text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Troy Anthony Howland, Defendant.
    NO. 8753 DECISION
    DATED this 1st day of November, 1995.
   On July 31, 1995, it was the judgment of the court that defendant’s prior suspended sentence is hereby revoked and that the defendant be and he is hereby sentenced to a term of five (5) years in the Montana State Prison. Due to the defendant’s failure to comply with the terms and conditions of his suspended sentence while under the supervision of the Department of Probation and Parole, the Court finds that he is not entitled to receive, and shall not receive, credit for any elapsed time between the date of his conviction and the date of this Order, except that he shall receive credit from May 18, 1995, through date of sentencing, July 31, 1995, for seventy-five (75) days jail time which he has previously served.

On October 19, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides : "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

Petitioner’s alleged violation of section 46-23-1011(2) may or may not be grounds for a successful petition for post-conviction relief. However, the alleged violation of statute is in this case technical. Even if Mr. Howland’s allegation that he did not sign conditions of his probation is true, such is not sufficient reason for the Sentence Review Division to change an otherwise appropriate sentence.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 19th day of October, 1995.

Hon. John Warner, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Anthony Howland for representing himself in this matter.


source: Caselaw Access Project

author: THE HONORABLE JEFFREY SHERLOCK

license: Public Domain

text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Leslie Marie Johnson, Defendant.
    NO. 10338 DECISION
   On May 26, 1995, the Court found the defendant in violation of the conditions of her suspended sentence and it is the judgment of the Court that defendant’s prior suspended sentence is hereby revoked and that the defendant be and she is hereby sentenced to a term of five (5) years in the Women’s Correctional Facility at Billings, Montana. Said sentence shall run consecutively to the sentence imposed in Flathead County Cause No. DC 95-014(B). It is the recommendation of the Court that as a condition of parole the defendant shall be required to complete all phases of a chemical dependency program and undergo a mental health evaluation at the defendant’s own expense and participate in counseling as recommended. Further, it is the recommendation of the Court that as a condition of parole, the defendant shall be required to pay restitution and all Court ordered fees and costs as ordered in the Judgment done in open Court on the 19th day of October, 1992. The defendant shall receive credit from February 5, 1993, through March 6, 1993; and from May 24, 1995, through date of sentencing, May 26, 1995, for thirty-three (33) days jail time which she has previously served.

On October 20, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Lynn Dankowski, legal intern of the Montana Defender Project. The state was represented by Ed Corrigan, Deputy County Attorney from Kalispell.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

Upon a consideration of the record presented it is the decision of the Sentence Review Division, by majority vote, that the sentence must be, and is hereby VACATED.

This matter is REMANDED to the Hon. Douglas C. Harkin, District Judge, to re-sentence Ms. Johnson.

The majority of the Sentence Review Board finds the explanation given by Ms. Johnson for her failure to return to the Flathead County detention facility, and thereby violate the terms of her suspended sentence, to be incredible. The Sentence Review Board also finds that the further reasons given for not following the terms of her suspended sentence are not alone a sufficient reason to modify her present sentence.

The majority of the board does, however, find that prior to Ms. Johnson not reporting to jail as ordered, inappropriate behavior did occur between this female defendant, who was a prisoner, and a male law enforcement officer in a position of authority at the jail. There is no record that the sentencing judge was aware of such incident at the time Ms. Johnson’s suspended sentence was revoked.

The majority of the Sentence Review Board also finds there is a possibility, however remote, that Ms. Johnson did not tell Judge Harkin of the alleged assault on her by a deputy sheriff because she was ordered not to do so by investigating officers. Therefore, to avoid the appearance of impropriety, she must have the opportunity to make such argument to the sentencing judge.

DATED this 1st day of November, 1995.

While the majority of the Sentence Review Board does not find the revocation of Ms. Johnson’s suspended sentence to be unwarranted, even considering her belated explanation for violation of the terms of suspension, the board does not have all of the necessary evidence to properly sentence her. Therefore the board has no choice other than to vacate the sentence and remand to the District Court for Missoula County for re-sentencing after a hearing in which all relevant information is presented.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member.

DISSENT:

THE HONORABLE JEFFREY SHERLOCK

dissents as follows:

I find the defendant, Ms. Johnson, to be an incredible, lying, manipulative individual that is right where she belongs. The action taken by the majority of the board might allow her to escape her just punishment, and may encourage her in further manipulation of the system. I agree with the defendant’s cell mate who describes Ms. Johnson as a pathological liar. I would affirm the sentence.

I also remind the district court that the majority of the Sentence Review Board does not tell the District Court Judge not to send the defendant to jail. What the majority tells him to do is consider these additional facts and indicate whether or not they should make a difference in the sentence.

Done in open Court this 20th day of October, 1995.

The Sentence Review Board wishes to thank Lynn Dankowski, legal intern of the Montana Defender Project, for representing Ms. Johnson in this matter and also to Ed Corrigan, Deputy County Attorney from Kalispell for representing the State.


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.
    STATE OF MONTANA, Plaintiff, vs. Leslie Marie Johnson, Defendant.
    NO. DC 95-014(B) DECISION
   On May 22, 1995, it was the judgment of the court that the defendant serve a term of ten (10) years at the Montana State Prison. The defendant is to be ineligible for parole until she completes all phases of the chemical dependency program available at that facility, undergoes a mental health evaluation, and follows all recommendations resulting from those programs to the satisfaction of her supervising officer and treatment providers. Should the defendant be granted parole, she must follow all rules and requirements imposed by this Court’s April 27, 1995, Judgment as conditions of her supervised release from prison (excluding, of course, the requirements that she serve ninety (90) days in the Flathead County Detention Center.) The defendant is to be given credit for 14 days served in the Flathead County Detention Center pending final disposition in this matter.

On October 20, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Lynn Dankowski, legal intern of the Montana Defender Project. The state was represented by Ed Corrigan, Deputy County Attorney from Kalispell.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

DATED this 1st day of November, 1995.

Upon a consideration of the record presented it is the decision of the Sentence Review Division, by majority vote, that the sentence must be, and is hereby VACATED.

This matter is REMANDED to the Hon. Katherine Curtis, District Judge, to re-sentence Ms. Johnson.

The majority of the Sentence Review Board finds the explanation given by Ms. Johnson for her failure to return to the Flathead County detention facility, and thereby violate the terms of her suspended sentence, to be incredible. The Sentence Review Board also finds that the further reasons given for not following the terms of her suspended sentence are not alone a sufficient reason to modify her present sentence.

The majority of the board does, however, find that prior to Ms. Johnson not reporting to jail as ordered, inappropriate behavior did occur between this female defendant, who was a prisoner, and a male law enforcement officer in a position of authority at the jail. There is no record that the sentencing judge was aware of such incident at the time Ms. Johnson’s suspended sentence was revoked.

The majority of the Sentence Review Board also finds there is a possibility, however remote, that Ms. Johnson did not tell Judge Curtis of the alleged assault on her by a deputy sheriff because she was ordered not to do so by investigating officers. Therefore, to avoid the appearance of impropriety, she must have the opportunity to make such argument to the sentencing judge.

While the majority of the Sentence Review Board does not find the revocation of Ms. Johnson’s suspended sentence to be unwarranted, even considering her belated explanation for violation of the terms of suspension, the board does not have all of the necessary evidence to properly sentence her. Therefore the board has no choice other than to vacate the sentence and remand to the District Court for Flathead County for re-sentencing after a hearing in which all relevant information is presented.

Hon. John Warner, Chairman and Hon. Robert Boyd, Alternate Member.

DISSENT:

THE HONORABLE JEFFREY SHERLOCK

dissents as follows:

I find the defendant, Ms. Johnson, to be an incredible, lying, manipulative individual that is right where she belongs. The action taken by the majority of the board might allow her to escape her just punishment, and may encourage her in further manipulation of the system. I agree with the defendant’s cell mate who describes Ms. Johnson as a pathological liar. I would affirm the sentence.

I also remind the district court that the majority of the Sentence Review Board does not tell the District Court Judge not to send the defendant to jail. What the majority tells her to do is consider these additional facts and indicate whether or not they should make a difference in the sentence.

Done in open Court this 20th day of October, 1995.

The Sentence Review Board wishes to thank Lynn Dankowski, legal intern of the Montana Defender Project, for representing Ms. Johnson in this matter and also to Ed Corrigan, Deputy County Attorney from Kalispell for representing the State.


author: JUSTICE TRIEWEILER

text:
    STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff and Appellant, v. DARRELL POWELL, and JACK SMITH, as guardian ad litem for NATASHA SMITH, and as Personal Representative of the Estate of CHRISTINA SMITH, deceased, Defendants and Respondents.
    No. 95-207.
    Submitted on Briefs August 31, 1995.
    Decided November 21, 1995.
    52 St.Rep. 1138.
    906 P.2d 198.
    274 Mont. 92.

      For Appellant: Lyman H. Bennett, III, Morrow, Sedivy & Bennett, Bozeman.
    For Respondent: Anne Biby, Bottomly Law Offices, Kalispell (for Smith).
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The plaintiff, State Farm Fire and Casualty Company, filed a complaint in the District Court for the Eighth Judicial District in Cascade County in which it sought a declaratory judgment to the effect that the insurance policy it issued to Darrell Powell did not provide liability coverage for his collision with Christina Smith on August 8, 1994. State Farm moved for summary judgment. Jack Smith, who represented Christina Smith’s estate and her daughter, also moved for summary judgment. State Farm’s motion was denied and Smith’s motion was granted. State Farm appeals the District Court’s disposition of the summary judgment motions. We affirm the judgment of the District Court.

