State v. McBane

275 P.2d 218, 128 Mont. 369, 1954 Mont. LEXIS 56

• Court: Montana Supreme Court
• Decided: October 19, 1954
• Docket: 9332
• Status: Published

Opinions

MB. JUSTICE ANDEBSON:

This is an appeal from a judgment of conviction. Defendant was sentenced to serve five years in the state penitentiary after a plea of guilty of desertion of minor children.

All sorts of facts are present in the record indicating odd, and if true, criminal and contemptuous behavior on the part of the defendant, all of which took place after the defendant entered his plea of guilty and before judgment was entered.

Although the defendant has raised several specifications of error in his brief and the state in its brief discusses most of them, nonetheless there is but one question of importance involved, i. e., did the district court act arbitrarily in refusing to allow the defendant to withdraw a plea of guilty.

All doubt should be resolved in favor of a trial on its merits. State v. Dryman, 125 Mont. 500, 241 Pac. (2d) 821.

It appears that the district judge was of no mind to impose a severe penalty upon the defendant at the time the plea of guilty was first made. Quite to the contrary, it seems that all and everything was done to effect a compromise of the cause then before the lower court, apparently under the powers granted by R. C. M. 1947, sec. 94-302. The patience of the district judge in this respect was admirable and the intervening acts of the defendant, as said before, were abominable.

However, the likelihood seems great that the severe sentence in the instant case was meted out, not for what the defendant had done by way of abandoning his wife and children prior to the filing of the information or at the time it is alleged the abandonment took place, but for causes resulting from his subsequent behavior. The defendant at the time of arraignment could not have had anything but a complete misunderstanding of the law relating to the offense with which he was charged.

Serious doubt is shown by these circumstances and under the cases heretofore announced by this court, the same should be resolved in favor of the party requesting the change of plea.

If the district judge could change his mind from that of attempting a compromise to one of severity (and at the same time as will be presently pointed out, shift from one section of the Code to another) because of the behavior of the defendant, surely the defendant should and did have the right to change his plea from guilty to not guilty.

“Leave should ordinarily be given to withdraw a plea of guilty if it was entered by mistake or under a misconception of the nature of the charge; through a misunderstanding as to its effect; through fear, fraud, or official misrepresentation; was made involuntarily for any reason; or even where it was entered inadvisedly, if any reasonable ground is offered for going to a jury.” 14 Am. Jur., sec. 287, p. 961.

“A plea of guilty should be entirely voluntary, by one eompotent to know the consequences, and should not be induced by fear, persuasion, promise, or ignorance.” State ex rel. Foot v. District Court, 81 Mont. 495, 263 Pac. 979, 982; State v. McAllister, 96 Mont. 348, 30 Pac. (2d) 821; State v. Casaras, 104 Mont. 404, 66 Pac. (2d) 774.

The information that was filed in the district court charges the defendant with a felony as provided by B. O. M. 1947, sec. 94-304.

The defendant was brought before the court for arraignment on January 21, 1953, and the record of that proceeding discloses the following:

“Marvin W. McBane: I rather just plead guilty now.

“The Court: You want to plead guilty!

“Marvin W. McBane: Yes, sir. I don’t even think I want a lawyer.

“The Court: I think before you plead guilty — you don’t recall the section you have! Before you plead guilty I want you to understand just what you are pleading guilty to. 94-304. Well, just a part of this law is: (Whereupon the Court read Section 94-304 to the defendant in its entirety.)

“The Court: Where are you living now!

“Marvin W. McBane: Sir, I was working in California. I had just taken a job there. I mean, I had hoped to return there if I — ■

“The Court: Well, this has a pretty stiff penalty; if you are deemed guilty upon conviction you will be deemed guilty of a felony. That is, imprisonment in the state prison not exceeding 7 years, by imprisonment in the county jail. You see what you are doing! If you plead guilty you are placing yourself at the mercy of the Court; that’s why I want to explain to you thoroughly before you plead guilty. Now, there is another portion of this law. (Whereupon the Court read Section 94-302 to the defendant in its entirety.)

“The Court: Well, that’s a fair summary of the law. Then here is another part. (Whereupon the Court read Section 94-301 to the defendant in its entirety.)

“The Court: Of course that would not be exceeding a fine of $500 and imprisonment in the county jail not more than six months, or both such fine and imprisonment, and then follows the other provisions here giving the Court additional power. Now, having understood the law, I again ask you if you want a lawyer.

“Marvin W. McBane: No, sir, I don’t.

“The Court: Very well. Do you want to plead now?

“Marvin W. McBane: Yes, sir, I will plead guilty.

“The Court: How far have you been in school? Been to high school ?

“Marvin W. McBane: I have been through grade school, and I am taking a high school course now.

“The Court: Through a high school course now?

“Marvin W. McBane: No, sir, two years, and I am taking the additional two years.

“The Court: You mean you have had two years in high school?

“Marvin W. McBane: Yes, sir.

“The Court: You understand now what the situation is?

“Marvin W. McBane: Yes, sir, and I still plead guilty.

“The Court: And if you plead guilty you understand you place yourself in the power of the Court?

“Marvin W. McBane: Yes, sir, I do.

“The Court: I think you understand the situation. You heard the Information read to you; you understand the nature of the cause, or rather the charge against you by the State of Montana. You may stand up now. How do you plead to the charge contained in this Information, charging you with desertion of children, a felony, guilty or not guilty ?

