation of law, his right to a speedy and public trial by jury at which he had 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 not to be compelled to incriminate himself, the right to have charges proved beyond a reasonable doubt, and the right to appeal a finding of guilty.The agreement contained the maximum penalties for sexual intercourse without consent, sexual assault, and incest.He agreed that by pleading guilty he would waive all the rights above referred to.He acknowledged he had been given ample time and opportunity to discuss the case with his attorney and received the full benefit of that attorney's advise, and that he was satisfied with the services of the attorney.He also acknowledged that he was not suffering from any mental disease or disability; that he was not under the influence of alcohol, drugs or medication; and that he had not been threatened, coerced or otherwise intimidated or influenced in any way.The agreement then contained the following specific paragraphs regarding the defendant:

10.I have entered into this agreement freely and voluntarily and with full knowledge of its terms and conditions.

11.I understand that a plea bargain agreement is an agreement between a defendant and a prosecutor that in exchange for a particular plea the prosecutor will recommend a particular sentence.

12.I understand that the Court may not participate in the making of such an agreement nor is the Court bound by the agreement.

13.I understand that on my plea of guilty alone I could lawfully be sentenced to the maximum punishment authorized for the offense(s) to which I plead guilty and that the recommendation of the prosecuting attorney in no way binds the Court when imposing sentence.

14.I understand that the sentence to be imposed is within the sole discretion of the sentencing judge and that the State does not make any promise or representation as to what the sentence will be.

15.I understand that if the Court does not impose the sentence recommended by the prosecutor, the Court is not required to allow me to withdraw my plea of guilty.(emphasis added).

The defendant then agreed to plead guilty to the offense of sexual intercourse without consent as follows:

18.Pursuant to Sec. 46-12-204, MCA, and conditioned upon the understandings specified below, I agree to plead guilty to the offense of Sexual Intercourse Without Consent, a felony, as alleged in the Amended Information, on the following basis:

a. That the County Attorney will recommend imprisonment in the Montana State Prison for five (5) years.Three (3) years of said sentence shall be determinate and must be served in its entirety in the Montana State Prison, less credit for time spent in the Custer County Jail.

b. The Defendant shall not be entitled to early parole or conditional release.

c. While at the Montana State Prison, the Defendant must complete the Intensive Two Year Sex Offender Program.

d. Upon release from the Montana State Prison, the Defendant shall be placed on Parole for a period of two (2) years.

The agreement further provided in detail that the "prosecution" would abide by the terms of the agreement throughout all proceedings, including sentence review and parole, and that the prosecution would not attempt to alter or renegotiate the terms of the agreement.The agreement stated that the State agrees that the defendant shall be entitled to withdraw from the agreement subsequent to the entry of a guilty plea in the event the State fails to perform its obligations pursuant to the agreement.

After a hearing, the District Court accepted defendant's plea of guilty to the offense of sexual intercourse without consent, resulting in the dropping of the charges of sexual assault and incest.The court ordered defendant to undergo a psychosexual evaluation pursuant to Sec. 46-18-111, MCA.

Defendant was evaluated by Pete Bruno, a licensed professional counselor.Mr. Bruno concluded that defendant completely denied any problem with deviant sexuality, that the defendant could not be accepted into outpatient therapy, and that Bruno could not recommend him for placement in the Phase II (Phase II requires a courtorder) program at the prison.

Prior to sentencing, defendant moved to withdraw his guilty plea because: (1) following the plea he was ordered to complete a Sex Offender Evaluation; (2)the defendant"hope[d]"he would be allowed to withdraw his guilty plea if the Judge did not follow the County Attorney's recommendations; (3)the defendant entered his plea out of "fear" of what a jury might do; and (4)the court did not elicit sufficiently "strong evidence" of guilt by establishing a factual basis for the plea before accepting the plea pursuant to North Carolina v. Alford(1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.

In his response to the defendant's motion to withdraw his guilty plea, the County Attorney contended that the prosecution had complied with the plea agreement and requested the court to deny defendant's motion.

In considering defendant's motion to withdraw his plea, the District Court stated the following regarding the sexual offender evaluation:

Defendant and his counsel certified to the Court that they had examined 46-18-101 et seq. and were aware of 46-18-111, MCA, and knew that the presentence investigation report is required to include a sex offender evaluation where the victim of a sex offense is under the age of 16.In this case, the victim was age 13 at the time of the offense, requiring the sex offender evaluation....[I]n Custer County Criminal CauseNo. 3313, this Court, as a condition of deferred imposition of sentence, previously required this same defendant to obtain a Sexual Offender Evaluation and follow through with all recommendations of said evaluation.Defendant failed to obtain the required sex offender evaluation and absconded from probation.Ultimately, Defendant's probation was revoked and Defendant served six months in the Custer County Jail.The defendant certainly should have expected that this Court would definitely want him to undergo a sex offender evaluation after his second sex offense conviction.In light of the above, the Court finds Defendant's suggestion patently unbelievable that he was either surprised or unfairly prejudiced by the requirement of undergoing...