The issue on appeal is whether the District Court correctly concluded that the vehicle operated by Darrell Powell at the time of his collision with Christina Smith was an “insured vehicle” according to the terms of State Farm’s policy issued to Powell.

FACTUAL BACKGROUND

In December 1993, Darrell Powell entered into an oral agreement to buy a 1971 Ford truck from his brother and sister-in-law, Walter and Amanda Powell. Walter and Darrell agreed that Darrell would make payments for the Ford when able and that he would become the owner of the truck after he had paid the full $1200 purchase price. Until the full purchase price was paid on July 10, 1994, Walter continued to insure the Ford with his own carrier. On one occasion, Darrell paid the premium amount to Walter, who then sent the premium to his carrier.

During the seven month period that Darrell made payments to Walter, Walter and Amanda kept the truck at their home and used it as their own. From time to time, Darrell would notify Walter and Amanda that he wanted to use the truck, and he would do so if it was available at the time he needed it. Walter and Amanda, however, continued to use the truck in exactly the same maimer they had used it prior to their oral purchase agreement with Darrell.

In January 1994, while Darrell was making payments to Walter, the truck’s registration expired. Walter and Darrell agreed that Darrell should register the truck in his name so that he would not have to re-register the vehicle later that year. In order to register the truck, Darrell’s name had to appear on the title. Walter transferred the title, and Darrell registered the Ford truck in his name on January 28, 1994. Anew title was issued in Darrell’s name on March 11, 1994.

On July 10, 1994, Darrell made the final payment for the Ford truck. On that date, Walter and Amanda cancelled their insurance policy which covered the truck and executed a bill of sale which stated:

We, the undersigned, hereby sell to Darrell L. Powell, a 1971 3/4 Ton 2 Wheel Drive Ford Pickup - green and white in color. Debt is paid in full on this date.

DATED this 10th day of July, 1994.

Although Darrell continued to leave the truck at Walter’s house after July 10, Darrell then used the truck at will, whereas Walter asked Darrell’s permission to borrow it. According to their affidavits, Walter and Amanda intended that ownership of the truck pass to Darrell on the date he finished paying for it. After July 10, 1994, Walter and Amanda no longer considered themselves the owners of the Ford truck.

On August 8,1994, while attempting to walk across U.S. Highway 2 near Havre, Christina Smith was struck by the Ford truck which was being operated by Darrell. Christina died seven hours later as a result of injuries caused by the collision.

Jack Smith, as personal representative of Christina’s estate and guardian ad litem of her five-year-old daughter, filed an action against Darrell Powell in the District Court of the Twelfth Judicial District in Hill County. That action is still pending. Powell’s insurance provider, State Farm, then filed this declaratory judgment action to avoid coverage for Powell’s potential liability. State Farm insured Powell’s 1986 Mazda pickup truck at the time of the collision, but maintained that the Ford truck he was operating was not an insured vehicle.

On April 4, 1995, the District Court granted Smith’s cross-motion for summary judgment, based on its determination that the Ford truck was insured as a “newly acquired vehicle” according to the terms of Powell’s insurance policy. On April 20, the court entered a declaratory judgment in favor of Smith.

STANDARD OF REVIEW

This Court reviews a summary judgment order entered pursuant to Rule 56, M.R.Civ.P., based on the same criteria applied by the district court. Brinkman and Lenon v. P & D Land Enterprises (1994), 263 Mont. 238, 241, 867 P.2d 1112, 1114. Rule 56(c), M.R.Civ.P, provides that summary judgment is proper only when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.”

Because our review of summary judgment is plenary, we decline to review two of State Farm’s claims on appeal: first, that the trial court failed to consider State Farm’s reply brief before issuing its order; and second, that the court did not state with sufficient particularity its reasons for granting Smith’s summary judgment motion. Since we review the entire record, including State Farm’s reply brief, de novo, we hold that the District Court’s failure to consider that brief was, at best, a harmless error. Furthermore, there was nothing in State Farm’s three-page reply brief which even addressed the issue on which the District Court’s judgment was based. Therefore, State Farm’s substantial rights could not have been affected by the District Comet’s failure to consider it.

We also hold that the District Court’s order granting summary judgment, though not exhaustive, was sufficient to apprise the parties of the court’s rationale for concluding that Powell’s Ford truck was an insured vehicle according to the terms of State Farm’s policy.

DISCUSSION

Did the District Court correctly conclude that the vehicle operated by Darrell Powell at the time of his collision with Christina Smith was an “insured vehicle” according to the terms of State Farm’s policy issued to Powell?

State Farm contends that it did not insure Darrell’s operation of his Ford truck on August 8,1994, because on that date the truck was not an “insured vehicle” as required by Powell’s insurance policy. According to State Farm, Powell’s truck was not an “insured vehicle” because it was neither (a) “your car,” (b) a “newly acquired car,” (c) a “temporary substitute car,” or (d) a “non-owned car,” as required by the terms of the policy.

State Farm reasons that “your car” can only be the car described on the declarations page, in this case the 1986 Mazda truck. However, since Powell had purchased the 1971 Ford truck and the title had been transferred, neither was it a “non-owned car,” and it was not a “temporary substitute car,” which is also defined as a non-owned vehicle. State Farm further maintains that the Ford was not a “newly acquired car” because Powell did not notify the company of his acquisition of the vehicle within thirty days after the date on which he acquired an ownership interest. State Farm relies on our decision in Colonial Insurance Co. v. Blankenship (1988), 231 Mont. 469, 753 P.2d 880, to establish the proposition that Powell became the owner of the Ford when he acquired title to the vehicle in J anuary 1994, rather than when Walter and Amanda executed the bill of sale on July 10, 1994.

Although we agree that Colonial Insurance would be the starting point for determining Powell’s ownership of the vehicle, we hold that “delivery,” and not “ownership,” is the definitive date from which to determine coverage based on State Farm’s policy. The plain language of State Farm’s policy provides that:

Newly Acquired Car — means a car newly owned by you if it... is an added car and... [is] owned by you on the date of its delivery to you; but only ifyou ... tell us about it within 30 days after its delivery to you ....

(Underlining added.) The policy clearly states that the thirty-day grace period is to run from the date of delivery, not from the time an ownership interest is acquired.

The sincerity of State Farm’s argument in this case must be questioned in light of the inconsistent position it has taken in the past when it was to its advantage to do so. In the past, State Farm has taken the position that the date of delivery is the crucial date from which to determine coverage for a newly acquired vehicle. In L’Allier v. Turnacliff (N.M. 1988), 758 P.2d 796, Turnacliff took possession of a car on October 21, before the title was transferred or payment was made. After Turnacliff was involved in an accident on November 28, State Farm argued that the dispositive date for coverage under its “newly acquired car” provision — identical to the provision in Powell’s policy — was the date of delivery. The L’Allier court agreed that according to the policy language “the newly acquired car provision began to run when the newly acquired car was ‘owned’ and ‘delivered’ to Turnacliff.” L’Allier, 758 P.2d at 797. The court stated:

The dispositive issue on appeal is whether, as a matter of law, the thirty-day notice period under the newly acquired car provision in Turnacliff’s automobile insurance policy began to run when Turnacliff took delivery of the car. We hold that delivery is a critical element of ownership of a car, and when the circumstances indicate that the parties intended for ownership of the car to pass, delivery of the car is sufficient to trigger the running of the newly acquired car provision in an automobile insurance policy.

L’Allier, 758 P.2d at 797.

Because “delivery” is not defined in State Farm’s insurance policy, we choose to give the term its ordinary meaning. We hold that in the context of the newly acquired vehicle clause, the word “delivery” signifies a handing over of physical possession and control of an automobile.

In this case, we conclude, based on uncontroverted facts, that delivery occurred on July 10, 1994, when Walter and Amanda intended to transfer ownership of the truck to Darrell, and when Darrell’s physical possession and control of the truck was finally possible. Therefore, we conclude that the Ford truck operated by Darrell Powell on August 8, 1994, when he collided with Christina Smith, was a “newly acquired vehicle,” and therefore, an “insured vehicle” according to the terms of State Farm’s policy.

For these reasons, we affirm the District Court’s order which denied State Farm’s motion for summary judgment and granted summary judgment to the defendants.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and LEAPHART concur.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.

      STATE OF MONTANA, Plaintiff, vs. Gregory S. Mims, Defendant.
    NO. 10853 DECISION
    DATED this 1st day of November, 1995.
   On August 30, 1995, the Court found the defendant in violation of the conditions of his suspended sentence and it was the judgment of the Court that defendant’s prior suspended sentence for the offense of Domestic Abuse, a Felony, is revoked and that the defendant be and he is hereby sentenced to a term of five (5) years in the Montana State Prison. That prior to becoming eligible for parole or early release the defendant shall successfully complete the Montana State Prison alcohol program or an appropriate community alcohol program. It is the recommendation of the Court that as a condition of parole or early release the defendant shall abide by all of the conditions and provisions of the Judgment done in open Court on the 1st day of December, 1993, and the defendant shall pay the additional public defender’s fees in the amount of Two Hundred Fifty-five Dollars ($255.00). The defendant shall receive credit for seventy-eight (78) days jail time which he has previously served.

On October 19, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant as advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division provides : "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 19th day of October, 1995.

