change of plea hearing in Montana

2022In return, Rexford agreed to plead guilty via an Alford plea—a unique type of plea afforded to criminal defendants by North Carolina v. Alford, 400 U.S. 25 , 91 S. Ct. 160 (1970).1 Alford pleas are codified in Montana under § 46-12-212(2), MCA.2 ¶5 On December 2, 2019, the District Court held a change of plea hearing to rule on Rexford’s plea agreement.

2022In return, Rexford agreed to plead guilty via an Alford plea—a unique type of plea afforded to criminal defendants by North Carolina v. Alford, 400 U.S. 25 , 91 S. Ct. 160 (1970).1 Alford pleas are codified in Montana under § 46-12-212(2), MCA.2 ¶5 On December 2, 2019, the District Court held a change of plea hearing to rule on Rexford’s plea agreement.

1999Additionally, the Court did not discuss its misstatement of the maximum possible penalty at the change of plea hearing. ¶14 In State v. Enoch (1994), 269 Mont. 8 , 887 P.2d 175 , we had the following to say about district court decisions to allow or disallow withdrawal of a guilty plea: The principles governing the entry and withdrawal of guilty pleas are contained in both statute and case law.

1996Anderson claims that Sweeney's advice to Anderson was sporadically given in bits and pieces and cites to State v. Enoch (1994), 269 Mont. 8 , 887 P.2d 175 , to argue that such sporadic advice does not satisfy the requirements of 5 46-12-210,MCA.

2025Scott represented that Songer was not willing to meet with him or his investigator, Bill Emerson (Emerson), and that Songer had filed a request for a different attorney with the Office of the State Public Defender 7 State v. Gallagher, 2001 MT 39, ¶ 7 , 304 Mont. 215 , 19 P.3d 817 . 8 (OPD), which had denied his request.

2025Scott represented that Songer was not willing to meet with him or his investigator, Bill Emerson (Emerson), and that Songer had filed a request for a different attorney with the Office of the State Public Defender 7 State v. Gallagher, 2001 MT 39, ¶ 7 , 304 Mont. 215 , 19 P.3d 817 . 8 (OPD), which had denied his request.

2025Sentencing was set for April 17, 2024. ¶7 On March 20, 2024, between Alford’s change of plea and sentencing, this Court decided State v. Gibbons, 2024 MT 63 , 416 Mont. 1 , 545 P.3d 686 , in which the Court held that the statutorily mandated minimum fines for multiple-offense DUI convictions were facially unconstitutional because they did not permit sentencing courts to consider “‘the nature of the crime committed, the financial resources of the offender, and the nature of the burden that payment of the fine will impose,’” in violation of a person’s constitutional 2 The Plea Agreement did not

2025Sentencing was set for April 17, 2024. ¶7 On March 20, 2024, between Alford’s change of plea and sentencing, this Court decided State v. Gibbons, 2024 MT 63 , 416 Mont. 1 , 545 P.3d 686 , in which the Court held that the statutorily mandated minimum fines for multiple-offense DUI convictions were facially unconstitutional because they did not permit sentencing courts to consider “‘the nature of the crime committed, the financial resources of the offender, and the nature of the burden that payment of the fine will impose,’” in violation of a person’s constitutional 2 The Plea Agreement did not

2023Brown, 193 Mont. at 17-18 , 629 P.2d at 778 . ¶20 Likewise, here the plea agreement was filed long before the sentencing hearing, and the records of both the change of plea hearing and the sentencing hearing demonstrate that the District Court was aware of the plea agreement terms, including the agreed sentencing recommendation.

2023Brown, 193 Mont. at 17-18 , 629 P.2d at 778 . ¶20 Likewise, here the plea agreement was filed long before the sentencing hearing, and the records of both the change of plea hearing and the sentencing hearing demonstrate that the District Court was aware of the plea agreement terms, including the agreed sentencing recommendation.

2023State v. Newbary, 2020 MT 148 , ¶ 18, 400 Mont. 210 , 464 P.3d 999 ; State v. Hill, 2009 MT 134, ¶ 49 , 350 Mont. 296 , 207 P.3d 307 ; State v. Rardon (Rardon II), 2002 MT 345 , ¶ 18, 313 Mont. 321 , 61 P.3d 132 (citing State v. Munoz, 2001 MT 85, ¶ 14 , 305 Mont. 139 , 23 P.3d 922 ); State v. Keys, 1999 MT 10, ¶ 18 , 293 Mont. 81 , 973 P.2d 812 ; State v. Dinndorf, 202 Mont. 308, 311 , 658 P.2d 372, 373 (1983) (citing United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979)).

