STATE v WILKINSON
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No. 83-181 IN THE SUPF?JIME COURT OF THE STATE OF MONTANA 1984 STATE OF MONTAPJA, Plaintiff and Respondent, -vsKATHLEEN RACHEL WILRINSON , Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Jack L. Green, Judge presiding. COUNSEL OF RECORD: For Appellant: Ferguson 6( Mitchell; Carol Plitchell argued, Plissoula, Montana For Respondent : Bon. Mike Greely, Attorney General, Helena, Montana Chris Tweeten argued, Asst. Atty. General, Helena Robert L. Deschamps, 111, County Attorney, (Karen Townsend, Deputy) Missoula, Montana Submitted: 1/13/34 Decided: 3/26/84 Clerk Mr Justice John Conway Harrison delivered the Opinion of the Court. The appellant, Wilkinson, appeals from an order of the Missoula County District Court, denying her motion either to withdraw her plea of guilty to a reduced charge of negligent homicide, or be sentenced in accordance with a plea bargain struck by the parties. We affirm the action of the District Court. The facts surrounding the case involve the death of 19-month-old Paul Tucker Wilkinson, on February 23, 1982, who was found dead in an East Missoula trailer, where he resided with his mother, the appellant, and her boyfriend, William R.ussel1 Sigler. Within a month of the death, on March 18, 1982, the appellant was charged with a negligent homicide in connection with the death of her son. charge was based upon attention for her child. homicide. her failure to This secure medical Sigler was charged with deliberate When subsequent investigation convinced the County Attorney's office that the accountability theory, approved by this Court in State v. Powers (Mont. 1982), 645 P.2d 1357, 39 St.Rep. 989, might apply, the negligent homicide charge against the appellant was dismissed and a new information was filed charging her with deliberate homicide. The trials of the appellant and Sigler were bifurcated upon motion of defense counsel for Sigler. The Sigler trial was scheduled to begin in early August of 1982, while that of the appellant was set for a later date. the appellant's possible plea counsel approached bargain. While the the State In July, 1982, State about a was generally willing to accept a guilty plea to a reduced charge of negligent homicide, the State was unwilling to agree to two of appellant's demands. State either agree Those demands were: (1) that the to recommend probation or make no recommendation as to incarceration; (2) that a dependant and a neglected child action relating to the then-pregnant appellant's unborn child be dropped. At the time the Sigler trial commenced on August 4, 1982, no plea bargain agreement had been reached between the appellant and the State. The State sought the appellant's testimony against With this object, on August 7, 1982, the State Sigler. offered to reduce the charge against the appellant to negligent homicide and to recommend a sentence of ten years imprisonment with seven years suspended if the appellant would plead guilty, give against Sigler. appellant to a sworn statement and testify The prosecution furnished a chart to the use in computing parole eligibility dates within the various sentences then under consideration. The appellant's counsel advised her that the court was not bound by the prosecutor's recommendation. to accept the prosecution's The appellant offered proposal if the recommended suspended sentence was increased from seven to eight years, since under a sentence of ten years with eight suspended she would be eligible for release on parole before the birth of her baby. defendant The prosecution accepted made a sworn statement and the offer, and testified the against Sigler during his trial. Two days later, on August 13, 1982, the appellant, her counsel and the Deputy County Attorney, Karen Townsend, t r a v e l e d t o Polson from Missoula t o a l l o w t h e a p p e l l a n t t o c h a n g e h e r p l e a b e f o r e J u d g e G r e e n , who was s i t t i n g i n Lake County. defendant guaranteed, During the that neither Townsend her again sentence that the State. Judge Green Townsend had not informed the parole nor and t h a t t h e c o u r t was f r e e recommenda.tion o f appellant trip, was to disregard also informed followed the the prosecution s e n t e n c e recommendations i n s i m i l a r c a s e s . During t h e h e a r i n g i n Polson, M s . Townsend s p r e a d t h e e l e m e n t s o f t h e p l e a b a r g a i n on t h e r e c o r d : "MS. TOWNSEND: Your Honor, I t h i n k p r i o r t o t h e time Miss W i l k i n s o n a n s w e r s t h i s , I would l i k e t o s t a t e f o r t h e r e c o r d , which I t h i n k t h e C o u r t i s p r o b a b l y a w a r e of t h r o u g h media c o v e r a g e , t h a t t h e r e h a s been, i n f a c t , a p l e a b a r g a i n t h a t h a s b e e n e n t e r e d by m y s e l f a n d M s . M i t c h e l l with respect t o t h i s p a r t i c u l a r charge. P a r t of t h a t p l e a b a r g a i n h a s been f u l f i l l e d by t h e f i l i n g o f t h i s Amended Information w i t h a reduced charge. " S e c o n d l y , I h a v e a g r e e d t o recommend t o t h e Court a t t h e t i m e of s e n t e n c i n g a s e n t e n c e f o r Miss W i l k i n s o n which would be no more t h a n t e n y e a r s i n t h e Montana State Prison with all but eight suspended. "Further, Mitchell-"THE the COURT: bargain You said is all that but Ms. eight suspended? "MS. TOWNSEND : I'm sorry, eight suspended. I n o t h e r w o r d s , w i t h two left. " F u r t h e r , M s . M i t c h e l l and M s . Ferguson a r e f r e e t o argue t o the Court f o r a complete p r o b a t i o n a r y s e n t e n c e i f t h e y would w i s h t o . So t h e y a r e n o t bound t o agree t o that. " F i n a l l y , Your Honor, I t h i n k t h e C o u r t d o e s know t h e r e i s a s o r t o f a companion c i v i l case i n connection with t h i s particular incident. T h e r e h a s been no a g r e e m e n t t o w h e t h e r we w i l l d r o p o r continue, and that case will proceed as is. " The appellant's statement covered counsel agreed the terms of that Townsend's the plea bargain. Judge Green then questioned the appellant as to her understanding of the plea bargain: "THE COURT: Well, Miss Wilkinson, you understand that the Court had no part in this agreement? "THE DEFENDANT: Yes, I do, Your Honor. "THE COURT: The Court has not bound itself to follow the recommendations of I haven't done it the county attorney. It's up in this case, and I never will. to the Court to determine the proper sentence after I have received the pre-sentence report and considered everything that is pertinent in your case. "THE DEFENDANT: Yes, I do, Your Honor. "THE COURT: So there have been no promises made to you outside of the recommendation that the county attorney will make to the Court. "THE DEFENDANT: Yes, Your Honor. "THE COURT: You understand that? Now knowing this, do you wish to withdraw your plea of guilty as charged at this time? "THE DEFENDANT: No, Your Honor." The court further advised the defendant that under her guilty plea she could be sentenced to up to ten years in prison and understood. fined $50,000. She responded that she The court ordered a presentence report and set sentencing for September 10, 1982. At sentencing, the appellant called as witnesses Joe Sobansky, the probation officer, and Dr. Will Stratford, a psychiatrist who had examined the appellant. Sobansky had recommended a ten year sentence with none suspended, and defense counsel's examination of him, covering some eight pages of transcript, attempted to show that he had inadequately investigated the case, in part by failing to consult Dr. Stratford. Townsend's cross-examination of Sobansky, covering less than two pages of the transcript, brought out the reason Stratford had not been contacted--he had made no report--and retraced Sobansky's reasons for his recommendation, examination. which had been Defense counsel had cross-examination. elicited on no objection direct to this Defense counsel's examination of Dr. Stratford, covering some seven pages of transcript, focused on Stratford's opinion of the appellant's mental condition and the appropriateness of the recommended sentence. Townsend's cross-examination, covering approximately three pages of transcript, inquired as to the likelihood of rehabilitation, the fact that counseling would assist the appellant and that appellant would need vocational training as a condition of her suspended sentence, and what other conditions the doctor would recommend. The court in addition cross-examined Dr. Stratford. Townsend then unequivocally recommended a sentence of ten years with eight suspended, as agreed under the plea bargain. Her recommendation discussed her reasons in depth and at length. Defense counsel then argued for the plea bargain, although suggesting that a lesser sentence was appropriate, particularly recommending that the appellant receive no jail time. The court then imposed a sentence of ten years with two years suspended. Thereafter the appellant moved on September 20, 1982, to withdraw her guilty plea, or in the alternative that her sentence be vacated and that she be resentenced compliance with the prosecutor's recommendation. in The court set the motion for hearing on October 22, 1982. At the hearing, defense counsel withdrew the motion to withdraw the plea and sought only a new sentence of ten years with eight suspended. Appellant testified that she had agreed to the plea bargain only because she wanted to be parole before the birth of her child. released on She acknowledged to the court that she had been advised by Ms. Townsend and by Judge Green that the sentence recommendation was not binding, but stated that she thought the judge would go along, and that the judge's inquiry at the plea proceeding was but a formality. The appellant also presented testimony from an eight-time felony convict and two public defenders to the