State v. Hoppe

• Court: Montana Supreme Court
• Decided: January 30, 1997
• Docket: 95-185
• Status: Published

Opinion

No. 95-185 IN THE SUPREME COURT OF THE STATE OF MONTANA 1997

STATE OF MONTANA, Plaintiff and Respondent,

WALTER PAUL HOPPE, Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District, In and for the County of Ravalli, The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD: For Appellant: William F. Hooks, State Appellate Defender, Helena, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Ass't Attorney General, Helena Montana George Corn, Ravalli County Attorney, Hamilton Montana

Submitted on Briefs: November 21, 1996 Decided: January 30, 1997 Filed: Justice W. William Leaphart delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court 1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Publishing

Company.

The Appellant, Walter Hoppe (Hoppe), appeals from the Twenty-

First Judicial District Court's revocation of his five-year deferred imposition of sentence for felony assault and six-month

deferred imposition of sentence for domestic abuse. We affirm.

The issues before this Court are as follows:

1) Did the District Court have authority to enforce the terms of Hoppe's deferred imposition of sentence before the written judgment had been filed?

2) Did the District Court abuse its discretion in denying Hoppe's motion to withdraw his guilty plea?

BACKGROUND

In November of 1991, the State of Montana (State) moved the

District Court, Ravalli County, for leave to file an Information

against Hoppe. The Information charged Hoppe with committing the

crimes of misdemeanor domestic abuse and felony assault. Hoppe was

arraigned in District Court and entered pleas of not guilty to both

offenses. In July of 1992, a plea agreement was executed by Hoppe

and counsel of record. Hoppe withdrew his pleas of not guilty and

entered pleas of guilty

2 On July 21, 1992, the District Court conducted a hearing in which it deferred imposition of Hoppe's sentence for three years on

the felony assault charge and six months on the domestic abuse

charge. The terms of the deferment were to run concurrently on

certain conditions, including the condition that Hoppe "not possess

or consume any intoxicants." After the hearing, Hoppe was released

and placed under the supervision of the Adult Probation and Parole

Division of the Department of Institutions. The District Court's

written Judgment was not filed with the clerk of court until July

31, 1992.

On July 23, 1992, eight days before the written judgment was

filed, Hoppe pled guilty to driving under the influence. The State

petitioned to revoke Hoppe's deferred imposition of sentence

alleging that his conviction for driving under the influence

constituted a violation of his conditions of probation and parole.

On August 18, Hoppe appeared with counsel before the District Court

for disposition. At the hearing, Hoppe attempted to justify his behavior by explaining that he was merely having his last drinks of

alcohol as he was not going to be able to drink for three years

(the length of his deferral term). Following the hearing, the

District Court found Hoppe guilty of violating the terms of the

deferred imposition of sentence and revoked the deferred imposition

of sentence. Hoppe was sentenced to a five-year prison term on the

felony assault charge and a six-month term on the misdemeanor

domestic abuse charge.

In a September of 1992 hearing, Hoppe moved to withdraw his

guilty pleas. In support of his request, Hoppe alleged that his

3 attorney told him that his wife would be convicted of perjury if he

went to trial. Hoppe alleged that his counsel told him that "if I

did not plead guilty to the charges of the state, that my wife

would be charged with perjury and that she would go to jail." Hoppe's counsel denied this characterization. Hoppe's counsel stated that he had explained to the Hoppes that since Mrs. Hoppe

had previously given a tape-recorded statement, and that if her

trial testimony were contrary to the taped statement, there was a

possibility the State would elect to charge her with perjury. The

District Court orally denied Hoppe's motion.