2023State v. Newbary, 2020 MT 148 , ¶ 18, 400 Mont. 210 , 464 P.3d 999 ; State v. Hill, 2009 MT 134, ¶ 49 , 350 Mont. 296 , 207 P.3d 307 ; State v. Rardon (Rardon II), 2002 MT 345 , ¶ 18, 313 Mont. 321 , 61 P.3d 132 (citing State v. Munoz, 2001 MT 85, ¶ 14 , 305 Mont. 139 , 23 P.3d 922 ); State v. Keys, 1999 MT 10, ¶ 18 , 293 Mont. 81 , 973 P.2d 812 ; State v. Dinndorf, 202 Mont. 308, 311 , 658 P.2d 372, 373 (1983) (citing United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979)).

2023State v. Newbary, 2020 MT 148 , ¶ 18, 400 Mont. 210 , 464 P.3d 999 ; State v. Hill, 2009 MT 134, ¶ 49 , 350 Mont. 296 , 207 P.3d 307 ; State v. Rardon (Rardon II), 2002 MT 345 , ¶ 18, 313 Mont. 321 , 61 P.3d 132 (citing State v. Munoz, 2001 MT 85, ¶ 14 , 305 Mont. 139 , 23 P.3d 922 ); State v. Keys, 1999 MT 10, ¶ 18 , 293 Mont. 81 , 973 P.2d 812 ; State v. Dinndorf, 202 Mont. 308, 311 , 658 P.2d 372, 373 (1983) (citing United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979)).

2023State v. Newbary, 2020 MT 148 , ¶ 18, 400 Mont. 210 , 464 P.3d 999 ; State v. Hill, 2009 MT 134, ¶ 49 , 350 Mont. 296 , 207 P.3d 307 ; State v. Rardon (Rardon II), 2002 MT 345 , ¶ 18, 313 Mont. 321 , 61 P.3d 132 (citing State v. Munoz, 2001 MT 85, ¶ 14 , 305 Mont. 139 , 23 P.3d 922 ); State v. Keys, 1999 MT 10, ¶ 18 , 293 Mont. 81 , 973 P.2d 812 ; State v. Dinndorf, 202 Mont. 308, 311 , 658 P.2d 372, 373 (1983) (citing United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979)).

2023State v. Newbary, 2020 MT 148 , ¶ 18, 400 Mont. 210 , 464 P.3d 999 ; State v. Hill, 2009 MT 134, ¶ 49 , 350 Mont. 296 , 207 P.3d 307 ; State v. Rardon (Rardon II), 2002 MT 345 , ¶ 18, 313 Mont. 321 , 61 P.3d 132 (citing State v. Munoz, 2001 MT 85, ¶ 14 , 305 Mont. 139 , 23 P.3d 922 ); State v. Keys, 1999 MT 10, ¶ 18 , 293 Mont. 81 , 973 P.2d 812 ; State v. Dinndorf, 202 Mont. 308, 311 , 658 P.2d 372, 373 (1983) (citing United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979)).

2023State v. Newbary, 2020 MT 148 , ¶ 18, 400 Mont. 210 , 464 P.3d 999 ; State v. Hill, 2009 MT 134, ¶ 49 , 350 Mont. 296 , 207 P.3d 307 ; State v. Rardon (Rardon II), 2002 MT 345 , ¶ 18, 313 Mont. 321 , 61 P.3d 132 (citing State v. Munoz, 2001 MT 85, ¶ 14 , 305 Mont. 139 , 23 P.3d 922 ); State v. Keys, 1999 MT 10, ¶ 18 , 293 Mont. 81 , 973 P.2d 812 ; State v. Dinndorf, 202 Mont. 308, 311 , 658 P.2d 372, 373 (1983) (citing United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979)).