Hon. John Warner, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Gregory Scott Mims for representing himself in this matter. '


text:
    FROM: The District Court of the 5th Judicial District. County of Jefferson.
    STATE OF MONTANA, Plaintiff, vs. Meesha A. Newman, Defendant.
    NO. 1396 DECISION
   On August 22, 1995, it was the Court’s decision that for the defendant’s violation of the terms and conditions of her suspended imposition of sentence and probation for the offense of Burglary a Felony, and Theft, a Felony, the same are revoked, and she is "sentenced to the Department of Corrections and Human Services for a term of five (5) years, to be served at the Women’s Correctional Facility in Billings."

DATED this 1st day of November, 1995.

On October 20, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Suzanne Geer, legal intern of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the defendant’s sentence be amended to read as follows:

For the defendant’s violation of the terms and conditions of her suspended imposition of sentence and probation, the same are revoked, and she is hereby sentenced to the Department of Corrections and Human Services for a term of five (5) years, and upon any probation or parole she shall be subject to all of the provisions of the judgment of June 28, 1993.

Done in open Court this 20th day of October, 1995.

Hon. John Warner, Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Robert Boyd, Alternate Member.

The Sentence Review Board wishes to thank Suzanne Geer, legal intern of the Montana Defender Project for representing Ms. Newman in this matter.


text:
    FROM: The District Court of the 19th Judicial District. County of Lincoln.
    STATE OF MONTANA, Plaintiff, vs. John Albert Shults, Defendant.
    NO. DC 94-61 DECISION
   On July 26, 1995, the Court found that the defendant had violated the terms of the deferred imposition of sentence dated July 19, 1994. It was ordered that the defendant shall be punished for the crime of Theft, a felony, by revoking his deferred sentence. The defendant shall be sentenced to a term of ten (10) years in the Montana State Prison. Before the defendant can be deemed eligible for parole, he shall undergo and complete a chemical dependency and mental evaluation. The defendant shall comply with the recommendation of the evaluations. The defendant shall abide by whatever guidelines may be established in aftercare of his treatment. By reason of his prior incarceration, the defendant shall be given credit for 146 days and that number of days shall be deducted from the sentence imposed herein.

On October 19, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

DATED this 1st day of November, 1995.

Rule 1Y of the Rules of the Sentence Review Division provides: "The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 19th day of October, 1995.

Hon. John Warner, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank John Albert Shults for representing himself in this matter.


text:
    FROM: The District Court of the 5th Judicial District. County of Jefferson.
    STATE OF MONTANA, Plaintiff, vs. Damon P. Wereman, Defendant.
    NO. 1425 DECISION
    DATED this 1st day of November, 1995.
   On August 1, 1994, for said defendant’s conviction of the offense of Bail Jumping, a felony, as charged in the Information, the Court hereby sentences the defendant to imprisonment in the Montana State Prison for a term of ten (10) years; provided, however, that five (5) years of said term are suspended subject to the conditions hereinafter set forth. In addition, pursuant to this Court’s designation of the defendant as a persistent felony offender, the Court hereby sentences the defendant to imprisonment in the Montana State Prison for an additional term of five (5) years, which said additional prison sentence and term shall run consecutive to the prison sentence and term imposed for the offense of Bail Jumping. The above described suspended portion of the defendant’s prison sentence is suspended subject to the defendant’s full performance of all conditions imposed by the parole authorities. It is further ordered that the defendant is designated as a "dangerous" offender for purposes of determining parole eligibility. It is further ordered that the defendant shall receive credit, against the prison sentence(s) imposed hereunder, for all days which he has spent in the Jefferson County Jail since June of 1993. The Jefferson County Sheriff shall certify the amount of such jail time credit to the staff of the Montana State Prison.

On October 20, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed and requested that his petition be dismissed.

It is hereby ordered that the petition is dismissed.

Done in open Court this 20th day of October, 1995.

Hon. John Warner, Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Robert Boyd, Alternate Member.


text:
    FROM: The District Court of the 20th Judicial District. County of Lake.
    STATE OF MONTANA, Plaintiff, vs. Michael Ray Winters, Defendant.
    NO. DC 88-22 DECISION
    DATED this 1st day of November, 1995.
   On June 21, 1995, it was ordered that the sentence heretofore entered on August 8, 1990 is revoked. It is further ordered that the defendant be punished by confinement in the Montana State Prison for the remainder of his ten (10) year term, with credit for time served of 171 days. Further, the defendant shall not receive credit for his time on probation.

On October 19, 1995, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed and requested that his petition be dismissed.

It is hereby ordered that the petition is dismissed.

Done in open Court this 19th day of October, 1995.

Hon. John Warner, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.


text:
    IN RE MARRIAGE OF ANN MARIE BUKACEK, Petitioner and Respondent, and EDWARD PAUL JANES, Respondent and Appellant.
    No. 95-162.
    Submitted on Briefs November 2, 1995.
    Rehearing Denied December 21, 1995.
    Decided November 21, 1995.
    52 St.Rep. 1141.
    907 P.2d 931.
    274 Mont. 98.

      For Appellant: Peter F. Carroll, Attorney at Law, Kalispell.
    For Respondent: L. Charles Evans, Attorney at Law, Libby.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Petitioner Ann Marie Bukacek filed a petition for dissolution of her marriage to Edward Paul Janes, in the District Court for the Twentieth Judicial District in Lincoln County. Following numerous hearings, the District Court entered its decree in which it awarded the parties joint custody of their four minor children and designated Ann the primary custodian. The court also divided the couple’s marital estate, provided for child support, and ordered Ann to pay maintenance to Ed for one year. Ed appeals from the District Court’s decree. We affirm the District Court.

There are five issues presented on appeal:

1. Did the District Court have continued jurisdiction after stating at the initial proceeding that the dissolution was granted?

2. Did the District Court abuse its discretion when it enforced that part of the couple’s settlement agreement which related to property division, but refused to enforce provisions related to child custody, child support, and maintenance?

3. Did the District Court adequately consider the children’s preferences when it made its child custody determination?

4. Did the District Court abuse its discretion when it determined that Ann should have primary residential custody of the children?

5. Did the District Court demonstrate bias which prevented it from impartially deciding the issues presented?

FACTUAL BACKGROUND

Ann and Ed were married in Lane County, Oregon, on April 26, 1978. Soon afterward, Ann expressed a desire to continue her education. With Ed’s support, she earned her undergraduate degree and enrolled in medical school. In 1989, Ann completed a three-year medical residency.

Ann and Ed had four children while Ann was pursuing her medical education. During that time, Ed was not employed and served as the homemaker and primary caretaker for the children. Although Ann devoted a great deal of her energy to her studies and her residency, she shared as much as possible in child care and housekeeping responsibilities.

In 1989, Ann and Ed and their four children moved to Redmond, Oregon, where Ann worked as a physician with a local hospital and established a private practice. Ed remained the children’s primary caretaker during this time.

The parties and their children moved to Libby, Montana, in December 1991. Ann and Ed separated immediately, and Ann filed a petition for dissolution with the District Court. Pursuant to a written settlement agreement, Ann appeared before the court for entry of a decree by default on February 24, 1992. The District Court expressed concern about support provisions in the agreement, and recommended that tax consequences be considered, and that further advice be considered. The court did, at that time, indicate that the dissolution would be granted.

After the first hearing, the parties were unable to reach an agreement on the issues of child custody and support. Although Ann first agreed that Ed should have primary residential custody of the children, she later became concerned about his emotional stability and hostility. By the time of trial in September 1993, each party sought primary residential custody of the children.

On December 20, 1994, the District Court entered a decree of dissolution. The court awarded joint custody of the four children to both parties, and designated Ann the primary residential parent. The court also approved the distribution of marital property set forth in the parties’ original February 1992 property settlement agreement, relieved Ed of child support payments for one year, and ordered Ann to pay maintenance to Ed for one year.

ISSUE 1

Did the District Court have continued jurisdiction after stating at the initial proceeding that the dissolution was granted?

A decree of dissolution is final when entered subject to the right of appeal. Section 40-4-108(1), MCA. Ed contends that the District Court’s oral statement during the initial hearing to the effect that the dissolution was granted had the effect of a final decree and divested the court of further authority to act.

The term “decree” includes the term “judgment.” Section 40-4-103(4), MCA. The Montana Rules of Civil Procedure define “judgment” as “the final determination of the rights of the parties in an action or proceeding ... and includes a decree ....” Rule 54(a), M.R.Civ.P. (emphasis added). Although the District Court in this case purported to orally grant the parties’ dissolution at the initial hearing, that statement was by no means a “final determination” of the couple’s rights. As the court stated at that time, the issues of child custody, support, and maintenance had yet to be decided. Furthermore, the court later acknowledged that it had no jurisdiction to grant a dissolution without resolving those related issues. In a written memorandum, the court stated:

During the course of the hearing which was held on February 22, 1993, the Court advised that it would prepare and enter a decree of dissolution. However, the Court has subsequently determined that it is without jurisdiction to enter the decree of dissolution at this time. See 40-4-104(d) MCA and In re Marriage of Skinner, [240 Mont. 299], 783 P.2d 1350 (Mont. 1989).

We therefore conclude that the court’s statement at the initial hearing to the effect that the parties’ marriage was dissolved did not divest it of jurisdiction to act further in this case.

ISSUE 2

Did the District Court abuse its discretion when it enforced that part of the couple’s settlement agreement which related to property division, but refused to enforce provisions related to child custody, child support, and maintenance?

When a district court determines the conscionability of a marital and property settlement agreement it engage [s] in discretionary action which cannot be accurately categorized as either a finding of fact or a conclusion of law. These discretionary judgments made by the trial court are presumed to be correct and will not be disturbed by this Court absent an abuse of discretion by the lower court.