Two years later, Hoppe filed a petition for post-conviction

relief. In January of 1995, the District Court ordered that the

petition for post-conviction relief be dismissed on procedural

grounds, "as all grounds asserted in the Petition are appealable

issues and, thus, Mr. Hoppe may not seek relief on those grounds

pursuant to a Petition for Post-Conviction Relief." However, the

District Court also granted Hoppe leave to file an amended petition "regarding any ineffective assistance of counsel claims Mr. Hoppe

may wish to raise in this matter." After reviewing Hoppe's

petition, the District Court concluded that Hoppe had been given

effective assistance of counsel. The District Court issued a

Second Amended Judgment in December of 1995, declaring Hoppe guilty

of violating the terms and conditions of the deferred imposition of

sentence and designating Hoppe a non-dangerous offender. Following

the disposition of these matters before the District Court, Hoppe

filed the instant appeal challenging the District Court's

4 jurisdiction to revoke his deferred imposition of sentence and the District Court's denial of his motion to withdraw his guilty plea.

STANDARD OF REVIEW

Both issues in this case involve the District court 's

interpretation of the law. The standard of review of a district

court's conclusions of law is whether the court's interpretation of

the law is correct. Carbon County v. Union Reserve Coal Co.

(1995), 271 Mont. 459, 898 P.2d 680; Steer, Inc. v. Department of

Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04. This

Court reviews a district court's sentencing decision for legality

only and will not disturb the decision unless the district court

abused its discretion. State v. DeSalvo (1995), 273 Mont. 343,

346, 903 P.2d 202, 204 (citing State v. Blanchard (1995), 270 Mont.

11, 17, 889 P.2d 1180, 1182).

DISCUSSION

1) Did the District Court have authority to enforce the conditions of Hoppe's deferred imposition of sentence before the written judgment had been filed?

At a July 21, 1992 hearing, the District Court deferred

imposition of sentence by explaining:

No cause appearing why sentence should not be imposed, it is hereby the judgment of this Court that you're guilty of the underlying offenses, to wit: Assault, a felony, and domestic abuse, a misdemeanor. It is further the judgment of this Court that the imposition of sentence be deferred for a period of three years on each count. The sentences are to run concurrent to each other on the following conditions:

. .

5 You will not consume any intoxicants. You will not possess any intoxicants. You will not go into any establishment whose principal business is the sale of intoxicants; that includes bars and casinos.

Following the hearing, the court placed Hoppe under the supervision

of Adult Probation and Parole and ordered him subject to all of its

terms and conditions. Next, Hoppe met with his probation officer

and read and signed the Montana rules of probation. The Montana

rules of probation signed by Hoppe included the following

condition:

You shall comply with all city, county, state, and federal laws and ordinances and conduct yourself as a good citizen. You shall report any arrests or contacts with law enforcement to your Probation/Parole Officer within 72 hours.

Two days after the hearing, Hoppe was arrested for driving

under the influence of alcohol and subsequently pled guilty to that

charge. In light of this arrest, the State petitioned to revoke

Hoppe's deferred imposition of sentence, alleging that Hoppe violated one of the conditions of deferment by driving under the

influence. On the same day the State petitioned to revoke Hoppe's

sentence, the District Court signed and filed the written judgment

with the clerk of court.

Hoppe contends that the District Court's oral sentence had no

final effect. He contends the District Court did not have

jurisdiction to enforce the conditions of the deferred imposition

of sentence since it had not yet been reduced to writing. In

support of this contention, Howe cites to State v. Enfinger

(1986), 222 Mont. 438, 722 P.2d 1170. In Enfinser, the district court failed to include a dangerous offender designation at the

6 oral sentencing. On the same day it orally sentenced Enfinger, and

before filing its written judgment, the district court brought Enfinger back into court for an additional hearing. The court

explained that it had failed to state its reasons for imposing the

sentences earlier and that it was necessary to do so. Enfinser,

722 P.2d at 1171. Over Enfinger's objections, the district court

found Enfinger to be a dangerous offender. In affirming the

district court's sentence, the Court held, "I [ilt is well

established that an oral ruling by the trial court is not a final

judgment, and that the trial court can change such ruling at any

time before the entry of written judgment." Enfinaer, 722 P.2d at 1174 (quoting State v. Diaz (N.M. 19831, 673 P.2d 501, 502.

However, this Court's holding in Enfinser that an oral sentence is

not "final" is not dispositive of the issue in this appeal.

