State v. Ereth

1998 MT 197, 964 P.2d 26, 290 Mont. 294, 55 State Rptr. 831, 1998 Mont. LEXIS 174

• Court: Montana Supreme Court
• Decided: August 11, 1998
• Docket: 97-584
• Status: Published

Opinions

JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Appellant Dianne Ereth (Ereth) appeals from the denial of her motion to withdraw her Alford plea and from her conviction in the Eighth Judicial District Court, Cascade County. We reverse and remand.

¶2 Ereth raises the following issues:

¶3 1. Did the District Court err in refusing to allow Ereth to withdraw her guilty plea?

¶4 2. Did the District Court err in ordering Ereth to pay $10,000 in restitution to the victims?

¶5 Because we find issue one dispositive, we will not address issue two.

Factual and Procedural Background

¶6 On August 31, 1994, Ereth was charged by information with three counts of sexual intercourse without consent and two counts of sexual assault, all felonies. The charges involved J.A., an eleven-year-old boy, and K.A., a nine-year-old girl. Ereth lived with J.A., K.A., and their mother for a period of time and babysat the children. The information alleged that Ereth fondled J.A.’s genitalia and penetrated KA.’s vagina with her fingers and with a crochet hook. Ereth obtained representation from the Cascade Public Defender’s Office.

¶7 In September of 1995, at the suggestion of one of her public defenders, Ereth underwent a “sex offender evaluation.” She was evaluated by Lily Kravcisin (Kravcisin), a licensed professional counselor with Interconnections Counseling Group, Inc. (Interconnections). Kravcisin’s evaluation indicated that Ereth was willing to undergo counseling and psychotherapy to determine whether she was repressing memories of the offenses.

¶8 On December 6,1995, Ereth filed a signed plea agreement and a notice of acknowledgment and waiver of rights. The District Court issued an order stating that it would likely reject the agreement. Therefore, the State and Ereth entered into a second plea agreement. Under the terms of this agreement, Ereth agreed to enter an Alford plea to two counts of felony sexual assault. In return, the State agreed to recommend that Ereth receive a five-year sentence with three years suspended on each offense and to dismiss the two charges of felony sexual intercourse without consent and one felony assault charge. The agreement also stated: “The Court in it [sic] discretion may reject a waiver of the mandatory minimum for these charges and impose a sentence upon the Defendant of up to ten (10) years in the Montana State Prison with six (6) years suspended on both counts.”

¶9 This agreement and Ereth’s acknowledgment and waiver of rights were filed on February 5, 1996. Scott Albers (Albers), Chief Cascade Public Defender, wrote to the District Court, explaining that he could only convince Ereth to enter an Alford plea, not a guilty plea. Albers stated: “I do not believe that the defendant in this case is capable of admitting guilt. Although the facts of the case are against her the only plea which the defense will be able to bring forward is an Alford Plea.”

¶ 10 After filing the plea agreement, Ereth began sex offender counseling with Interconnections. On April 12, 1996, the District Court held a change of plea hearing. At the hearing, Ereth testified that she understood the nature of the proceedings and had received ample counseling from the Public Defender’s office regarding the options available to her. She described her understanding of an Alford plea as follows: “That I believe that the facts are overwhelming against me and I would be found guilty in a trial, but at this point I cannot admit to that guilt.”

¶ 11 Ereth testified that when she entered the Alford plea, she was not sure whether she committed the offenses charged. She stated:

Just in talking with the other members of my group [her Interconnections counseling group], I have come to believe that there is a possibility I could have done this. And I truly want to find out if I did do this. And that is my main goal right now in therapy.

Further, when'questioned by Albers, Ereth replied as follows:

Q: Is it your belief at this time that you may have committed the offenses involved and simply have blocked them out of your memory?

A: Yes, it is.

Q: Do you feel that’s a substantial possibility?

A: Yes, it is.

Q: And for that reason and that reason alone you’re unable to lay a factual basis yourself that you subjected these children to sexual contact?

A: Yes.

¶12 Debra Baumgart (Officer Baumgart), a deputy with the Cascade County Sheriff’s Department, testified regarding her videotaped interviews with J.A. and K.A. On the tape, J.A. and K.A. both describe being abused by Ereth. The State also introduced into evidence the report of Dr. Nancy Maynard, who performed a physical examination of the children. Dr. Maynard reported K. A. had vaginal tissue findings consistent with having been sexually abused.

¶13 Kravcisin also testified at the hearing. Kravcisin testified that Ereth was unable to remember the events surrounding this case, but that Ereth was horrified that she may have committed these crimes and wanted treatment. Kravcisin explained that she had been helping Ereth to explore her memory on both a conscious and unconscious level and that Ereth was close to “realizing” that she had abused J. A. and K.A. When asked by the District Court whether she had concerns about implanting false memories through hypnosis, Kravcisin replied, “I believe that for an untrained therapist, that a therapist can interogenically place into a client a memory...” but explained how the method she employed avoided implanting false memories.

¶14 Ereth then pled guilty to two counts of sexual assault and pled not guilty to one count of sexual assault and two counts of sexual intercourse without consent. The District Court entered the pleas and set sentencing for July 23, 1996.

¶15 On July 19,1996, Ereth filed a motion to withdraw her guilty pleas. In an attached affidavit, Ereth stated that she had always been uncomfortable about pleading and that through counseling, she had come to the “clear understanding” that she did not do the crimes with which she was charged. A hearing was held on the motion in October of 1996. Kravcisin again testified at the hearing. She stated that Ereth had not received treatment since July 1996. When asked by the District Court if she still believed that Ereth had suppressed a memory of committing the abuse, Kravcisin replied: “I don’t know quite frankly if she’s suppressed it or not. I believe there’s a possibility that she could have. I have not yet, in the work that I’ve had with her, found that suppression.”

¶16 Ereth testified that she had never been comfortable with the plea. She stated that Albers had told her if she went to trial, she would go to prison, and that she thought that a jury would never believe that she did not commit the crimes. She stated that when she entered the plea, she did not believe that she was guilty of the crimes charged and did not understand that an Alford plea was an admission of guilt.

¶17 Regarding her therapy with Kravcisin, Ereth testified that she had entered therapy on the advice of Albers — “On the chance that I had committed these crimes and had repressed it, the therapy would, • would let me know that I had — you know, it would bring that out if I had committed it.” However, she testified that she never reached a point in therapy where she believed she had committed the offenses. Ereth stated that in May of 1996, she attempted suicide and, after being released from the hospital, told Kravcisin that she could no longer live with the fact that she had pled guilty to something she did not do.

¶18 The District Court denied Ereth’s motion, holding that Ereth had entered her plea voluntarily and intelligently. The court found that Ereth knew what she was doing when she entered her plea and had simply changed her mind. The District Court set sentencing for March 20, 1997 and ordered Ereth to undergo a psychiatric evaluation to determine, for purposes of sentencing, whether she was suffering from a mental disease or defect.

¶19 Ereth was evaluated by Dr. John Mendenhall (Dr. Mendenhall). Dr. Mendenhall filed a report with the District Court on March 18,1997. Dr. Mendenhall found that, unlike most female sex offenders, Ereth does not suffer from a psychotic disorder. He found that Ereth “suffers from no dissociative or other mental disorder which statutorily or psychiatrically ought to give pause to the Court in passing sentence.”

¶20 Dr. Mendenhall also sent a letter to the court, outlining the concerns he had about the treatment program at Interconnections. Dr. Mendenhall stated:

The reports from Interconnections Counseling are based on non-scientific tenets. The methods used by that facility are not scientifically valid. The contentions of that facility that hypnosis can be useful in cases of this sort are dead wrong, known to be dead wrong, and are disavowed by every reputable professional organization in the field of mental health.

The contention of Lily Kraviscin [sic] that false memories can be implanted is correct. Her further contention that they cannot be implanted, by virtue of her advanced methods of hypnosis, by her, is not.... The implantation of false memories is, actually, quite easy. ... 25% of normal adult research probands can be made to believe, without hypnosis, without therapy, after a single exposure to a single oral story, that they personally experienced the events of the story. This number, in children, by the bye, approaches 100%.

The notion that Dianne Ereth, or anybody else, may have committed sexual crimes and “repressed” their memory is unsupported by scientific evidence. There is no credible evidence that repression of memory of being the victim of sexual abuse can happen, much less for being the perpetrator. Even those who make their livings in the sexual abuse industry, in the face of scholarly research raising very serious questions about any human ability to “repress memory,” have largely abandoned the idea of “repressed memory.”

¶21 On March 19, 1997, the day before sentencing was to be imposed, Ereth moved the court to reconsider her motion to withdraw her guilty pleas based on Dr. Mendenhall’s opinions. She also alleged that she had been coerced into the entry of the guilty plea by her counsel from the Public Defender’s Office. Eric Olson, a Deputy Public Defender, moved to withdraw. The court held a hearing at which Dr. Mendenhall testified about his findings and opinions regarding Interconnections. The District Court granted counsel’s motion to withdraw and stated that it would allow further briefing and a hearing on whether Ereth should be allowed to withdraw her Alford plea. J. Kim Schulke was appointed to represent Ereth.

¶22 A hearing was held on April 30, 1997. Ereth testified that Kravcisin had told her that only two percent of children who allege they have been sexually assaulted are lying and that it was likely that Ereth was simply repressing the memory. She stated that she was never informed by Albers or Kravcisin that, in the medical community, controversy surrounds the retrieval of repressed memories nor that it was not standard treatment. Ereth testified that had she known the information contained in Dr. Mendenhall’s letter and report, she never would have entered the pleas. She admitted, however, that she had agreed to plead guilty prior to starting counseling with Interconnections.

¶23 At the conclusion of the hearing, the District Court denied Ereth’s motion to withdraw her guilty plea. On June 13,1997, Ereth was sentenced to a term of five years, with three years suspended on each of the two counts, with the terms to be served consecutively. The court also ordered her to pay $10,000 restitution to the victims.

Standard of Review

¶24 We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177. We have held that the district court need not apply a particular rule or standard to determine whether to allow a defendant to withdraw his or her plea, but rather must consider each case “in light of its unique record.” Enoch, 269 Mont. at 11, 887 P.2d at 177 (citing State v. Radi (1991), 250 Mont. 155, 818 P.2d 1203).

Discussion

¶25 We balance three factors when considering a criminal defendant’s attempt to withdraw a guilty plea: (1) the adequacy of the court’s interrogation at the time the plea was entered regarding the defendant’s understanding of the consequences of the plea; (2) the promptness with which the defendant attempts to withdraw the plea; and (3) the fact that the plea was the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge. Enoch, 269 Mont. at 11-12, 887 P.2d at 177.

¶26 We have held that a plea is adequate where the court:

“examines the defendant, finds him to be competent, and determines from him that his plea of guilty is voluntary, he understands the charge and his possible punishment, he is not acting under the influence of drugs or alcohol, he admits his counsel is competent and he has been well advised, and he declares in open court the fact upon which his guilt is based.”

Enoch, 269 Mont. at 13, 887 P.2d at 178 (quoting State v. Mahoney (1994), 264 Mont. 89, 870 P.2d 65). In addition, “it is well-settled that a guilty plea must be a knowing and intelligent choice among the alternative courses of action open to the defendant.” Enoch, 269 Mont. at 13, 887 P.2d at 178 (citations omitted).

¶27 Thus, the purpose of inquiring into the adequacy of the court’s interrogation is to ensure that the defendant has been well advised and that he/she entered the plea knowingly, intelligently, and voluntarily. The United States Supreme Court has held that a plea of guilty must represent “a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ North Carolina v. Alford (1970), 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162. This Court will deem a guilty plea involuntary where it “appears that the defendant was laboring under such a strong inducement, fundamental mistake, or serious mental condition that the possibility exists that [s]he may have plead guilty to a crime of which [s]he is innocent.” State ex rel. Gladue v. Eighth Judicial Dist. (1978), 175 Mont. 509, 511, 575 P.2d 65, 66.

¶28 In this case, the District Court’s interrogation of Ereth at the change of plea hearing was substantial. Further, in deciding Ereth’s motion to withdraw and motion for reconsideration, the court held three hearings at which it heard the testimony of Ereth and several other witnesses. The District Court followed the proper statutory procedure at the change of plea hearing, and Ereth testified that she had signed and understood an acknowledgment and waiver of rights. However, Ereth argues that because she was under the mistaken assumption that she may have committed the offenses for which she was charged and she would, through therapy with Kravcisin, be able to recover memories of the offense, her Alford plea was not a voluntary, knowing and intelligent choice. Despite the lengths to which the District Court went to ensure that Ereth understood the consequences of the Alford plea, Ereth was not well advised. We agree with Ereth that her plea was not voluntarily, intelligently and knowingly made.

¶29 Dr. Mendenhall testified that “[t]he contentions of [Interconnections] that hypnosis can be useful in cases of this sort are dead wrong, known to be dead wrong, and are disavowed by every reputable professional organization in the field of mental health.” Dr. Mendenhall told the District Court that “[t]he notion that Dianne Ereth, or anybody else, may have committed sexual crimes and ‘repressed’ their memory is unsupported by scientific evidence.” However, when the District Court asked Kravcisin about the validity of repressed memory therapy, Kravcisin indicated that such therapy could be dangerous in the hands of untrained persons, but not in her own. Kravcisin told the court that she believed that Ereth wanted to remember her abuse of J.A. and K. A. and was close to “realizing” that she had committed the crimes.

¶30 Throughout the country, mental health professionals and courts alike are condemning the use of repressed memory therapies such as those used by Interconnections. See Julie M. Kosmond Murray, Comment, Repression, Memory, and Suggestibility: A Call for Limitations on the Admissibility of Repressed Memory Testimony in Sexual Abuse Trials, 66 U. Colo. L. Rev. 477 (1995); Douglas R. Richmond, Bad Science: Repressed and Recovered Memories of Childhood Sexual Abuse, 44 U. Kan. L. Rev. 517 (1996). However, our purpose here is not to discredit Kravcisin or her theory, but merely to suggest that with knowledge of the substantial amount of controversy which surrounds repressed memory therapy or of Dr. Mendenhall’s opinion that sexual abusers do not repress memories of their crimes, Ereth may have chosen not to enter her plea. However, Ereth was never told of the problems with Interconnections’ methods. Rather, she entered therapy on the advice of counsel. Further, Ereth was told by Kravcisin that because only two percent of children lie about being assaulted, it was likely that she was repressing memories of assaulting J.A. and K.A. and needed to recover those memories so she could get well.

¶31 At the change of plea hearing, Ereth testified that she could not recount the facts surrounding the sexual assault of J.A. and K.A. because, although she believed there was a substantial possibility she may have committed the offenses, she must have blocked them out of her memory. She testified that, “in talking with the other members of my group, I have come to believe that there is a possibility I could have done this.”

¶32 The State contends that Ereth entered the plea simply because she knew that if she went to trial, a jury would convict her. The State points out that at the change of plea hearing, Ereth testified: “I believe that the facts are overwhelming against me and I would be found guilty in a trial....” It is possible that Ereth entered an Alford plea simply because she thought the State had overwhelming evidence to convict her and then, after changing her mind, sought to withdraw the plea. However, it is also possible that Ereth truly believed that she had repressed any memory of committing the offenses for which she was charged and hoped, through therapy with Interconnections, she would be able to recover those memories and get help. We have held that “if there is any doubt that a guilty plea was not voluntarily or intelligently made, the doubt must be resolved in favor of the defendant.” Enoch, 269 Mont. at 18, 887 P.2d at 181. Given the role that repressed memory therapy played in Ereth’s decision-making process and given the air of uncertainty regarding the validity of this therapy, there is at least doubt as to whether Ereth’s Alford plea was entered voluntarily. Thus, we determine that Ereth’s pleas were not voluntarily, knowingly and intelligently made and that the first consideration set forth in Enoch, 269 Mont. at 11-12, 887 P.2d at 177, weighs in Ereth’s favor.

¶33 The second consideration under Enoch, 269 Mont. at 12, 887 P.2d at 177, is the promptness with which the defendant attempted to withdraw the pleas. “Because each case presents its own unique factual circumstances, we have declined to adopt specific parameters defining the timeliness of a motion to withdraw.”Enoch, 269 Mont. at 12, 887 P.2d at 178. In this case, Ereth filed her signed plea agreement and waiver of rights on February 5,1996 and began counseling with Interconnections that month. The change of plea was entered on May 9,1996. Ereth filed her notice of withdrawal of guilty plea on July 19, 1996, a few days before the date on which sentencing was set and ceased further counseling with Interconnections. Apparently, Ereth determined that the repressed memory therapy was not working within that period of time and promptly moved to withdraw her plea. We determine that, given the unique factual circumstances of this case, Ereth’s motion was filed in a reasonably prompt manner. Thus, this factor weighs in favor of allowing Ereth to withdraw her plea.

¶34 The third factor, whether the plea was given in exchange for dismissal of another charge, weighs against Ereth. The State agreed to dismiss two counts of sexual intercourse without consent and one count of sexual assault and waive the mandatory minimum sentence for the remaining charges in exchange for Ereth’s Alford plea. However, since we have determined that Ereth’s plea was not voluntarily, knowingly and intelligently made, we hold that the District Court abused its discretion in refusing to allow Ereth to withdraw her Alford plea.

¶3 5 Ereth also argues that the District Court erred in refusing to allow her to withdraw her plea because she received ineffective assistance of counsel. Because we hold that the District Court abused its discretion in refusing to allow Ereth to withdraw her plea, we will not address this argument.

¶36 Based on the foregoing, we reverse and remand.

CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, TRIEWEILER and HUNT concur.