In re Marriage of Caras (1994), 263 Mont. 377, 380-81, 868 P.2d 615, 617 (quoting In re Marriage of Hamilton (1992), 254 Mont. 31, 36, 835 P.2d 702, 704-05) (alteration in original).

Ed contends that the District Court abused its discretion when it found that the terms of the parties’ settlement agreement which pertained to child custody, support, and maintenance were unconscionable. He further contends that if the agreement was unconscionable, the court should not have approved the division of property included in the agreement.

Section 40-4-201(2), MCA, provides:

In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except those providing for the support, custody, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.

In In re Marriage of Simms (1994), 264 Mont. 317, 325-26, 871 P.2d 899, 904, we clarified the district court’s obligations:

In short, in a marriage dissolution case ... [t]he district court... is not bound by the parties’ oral or written agreements or stipulations in matters of custody, support and visitation (the applicable statutory criteria always being paramount), and is bound on the matters of property division and maintenance only to the extent that the parties’ agreement is reduced to writing and is found, after review, to be not unconscionable.

In this case, the parties’ written agreement settled the distribution of the couple’s real and personal property; designated Ed as the children’s primary residential custodian for so long as he lived in the same city as Ann; required Ann to pay Ed’s residential expenses of up to $1000 per month; and provided that Ed would receive one-half of Ann’s disposable income for ten years.

As provided in Simms, the District Court was not bound by the agreement’s provisions related to child custody and support, and was bound by the provisions regarding property division and maintenance only to the extent that the court found them to be conscionable.

We conclude that the District Court did not abuse its discretion when it held that the maintenance award was unconscionable. The court alerted the parties to its concerns about the maintenance provision at the first hearing. At that time, the court indicated that it would not sign the agreement until it was modified and reviewed by a certified public accountant. The court’s concerns were well-founded. The settlement agreement did not indicate whether the monthly payments to Ed were child support or maintenance, and did not set forth how the monthly figure for Ann’s disposable income would be determined. Furthermore, the court’s request that the agreement be re-written was authorized pursuant to § 40-4-201(3), MCA, which provides that:

If the court finds the separation agreement unconscionable, it may request the parties to submit a revised separation agreement or may make orders for the disposition of property, maintenance, and support.

The parties did not submit a revised agreement which addressed the court’s concerns about the maintenance provision. Therefore, since the court held that the original agreement was unconscionable, it was free to make its own order with regard to the issue of maintenance.

We further hold that the District Court did not abuse its discretion when it held that the written property settlement was conscionable. As the court noted, both parties testified at trial that their agreed-upon distribution of the marital estate was fair and equitable. In addition, Ed stated in his consent to entry of default that “[he did] not have any complaint about the Property Settlement....” As the District Court noted, the agreement results in a net distribution to Ed of approximately $40,000 and to Ann of approximately $35,000. In addition, the agreement requires Ann to assume all remaining marital obligations, which total over $175,000. In light of these circumstances, the court clearly did not abuse its discretion when it upheld the property distribution provisions in the agreement.

For these reasons, we affirm the District Court’s treatment of the parties’ settlement agreement.

ISSUE 3

Did the District Court adequately consider the children’s preferences when it made its child custody determination?

Because the district court is in a superior position to weigh evidence, we will not overturn the court in child custody matters unless we determine that there has been a clear abuse of discretion. In re Marriage of Bolt (1993), 259 Mont. 54, 58, 854 P.2d 322, 324.

Ed claims that the District Court abused its discretion because it did not question the children directly regarding their custodial preferences. He maintains that the psychological custody evaluation ordered by the court did not discuss the children’s preferences, and that the District Court record is devoid of any indication that the court considered the children’s preferences as a factor in its custody determination.

Children’s preferences for custody are a factor which should be considered by the district court. Section 40-4-212(b), MCA. However, the court need not interview the children to discern their preferences. In re Marriage of Susen (1990), 242 Mont. 10, 12, 788 P.2d 332, 334. It may rely on the evaluation of a professional counselor. Bolt, 854 P.2d at 325. If the court does not interview the children, it is not required to make specific factual findings regarding the children’s preferences. In re Marriage of Hickey (1984), 213 Mont. 38, 42, 689 P.2d 1222, 1224.

In this case, the children’s wishes were adequately addressed by Dr. John Santa, who was appointed by the court to perform a custody evaluation. Although Dr. Santa did not directly ask the children where they wanted to live, he did interview each child regarding “their views of their situation,” and made specific reference to the children’s views of their parents and their lifestyles with each parent. From this report, the court could have accurately discerned the children’s preferences. In fact, as evidenced by the court’s many references to that report, it is clear that the court read and considered Dr. Santa’s recommendations as a basis for its final determination.

Therefore, because the District Court appointed a professional counselor who set forth his opinions about the children’s preferences in a custody evaluation report, and because the court considered that report in its decree, we hold that the court did not abuse its discretion because it did adequately consider the children’s preferences.

ISSUE 4

Did the District Court abuse its discretion when it determined that Ann should have primary residential custody of the children?

We review a district court’s underlying findings of fact in a child custody case to determine whether those findings are clearly erroneous. In re Marriage of Dreesbach (1994), 265 Mont. 216, 220-21, 875 P.2d 1018, 1021. This Court will overturn the district court’s final custody award which is based on those findings only when an abuse of discretion is clearly demonstrated. Dreesbach, 875 P.2d at 1021.

Section 40-4-212, MCA, lists the relevant factors that a district court must consider when it makes a child custody determination. The factors include the preferences of the parties, the preferences of the children, the interaction and interrelationship between the children and their family, and the children’s adjustment to home, school, and community. The comb is not required to make specific findings which address each factor, but it must set forth the “essential and determining” factors on which its determination is based. In re Marriage of Merriman (1991), 247 Mont. 491, 493, 807 P.2d 1351, 1353.

In its decree, the District Court concluded that:

[U]pon consideration of all relevant factors, including those set forth in § 40-4-212, MCA (1991), it is in the best interests of the parties’ minor children for them to be in the joint custody of the parties, with [Ann] designated the primary residential parent.

On appeal, Ed contends that the court’s determination does not fairly represent the record. Ed contends that the District Court accepted Ann’s concerns without an independent review of the facts; that the court failed to fairly review Ed’s record as the primary provider for his children; and that the court either ignored or misconstrued facts concerning the children’s welfare.

We have thoroughly reviewed the record, however, and find that the District Court did consider such factors as the wishes of Ann and Ed, the children’s preferences, the interrelationships between the parties and their children, the children’s adjustment to Libby, and the mental health of both Ann and Ed when it made its custody determination. Specifically, the court set forth the following facts in its decree: The court addressed Ann’s concerns about Ed’s emotional instability and his attempts to alienate the children from Ann; the court set forth Dr. Santa’s findings that Ann was an “emotionally stable” parent who “obviously loves, and cares for her children,” and who is “supportive of the children and their school work and activities”; and the court noted that Ed’s plan to move to Kalispell with the children would not serve the children’s best interests because they would lose Ann’s “considerable warmth, and nurturing” and because Ed had failed to create an identity of his own unrelated to the children. In addition, the court addressed the issue of Ed’s continued bitterness toward Ann throughout the dissolution proceedings, stating:

[Ed] has made it clear, at each hearing that has been conducted, that he considers [Ann] immoral, unsuited to have the custody of the children, and that he has made this clear to the children; notwithstanding the Court has remonstrated with [Ed] about this attitude, it has not changed.

Finally, in a written memorandum attached to the December 1993 decree, the court stated:

This has been one of the most difficult dissolutions that I have had. There is no question of the closeness between the father and the children; by the same token, the children are equally fond of their mother. The father has been so distraught about the dissolution that becoming the residential custodian has been an obsession. His remarks concerning the children’s mother in the presence of the children are sufficient to terminate any visitation; and but for the love that the children have for their father, visitation would be terminated. Nevertheless, that cannot continue.

We conclude that the District Court’s findings of fact are not clearly erroneous, and that the court did not abuse its discretion when it awarded Ann primary physical custody of the children.

ISSUE 5

Did the District Court demonstrate bias which prevented it from impartially deciding the issues presented?

Ed contends that the District Court was biased against shared custody and did not award shared custody because of this bias. He further asserts that the court failed to seriously consider his request for maintenance because of his gender. He contends that because he is a male the court imputed income to him that would not have been imputed had he been a woman. We find no merit to these allegations.

The record is clear that neither Ann nor Ed wanted to continue a shared custody arrangement, and that the court considered all the necessary factors when it made its child custody determination. As the court stated in its findings, “[b]oth parties testified that they do not believe it is in the best interests of their children to continue this shared parenting situation.” Furthermore, although Dr. Santa recommended shared parenting in his evaluation, the court pointed out Dr. Santa’s concerns that the animosity of the parties toward each other and that the different parenting styles might make joint parenting unworkable. Finally, although the court did state that it was “prejudiced” against shared visitation, its statement was made against the backdrop of a two-year custody battle in which the parties’ children had been shuttled back and forth daily between Ann’s and Ed’s homes. As the court stated:

I feel some of the problems that you are having have been testified to and when you have children back and forth like a yoyo, you are going to get behavioral problems that you really can’t blame on anybody.

Ed’s claim of gender bias is also unsupported. The court awarded maintenance in the sum of $500 per month for one year, even though it expressed concerns that Ed had failed to take advantage of educational opportunities throughout his marriage and that Ed’s unemployment at the time of the trial was not wholly unintentional. In addition, the record is clear that the court imputed income to Ed not on the basis of his gender but because Ed was capable of employment but had chosen to forsake several opportunities to be available full-time for his children. It is clear that gender was not the basis for the court’s maintenance decision.

For these reasons, we conclude that Ed’s claim of bias is without merit.

We affirm the decree of the District Court.

JUSTICES ERDMANN, HUNT, GRAY and LEAPHART concur.


author: JUSTICE GRAY

text:
    ED HAAG, Petitioner and Appellant, v. MONTANA SCHOOLS GROUP INSURANCE AUTHORITY, Respondent and Insurer, SCHOOL DISTRICT NO. 1 GREAT FALLS PUBLIC SCHOOLS, Employer.
    No. 94-590.
    Submitted on Briefs September 21, 1995.
    Rehearing Denied December 21, 1995.
    Decided November 21, 1995.
    52 St.Rep. 1146.
    906 P.2d 693.
    274 Mont. 109.

      For Appellant: Tom Lewis; Lewis, Huppert & Slovak, Great Falls.
    For Respondent: Oliver Goe; Browning, Kaleczyc, Berry & Hoven, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Ed Haag (Haag) appeals from the Findings of Fact, Conclusions of Law and Judgment of the Workers’ Compensation Court determining that he did not suffer a compensable injury arising out of and in the course of his employment. We reverse and remand.

The dispositive issue on appeal is whether the Workers’ Compensation Court erred in concluding that MSGIA’s failure to comply with § 39-71-606(1), MCA, did not preclude it from denying liability for Haag’s claim.

Haag began working as a custodian for School District No. 1 (School District) in Great Falls, Montana, in August of 1982; by October of 1983, he had been promoted to first engineer. Haag continued to work for the School District until March 24, 1992.

Haag claims that he injured his shoulder on March 23,1992, while employed by the School District. He contends that he felt sudden pain in his shoulder as he lifted a table in the cafeteria.

Haag timely filed a claim for compensation with the School District on April 6,1992. More than two months later, the claims adjuster for the Montana Schools Group Insurance Authority (MSGIA), the School District’s workers’ compensation insurer, denied Haag’s claim on the basis that he did not suffer an “injury” resulting from an “accident.”

In October of 1992, Haag filed a Petition for Hearing with the Workers’ Compensation Court. Trial was held and the Workers’ Compensation Court subsequently issued its Findings of Fact, Conclusions of Law and Judgment. The court concluded that Haag was not injured in a work-related accident and, on that basis, was not entitled to benefits or a penalty. The court also rejected Haag’s argument that he was entitled to benefits because of MSGIA’s failure to comply with § 39-71-606(1), MCA. Haag appeals.

Did the Workers’ Compensation Court err in concluding that MSGIA’s failure to comply with § 39-71-606(1), MCA, did not preclude it from denying liability for Haag’s claim?

Section 39-71-606(1), MCA, mandates that “[e]very insurer ... shall, within 30 days of receipt of a claim for compensation, either accept or deny the claim, and if denied shall inform the claimant and the department in writing of such denial.” The parties agree § 39-71-606(1), MCA, is plain and unambiguous in requiring insurers to accept or deny claims within thirty days. In addition, there is no dispute over MSGIA’s failure to comply with this clear statutory mandate.

Relying on Solheim v. Tom Davis Ranch (1984), 208 Mont. 265, 677 P.2d 1034, the Workers’ Compensation Court concluded that MSGIA’s failure to accept or deny Haag’s claim within thirty days as required by § 39-71-606(1), MCA, did not amount to an automatic acceptance of the claim. Haag contends that Solheim is distinguishable from this case and that MSGIA’s failure to comply with § 39-71-606(1), MCA, should be deemed an acceptance of liability as a matter of law. We review the Workers’ Compensation Court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Caekaert v. State Compensation Mutual Ins. Fund (1994), 268 Mont. 105, 110, 885 P.2d 495, 498 (citing Stordalen v. Ricci’s Food Farm (1993), 261 Mont. 256, 258, 862 P.2d 393, 394).

We note at the outset that it is possible, as Haag contends, to distinguish Solheim from the case before us and still reach the correct legal result. While we do not present the full analysis under which Solheim properly is distinguishable, it is sufficient to observe that our decision there was based on the facts of that case involving a dispute over the existence of the employment relationship between the parties. Solheim, 677 P.2d at 1037-38. Indeed, we emphasized that “the employment relationship is a cornerstone upon which workers’ compensation benefits are founded.” Solheim, 677 P.2d at 1041.

Here, no “cornerstone” dispute exists. MSGIA’s position is not based on the absence of the employment relationship; rather, MSGIA contends that Haag did not sustain an “injury” caused by an “accident” as those terms are statutorily defined. Therefore, Solheim is not applicable here. To extend Solheim to encompass this commonplace basis for denying a claim would completely nullify § 39-71-606(1), MCA. Moreover, because it is our view, for the reasons discussed below, that Solheim incorrectly interpreted §§ 39-71-606(1) and 39-71-2907, MCA, we overrule Solheim.

In Solheim, the claimant was denied workers’ compensation benefits because he was an independent contractor rather than an employee and, therefore, was excluded from coverage under § 39-71-118(l)(a), MCA. Solheim, 677 P.2d at 1040. The claimant argued that, notwithstanding his independent contractor status, he was entitled to workers’ compensation benefits because the insurer failed to accept or deny his claim within thirty days as required by § 39-71-606(1), MCA. Solheim, 677 P.2d at 1040. We refused to impose the “drastic penalty’ of liability as a matter of law where the insurer failed to comply with § 39-71-606(1), MCA, based on its contention that no employment relationship existed. Solheim, 677 P.2d at 1041. We concluded, instead, that the penalty provision contained in § 39-71-2907, MCA, provides adequate protection for a claimant in the event that an insurer fails to accept or deny liability within thirty days. Solheim, 677 P.2d at 1040-41. Onthebasis of that conclusion, we held that an insurer’s failure to comply with § 39-71-606(1), MCA, does not automatically entitle a claimant to benefits. Solheim, 677 P.2d at 1042.

Our analysis of § 39-71-2907, MCA, in Solheim, however, was incomplete. We did not take into sufficient account either the actual language of § 39-71-2907, MCA, or the effect of overlaying that statute onto the clear mandate of § 39-71-606(1), MCA, that an insurer accept or deny a claim within thirty days.

Section 39-71-2907, MCA, states, in pertinent part:

Increase in award for unreasonable delay or refusal to pay.

(1) The workers’ compensation judge may increase by 20% the full amount of benefits due a claimant during the period of delay or refusal to pay, when:

(b) prior or subsequent to the issuance of an order by the workers’ compensation judge granting a claimant benefits, the insurer unreasonably delays or refuses to make the payments.

Under the plain language of this statute, a claimant would be compelled to meet two significant statutory requirements before an insurer could be penalized under § 39-71-2907, MCA, for a clear and undisputed failure to comply with § 39-71-606(1), MCA.

First, the Workers’ Compensation Court would have to determine the claim was compensable and issue an order awarding the claimant benefits. Section 39-71-2907(l)(b), MCA. However, nothing in the clear “notice” requirement of § 39-71-606(1), MCA, suggests that it is intended to relate to the legitimacy, or lack thereof, of a denial of a claim as later determined by the Workers’ Compensation Court.

Second, the Workers’ Compensation Court would have to make a factual finding that the insurer’s denial or refusal to pay was unreasonable. Section 39-71-2907(l)(b) and (2), MCA; Lovell v. State Compensation Mutual Ins. Fund (1993), 260 Mont. 279, 288, 860 P.2d 95, 101. This requirement of § 39-71-2907, MCA, as applied in the context of an insurer’s failure to accept or deny a claim within thirty days, is inconsistent with the mandatory nature of § 39-71-606(1), MCA.

Nothing in § 39-71-606, MCA, suggests that the legislature intended § 39-71-2907, MCA, to serve as a penalty provision for an insurer’s noncompliance. Moreover, if a claimant were unsuccessful in satisfying the two statutory requirements of § 39-71-2907(l)(b), MCA, then the insurer’s noncompliance with § 39-71-606(1), MCA, would have no consequence. As we stated in Solheim, we should be extremely cautious before imposing a direct penalty where the legislature has failed to insert a penalty provision. Solheim, 677 P.2d at 1041. However, failure to do so here would totally abrogate the statutory mandate of § 39-71-606(1), MCA, clearly intended by the legislature.

What we failed to recognize in Solheim is that a denial of liability for a claim based on the lack of an employment relationship is, at its most fundamental, merely a denial of the claim. Section 39-71-606(1), MCA, merely requires acceptance or denial of a claim within thirty days; it does not concern itself with the basis of any denial. We erred in Solheim by judicially exempting a particular category of denial from the clear legislative mandate contained in § 39-71-606(1), MCA.

Pursuant to our holding in Solheim, insurers could disregard the mandate contained in § 39-71-606(1), MCA, with impunity because the existence of any legitimate factual or legal dispute would insulate them from an “unreasonable” finding and, therefore, from the penalty contained in § 39-71-2907, MCA. Such a result does not provide sufficient protection for claimants. Moreover, an interpretation of § 39-71-606(1), MCA, which permits such a result exceeds our proper role in interpreting statutes. See § 1-2-101, MCA. Therefore, we overrule Solheim insofar as it addresses the legal effect of an insurer’s noncompliance with § 39-71-606(1), MCA.

Here, MSGIA notified Haag two weeks after he filed his claim that it could not accept or deny his claim at that time because it had insufficient medical information. MSGIA ultimately denied the claim more than two months after receiving it. When an insurer faces such a situation where compensability and liability issues might legitimately be disputed on receipt of additional investigative information, the legislature has provided the insurer with a statutory alternative to affirmatively accepting or flatly denying the claim.

Section 39-71-608, MCA, authorizes an insurer to begin payments within thirty days of receipt of a claim for compensation without admitting liability or waiving any defenses. This statute recognizes that situations may arise in which an insurer should not, in fairness, be forced to irrevocably accept or deny a claim within thirty days as required by § 39-71-606(1), MCA. Importantly, however, § 39-71-608, MCA, contains the same thirty-day period for the insurer’s action as § 39-71-606(1), MCA. Thus, § 39-71-608, MCA, does not merely provide an alternative for an insurer faced with the dilemma of complying with its statutory mandate to accept or deny a claim within thirty days. Read together with § 39-71-606(1), MCA, it reemphasizes the legislature’s intent to require an insurer to take action on a claim for compensation, and give notice thereof to the claimant, within thirty days.

Additionally, §§ 39-71-609 and 39-71-610, MCA, provide insurers with the means to subsequently deny liability for a claim after affirmatively accepting a claim under § 39-71-606(1), MCA, or beginning payments with a reservation of rights under § 39-71-608, MCA. Thus, the Workers’ Compensation Act clearly provides insurers with an alternative which is not unduly burdensome and which is, at the same time, entirely consistent with an insurer’s clear obligation under § 39-71-606(1), MCA. Accordingly, we hold that when an insurer fails to act on a claim for compensation within thirty days, either by accepting or denying liability pursuant to § 39-71-606(1), MCA, or by beginning payments with a reservation of rights under § 39-71-608, MCA, the claim is deemed accepted as a matter of law.

Finally, we address the Workers’ Compensation Court’s conclusion that “[e]ven if MSGIA’s failure to deny the claim within thirty (30) days is deemed an acceptance of the claim, MSGIA may contest the claim on the basis of fraud.” MSGIA argues on appeal that “when an insurer denies a claim on the basis the alleged accident never occurred, the insurer is, in effect, claiming the alleged accident was fabricated and the claim filed fraudulently.”

To sustain a claim of fraud, however, MSGIA was required to plead and prove each of the nine elements of fraud. See Hartfield v. City of Billings (1990), 246 Mont. 259, 263, 805 P.2d 1293, 1296. Thus, whether MSGIA could have contested Haag’s claim on the basis of fraud is irrelevant here because MSGIA did not plead fraud. Moreover, fraud is not set forth in the final Pretrial Order either in MSGIA’s contentions or as a contested issue to be resolved by the court as required by § 24.5.318(5)(e) and (f), ARM. See Garcia v. State Compensation Mutual Ins. Fund (1992), 253 Mont. 196, 200-201, 832 P.2d 770, 773. We conclude that the fraud issue was not properly before the Workers’ Compensation Court and that the court erred in addressing it.

Therefore, we hold that the Workers’ Compensation Court erred in concluding that MSGIA’s failure to comply with § 39-71-606(1), MCA, did not preclude it from denying liability for Haag’s claim. On the facts of this case, MSGIA’s failure to accept or. deny Haag’s claim within thirty days as required by § 39-71-606(1), MCA, is deemed an acceptance of Haag’s claim as a matter of law.

Reversed and remanded for further proceedings consistent with this opinion.

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


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM GOLLEHON, Defendant and Appellant.
    No. 95-316.
    Submitted on Briefs November 16, 1995.
    Rehearing Denied December 21, 1995.
    Decided November 30, 1995.
    52 St.Rep. 1182.
    906 P.2d 697.
    274 Mont. 116.
    For Appellant; Michael Donahoe, Assistant Federal Defender, Helena.

      For Respondent: Joseph P. Mazurek, Attorney General, Jennifer Anders, Pamela Collins, Assistant Attorneys General, Helena; Christopher Miller, Powell County Attorney, Deer Lodge.
   JUSTICE NELSON

delivered the Opinion of the Court.

William Gollehon (Gollehon) was convicted of deliberate homicide by accountability and sentenced to death. He appeals from an order of the District Court denying his motion for a new trial and request for discovery. We affirm the trial court’s denial of Gollehon’s motion for new trial; we do not address the trial corut’s ruling on his request for discovery.

Gollehon raises on appeal the issue of whether the State failed to timely disclose information that he could have used as mitigating evidence at his sentencing hearing and whether that failure justifies reversal of the death sentence that was imposed in his case.

We restate the issue as whether Gollehon’s raising this issue in the context of an untimely motion for new trial bars our consideration of the merits of his claim. We hold that it does.

BACKGROUND

In October 1991, Gollehon was convicted of deliberate homicide by accountability and sentenced to death for his participation in the beating death of fellow prison inmate, Gerald Pileggi. This Court upheld that conviction and sentence in State v. Gollehon (1993), 262 Mont. 1, 864 P.2d 249.

On March 11, 1994, Gollehon petitioned the United States Supreme Court for certiorari. That Court declined to accept Gollehon’s case for review in an order published October 3, 1994. Gollehon v. Montana (1994),_U.S._, 115 S.Ct. 95, 130 L.Ed.2d 45.

The State then moved the District Court for a hearing to reset Gollehon’s execution date since the previous execution date had expired during the direct appeal process. At the March 24, 1995 hearing, Gollehon moved the District Court for an order requiring the State to produce any pretrial or posttrial promises or agreements with two eyewitnesses who testified at Gollehon’s trial. Gollehon argued that this information, had it been disclosed, could have been used as impeachment evidence at trial.

The District Court granted Gollehon’s request for discovery of pretrial agreements between the State and the eyewitnesses and ordered further briefing on the issue of whether Gollehon was entitled to any posttrial agreements. The District Court reset Gollehon’s execution for June 11, 1995.

On March 29, 1995, Gollehon moved for a new trial and a stay of execution. The State responded that the motion for new trial was untimely and should be summarily dismissed on that basis.

The District Court held a hearing on Gollehon’s motions on June 7, 1995, just four days prior to Gollehon’s scheduled execution date. At the hearing, the court determined that Gollehon’s motion for a new trial was untimely. In addition, the court denied Gollehon’s request for discovery of the State’s post-trial arrangements with the witnesses, finding that any evidence regarding posttrial agreements would be irrelevant at sentencing as it was not the court’s function to reweigh the jury’s determination of witness credibility in a capital sentencing proceeding.

Gollehon appeals the order of the District Court denying his motion for a new trial and his request for discovery. Because of the proximity of Gollehon’s execution date, the District Court issued a stay of execution pending Gollehon’s appeal.

DISCUSSION

Gollehon maintains that his appeal “concerns the State’s duty to disclose material information that would have aided [him] in convincing this Court that the balance of aggravating and mitigating factors demanded the imposition of a non-death sentence.” Gollehon argues that the State violated its obligations under Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and under 46-15-322(1)(e), MCA, in failing to disclose the 1992 commutation of the sentence of State’s witness Armstrong and his 1993 parole. Armstrong was one of the eyewitnesses who testified against Gollehon at his homicide trial.

We decline to reach the merits of Gollehon’s Brady claim, however, in the procedural context in which the claim is raised. Specifically, Gollehon is appealing from the District Court’s denial of his out-of-time motion for new trial. While Gollehon focuses on his substantive Brady claim, our initial inquiry is whether his claim, brought in the context of an untimely motion for new trial, should even be entertained. We conclude that it should not.

Section 46-16-702(2), MCA, provides that a motion for a new trial “must be filed by the defendant within 30 days following a verdict or finding of guilty....” There is no provision in the statute for extending that time period. Gollehon’s time for filing his new trial motion expired November 7, 1991, 30 days from entry of the verdict on October 7, 1991. Accordingly, his new trial motion, filed some three and one-half years after the entry of the verdict, is clearly untimely.

While Gollehon relies on past decisions of this Court (two of which were written by the author of this opinion) to avoid the plain and unambiguous requirements of the statute and to reach the merits, we are now persuaded that we originally started down this shaky staircase in error and that our judicially created exceptions to the statute are fast becoming the rule. With that premise in mind, it is appropriate to re-examine our prior decisions.

State v. Best (1972), 161 Mont. 20, 503 P.2d 997, is cited as the seminal authority for the argument that evidence newly discovered posttrial provides an exception to the 30-day filing requirement for a new trial motion under our present statutory scheme. In that case the defendant filed in this Court his new trial motion during the pendency of his direct appeal. We noted that the motion was both untimely and filed in the wrong court under § 95-2101, RCM (1947), the predecessor to § 46-16-702, MCA. Best, 503 P.2d at 1000. In that conclusion we were correct, and we should have simply refused to entertain the defendant’s motion on that basis. We needlessly went further, however.

In dicta, citing State v. Nicks (1957), 131 Mont. 567, 312 P.2d 519, we stated that,

[ijf the grounds for seeking a new trial do not arise until after expiration of the 30 day period or until after the appeal is filed, the proper procedure is to stay the appeal, remand the case to the district court, file the motion, secure the district court’s decision thereon, and continue with the appeal.

Best, 503 P.2d at 1001.

Unfortunately, under § 95-2101, RCM (1947) — the new trial statute in effect when we decided Best — Nicks was not authority either for the referred to “procedure” or for an exception to the 30-day filing requirement. Rather, Nicks involved § 94-7604, RCM (1947), which was repealed in 1967 and § 95-2101, RCM (1947), was adopted. Section 94-7604, RCM (1947), allowed a new trial motion to be filed “within thirty days after the discovery of the facts upon which the party relies in support of his motion [and] in all other cases ... within ten days after the rendition of the verdict.” Section 94-7604, RCM (1947); Nicks, 312 P.2d at 520.

While we reached the right result in Best, we erred in stating that we lacked jurisdiction to entertain the new trial motion at issue there because of the defendant’s “failure to follow [the Nicks] procedure.” Best, 503 P.2d at 1001. While that procedure may have been available to Nicks under the statute governing his case, it was not available to Best under the different statute applicable in that case. The result in Best was correct because the defendant’s motion for new trial was not timely filed — not for the reason we articulated.

In State v. Perry (1988), 232 Mont. 455, 758 P.2d 268, the defendant filed a motion for new trial following the recantation of the State’s eyewitness some 15 years after Perry’s murder conviction. Perry, 758 P.2d at 269-70. We rejected the State’s argument that the motion, though denoted a motion for new trial, was actually a petition for post-conviction relief which was procedurally barred pursuant to the five year statute of limitations imposed by § 46-21-102, MCA. Perry, 758 P.2d at 272. Moreover, we declined to treat Perry’s motion as a petition for writ of habeas corpus, although we noted that his claim, nevertheless, sounded in the nature of that relief. Perry, 758 P.2d at 273. With no statutory posttrial remedies available, we finally concluded that we must, nevertheless, reach the merits of Perry’s claim because he had no other avenue of relief and that to deprive him of a method of redress regardless of his diligence or the justness of his claim would be inconsistent with the intent of the legislature and with Art. II, sec. 17, of Montana’s 1972 Constitution. Perry, 758 P.2d at 272-73.

Perry is unique on its facts. That case does not stand for the general proposition that a motion for new trial may be entertained beyond the 30-day filing requirement of § 46-16-702, MCA, and it is a misapplication of our decision in that case to argue that its analysis should be extended beyond other cases with like facts.

State v. Redcrow (1990), 242 Mont. 254, 790 P.2d 449, involved the defendant’s motion for new trial filed approximately two months following her conviction of deliberate homicide. Redcrow, 790 P.2d at 451. The district court, while noting the untimeliness of Redcrow’s motion in its order, nevertheless ruled on the merits of her motion because it was filed “within a reasonable period of time” after the verdict and “because of the serious nature of the offense.” Redcrow, 790 P.2d at 452. Citing Best, we acknowledged the 30-day time limit imposed by the statute and noted that the factors considered by the trial court did not require that it entertain Redcrow’s motion. Nonetheless, we addressed the merits of Redcrow’s claim because “of the extensive consideration of the motion by the District Court.” Redcrow, 790 P.2d at 452.

Similarly, in State v. Moore (1994), 268 Mont. 20, 885 P.2d 457, in an opinion written by the author of this opinion, we cited Redcrow as precedent and followed its rationale — i.e., motion filed within a reasonable time after verdict; extensive consideration of the out-of-time motion for new trial by the district court; and seriousness of the case — in reaching the merits of Moore’s motion for new trial, filed approximately two months following his conviction of deliberate homicide. Moore, 885 P.2d at 464, 479, 480-81.

In Redcrow we improperly reached the merits of the defendant’s untimely motion for new trial notwithstanding that the trial court gave “extensive consideration” to the motion. There are no “reasonable time” or “serious case” exceptions to the 30-day filing requirement under § 46-16-702, MCA, and, as we pointed out in both Red-crow and Moore, those factors do not require the district court to entertain an out-of-time motion for new trial. Redcrow, 790 P.2d at 452; Moore, 885 P.2d at 480-81; § 46-16-702, MCA.

Unfortunately, in Redcrow, by judicial fiat, we created those exceptions from whole cloth for the purpose of reaching the merits. Moreover, as pointed out above, Best was not properly cited as authority for an exception to the 30-day filing requirement because the statement in that case supporting that argument was dicta, and flawed dicta, at that. Finally, neither the problem addressed in Perry nor that addressed in State v. Barrack (1994), 267 Mont. 154, 882 P.2d 1028, (discussed below), were at issue in Redcrow.

Likewise, Moore suffers from the same deficits, and we were wrong to rely on Redcrow as precedent for reaching the merits of the new trial issue. Moore’s untimely motion for new trial should have simply been denied on the basis of the procedural bar.

Finally, it is necessary to discuss our resolution of the out-of-time motion for new trial issue in Barrack, the other decision written by the author of this opinion. Like Perry, the circumstances of that case are unique. Barrack, 882 P.2d at 1032. In Barrack, the defendant was convicted of aggravated assault on June 30,1992, and his first motion for new trial was heard and sentence was pronounced on August 5, 1992. Final judgment was filed August 21, 1992. Barrack, 882 P.2d at 1030. Barrack filed a second motion for new trial on August 26, 1992. Barrack, 882 P.2d at 1031. At a posttrial hearing on October 14, 1992, the trial court determined to treat Barrack’s out-of-time motion as a petition for post-conviction relief under a writ of coram nobis pursuant to § 46-21-101(1), MCA. Ultimately, after a hearing in December 1992, the district court denied the defendant’s motion (petition) on the merits. Barrack, 882 P.2d at 1031.

Citing § 46-16-702, MCA, the State argued that Barrack’s motion was untimely and that it was improper for the trial court to treat the motion as one for post-conviction relief. We agreed. Barrack, 882 P.2d at 1031-32. Nevertheless, we noted that Barrack had a right to appeal his conviction and that his appeal time had expired on October 21, 1992. Importantly, we concluded that the trial court erred when, on October 14, 1992, it determined to treat Barrack’s untimely motion for new trial as one for post-conviction relief, with the result that the court “may have effectively curtailed any attempt Barrack may have made to appeal within the remaining statutory time .... [And, thus] possibly lulled the defendant into a position where he did not timely pursue his appeal rights. ...’’Barrack, 882 P.2d at 1032.

It was for that reason only that we determined to address the district court’s decision on the merits of Barrack’s untimely motion. Notwithstanding, as we noted in concluding our analysis:

[W]e wish to emphasize, however, that our decision here is not in any way to be read as enlarging the scope of post-conviction relief or as diminishing a defendant’s obligation to timely file a motion for a new trial and a petition for post-conviction relief or appeal in accordance with the applicable statutes. [Emphasis added.]

Barrack, 882 P.2d at 1032.

Given the above case analyses, we hold that neither Best, Redcrow nor Moore, should henceforth be cited as authority for the proposition that either this Court or the district court may entertain a motion for new trial not timely filed in accordance with § 46-16-702, MCA. Furthermore, as to the new trial issue, we remain convinced that Perry and Barrack were correctly decided given their unique facts and procedural circumstances, and we reaffirm our decisions in those cases. We leave those cases — limited to their facts — standing as two judicially created exceptions to § 46-16-702, MCA, solely because the constitutional due process implications in each transcend the otherwise clear and unambiguous requirements of the statute.

With that frame of reference in mind, we hold that Gollehon’s motion for new trial, filed three and one-half years post-verdict, is barred as being not timely filed and that neither the Perry nor the Barrack exceptions are applicable in the instant case. Unlike Barrack, Gollehon has had a direct appeal of his case, and he has not been lulled into the waiver of any posttrial remedy through error of the trial court. Unlike Perry, Gollehon has the vehicle to raise his post-verdict claims through a petition for post-conviction relief. He may still timely file such a petition under § 46-21-101, MCA; to date, he has simply chosen not to do so.

Accordingly, while we affirm the District Court’s denial of Gollehon’s motion for new trial as being time-barred, we decline to address the merits of the defendant’s Brady claim brought in the context of his untimely new trial motion.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, ERDMANN, HUNT, LEAPHART and TRIEWEILER concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID CHRISTOPHER JOHNSON, Defendant and Appellant.
    No. 95-051.
    Submitted on Briefs September 13, 1995.
    Decided November 30, 1995.
    52 St.Rep. 1186.
    907 P.2d 150.
    274 Mont. 124.

      For Appellant: John Keith, Great Falls.
    For Respondent: Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; Brant Light, Cascade County Attorney, Shawn Glen, Deputy Cascade County Attorney, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

David Christopher Johnson (Johnson) was charged with five counts of criminal sale of dangerous drugs. A plea agreement was reached wherein Johnson pleaded guilty to all five counts. Prior to sentencing, Johnson moved the District Court for the Eighth Judicial District, Cascade County, for ah order allowing Johnson to withdraw his guilty pleas. The District Court denied the motion and sentenced Johnson to ten years with five years suspended on each count. Johnson appeals the denial of his motion to withdraw his guilty pleas. We affirm.

The sole issue on appeal is whether the District Court abused its discretion in denying Johnson’s motion to withdraw his guilty pleas.

Johnson was arrested on October 1, 1993, in Great Falls and charged with five counts of criminal sale of dangerous drugs in violation of § 45-9-101, MCA (1991). The information and supporting affidavit alleged that Johnson sold marijuana to a confidential informant on five separate occasions between September 13 and September 27, 1993. According to the affidavit, Johnson possessed a handgun during the last two transactions with the informant.

An attorney with the Cascade County Public Defenders’ Office was appointed to represent Johnson. At his arraignment, Johnson entered pleas of not guilty on each count. Additionally, the District Court denied a motion for a reduction in the amount of Johnson’s bail.

On January 7, 1994, Johnson’s attorney filed a motion requesting substitution of counsel. The motion stated that counsel had a conflict because he was representing two other criminal defendants against whom Johnson would be called to testify. The District Court granted the motion and another attorney from the public defenders’ office was appointed to represent Johnson.

A second bail reduction hearing was held on January 20,1994, and the District Court reduced Johnson’s bail from $100,000 to $15,000. On January 27, 1994, Johnson’s second attorney filed a motion to be relieved as counsel of record and requested that the court appoint another attorney for Johnson. After a February 4, 1994 hearing, at which Johnson indicated that he did not object to his attorney’s withdrawal, the District Court granted the motion. The court appointed Marvin Anderson, an associate public defender, as the third attorney to represent Johnson.

At the omnibus hearing on March 22,1994, Johnson informed the court that he wanted to defend himself, thus the District Court allowed Johnson to represent himself during the hearing and argue his motions to dismiss for selective prosecution and for multiplicity of charges. These motions were later denied by the court. By stipulation, Johnson’s bail was reduced to $2,500. Johnson was released from jail and trial was set for May 16, 1994.

On the day set for trial, the District Court received a letter from Johnson charging Johnson’s attorney with incompetence and requesting that another attorney be appointed. Before proceeding with jury selection, the District Court held a hearing and inquired about the letter. Johnson told the court that he did not want to be represented by Anderson and requested other counsel. The court refused to appoint other counsel for Johnson, required Johnson to represent himself, and designated Anderson as standby counsel.

After attempting to voir dire the prospective jurors, Johnson entered into a plea agreement with the prosecutor wherein Johnson agreed to plead guilty to the five counts of criminal sale of dangerous drugs, and the prosecutor agreed to recommend ten-year concurrent sentences with no dangerous offender designation or weapons enhancement. The jury was dismissed and Johnson entered a plea of guilty to all five counts.

That same day, the Cascade County Public Defenders’ Office filed a motion requesting to be relieved as Johnson’s counsel because Johnson had been granted leave to intervene in a federal lawsuit involving the operation and effectiveness of that office. The District Court granted the motion the following day and appointed counsel independent of the public defenders’ office to represent Johnson.

On June 21, 1994, through his fourth appointed counsel, Johnson filed a motion to withdraw his guilty pleas. On October 17,1994, the time set for sentencing, the District Court also conducted a hearing on Johnson’s motion. The District Court denied the motion and sentenced Johnson to ten years with five years suspended on each count. The sentences were to run concurrently and Johnson was designated a non-dangerous offender for purposes of parole eligibility. Johnson now appeals the denial of his motion to withdraw his guilty pleas.

Did the District Court abuse its discretion in denying Johnson’s motion to withdraw his guilty pleas?

No set rule or standard exists under which a trial court addresses a request to withdraw a guilty plea; each case must be considered in light of its unique record. State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177 (citing State v. Radi (1991), 250 Mont. 155, 158-59, 818 P.2d 1203, 1206). Our standard in reviewing a denial of a motion to withdraw a guilty plea is whether the district court abused its discretion. Enoch, 887 P.2d at 177 (citing State v. Reynolds (1992), 253 Mont. 386, 390, 833 P.2d 153, 155).

Johnson alleges that his guilty pleas were coerced by the State with the threat that he would receive a more severe sentence if he did not plead guilty and that his pleas were not knowingly and voluntarily made because he was on anti-depressant medication at the time he entered his pleas. He also alleges a claim of ineffective assistance of counsel by his former attorney, Anderson.

Section 46-16-105(2), MCA, states that a court may permit a guilty plea to be withdrawn and a non-guilty plea substituted, for good cause, at any time before or after judgment. “The fundamental purpose of allowing the withdrawal of a guilty plea is to prevent the possibility of convicting an innocent man.” Radi, 818 P.2d at 1206 (quoting State v. Arledge (1987), 228 Mont. 225, 232, 741 P.2d 781, 785).

This Court considers three factors to determine whether good cause existed and whether the District Court erred in refusing to allow withdrawal of 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, 887 P.2d at 177; Radi, 818 P.2d at 1206.

As to the first factor, adequacy of the court’s interrogation at the time the plea was entered, this Court has previously stated:

Where a District Court has done all that it can to determine from the defendant or otherwise, that the proposed plea of guilty is voluntarily made, the defendant understands what he is doing and is advised of the consequences of his plea, including the nature and extent of his punishment, has been adequately advised by counsel, and has been treated fairly at all stages of the prosecution against him, and that in fact the defendant states he is guilty of the charges made, then this Court has a duty to support the District Court when it allows a plea of guilty to be entered in place of a plea of not guilty.

Radi, 818 P.2d at 1208 (quoting State v. Long (1987), 227 Mont. 199, 202, 738 P.2d 487, 489).

In addition to being interrogated in court regarding his guilty plea, Johnson signed a plea agreement and a document entitled “Acknowledgment of Waiver of Rights by Plea of Guilty.” Contrary to Johnson’s assertions that the court’s interrogation was inadequate and did not meet the criteria specified in § 46-12-210, MCA, the combination of the in-court interrogation, the plea agreement and the written acknowledgement do contain all the necessary criteria. This Court has previously held that a written acknowledgement, combined with oral questioning of the defendant, constitutes adequate interrogation. State v. Mahoney (1994), 264 Mont. 89, 95, 870 P.2d 65, 69 (citing State v. Walker (1986), 220 Mont. 70, 73, 712 P.2d 1348, 1350).

The second factor, promptness with which the defendant attempts to withdraw the plea, weighs in Johnson’s favor since Johnson filed his motion less than a month and a half after entering his guilty pleas. It has long been the rule that a request to withdraw a guilty plea should be made within a reasonable time. Enoch, 887 P.2d at 178 (citing State v. Nance (1947), 120 Mont. 152, 165, 184 P.2d 554, 561). In Enoch, a two-month delay between the guilty plea and a motion to withdraw was considered reasonable.

As to the third factor, that the plea was the result of a plea bargain, the record shows that Johnson, through his attorney, negotiated with the prosecutor on several occasions before Johnson agreed to plead guilty on all five counts. In exchange for a guilty plea, the prosecutor agreed to recommend concurrent sentences of ten years on each count, a far more lenient sentence than the maximum penalty of life imprisonment. In addition, the prosecutor agreed not to recommend a sentence enhancement for the use of a weapon or a dangerous offender designation.

We have often held that this Court “will not lend its assistance to an accused criminal in escaping his or her obligations of a plea bargain after accepting its benefits.” State v. Milinovich (1994), 269 Mont. 68, 74, 887 P.2d 214, 218 (quoting Reynolds, 833 P.2d at 157).

Johnson attacks the voluntariness of his guilty pleas. He contends that he was coerced by threats that he would receive a more severe sentence if he did not plead guilty and that he was on antidepressant medication at the time of his pleas. The United States Supreme Court has long held that a plea is not involuntary simply because it was entered to avoid a greater punishment. Milinovich, 887 P.2d at 216 (citing Brady v. United States (1970), 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747, 760). Moreover, in the acknowledgement of waiver of rights Johnson signed, he stated that his plea was made voluntarily; that he was not suffering under any emotional or mental disability from any cause including the use of drugs, alcohol or prescription medication; and that he understood what he was doing by pleading guilty.

Johnson also claims that constitutional violations occurred prior to the plea agreement. He claims that his right to counsel was denied because he was forced to represent himself and he claims a form of double jeopardy due to the multiplicity of charges. However, because Johnson pleaded guilty, he waived all factual defenses which occurred prior to the plea. State v. Skroch (1994), 267 Mont. 349, 358, 883 P.2d 1256, 1262-63 (citations omitted). Thereafter, Johnson may only attack the voluntary nature of his plea. Skroch, 883 P.2d at 1263. Moreover, at the change of plea hearing, Johnson was not unrepresented but in fact had standby counsel.

Johnson also claims ineffective assistance of counsel involving Anderson, Johnson’s counsel at the time he entered his guilty pleas. To determine whether a defendant received ineffective assistance of counsel, this Court must conduct the two-part Strickland test, adopted in State v. Robbins (1985), 218 Mont. 107, 114, 708 P.2d 227, 232. In that case we stated:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Robbins, 708 P.2d at 232 (citing Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674). If the issue is a defendant’s guilty plea, the defendant must demonstrate that but for counsel’s deficient performance, a defendant would not have entered a guilty plea. Mahoney, 870 P.2d at 73 (citing State v. Senn (1990), 244 Mont. 56, 59, 795 P.2d 973, 975).

Johnson has not demonstrated that he entered the guilty pleas due to any deficient performance by Anderson. Anderson was not only prepared to represent Johnson at trial, he also prepared a packet of information for Johnson in case Johnson decided to represent himself at trial. It was only after the court ordered Johnson to represent himself that Johnson entered the guilty pleas. Additionally, the record shows that the plea agreement was in line with what Johnson had originally expected to receive.

Furthermore, despite Johnson’s assertions that a conflict of interest existed rendering Anderson’s assistance ineffective, Johnson has failed to show that his intervention in the federal lawsuit involving the public defender’s office resulted in a conflict that adversely affected Anderson’s performance. Moreover, Johnson stated at his change of plea hearing that he was satisfied with his attorney and in the acknowledgement of waiver of rights he stated that he was fairly and properly represented by his attorney.

Accordingly, since Johnson has failed to show good cause to allow withdrawal of his guilty pleas, we hold that the District Court did not abuse its discretion by denying Johnson’s motion.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and LEAPHART concur.