2023State v. Newbary, 2020 MT 148 , ¶ 18, 400 Mont. 210 , 464 P.3d 999 ; State v. Hill, 2009 MT 134, ¶ 49 , 350 Mont. 296 , 207 P.3d 307 ; State v. Rardon (Rardon II), 2002 MT 345 , ¶ 18, 313 Mont. 321 , 61 P.3d 132 (citing State v. Munoz, 2001 MT 85, ¶ 14 , 305 Mont. 139 , 23 P.3d 922 ); State v. Keys, 1999 MT 10, ¶ 18 , 293 Mont. 81 , 973 P.2d 812 ; State v. Dinndorf, 202 Mont. 308, 311 , 658 P.2d 372, 373 (1983) (citing United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979)).

2023In my view, the transcript does not appear to capture that nuance. 16 State v. Chase, 2006 MT 13, ¶ 19 , 331 Mont. 1 , 127 P.3d 1038 (overruled in-part on other grounds). ¶31 However, when the totality of the current record here is considered, I agree the IAC claim would need to be examined in a postconviction relief proceeding. /S/ JIM RICE 17

2023In my view, the transcript does not appear to capture that nuance. 16 State v. Chase, 2006 MT 13, ¶ 19 , 331 Mont. 1 , 127 P.3d 1038 (overruled in-part on other grounds). ¶31 However, when the totality of the current record here is considered, I agree the IAC claim would need to be examined in a postconviction relief proceeding. /S/ JIM RICE 17

2023State v. Newbary, 2020 MT 148 , ¶ 18, 400 Mont. 210 , 464 P.3d 999 ; State v. Hill, 2009 MT 134, ¶ 49 , 350 Mont. 296 , 207 P.3d 307 ; State v. Rardon (Rardon II), 2002 MT 345 , ¶ 18, 313 Mont. 321 , 61 P.3d 132 (citing State v. Munoz, 2001 MT 85, ¶ 14 , 305 Mont. 139 , 23 P.3d 922 ); State v. Keys, 1999 MT 10, ¶ 18 , 293 Mont. 81 , 973 P.2d 812 ; State v. Dinndorf, 202 Mont. 308, 311 , 658 P.2d 372, 373 (1983) (citing United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979)).

2023State v. Newbary, 2020 MT 148 , ¶ 18, 400 Mont. 210 , 464 P.3d 999 ; State v. Hill, 2009 MT 134, ¶ 49 , 350 Mont. 296 , 207 P.3d 307 ; State v. Rardon (Rardon II), 2002 MT 345 , ¶ 18, 313 Mont. 321 , 61 P.3d 132 (citing State v. Munoz, 2001 MT 85, ¶ 14 , 305 Mont. 139 , 23 P.3d 922 ); State v. Keys, 1999 MT 10, ¶ 18 , 293 Mont. 81 , 973 P.2d 812 ; State v. Dinndorf, 202 Mont. 308, 311 , 658 P.2d 372, 373 (1983) (citing United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979)).

2019The State argues that "Kurtz bears some responsibility for representing to the court that a plea deal had been reached but not entering a plea." The State maintains that this case is factually similar to *485 State v. Stewart , 2017 MT 32 , 386 Mont. 315 , 389 P.3d 1009 , in which this Court concluded that a defendant and the State bore shared responsibility for the delay. ¶21 In Stewart , both Stewart and the State filed status reports asking that the District Court "not assemble a jury." Stewart , ¶ 12 .

2019The State argues that "Kurtz bears some responsibility for representing to the court that a plea deal had been reached but not entering a plea." The State maintains that this case is factually similar to *485 State v. Stewart , 2017 MT 32 , 386 Mont. 315 , 389 P.3d 1009 , in which this Court concluded that a defendant and the State bore shared responsibility for the delay. ¶21 In Stewart , both Stewart and the State filed status reports asking that the District Court "not assemble a jury." Stewart , ¶ 12 .

