State v. Bowley

938 P.2d 592, 282 Mont. 298, 54 St.Rep. 353, 54 State Rptr. 353, 1997 Mont. LEXIS 73
CourtMontana Supreme Court
DecidedApril 24, 1997
Docket96-385
StatusPublished
Cited by59 cases

This text of 938 P.2d 592 (State v. Bowley) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bowley, 938 P.2d 592, 282 Mont. 298, 54 St.Rep. 353, 54 State Rptr. 353, 1997 Mont. LEXIS 73 (Mo. 1997).

Opinions

JUSTICE NELSON

delivered the Opinion of the Court.

The Fifth Judicial District Court, Jefferson Comity, denied Defendant Jimmy Rae Bowley’s (Bowley) oral motions to withdraw his plea of guilty to the felony offense of criminal sale of dangerous drugs. Bowley appeals. We reverse and remand for further proceedings consistent with this opinion, concluding that the District Court abused its discretion when it denied Bowley’s oral motions to withdraw his guilty plea.

[301]*301We consolidate the issues raised on appeal into the following issue:

Did the District Court abuse its discretion in not allowing Bowley to withdraw his guilty plea?

FACTUAL AND PROCEDURAL BACKGROUND

On October 20,1995, Bowley was arraigned and pled not guilty to the felony charge of criminal sale of dangerous drugs (marijuana— Schedule I Narcotic Drug — second offense), in violation of §§ 45-9-101(1) and (4), 50-32-101(17) and 50-32-222 (Schedule I), MCA. Atrial was scheduled for March 8, 1996. On March 1, 1996, the District Court vacated the trial set for March 8, 1996, and scheduled in its place a change of plea hearing.

At the March 8, 1996 change of plea hearing, the District Court began interrogating Bowley by explaining only the nature of his offense, his possible punishment, and his right to an attorney. Next, the District Court elicited the factual basis for Bowley’s guilty plea by requesting that Bowley explain his actions. Bowley answered that he sold marijuana to a woman. Subsequently, the District Court granted the prosecutor’s motion to amend the information to indicate that this was Bowley’s first offense. Only after eliciting the factual basis of Bowley’s guilty plea did the District Court inform Bowley of his constitutional rights. Thereafter, Bowley pled guilty.

At the conclusion of the change of plea hearing, the District Court granted the prosecutor’s motion to revoke Bowley’s surety bond and to place him in the custody of the Jefferson County Jail until a presentence investigation was conducted. In response to this, Bowley moved to withdraw his guilty plea, which the District Court denied:

MR. MASSMAN [Bowley’s attorney]: Well, Your Honor, the defendant has just informed me he wanted to withdraw his guilty plea and change it back to not guilty, because he wasn’t aware that he was going to get — that his bond would be revoked. He assumed that his bond was going to—
THE COURT: Well, for goodness sakes, we’re going to continue to play fun and games with this matter. So that’s denied. This is over.
You’re remanded back to the sheriff.
And if you can get Mr. Condo to extend the bond, that will be great.

On March 11,1996, Bowley’s bond was reinstated and he was released from the Jefferson County Jail.

[302]*302On March 19, 1996, Bowley, his attorney and the prosecutor executed a written Acknowledgment of Rights & Pre-Trial Agreement (Pre-Trial Agreement). This Pre-Trial Agreement was not filed with the District Court until May 17,1996, the date scheduled for Bowley’s sentencing hearing. Pursuant to the Pre-Trial Agreement, Bowley agreed to plead guilty to the felony offense of criminal sale of dangerous drugs and the prosecutor agreed to recommend a five-year suspended sentence. Furthermore, in lieu of the one year mandatory minimum prison sentence, the prosecutor agreed to recommend an alternative sentence comprising one year of inpatient or outpatient drug treatment; supervision by the Adult Probation and Parole; compliance with the rules and regulations of Probation and Parole; remaining drug free and submitting to random testing at the request of Bowley’s probation officer.

On May 17, 1996, before the District Court began the sentencing hearing, Bowley moved the court to discharge his attorney and to withdraw his guilty plea. The District Court, again, summarily denied his motion:

MR. MASSMAN: Your Honor, before we start, could I advise the Court that the defendant, Jim Bowley, advised me that he would like to, A, fire me as his attorney, and, B, withdraw his guilty plea on the conviction that is the subject of today’s sentencing.
THE COURT: Well, that motion is denied. Let’s go ahead with the sentencing.

During the sentencing hearing, the District Court heard testimony from Bud Walsh, a Probation and Parole Officer II, concerning his presentence investigation of Bowley. Walsh recommended that Bowley receive a five-year sentence to the Montana State Prison to run concurrently with any other sentence Bowley might receive in state or federal court. In response to this recommended sentence, the District Court asked the prosecutor to explain why the probation officer’s recommendation differed from the plea agreement:

THE COURT: Well, Ms. Butler [state prosecutor], why have we departed from the plea agreement here? Of course, I know I’m not bound by the plea agreement, and he knows that.
MS. BUTLER: Yeah. The State recommended to Mr. Bowley— At the time that I spoke with Mr. Massman [Bowley’s attorney] in regard to this case, it was unaware that he’d been previously on probation, unaware that he had absconded from that probation, [303]*303and unaware that the federal system was interested in Mr. Bowley and incarcerated him.
Your Honor, the State hasn’t — Mr. Walsh, based on his investigation, gave you his recommendation. The State isn’t diverting from that at this point, Your Honor. I think that the Court is well aware that the State agreed to a five-year commitment with a minimum, with it all suspended, if Mr. Bowley would do treatment. Mr. Walsh also indicated that Mr. Bowley has been in treatment twice, or at least once before, and it’s obviously not done any good, because here he is again with a drug charge. And he never told — he told Mr. Walsh that he still uses.
So at this point, I don’t think it matters too much regarding Mr. Bowley, whether or not you give him five years in the State Prison or whether you suspend it. He’s still incarcerated with the federal system, and that has yet to be tried.
And I don’t have a problem with any sentence running concurrent with the federal system either. [Emphasis added.]

The District Court next heard from Bowley’s attorney and finally addressed Bowley:

THE COURT: Do you have anything to say, Mr. Bowley?
THE DEFENDANT: Only that I tried to — When I was here in March, immediately, within one minute after I changed my plea to guilty, I tried to withdraw it and change it back to not guilty. And I would at this time like to change my plea to not guilty.
THE COURT: Well, you told the probation officer, when he interviewed you, that, “I sold an ounce of marijuana to a friend who had called repeatedly and begged me to score for her.” I guess that’s a drug term, huh, score for her? “I normally wouldn’t have done it, but finally did just to get her to quit bothering me.”
So you’ve admitted two or three times that you did it. And you would just be postponing the inevitable if you withdrew your plea. So I’m not going to let you withdraw your plea.....

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Cite This Page — Counsel Stack

Bluebook (online)
938 P.2d 592, 282 Mont. 298, 54 St.Rep. 353, 54 State Rptr. 353, 1997 Mont. LEXIS 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bowley-mont-1997.