effect that most defendants would subjectively believe the prosecutor's recommendation would be followed. One of the appellant's attorneys, Paulette Ferguson, testified that the appellant accepted the plea bargain because she wanted to be paroled before the birth of her baby. appellant that recommendation, Judge and Green that was Ferguson told the bound by the eligibility parole not did not guarantee that the appellant would be paroled. admitted that Townsend from the plea bargaining cross-examining did Ferguson prevent Ms. witnesses at not defense sentencing and that the prosecution had no prior notice of the recommendation that defense counsel w ~ u l d offer at sentencing. Following the sentencing, Judge Green entered detailed findings and conclusions in support of his decision r e j e c t i n g t h e a p p e l l a n t ' s motion. The c o u r t f o u n d a s f a c t t h a t t h e a p p e l l a n t had b e e n a d v i s e d by Townsend, by h e r own counsel twice, and by Judge Green, that prosecutor's recommendation d i d n o t bind found t h a t M s . Townsend had made t h e r e c o m m e n d a t i o n a g r e e d upon the court. the in the plea bargaining. appellant's that plea was in particular bound by the The c o u r t further The c o u r t c o n c l u d e d t h a t t h e knowingly and voluntarily s h e was a d v i s e d recommendation, and made, and t h a t t h e c o u r t was n o t that the prosecutor had f u l l y complied w i t h t h e p l e a b a r g a i n i n g . A t the t i m e t h i s case arrived, t h e c a s e of S t a t e v. 40 St.Rep. Standards defendant 2007, bargain, and affirm or Cavanaugh (Mont. 1 9 8 3 ) wherein requiring if is it then withdraw t h e r e was a l s o p e n d i n g the not this Court sentencing going to 673 P.2d adopted court accept give the defendant the guilty plea. to the an 482, the ABA inform entire plea opportunity See, ABA a to Standards R e l a t i n g t o The A d m i n i s t r a t i o n o f C r i m i n a l J u s t i c e ; F u n c t i o n of the Trial Standards, (1974). Judge, supra, section Pleas of 4.l(c) Guilty, (1974), and 2.1 and sections ABA 3.3, A s n o t e d i n t h a t o p i n i o n a m a j o r i t y of o t h e r s t a t e jurisdictions procedure. as well as the federal S e e , F e d e r a l R u l e s of*% Crrm. courts follow this Procedure, l l ( e ) ( 4 ) . z c _ . . This Court s p l i t four t o t h r e e . in Cavanaugh adopted, but concluded the that decision the would However, t h e d e c i s i o n standards be were prospective Therein we stated: "We t h e r e f o r e adopt the previously d i s c u s s e d s t a n d a r d s o f t h e American B a r l l ( e ) ( 4 ) , and A s s o c i a t i o n and F . R . w , P . r e q u i r e t h e t r i a l juhf4'&' who a c c e p t s a p l e a b u t r e j e c t s any o t h e r p o r t i o n of t h e plea bargain, t o afford the defendant the to be only. opportunity to withdraw his guilty plea and enter a plea of not guilty. "The decision in this case shall have prospective application only. The decision applies to defendant James Cavanaugh and all who are sentenced after the effective date of this decision. In support of this prospective holding, see State v. Campbell (1979), 182 Mont. 521, 597 P.2d 1146." 673 P.2d at 485, 40 St.Rep at 2011. There, we established a new procedural requirement for sentencing. In accordance with the requirement in effect at the time of the sentencing, the experienced trial judge carefully advised the appellant that he would not be bound by the recommendation of the prosecution. several times, so advised attorney in the case. be seriously her, Her own counsel, as did the prosecuting We find that criminal justice would hampered by requiring conformity to an unannounced new procedure of any trial judge in this state. As stated by this Court in the unanimous opinion, State v. Campbell (1979), 182 Mont. 521, 597 P.2d 1146: "It should be obvious that retroactive application of this rule would seriously retard its operation. Litigants have a right to rely on the law in effect at the time. The administration of justice would be seriously hampered by requiring conformity to an as yet unannounced new procedural requirement. Law enforcement agencies and courts are entitled to rely on the rules pertaining to guilty pleas in effect at the time the guilty plea was entered and to determine voluntariness on the basis of such law." 182 Mont. at 526, 597 P.2d at 1149. In addition in Campbell, supra, we referred to prior - decisions of this Court and the United States Supreme Court, in denying retroactive application of the decision. We note in addition, that the appellant now is on parole, having been given credit for time she served in the county jail, has been employed and is under supervision of state authorities. The crime for which she entered a plea was serious, homicide, and reviewing the entire transcript and file on this case, we are of the opinion that she received "substantial fairness" by the judicial system of this state. The decision is affirmed. We concur: &d&& Chief Justice Justices Hon. Chan Ettien, District Judge, sitting in place of Mr. Justice Frank B. Morrison, Jr. Mr. Justice Daniel J. Shea dissents and will file a written dissent later. Honorable Chan Ettien, District Judge, dissenting: I dissent. In State v. Cavanaugh (Decided December 23, 1983), , P.2d 40 St.Rep. 2007, Cavanaugh was sentenced September 19, 1977. Wilkinson was sentenced August 13, 1982. The Cavanauqh ruling is retroactive in favor of its subject to September 19, 1977, but on the way back by-passes a judgment on Wilkinson imposed five years later. The logic of the majority escapes me when both cases were pending before this Court at the same time. The Cavanauqh rule should be retroactive from the da.te of its judgment, September 19, 1977. While it appears, practically, that Wilkinson has nothing to gain by reversal-, I would reverse and remand for her option to change her plea if she wishes, in keeping with the doctrine of fundamental fairness. 91&( (& E ; Honora e Chan Ettien, istrict Judge, sitting in place of Mr. Justice Frank B. Morrison, Jr. Justice John C. Sheehy, dissenting: I dissent to the manifest injustice done by this deci- sion to Kathleen Rachel Wilkinson. Kathleen without dispute here had an invincible wish to bear the child she was then carrying outside the prison walls. To achieve this, she consented by plea bargain to provide the evidence without which the State coul-d not have convicted Sigler, but the evidence incriminated herself. Now the State, worse than Shylock, has extracted the benefit of a fine quillet of the law--Judge Green told her before her sentencing, but after she had fully performed her part of the agreement, that he was not bound by the plea bargain. It is not enough here, as it was in Cavanaugh, cited above in the majority opinion, that she be given a chance to withdraw her Her prior evidence given in Sigl-er would plea of guilty. convict her now. As Brandeis said in Omstead v. United States U.S. (1928), 277 438, 48 S.Ct. 564, 7 2 L.Ed. 944 (Brandeis, J., dissenting) , our government teaches the whole people by its example. State: The teaching here is, beware of the it. will trick you if it can. We should order the District Court in this instance to follow scrupulously the terms of the agreement the State was so eager to procure (even though the result she sought to obtajn is now beyond our power). Only then can this Court wrap itself in the robe of "substantial fairness." T also disagree that we must not apply the Cavanaugh rule here because of our prospective-only line in that case. Wilkinson got to this Court before Cavanaugh, and in a procedural process beyond leap-frogged Wilkinson. Wikinson's control, Injustice is injustice. tained a greater injustice than did Cavanaugh. less to remedy injustice? Cavanauqh She sus- Are we power- D I S S E N T OF MR. NO. J U S T I C E D A N I E L J. SHEA 83-181 S T A T E O F MONTANA, Plaintiff and R e s p o n d e n t , VS. KATHLEEN RACHEL W I L K I N S O N , Defendant and Appellant. Mr. J u s t i - c e D a n i e l J . Shea, d i s s e n t i n g : I dissent. I n S t a t e v . Cavanaugh (Mont. 1 9 8 3 ) , 673 P.2d 4 8 2 , 4 0 St..Rep. 2007, i n d i s s e n t , I s t a t e d o u r holding should be g i v e n r e t r o a c t i v e a p p l i c a t i o n on due p r o c e s s grounds. so, d e f e n d a n t Wilkinson would be g i v e n t h e b e n e f i t h o l d i n g i n Cavanaugh. But even i f retroactive application, of If our i t were n o t g i v e n f u l l t h e h o l d i n g i n Cavanaugh s h o u l d a t l e a s t a p p l y t o a l l p l e a e n t r y s i t u a t i o n s t h a t t o o k p l a c e on o r a f t e r t h e d a t e Cavanaugh e n t e r e d h i s plea--September 1977. If a. v i o l a t i o n o c c u r r e d , 19, and t h e m a j o r i t y c e r t a i n l y h e l d a v i o l a t i o n o c c u r r e d by g i v i n g Cava.naugh r e l i e f , then a l l v i o l - a t i o n s t h a t t o o k g l a c e on t h a t same d a t e o r on any da.te a f t e r September 1 9 , 1977, would be g i v e n t h e b e n e f i t o f t h e Cavanaugh r u l i n g . I f s o , t h e d e f e n d a n t Wilkinson would be e n t i t l e d t o r e l i e f i n t h i s case. Another g r o s s i n e q u i t y e x i s t s h e r e . the Although we d e c i d e d issue not case. just i n Cavanauqh, the i s s u e was raised in that R a t h e r , it was f i r s t r a i s e d i n t h e p r e s e n t c a s e . It s o happened t h a t t h e Cavanaugh c a s e was d e c i d e d b e f o r e t h e p r e s e n t c a s e , a l t h o u g h t h e p r e s e n t c a s e was t h e n pending before this Court. It Wilkinson t h e b e n e f i t o f is totally unfair not to give t h e very i s s u e she r a i s e d i n h e r a p p e a l s i m p l y b e c a u s e w e d.ecided t h e i s s u e f i r s t i n a n o t h e r c a s e i n which t h e i s s u e had n o t even
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