2017Additionally, under Lafler , a defendant must show “that the court would have accepted” the offer’s terms, “and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.” Lafler, 566 U.S. at 164 , 132 S. Ct. at 1385 . ¶23 Here, the District Court, at the change of plea hearing and in its order rejecting the reoffered plea, expressed “sincere doubts” that Rose would have “accepted the Plea Agreement back in 2003, when [Rose] was fully entrenched in his denial that he had done anything wrong and w

2017Additionally, under Lafler , a defendant must show “that the court would have accepted” the offer’s terms, “and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.” Lafler, 566 U.S. at 164 , 132 S. Ct. at 1385 . ¶23 Here, the District Court, at the change of plea hearing and in its order rejecting the reoffered plea, expressed “sincere doubts” that Rose would have “accepted the Plea Agreement back in 2003, when [Rose] was fully entrenched in his denial that he had done anything wrong and w

2017Prior to Le entering a plea, the District Court informed Le that “[t]he maximum penalty for that charge is up to five years in prison and a $50,000 fine plus a penalty of 35 percent of the market value of the drugs.” Le stated that he understood the possible maximum penalties and entered a plea of guilty to the charged offense. 1 ¶5 Prior to the sentencing hearing, Le filed an obj ection to imposition *226 of a fine under § 45-9-130, MCA, on the grounds, relevant to the appeal, that the fine violated the “Apprendi doctrine,” based on Apprendi v. New Jersey, 530 U.S. 466 , 120 S. Ct. 2348 (2000

2017Prior to Le entering a plea, the District Court informed Le that “[t]he maximum penalty for that charge is up to five years in prison and a $50,000 fine plus a penalty of 35 percent of the market value of the drugs.” Le stated that he understood the possible maximum penalties and entered a plea of guilty to the charged offense. 1 ¶5 Prior to the sentencing hearing, Le filed an obj ection to imposition *226 of a fine under § 45-9-130, MCA, on the grounds, relevant to the appeal, that the fine violated the “Apprendi doctrine,” based on Apprendi v. New Jersey, 530 U.S. 466 , 120 S. Ct. 2348 (2000

2012State v. Wilson, 1999 MT 52, ¶ 17 , 293 Mont. 429 , 976 P.2d 962 . ¶19 In the instant case, even though Wylie filed her motion to withdraw her guilty pleas within one year after the judgment became final, see § 46-16-105(2), MCA, her motion was made well over a year after she changed her pleas to guilty.

2012State v. Wilson, 1999 MT 52, ¶ 17 , 293 Mont. 429 , 976 P.2d 962 . ¶19 In the instant case, even though Wylie filed her motion to withdraw her guilty pleas within one year after the judgment became final, see § 46-16-105(2), MCA, her motion was made well over a year after she changed her pleas to guilty.

2012We generally do not review issues raised for the first time on appeal, State v. Longfellow, 2008 MT 343, ¶ 19 , 346 Mont. 286 , 194 P.3d 694 , and will not review the new issues raised in Pierce’s brief. ¶5 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions.

2012We generally do not review issues raised for the first time on appeal, State v. Longfellow, 2008 MT 343, ¶ 19 , 346 Mont. 286 , 194 P.3d 694 , and will not review the new issues raised in Pierce’s brief. ¶5 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions.

2011In Warclub, we reiterated that we will not overturn a district court’s denial of a motion to withdraw a guilty plea if “the defendant was aware of the direct consequences of such a plea, and if his plea was not induced by threats, misrepresentation, or an improper promise such as a bribe.” Warclub, ¶ 32 (citing Brady, 397 U.S. at 755 , 90 S. Ct. at 1472 ). ¶8 We have reviewed the record, including the transcripts of proceedings before the District Court, and have considered both the District Court’s comments during the motions hearing and the colloquy at the change of plea hearing.

2011In Warclub, we reiterated that we will not overturn a district court’s denial of a motion to withdraw a guilty plea if “the defendant was aware of the direct consequences of such a plea, and if his plea was not induced by threats, misrepresentation, or an improper promise such as a bribe.” Warclub, ¶ 32 (citing Brady, 397 U.S. at 755 , 90 S. Ct. at 1472 ). ¶8 We have reviewed the record, including the transcripts of proceedings before the District Court, and have considered both the District Court’s comments during the motions hearing and the colloquy at the change of plea hearing.

2010Further, Shepard argues that, in any event, the State took the position before the District Court within this proceeding that the understanding was part of the plea agreement, and should not be allowed to change its position on appeal. ¶12 It is well settled that “[a] party may not change its theory on appeal from that advanced in the trial court; nor may a party raise an argument for the first time on appeal.” State v. Anderson, 1999 MT 60, ¶ 25 , 293 Mont. 490 , 977 P.2d 983 (citation omitted).

2010Further, Shepard argues that, in any event, the State took the position before the District Court within this proceeding that the understanding was part of the plea agreement, and should not be allowed to change its position on appeal. ¶12 It is well settled that “[a] party may not change its theory on appeal from that advanced in the trial court; nor may a party raise an argument for the first time on appeal.” State v. Anderson, 1999 MT 60, ¶ 25 , 293 Mont. 490 , 977 P.2d 983 (citation omitted).

2010(Emphasis added.) Then, the District Court confirmed Happel’s understanding of this designation at the change of plea hearing (“Do you understand that the State has filed a notice to pursue you as a persistent felony offender which would make the maximum possible sentence that you face on each of these felony charges 100 years?”), to which Happel answered affirmatively. ¶19 Our cases indicate that, generally, “an initial inquiry may be adequate where the court ‘considered the defendant’s factual complaints together with counsel’s specific explanations addressing the complaints.’ ” Gallagher I,

2010(Emphasis added.) Then, the District Court confirmed Happel’s understanding of this designation at the change of plea hearing (“Do you understand that the State has filed a notice to pursue you as a persistent felony offender which would make the maximum possible sentence that you face on each of these felony charges 100 years?”), to which Happel answered affirmatively. ¶19 Our cases indicate that, generally, “an initial inquiry may be adequate where the court ‘considered the defendant’s factual complaints together with counsel’s specific explanations addressing the complaints.’ ” Gallagher I,

2009State v. Kotwicki, 2007 MT 17, ¶ 5 , 335 Mont. 344 , 151 P.3d 892 ; State v. Micklon, 2003 MT 45, ¶ 5 , 314 Mont. 291 , 65 P.3d 559 . ¶ 7 This Court generally refuses to review an issue not objected to in the district court, however, review is possible when a defendant alleges an illegal sentence.

2009State v. Kotwicki, 2007 MT 17, ¶ 5 , 335 Mont. 344 , 151 P.3d 892 ; State v. Micklon, 2003 MT 45, ¶ 5 , 314 Mont. 291 , 65 P.3d 559 . ¶ 7 This Court generally refuses to review an issue not objected to in the district court, however, review is possible when a defendant alleges an illegal sentence.

2009State v. Kotwicki, 2007 MT 17, ¶ 5 , 335 Mont. 344 , 151 P.3d 892 ; State v. Micklon, 2003 MT 45, ¶ 5 , 314 Mont. 291 , 65 P.3d 559 . ¶ 7 This Court generally refuses to review an issue not objected to in the district court, however, review is possible when a defendant alleges an illegal sentence.

2009State v. Kotwicki, 2007 MT 17, ¶ 5 , 335 Mont. 344 , 151 P.3d 892 ; State v. Micklon, 2003 MT 45, ¶ 5 , 314 Mont. 291 , 65 P.3d 559 . ¶ 7 This Court generally refuses to review an issue not objected to in the district court, however, review is possible when a defendant alleges an illegal sentence.

2008Hans, 283 Mont. at 410-11 , 942 P.2d at 693 . ¶12 McFarlane asserts that Glade did not adequately prepare him for the change of plea hearing, specifically arguing that Glade told him “he had to answer yes to all questions asked by the court in the change of plea hearing.” McFarlane also asserts that Glade failed to inform him of the available defense of “permission” despite Glade knowing that McFarlane had a key to the Hopkins’ residence.

2008Hans, 283 Mont. at 410-11 , 942 P.2d at 693 . ¶12 McFarlane asserts that Glade did not adequately prepare him for the change of plea hearing, specifically arguing that Glade told him “he had to answer yes to all questions asked by the court in the change of plea hearing.” McFarlane also asserts that Glade failed to inform him of the available defense of “permission” despite Glade knowing that McFarlane had a key to the Hopkins’ residence.

2006After Ruff’s change of plea hearing and before his scheduled sentencing hearing, we decided State v. Anyan, 2004 MT 395 , 325 Mont. 245 , 104 P.3d 511 . ¶6 In the meantime, Brix and the State also entered into a plea agreement, Brix changed his plea and the District Court accepted it.

2006After Ruff’s change of plea hearing and before his scheduled sentencing hearing, we decided State v. Anyan, 2004 MT 395 , 325 Mont. 245 , 104 P.3d 511 . ¶6 In the meantime, Brix and the State also entered into a plea agreement, Brix changed his plea and the District Court accepted it.