“Marvin "W. McBane: Guilty, sir.” Emphasis supplied.

Subsequent to the above events the court appointed counsel for the defendant and on January 28, 1953, the following proceeding was had:

“The Court: State of Montana versus Marvin W. McBane. The defendant present?

“Mr. Johnson: Defendant is present.

“The Court: You are Mr. McBane?

“The Court: The court minutes show in this case last Wednesday this action came on on a motion of the County Attorney, E. Gardner Brownlee, for leave to file an information againsi this defendant, charging him with desertion of children, a felony; leave was granted, and the Information filed. The defendant was given a copy of the Information. He answered that his true and correct name was Marvin W. McBane. The Court then read the Information; the defendant answered that he did not wish a lawyer, and that he was ready to plead. The Court then read Section 93-304 of the Revised Codes, 1947, relating to the desertion of children. Defendant stated that he was ready to plead. He then entered a plea of not guilty; the County Attorney stated he would like to be better informed by talking with the representative of the County Welfare before making any recommendation. The Court, after considering statements made by the defendant, appointed Claude A. Johnson to defend this defendant, and then continued the hearing until Wednesday, January 23, 1953 at 10:00 o’clock a. m. Bond was fixed at $500.

“Mr. Johnson: May it please the Court, shouldn’t that be January 28, instead of January 23?

“The Court: Continued the hearing until January 28, 1953, at 10:00 o ’clock a. m.

“Mr. Brownlee: If it please the Court, the minutes read that he plead not guilty; I believe his plea was guilty. He never withdrew it last week.

“The Court: Well, did I say ‘not guilty?’

“Mr. Brownlee: You read it ‘not guilty.’ I believe the minutes say guilty.

“The Court: Either I misspoke myself or you misunderstood me, because the minutes say he then entered a plea of guilty. The cause is continued to this time. Mr. Johnson, what have you to say about this case?

“Mr. Johnson: If it please the Court, at this time we would like the plea of guilty — if such a plea were made — withdrawn, so we can proceed further on this matter.

“The Court: You want to withdraw the plea of guilty?

“Mr. Johnson: Yes, sir — if such a plea were made. I was not present in Court at that time.

“The Court: Well, he plead guilty, and he was clearly advised as to his rights; that he did not need to plead last Wednesday, but could plead at this time. Mr. Brownlee, wbat have you to say in regard to withdrawal of his plea of guilty?

“Mr. Brownlee: If the Court please, I am opposed to it. I believe the man was fully advised of his rights, and I believe his plea was entered by him and he knew the facts, and the plea should stand.

‘ ‘ The Court: Unless there is some showing made of misunderstanding or that he did not understand his rights, I will deny the right — deny the defendant the right to withdraw his plea of guilty. ITe was very fully informed as to his rights; the Court took particular pains to advise him that he did not have to plead guilty at that time or at any time. In fact, the Court, as I recall it, read to him very carefully the law with reference to the offense with which he was charged, Section 93-304; isn’t that true, Mr. Brownlee? Didn’t the Court—

“Mr. Brownlee: That is correct, if the Court please. As I remember it, the Court went into it much more fully than the Court does in the usual case.

“The Court: The application to withdraw the plea of guilty is denied. ’ ’ Emphasis supplied.

It just plainly is not so that the defendant was carefully advised, at the time of arraignment, as to his rights and as to the nature of the offense with which he was charged.

The court apparently reversed its position from time to time and proceeded under sec. 94-301, sec. 94-302, supra, or sec. 94-304.

The district judge after January 28, 1953, and after hearings, directed that the defendant could go out and look for work within the State of Montana, and later directed that the defendant could go to California. In both instances bond was set, the orders were subject to change from time to time and the undertakings were conditioned that the defendant make his appearance in court whenever ordered, all of which is authorized by sec. 94-302, supra, subcl. 2, and none of which is authorized by sec. 94-304, supra. Yet after having proceeded with such powers granted by see. 94-302, the district court pronounced its judgment under the provisions of sec. 94-304, supra.

Although the affidavit made by the defendant in the lower, court in support of a change of plea does not make reference to the confusion created by the citing of several statutes to the defendant when his plea of guilty was made, nonetheless there is sufficient showing in the affidavit to cause doubt as to the guilt of the defendant regardless of what statute he may have thought applicable and such doubt is for a jury. In the affidavit there is a request by the defendant that the stenographic notes of the arraignment be typed and considered by the court.

From the record taken as a whole and in particular with the circumstances above set out, it cannot be said that the plea was entirely voluntary and made without inducement creating misunderstanding by the defendant. To say the least, it could not be expected that the defendant, one wholly untrained in legal niceties, would better understand the consequences of the act with which he was charged than would the learned judge below. On application to change a plea, all doubt should be resolved in favor of a trial on the merits. State v. Casaras, supra. Where, as here, the court below by its own action set into motion the circumstances creating doubt it should not have been hesitant in allowing the application for a change of plea.

In view of the record before us, it is our judgment that the court below abused its discretion in refusing to grant the defendant’s motion to change his plea. The judgment is reversed and the cause is remanded to the district court with directions to set aside its judgment and to sustain the defendant’s motion to change the plea of guilty to that of not guilty.

MR. CHIEF JUSTICE ADAIR: dissents.