In contrast to Enfincfer, the present case presents the issue

of whether the court has the authority to enforce orally pronounced

conditions, rather than whether the district court has the

authority to modify a sentence. Here, Hoppe had been fully

informed of the conditions of deferment orally "rendered in open

court" as required by law. Section 46-18-102, MCA. Hoppe was

present during the District Court's oral pronouncement, he met with

his probation officer, and read and signed the Montana rules of

probation. Hoppe was fully informed of the conditions of his

deferment and he violated those conditions. We hold that Hoppe's

conditions of deferment were effective upon pronouncement in open

court and subject to enforcement from that point on. Accordingly,

7 we affirm the District Court's decision to enforce the conditions of Hoppe's deferred imposition of sentence.

2) Did the District Court abuse its discretion in denying Hoppe's motion to withdraw his guilty plea?

A trial judge's decision not to allow the withdrawal of a

guilty plea will be affirmed absent an abuse of discretion. State v. Miller (1991), 248 Mont. 194, 197, 810 P.2d 308, 309. The

standard for allowing the withdrawal of a guilty plea is "good

cause." Section 46-16-105(2), MCA. A change of plea should be permitted only if it appears that the defendant was ignorant of his

rights and the consequences of his act, or was unduly and

improperly influenced either by hope or fear in making the plea, or

if it appears the plea was entered under some mistake or

apprehension. Miller, 810 P.2d at 310. The three factors which

are to be considered when determining whether a defendant's guilty

plea should be withdrawn include:

1. The adequacy of the District Court's interrogation as to the defendant's understanding of the plea;

2. The promptness of the motion to withdraw the prior plea;

3. The fact that the defendant's plea was apparently the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge.

Miller, 810 P.2d at 309. In the instant case, Hoppe does not

maintain that the plea bargain he entered into with the State was

coercive. Rather, Hoppe pled guilty believing that if he proceeded

to trial, and if his wife testified she would be prosecuted for

perjury. Since Hoppe does not contend that the plea bargain he

8 entered into with the State was coercive, we will focus on the

adequacy of the District Court's interrogation as to Hoppe's understanding of the plea.

At the hearing to change Hoppe's plea from not guilty to

guilty, the District court inquired of Hoppe as to his understanding of the consequences of his change of plea. The court asked Hoppe whether he understood his rights and understood that a

guilty plea was a waiver of those rights. Further, the court

established the specific factual basis for Hoppe's plea of guilty.

Hoppe explained that he realized he was waiving many of his rights

and admitted to having committed the crime. In addition, the court

asked Hoppe whether he had been threatened, whether he understood

the terms of his plea change, whether his plea was voluntary, and

whether he was under the influence of medication. Hoppe explained

that his plea was voluntary, and that he had not been influenced in

making the plea. Following these questions, the District Court

made the following findings:

I'll find further that he understands the nature of the charges and fully understands the consequences of his guilty pleas; further, that there have been no promises made to him other than the plea bargain agreement; that he understands the sentencing judge is not bound by that agreement; that there have been no threats made against him; that this is a voluntary plea on his part; that he is satisfied with the competence of his counsel; that he is not suffering from any mental or physical disability such as he does not understand the proceedings or such as might induce him to plead guilty; further, I'll make the same finding concerning the medication and that he is not under the influence of any other drugs or alcohol.

It is clear from the record that Hoppe was fully advised as to the

consequences of a change of plea and proceeded to change his plea

voluntarily.

9 Two months after he was originally sentenced and one month after revocation of his deferred imposition of sentence, HoPPe moved to withdraw his guilty plea. Hoppe contended that he pled

guilty to protect his wife and his marriage vows. NOW that his

wife has left the jurisdiction and he no longer feels compulsion to

protect her, he seeks to withdraw his guilty plea. The District

Court found that the motion was not timely and that it did not

state sufficient reasons to allow withdrawal of the plea. Aside

from whether the motion was timely or not, we agree with the District Court's holding that the grounds asserted in the motion do

not warrant a withdrawal of the plea. Hoppe's original plea was

entered after a thorough and adequate interrogation by the District Court and was not the result of any coercion by the State or his

counsel. Accordingly, we affirm the decision of the District

Court.

We concur: