author: JUSTICE WEBER

text:
    IN RE THE MARRIAGE OF ANITA WILSEY, Petitioner and Respondent, and CHRISTOPHER JOSEPH WILSEY, Respondent and Appellant.
    No. 91-515.
    Submitted on briefs Apr. 3, 1992.
    Decided May 5, 1992.
    49 St. Rep. 406.
    253 Mont. 85.
    831 P.2d 590.
    For Appellant: Don A. LaBar, Church, Harris, Johnson & Williams, Great Falls.
    For Respondent: James R. Walsh, Smith, Walsh, Clarke & Gregoire, Great Falls.
   JUSTICE WEBER

delivered the Opinion of the Court.

The District Court for the Eighth Judicial District, Cascade County, granted Anita Wilsey’s (Mrs. Wilsey) motion for judgment on the pleadings, or in the alternative, summary judgment. Christopher Joseph Wilsey (Mr. Wilsey) appeals. We reverse and remand.

We restate the issue as follows:

Did the District Court err in holding that Mr. Wilsey owed 37 months of child support at $1500 per month, less $3300 paid, and in holding that he owed $1500 per month until the children graduated from high school, without regard to the sale of his limited partnership interest?

Mr. and Mrs. Wilsey were married in San Francisco, California on July 2, 1978. There were three children born of the marriage.

On June 3, 1988, the parties entered into a separation agreement. The agreement was signed by the parties and was signed and approved by their respective attorneys.

Paragraph three (3) of the agreement provided:

That the interest of Chris in the limited partnership, Pyrite Investors, shall be liquidated and the proceeds placed in trust for the payment of child support in the total amount of $1,500.00 per month to Anita. When the youngest child reaches majority or is otherwise emancipated, any funds remaining in the trust will be distributed to the children. An independent trustee, possibly Steve Wilsey, will manage the trust;

Mrs. Wilsey filed a petition for dissolution on August 25,1988. She subsequently filed an amended petition for dissolution in which she alleged the existence of the June 3, 1988, separation agreement and requested enforcement of the agreement.

In his answer, Mr. Wilsey admitted that the separation agreement existed but denied that it was final. Rather, he alleged that the agreement was entered into due to extreme economic pressure, and contended that the agreement was invalid and unenforceable.

On June 25,1991, over 3 years after the execution of the separation agreement, Mrs. Wilsey filed a motion for judgment on the pleadings, or in the alternative, summary judgment, and a motion for determination of child support arrearages. Mr. Wilsey filed his brief in response to the motions on July 1, 1991. The District Court also received an affidavit from Mrs. Wilsey’s attorney, Richard Dzivi, as well as an affidavit from Mr. Wilsey. A hearing was held on July 31, 1991.

The District Court determined that the parties had equitably divided all property and debts not disposed of in the settlement agreement. It then granted Mrs. Wilse/s motion for judgment on the pleadings, or in the alternative, summary judgment, finding that the settlement agreement was final and not unconscionable. In that regard the court found:

37. The June 3, 1988 Property Settlement Agreement is enforceable and not unconscionable, and should be approved. [Mr. Wilsey’s] child support obligation has been accruing for 37 months at the rate of $1,500. 00 per month for a total arrearage of $55,500. 00. [Mr. Wilsey] has paid $3,300. 00 in child support. Accordingly, [Mr. Wilsey] is indebted to [Mrs. Wilsey] for the sum of $52,200.00 for past-due child support.

The court then concluded:

3. [Mr. Wilsey] owes a child support arrearage of $52,200. 00 to [Mrs. Wilsey]. She is entitled to immediate execution therefor.
4. [Mr. Wilsey] shall pay to [Mrs. Wilsey] the sum of ONE THOUSAND FIVE HUNDRED AND NO/100 DOLLARS ($1,500. 00) per month as and for the care, support and maintenance of said minor children until they graduate from high school, except while they are wholly self supporting or otherwise emancipated.
5. Said payments shall commence immediately...

Mr. Wilsey appeals from that portion of the District Court’s order concerning child support.

Did the District Court err in holding that Mr. Wilsey owed 37 months of child support at $1500 per month, less $3300 paid, and in holding that he owed $1500 per month until the children graduated from high school, without regard to the sale of his limited partnership interest?

Mr. Wilsey maintains that under paragraph three of the separation agreement, he was to pay child support at $1500 per month only after he liquidated his interest in Pyrite Investors and placed the proceeds in trust for the payment of such child support. Thus, he contends that since his interest in Pyrite Investors has yet to be liquidated, no obligation to pay child support under the agreement has yet accrued.

Again, paragraph three (3) of the agreement provided:

That the interest of Chris in the limited partnership, Pyrite Investors, shall be liquidated and the proceeds placed in trust for the payment of child support in the total amount of $1,500. 00 per month to Anita. When the youngest child reaches majority or is otherwise emancipated, any funds remaining in the trust will be distributed to the children. An independent trustee, possibly Steve Wilsey, will manage the trust;

Both parties agree that Mr. Wilsey’s limited partnership interest in Pyrite Investors has not yet been liquidated. As a result, there are no proceeds from the liquidation of that partnership interest which can be placed in trust for the payment of child support of $1500 per month as provided in the agreement. In itself the separation agreement fails to provide what should happen regarding the payment of child support in the event that the limited partnership interest is not liquidated. We conclude that because of the failure to liquidate the Pyrite Investors limited partnership interest, there is no basis under the separation agreement for the District Court child support arrearage order of $52,200, or the award of $1500 per month. The materials considered by the District Court on summary judgment indicate there are issues of fact as to the value of the partnership and as to the reasons for failure to liquidate. In addition, there appear to be issues of fact as to the capacity of Mr. Wilsey to pay the obligation of child support as ordered by the District Court. There are also issues of fact with regard to the amount of child support which may be due without regard to the separation agreement provision. In view of these issues of fact, summary judgment was not appropriate. We hold that the District Court erred in its holding that Mr. Wilsey owed 37 months of child support at $1500 per month, less $3300 paid, and holding that he owed $1500 per month, all under the separation agreement.

In reaching the above conclusion, we are not suggesting that Mr. Wilsey does not have child support obligations to his children. As pointed out in State Dept. of Revenue v. Hubbard (1986), 222 Mont. 156, 160, 720 P. 2d 1177, 1179, child support is a social and moral obligation imposed by law without court action, and whether or not a court has ordered payment of child support, a parent has an obligation to pay it. The materials considered by the District Court indicate that Mr. Wilsey has failed to adequately meet his child support obligations. This issue will properly be considered on remand.

We reverse the District Court’s holding that under the separation agreement, Mr. Wilsey owed a child support arrearage to Mrs. Wilsey in the amount of $52,200, and that he was obligated under that agreement to pay $1500 per month in child support until the children graduate from high school. We remand to the District Court for a determination of the proper amount of child support to be paid by Mr. Wilsey and for determination of such issues as the court finds exist with regard to the liquidation of the Pyrite Investors partnership interest, and for such other matters as the court deems appropriate, including the issue of amendment of pleadings. Without ruling upon the same, we note that the Rules of Civil Procedure have been broadly construed to permit amendments of pleadings such as those originally sought by Mr. Wilsey.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, GRAY, TRIEWEILER, McDONOUGH and HUNT concur.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    STATE OF MONTANA EX REL., R. BUD GOULD, H.W. “SWEDE” HAMMOND, JERRY NOBLE, JOHN E. PHILLIPS, and BOB THOFT, Petitioners and Relators, v. MIKE COONEY, Secretary of State of the State of Montana; KIM HARRIS, Election Administrator and Clerk and Recorder of Lewis and Clark County, Montana, individually and as representative of the class of all election administrators and clerk and recorders of the State of Montana, and THE STATE OF MONTANA, Respondents.
    No. 92-174.
    Decided May 6, 1992.
    49 St.Rep. 410.
    253 Mont. 90.
    831 P.2d 593.
   OPINION AND ORDER

This is an application and petition for writ of injunction and declaratory judgment. Petitioners and relators are members of the Montana legislature and residents, registered voters, and taxpayers of Montana. They ask this Court for an injunction preventing defendants and respondents from allowing a referendum measure identified as House Bill 19 from appearing on the June 1992 election ballot. This is the proposition otherwise known as the “Treasure State Endowment.” Petitioners and relators also ask for a declaratory judgment that House Bill 19 is an unconstitutional attempt by the legislature to refer to the people of Montana a “bill” which has not been subject to the veto power of the Governor of Montana.

Responses to the application and petition have been filed by Kim Harris, Lewis and Clark County Treasurer/Clerk and Recorder, and by Mike Cooney, Secretary of State. Cooney, supported by Harris, moves to dismiss the action for failure to properly join and serve all necessary parties, failure to bring the action in a timely fashion, failure to present a case for which the Supreme Court should assume original jurisdiction, and failure to state a claim for which relief can be granted.

In filing this action, petitioners and relators named the Secretary of State and all of the election administrators throughout the state as respondents. However, instead of serving all of the county election administrators, they simply named Kim Harris as the representative of the class of election administrators throughout the state. Respondents argue that this case does not meet the Rule 23(a), M.R.Civ.P., requirement for a class action that the members of the class are so numerous that joinder of all members is impracticable.

Because we conclude, as described more fully below, that it is necessary for this Court to assume original jurisdiction in this matter and that the petition for an injunction should be denied, we shall proceed to the merits of this matter. We make no ruling as to the method of service of process used in this case.

In order to assume original jurisdiction, this Court has stated that three elements must be met. These are 1) that constitutional issues of major statewide importance are involved; 2) that the case involves pure legal questions of statutory and constitutional construction; and 3) that urgency and emergency factors exist making the normal appeal process inadequate. State ex rel. Greely v. Water Court of State (1984), 214 Mont. 143, 691 P.2d 833; Butte-Silver Bow Local Government v. State (1989), 235 Mont. 398, 768 P.2d 327.

The ultimate issues in this case are constitutional issues of major statewide importance which can be resolved on a purely legal basis of statutory and constitutional construction. Delaying a final ruling on the application and petition would leave unanswered the question of whether the referendum measure identified as House Bill 19 will appear on the rapidly approaching June 2 primary ballot in Montana. Therefore, and in the interests of judicial economy, we accept original jurisdiction in this matter.

Petitioners and relators assert that Article VI, Section 10, of the Montana Constitution requires the governor to sign legislation authorizing the submission of a legislative referendum to the vote of the people. They suggest that the term “referendum” as used in Article VI, Section 10, does not include a legislative referendum.

In resolving disputes of constitutional construction, this Court applies the rules of statutory construction. Under these rules, the intent of the framers of the Constitution is controlling and must first be determined from the plain language of the words used. Butte-Silver Bow, 768 P.2d at 330.

Article VI, Section 10, of the Montana Constitution provides: Veto power. (1) Each bill passed by the legislature, except bills proposing amendments to the Montana constitution, bills ratifying proposed amendments to the United States constitution, resolutions, and initiative and referendum, measures shall be submitted to the governor for his signature. [Emphasis added.]

Article III, Section 5, of the Montana Constitution provides that:

[a] referendum shall be held either upon order by the legislature or upon petition signed by at least five percent of the qualified electors in each of at least one-third of the legislative representative districts. [Emphasis added.]

We conclude that “referendum measures” as used in the Montana Constitution means both legislative referendum and initiative referendum. The plain language of these sections of the Montana Constitution makes it clear that legislation calling for a referendum measure is not required to be signed by the governor.

Petitioners and relators also claim that the referendum measure identified as House Bill 19 is an appropriations measure and, therefore, under Article III, Section 5, of the Montana Constitution, cannot be submitted to the people as a ballot issue. However, as described in the Attorney General’s ballot statement fiscal note, the “measure redirects coal severance tax from the permanent trust to a treasure state endowment trust.” On its face, this measure is not an appropriation of money.

Section 13-27-310(2), MCA, provides that:

The secretary of state shall transmit a copy of an act referred to the people or a constitutional amendment proposed by the legislature and a copy of the form in which the issue will appear on the ballot to the attorney general no later than 6 months before the election at which the issue will be voted on by the people.

Petitioners and relators argue that, because House Bill 19 was passed by the legislature less than six months before the special election at which the legislature ordered it be placed on the ballot, and was therefore necessarily submitted to the Attorney General less than six months before the election, the measure must be removed from the ballot as violative of § 13-27-310(2), MCA.

However, § 1-2-102, MCA, provides that:

[i]n the construction of a statute, the intention of the legislature is to be pursued if possible. When a general and particular provision are inconsistent, the latter is paramount to the former, so a particular intent will control a general one that is inconsistent with it.

House Bill 19 specifically directs the Secretary of State to place this referendum on a special election ballot held at the same time as the June 1992 primary election. As discussed above, the legislature possesses authority to do so, under Article III, Section 5, of the Montana Constitution. Petitioners and relators have not alleged that any procedural steps have been disregarded as a result of the shortened time between submission of this measure to the Attorney General and the June 1992 election. Further, the time element did not prevent petitioners and relators from delaying their application to this Court for nearly three months after House Bill 19 was delivered to the Secretary of State. We conclude that the statement of particular intent in House Bill 19 that this measure appear on the June 1992 ballot controls over the statement of general intent set forth at § 13-27-310(2), MCA.

IT IS ORDERED that the application for an injunction is DENIED.

DATED this 6th day of May, 1992.

s/ J.A. Turnage. Chief Justice

s/ John Conway Harrison. Justice,

s/ R.C. McDonough. Justice

s/ Terry Trieweiler. Justice s/ Fred J. Weber. Justice

JUSTICE GRAY

specially concurring:

I concur in the practical effect of the majority order and opinion. Under these circumstances, I would have dismissed the application and petition as untimely.

JUSTICE HUNT did not participate.


author: JUSTICE WEBER JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES LEE CAMERON, Defendant and Appellant.
    No. 91-029.
    Submitted on Briefs November 21, 1991.
    Decided February 20, 1992.
    49 St.Rep. 150.
    253 Mont. 95.
    830 P.2d 1284.

      For Appellant: Michael Donahoe, Helena.
    For Respondent: Marc Racicot, Attorney General; Joseph E. Thaggard; Mike McGrath, County Attorney, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendant, James Lee Cameron, was charged with two counts of felony sexual assault pursuant to § 45-5-502, MCA. On September 4, 1990, in the District Court for the First Judicial District, Lewis and Clark County, defendant pled guilty to both counts pursuant to an Alford plea. Subsequently, defendant moved to withdraw his guilty plea. The District Court denied his motion and sentenced defendant to concurrent terms of twenty years imprisonment, with five years suspended on each count. Defendant appeals. We affirm.

The issues for our review are:

1. Did the District Court abuse its discretion when it refused to allow the defendant to withdraw his pleas of guilty?

2. Did the defendant receive ineffective assistance of counsel with respect to his attorney’s advice that he should enter Alford pleas to the charged offenses rather than proceeding to trial?

3. Did the District Court deny the defendant due process of law in violation of the Montana and United States Constitutions?

4. Did a sufficient factual basis exist for the District Court to accept the defendant’s pleas of guilty?

5. Did the District Court commit reversible error by failing to arraign the defendant on the charges set forth in the amended information?

On April 18,1990, the State charged the defendant by information with two counts of felony sexual assault, pursuant to § 45-5-502, MCA. Count I arose from allegations that defendant had sexually molested his daughter, M.S., between 1985 and 1989. Count II arose from allegations that defendant sexually molested E.R, the daughter of a woman with whom defendant had an affair, between 1985 and 1989. Both victims were nine or ten years old at the time the State filed the information.

Originally, defendant pled not guilty to both charges. Then, two weeks before the trial date, his attorney, Cort Harrington, moved the District Court for leave to withdraw as defendant’s attorney. The motion was granted and the trial was postponed.

On May 29, 1990, the District Court appointed Mayo Ashley as defense counsel. As the September trial date closed in, defendant became dissatisfied with Ashley’s representation. About one week before trial defendant asked Cort Harrington to resume his defense. Harrington refused.

Two days before trial, because he was feeling stressed, defendant met with Lynn Pillman, a licensed professional counselor. During the meeting defendant expressed to Ms. Pillman his disappointment with Ashley’s representation and told Ms. Pillman that he did not wish to force the victims to testify in court. Ms. Pillman explained to defendant that, although she was not an attorney, she had previously counseled a client who pled guilty and later, after serving some time without illegal involvement, changed the plea to not guilty. She suggested defendant talk to his attorney about entering such a plea.

The morning of trial defendant asked Ashley about an Alford plea. Later that morning, defendant decided to enter Alford pleas to both counts of the information.

Prior to entry of the pleas the District Court and defendant had the following exchange.
THE COURT: You are entitled to have the amended information read to you in its entirety. Do you wish to have it read?
MR. CAMERON: No, Your Honor.
THE COURT: I think we’ve gone over this once before, but, the maximum possible punishment for sexual assault is imprisonment in the state prison for a term not to exceed 20 years and a fine of not more than $50,000. Now, that’s on each count. Now, these are separate offenses, and under Montana law, it is possible to make sentences run consecutively, that is, one after the other. So, the maximum amount of prison time that could be imposed would be 40 years in the state prison and a fine — fines up to $100,000; do you understand that?
MR. CAMERON: Yes, Your Honor.
THE COURT: Do you understand that you are entitled to trial by jury in this matter?
MR. CAMERON: Yes, Your Honor.
THE COURT: Now, we had a discussion about the psychologist in chambers, but other than that, if you have witnesses that had relevant information, do you understand that you could have called them to testify, that is, anybody that might have been a witness to the situation. I’m not talking about somebody who did an independent evaluation or anything like that, we’re talking about a witness to what went on; do you understand that?
MR. CAMERON: Yes.
THE COURT: Now, if you went to trial and you were found guilty,you could appeal your conviction to the Montana Supreme Court. You would be represented by an attorney during that appeal, do you understand that?
MR. CAMERON: Yes.
THE COURT: Now, you have — you cannot be compelled to incriminate yourself. That means that you have a right to remain silent and that can’t be used against you. Mr. McGrath couldn’t argue to the jury that Cameron must be guilty just because he’s sitting there not saying anything.He’s not saying anything different than our witnesses. Do you understand he can’t make that kind of an argument to the jury?
MR. CAMERON: Yes.
THE COURT: How is your head today, is it clear?
MR. CAMERON: Pretty mixed up.
THE COURT: But, you know what’s going on?
MR. CAMERON: Yes, Your Honor.
THE COURT: Now, you’ve had — we were supposed to start trial about an hour and a half ago. You have had an opportunity to consult with — I don’t know who it was, but you made some phone calls and consulted with a person other than Mr. Ashley; is that correct?
MR. CAMERON: Yes, Your Honor.
THE COURT: And you know what’s going on?
MR. CAMERON: Yes.
THE COURT: I understand from Mr. Ashley, that you wish to enter what’s called an Alford plea. I think he’s probably explained to you that’s the name of the case oí North Carolina versus Alford or Alford versus North Carolina, I can’t remember. But, anyway, it’s a United States Supreme Court case which essentially says you enter a plea without having to tell me specifically what happened. And do you generally understand what an Alford plea is?
MR. CAMERON: Yes, Your Honor.
THE COURT: That’s been explained to you. Do you have any questions about it?
MR. CAMERON: No, Your Honor.
THE COURT: Now, if you enter a plea, even though it may be an Alford plea, do you understand that you can’t later come in here and withdraw that plea and ask that that plea be withdrawn? Do you understand?
MR. CAMERON: Yes, Your Honor. (Emphasis supplied.)

Following this colloquy, defendant entered a plea of guilty to each count pursuant to the Alford case. Before accepting the plea, the District Court again

asked defendant if he understood the implications of an Alford plea. After the defendant said he did the District Court asked for an offer of proof and then accepted the plea. It also ordered that defendant undergo both a sex offender evaluation and a presentence investigation and set sentencing for November 1, 1990.

Prior to sentencing, defendant moved the District court for leave to withdraw his guilty pleas for the following reasons.

(1) “Good cause’” exists within the meaning of §46-16-105, MCA to allow the Defendant to withdraw his guilty plea because it will prevent the possibility of convicting an innocent man;
(2) The Defendant erroneously thought that despite his guilty plea he would have an opportunity to prove his innocence either before or after sentencing and the Defendant reached this conclusion based on advise he was given by his Court appointed counsel;
(3) The Court erred in not granting a continuance to allow the Defendant to obtain new counsel since no hearing was held to determine whether the Defendant’s concerns about his Court appointed counsel were true;
(4) The Court erred in denying the Defendant’s motion for an examination of the alleged victims by a defense psychologist and the denial of this motion deprived the Defendant of his rights to due process and equal protection under the Montana and United States constitutions.

After a hearing, the District Court denied defendant’s motion for lack of good cause shown. Defendant appeals.

I

Did the District Court abuse its discretion when it refused to allow the defendant to withdraw his pleas of guilty?

Defendant argues that in entering an Alford plea he still maintained his innocence. He further contends that he was confused about the Alford plea and that his case is defensible.

The State maintains that defendant voluntarily pled guilty and understood the consequences of a guilty plea. The State also contends that defendant’s pleas of guilty were given intelligently and thus, the pleas were valid. We agree.

Section 46-16-105(2), MCA, provides:

At any time before or after judgment the court may, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. (Emphasis added).
Defendant has failed to show good cause for the withdrawal of his guilty pleas.

The determination of good cause is a matter of discretion for the district court and absent an abuse of that discretion, this Court will uphold the district court’s refusal to permit the withdrawal of a guilty plea. State v. Miller (Mont. 1991), [248 Mont. 194,] 810, P.2d 308, 310, 48 St.Rep. 389, 390. In Miller we stated:

We recently reviewed the subject of a defendant’s request to withdraw a guilty plea in Benjamin v. McCormick (1990), 243 Mont. 252, 792 P.2d 7. “When a guilty plea is based upon a fundamental mistake or misunderstanding as to its consequences, the sentencing court, at its discretion, may allow the defendant to withdraw the plea.” Benjamin, 792 P.2d at 10. We further noted:
“A change of plea will be permitted only if it fairly appears the defendant was ignorant of his rights and the consequences of his act, or he was unduly and improperly influenced either by hope or by fear in making the plea, or if it appears the plea was entered under some mistake or misapprehension. Each case must be examined on its own record ...”

Miller, 810 P.2d at 310.

There is nothing in the record to establish that the defendant’s plea was based upon a fundamental mistake or misunderstanding as to its consequences. In a similar manner, there is nothing in the record to indicate that the defendant was ignorant of his rights and the consequences of his act, or that he was unduly or improperly influenced by hope or by fear, or that his plea was entered under some mistake or misapprehension. As required in Miller, we have reviewed the record in this case and conclude that the District Court did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea. We affirm that action of the District Court.

A key conclusion on the part of the dissent is that defendant’s attorney failed to explain that there was no possibility of a favorable sex offender evaluation if the defendant continued to maintain his innocence. It is that conclusion which leads the dissent to suggest that defendant should be allowed to withdraw his plea of guilty. The record in this case does not show that if the defendant maintained his innocence, there was no possibility of a favorable sex offender evaluation. That conclusion is reached by going outside the record. We therefore restate our previous conclusion that the record does not establish that the defendant’s plea was based upon a fundamental mistake or misunderstanding as to its consequences.

II

Did the defendant receive ineffective assistance of counsel with respect to his attorney’s advice that he should enter Alford pleas to the charged offenses rather than proceeding to trial?

Defendant maintains that Mr. Ashley did not provide him with effective assistance of counsel with respect to his Alford plea. He contends that there was nothing for him to gain by entering sea. Alford plea since he maintained his innocence. The State urges that defendant’s claim is without merit and that he has failed to establish that Mr. Ashley’s assistance was ineffective.

The United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 687, set forth the test for determining when counsel is ineffective. The defendant must establish that: (1) the counsel’s performance was deficient; and (2) the deficient performance so prejudiced the defendant as to deprive him of a fair trial. With regard to the Strickland test, this Court has stated:

Under the two-pronged test set forth in Strickland, the defendant must first demonstrate that counsel’s performance was deficient. To demonstrate that a counsel’s performance was deficient, defendant must prove that counsel's performance fell below the range of competence reasonably demanded of attorneys in light of the Sixth Amendment. Second, the defendant must demonstrate that the counsel’s deficiency was so prejudicial that the defendant was denied a fair trial. To satisfy this requirement, the defendant must demonstrate that but for counsel’s deficient performance, it is reasonably probable that the result of the challenged proceeding would have been different. When a guilty plea is at issue rather than the result of a trial, the defendant must demonstrate that but for counsel’s deficient performance, the defendant would not have pled guilty, and would have insisted on going to trial. (Citations omitted.)

State v. Senn (1990), 244 Mont. 56, 59, 795 P.2d 973, 975; State v. Aills (Mont. 1991), [250 Mont. 533,] 822 P.2d 87, 48 St.Rep. 960.

Defendant has failed to meet the Strickland test. First, he has failed to demonstrate that Mr. Ashley’s performance fell below the range of competence reasonably demanded of attorneys in light of the Sixth Amendment. Mr. Ashley was prepared to go to trial. He testified he worked on the case from the time he got it until the day of trial, at a “minimum of two to three hours a week”. The morning of the trial, defendant asked him about an Alford plea. Mr. Ashley explained an Alford plea to defendant and defendant understood it, as is clear from the interrogation of defendant by the trial judge before the pleas were accepted. Defendant attempts to argue that because he contends he is innocent, he should not have to pay the consequences of a plea of guilty. That argument is effectively rebutted by the previously quoted examination by the court where the maximum penalties were discussed, and where the defendant acknowledged that it was possible he could receive sentences totaling forty years in prison and $100,000 in fines.

We conclude that defendant has failed to show in any respect that his counsel’s performance was deficient. As a result we need not address the second prong of the test with regard to prejudice. We hold that the defendant did not receive ineffective assistance of counsel with respect to his attorney’s advice that he should enter Alford pleas rather than proceeding to trial.

Ill

Did the District Court deny the defendant due process of law in violation of the Montana and United States Constitutions?

Defendant contends that the District Court denied him due process because the court should have informed him that to admit to the offenses would probably require him to attend an inpatient’s sex offender treatment program at the State Prison, and continued assertion of innocence would prevent him from completing that program. The record does not contain any information on these contentions on the part of the defendant.

After a presentence hearing and prior to the sentencing of the defendant, the District Court stated:

THE COURT: Is there any legal reason why sentence should not now be pronounced?
MR. DONAHOE: No, Your Honor.
MR. McGRATH: No, Your Honor.
THE COURT: Mr. Cameron, you have been convicted by your pleas of guilty of two offenses of sexual assault. For sexual assault in count one, it is the judgment of this Court that you be sentenced to Montana State Prison for a term of 20 years.
In count two, for the offense of sexual assault, it is the judgment of this Court that you be sentenced to the Montana State Prison for a term of 20 years. Those terms will run concurrently, and that I’m also going to suspend five of those years on certain conditions.
I’ve also considered the information contained in the presentence report. Mr. McGrath was correct, this has been an emotional case right from the start. Everybody has been caught up in that emotion. As Mr. McGrath wanted a much longer sentence, under the circumstances I think this is appropriate. I believe that certain conditions are needed in this case. Those conditions that I just laid down. If I did not suspend any of your sentence, you wouldn’t have any conditions. I could fine you, like Judge Davis did yesterday, but my understanding of the law is that unless a portion of the sentence is suspended, that I don’t retain any jurisdiction to lay down conditions. That’s up to the parole board.

The record contains no evidence to establish that the District Court misled the defendant in any way with regard to his claim of violation of due process of law.

We hold that the District Court did not deny defendant due process of law in violation of the Montana and United States Constitutions.

IV

Did a sufficient factual basis exist for the District Court to accept the defendant’s pleas of guilty?

Defendant maintains that there was an insufficient factual basis for the District Court to accept his guilty pleas.

Again, the defendant’s argument lacks merit. In interpreting North Carolina v. Alford this Court has held that “there is no constitutional prohibition against accepting the guilty plea of a defendant who denied his actual guilt”. In the Matter of Brown (1980), 185 Mont. 200, 204, 605 P.2d 185, 187.

With regard to the factual basis for the plea, the following is a portion of the statement made by the prosecuting attorney in the District Court prior to sentencing:

If we went to trial, the State is prepared to present both the young victims as witnesses. [M.S.] would testify that she is the daughter of Jim Cameron, that over a period of years, over a period of the past five years, that he subjected her to various types of sexual assault, including beginning with game — playing tickle game, such as that advanced to more sophisticated games where she was required to touch his penis and genital area and he would touch her vaginal area and touch her on the breasts. She would also testify that over a period of years, that that kind of sexual activity occurred on a regular basis when she had visitation with him. That included him touching her with his penis and that she would also testify that she observed Mr. Cameron attempting to have intercourse with [E. R] while the three of them were sleeping in the same bed in Mr. Cameron’s residence in Lewis and Clark County. [E.P.] would testify to similar events. She is the daughter of a woman that Mr. Cameron had an affair with .... She would testify that over a period of years, that she was involved in various forms of sexual assault with Mr. Cameron, including, ... tickle games, pornographic films, touching. He’d have her touch his penis, his genitals and vice versa, that he attempted to insert his fingers inside her vagina and occasionally insert his penis inside her vagina.
In addition to the testimony from the girls, we would have testimony from Dr. Elizabeth Gunderson who examined — performed physical examinations on both of these girls, would testify that, in fact, [E.R] was so frightened that she refused to have Dr. Gunderson physically examine her, and that she had to undergo — be placed under anesthesia out at St. Peter’s hospital before Dr. Gunderson could examine her.
That in Dr. Gunderson’s many years of experience, she had never had a victim that refused an examination and had to be placed under anesthesia. That in the course of the physical examination of [E.P.], Dr. Gunderson concluded that, in fact, there was a considerable manipulation and healing, and that it is her opinion that [E.P.] has been sexually molested.
She would also testify that she examined [M.S.], that she took a history from (M.S.], and she also took a history from [E.P.]. Both girls indicated that they had been touched and penetrated by Mr. Cameron.
We would also have testimony from Debbie Huigen who is a certified licensed counselor who’s been seeing [E.P.] and [her] mother, and Ms. Huigen would testify to a number of things regarding the dynamics of victims of sexual assault and would conclude her testimony by saying that in her opinion, [E.P.] is, indeed, the victim of sexual assault and has been sexually abused.
Tom Walstad, also a certified licensed counselor, would testify that he has, over the period of months, been counselling with [M.S.], that she has exhibited considerable symptoms of a victim of sexual assault, including a seizure disorder that Dr. Gunderson was prepared to testify about as well; that the seizures, in fact, stopped after the disclosure in this case and [M.S.] was assured that she would no longer have to visit with Mr. Cameron; and that in Mr. Walstad’s opinion, [M.S.] is, indeed, a victim of sexual abuse.

We hold that the State’s offer of proof established an adequate factual basis for the District Court to accept defendant’s pleas.

V

Did the District Court commit reversible error by failing to arraign the defendant on the charges set forth in the amended information?

Defendant urges that the District Court violated § 46-ll-403(l)(d), MCA, when it did not arraign him on the amended information. The State maintains that the District Court substantially complied with the arraignment procedures set forth in §§ 46-12-201 and 46-12-202, MCA. The State also urges that defendant waived any such error when he pled guilty to the charged offenses without objecting to said irregularities in the arraignment.

The only difference between the original and the amended information was the addition of the requisite mental states in the amended information. The charges were the same. Section 46-11-205(3), MCA, provides:

The court may permit an information to be amended as to form at any time before a verdict or finding is issued if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced. (Emphasis added.)

Here, the substantial rights of the defendant were not prejudiced when the District Court accepted the amended information but did not arraign him on it. In addition, as previously quoted, the court pointed out to the defendant that he was entitled to have the amended information read in its entirety and asked if he wished to have it read, to which the defendant responded “no.” When an amended information makes substantive changes in the charges, he should be arraigned. Here the amendment was not substantial and the charges remained the same.

We hold that the District Court did not commit reversible error by failing to arraign the defendant on the charges set forth in the amended information.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and McDonough concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the opinion of the majority. I would reverse the District Court’s denial of defendant’s motion to withdraw his guilty plea because I conclude that in denying that motion the District Court abused its discretion.

The defendant’s guilty plea is referred to in the vernacular of criminal lawyers as an Alford plea. It was entered pursuant to the United States Supreme Court’s decision in North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d. 162. In that case the Supreme Court held that: An individual accused of a crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.

Alford, 400 U.S. at 37, 91 S.Ct. at 167, 27 L.Ed. 2d at 171.

The problem is that the profession of innocence which can be maintained concurrently with an Alford plea of guilt has adverse consequences for any person convicted of a sexual offense. In this case, the District Court’s failure to explain those adverse consequences was compounded by representations from the defendant’s attorney which actually misled him concerning the consequences of his plea.

This Court knows about and cannot ignore the realty of sex offender therapy. The fact is, under the current state of the art, no person in Montana can receive sex offender therapy unless he or she is willing to admit that they committed the sexual offense with which they are charged. We know that that is true whether the treatment occurs inside the Montana State Prison or outside its confines.

In State v. Donnelly (1990), 244 Mont. 371, 798 P.2d 89, the defendant was convicted of incest and sentenced to imprisonment at the Montana State Prison. The District Court also ordered that he would be ineligible for parole until successful completion of the sexual offender program at the prison. On appeal, the following facts were undisputed:

[I]n order to be accepted into the sexual offender program and receive treatment, defendant must admit to incest of which he was convicted. Defendant contends that if he does not admit to incest, he will be denied treatment, and thus denied parole.

Donnelly, 798 P.2d at 95.

In that case, we held that conditioning parole on defendant’s completion of the sexual offender program under those circumstances did not violate his privilege against self-incrimination.

In State v. Imlay (Mont. 1991), [249 Mont. 82,] 813 P.2d 979, 48 St.Rep. 588 [Cert. granted, 112 S.Ct. 1260] the defendant’s prison sentence was suspended on the condition that he complete a sex offender treatment program outside the prison. However, that suspended sentence was revoked when the defendant was repeatedly rejected from sex offender treatment programs in Montana due to the fact that he denied committing the acts for which he was convicted. Testimony from Michael Sullivan, the social worker who had attempted to treat the defendant in that case, was summarized as follows in our decision:

Sullivan testified that the defendant’s denial made it impossible for him to treat him in their program. He also testified that there was no other outpatient sexual therapy program in the State of Montana which would treat a sexual offender who denied that he was guilty of sexual misconduct.

Imlay, 813 P.2d at 982, [Cert. Granted, 112 S.Ct. 1260.

The point of mentioning what we know about treatment of sexual offenders is simply this: The sentence imposed on someone who pleads guilty to sexual assault is largely dependent on the presentence investigation. Section 46-18-111, MCA (1989). The presentence investigation must include an evaluation and recommendation regarding the defendant’s suitability for treatment. Any person who denies guilt is not a candidate for treatment and is therefore unlikely to have his sentence suspended and is unlikely to be paroled once he arrives at the prison. None of these facts were explained to the defendant prior to the entry of his Alford plea.

Because the above circumstances were not explained to the defendant and because he was actually misled regarding the consequences of his plea, a change of plea should have been permitted.

In Benjamin v. McCormick (1990), 243 Mont. 252, 792 P.2d 7, the defendant was led to believe that by entering a plea of guilty to deviate sexual conduct in violation of § 45-5-505, MCA, he would serve no longer than one year in prison. However, a condition of his prison sentence was that he also enroll in and successfully complete the sexual offender program. The problem that he learned of upon entering the prison was that the sexual offender program could not be completed in one year and that he would therefore have to serve a minimum of two years in prison. In that case, the District Court ordered the defendant’s release on probation and we affirmed. However, in doing so we reasoned that the same result would occur under the rules pertaining to the withdrawal of guilty pleas. In language that is relevant to this case, we stated:

The primary issue in this case is whether Benjamin voluntarily and knowingly entered his plea of guilty. Before accepting a guilty plea, the sentencing court must determine that the plea is “voluntary with an understanding of the charge,” § 46-12-204(2), MCA, and the court must inform the defendant of “the consequence of his plea ...,” § 46-16-105(l)(b), MCA. The law does not require the sentencing court to educate the defendant on all aspects of the relevant law before accepting a guilty plea. However, when the guilty plea is based upon a fundamental mistake or misunderstanding as to its consequences, the sentencing court, at its discretion, may allow the defendant to withdraw the plea.
A change of plea will be permitted only if it fairly appears the defendant was ignorant of his rights and the consequences of his act, or he was unduly and improperly influenced either by hope or by fear in making the plea, or if it appears the plea was entered under some mistake or misapprehension. Each case must be examined on its own record. The motion rests within the District Court’s discretion and the exercise of that discretion will not be disturbed absent an abuse of discretion.

State v. Mesler (1984), 210 Mont. 92, 96, 682 P.2d 714, 716 (citation deleted).

In this case, Benjamin’s guilty plea was based on error. Both the sentencing court and the habeas corpus court found that Benjamin was misinformed as to the consequences of his plea. The record contains sufficient evidence to establish that the sentencing court, prosecutor and defense counsel all apparently failed to recognize that the sexual offender program lasted two years and assured the defendant that he would be incarcerated for only one year.
The usual remedy for a guilty plea that is not voluntarily or knowingly made is to allow the defendant to withdraw the plea. In this case, however, the habeas corpus court exercised its discretion to order Benjamin’s release on probation.

Benjamin, 792 P.2d at 10.

It is likewise clear in this case, that the defendant was ignorant of the consequences of his plea, unduly influenced by hope that his plea would avoid incarceration, and mistaken in that understanding.

The majority states that “[t]here is nothing in the record to establish that the defendant’s plea was based upon a fundamental mistake or misunderstanding as to its consequences.”

That statement is clearly incorrect. At the hearing on defendant’s motion to withdraw his plea, the attorney who represented him at the time the plea was entered testified. When asked what explanation he gave to the defendant regarding an Alford plea, he explained that he told the defendant it was like nolo contendere. He told the defendant that he could maintain his innocence but agree that there was sufficient evidence to convict him. More critically, he explained that if the defendant went to trial and was convicted, he was more likely to go to prison than if he entered this plea. He led the defendant to believe that if an Alford plea was entered there would be a presentence investigation and a sex offender evaluation which, if favorable, would create a possibility that the defendant could avoid prison. However, he failed to explain that there was no possibility of a favorable sex offender evaluation if the defendant continued to maintain his innocence. The defendant’s attorney gave the following testimony:

Q. And let’s reiterate again, what your advice was to him concerning the Alford plea. As I understand your testimony, you’re suggesting — or you told Cameron that if you went to trial and if he was found guilty, that there was a good chance after the Judge had heard the victims testify that the Judge would be more inclined to send him to prison?
A. That’s correct.
Q. But, that if he pled guilty, and that he had a good evaluation, a good presentence report, that it was possible that you could make an argument that he could avoid going to prison.
A. I told him I would ask to keep him out of prison.

There could not be any clearer evidence that the defendant misunderstood the consequences of his plea. In summary, he was led to believe that he could plead guilty but still maintain his innocence. He was further led to believe that by pleading guilty the court would be less likely to sentence him to prison. However, by pleading guilty to a sex offense and refusing to admit that he actually committed the offense, he disqualified himself from sex offender treatment and guaranteed himself not only a prison sentence, but a longer prison sentence than he would otherwise have to serve. Under these facts, and our prior case law regarding withdrawal of guilty pleas, the District Court abused its discretion by denying defendant the right to withdraw his guilty plea. That does not mean that the defendant, if guilty, avoids accountability for his wrongful act, it simply means that the State should have to prove his guilt, as it was apparently prepared to do, without the assistance of the defendant’s plea which was induced by misinformation.

For these reasons I would reverse the judgment of the District Court based on the first issue raised by the defendant, and therefore, do not address the remaining issues raised on this appeal.

JUSTICES GRAY and HUNT concur with the foregoing dissent of JUSTICE TRIEWEILER.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DEAN J. GOETTLE, Defendant and Appellant.
    No. 91-480.
    Submitted on briefs Apr. 30, 1992.
    Decided May 21, 1992.
    49 St.Rep. 438.
    253 Mont. 111.
    831 P.2d 595.
    For Appellant: Brian P. Fay, Bozeman.
    For Respondent: Marc Racicot, Attorney General, Helena; John Paulson, Assistant Attorney General, Helena; A Michael Salvagni, County Attorney; Gary Balaz, Deputy; and Gerry Higgins, Deputy, Bozeman.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Dean J. Goettle appeals a sentence and judgment of the Eighteenth Judicial District, Gallatin County, which denied his motion for a new trial. We affirm.

The issue is whether the District Court abused its discretion by denying Goettle’s motion for a new trial based on a comment made by the prosecution during closing argument.

On June 25,1991, a jury found Goettle guilty of criminal endangerment and criminal mischief in connection with an incident that involved two gun shots fired at the Alpine Sinclair Station in Bozeman, Montana. On July 3, 1991, Goettle moved the District Court for a new trial based on a comment made by the deputy county attorney during closing argument. This comment called attention to the fact that Goettle’s wife did not testify in support of his alibi defense.

In a sentence and judgment dated August 12, 1991, the District Court denied Goettle’s motion for a new trial. From this sentence and judgment, Goettle appeals.

Did the District Court abuse its discretion by denying Goettle’s motion for a new trial based on a comment made by the prosecution during closing argument?

In closing argument to the jury, a deputy county attorney made the following comment:

Now, there is something that I wondered about here. And that is, that we were told in the defense’s opening statement that Pam Goettle, the defendant’s wife, was going to testify and we would hear from her as to what went on. But that didn’t happen.

Goettle’s counsel objected to this comment as improper and the District Court sustained the objection. Goettle’s counsel then moved that the comment be stricken and the District Court granted this motion. Later, the District Court issued the jury a curative instruction regarding the comment. Following the trial, Goettle moved for and the District Court denied Goettle a new trial based on this comment.

Goettle argues that this comment was improper and cannot be considered harmless error. The State argues that this comment was an invited and appropriate response to the lack of evidentiary support to Goettle’s alibi defense and did not deprive him of a fair and impartial trial. Alternatively, the State argues that even if the comment was improper, it was harmless error in light of the strong case presented by the State against Goettle.

Section 46-16-702, MCA, provides that a district court may grant a new trial to a criminal defendant if required in the interest of justice. The granting or denial of a new trial rests within the sound discretion of the trial corut and should not be disturbed on appeal unless an abuse of discretion is shown. State v. Goodwin (1991), 249 Mont. 1, 17, 813 P.2d 953, 963 (citation omitted).

Following a review of the record, we hold that the District Court did not abuse its discretion when it denied Goettle’s motion for a new trial. In the absence of any reference to Goettle’s wife’s testimony, the comment that she failed to testify does not appear damaging to Goettle. Furthermore, any prejudice caused to Goettle from this comment was rendered harmless through the District Court’s actions of sustaining Goettle’s objection, granting Goettle’s motion to strike, and issuing a curative instruction to the jury. We therefore affirm the District Court’s sentence and judgment dated August 12, 1991.

JUSTICES HARRISON, GRAY, TRIEWEILER, McDONOUGH, HUNT and WEBER concur.


text:
    VLADIMIR JACILDO, Plaintiff and Respondent, v. JOHN McFADDEN, Defendant and Appellant.
    No. 91-626.
    Submitted on briefs Apr. 24, 1992.
    Decided May 28, 1992.
    49 St.Rep. 467.
    253 Mont. 114.
    831 P.2d 597.

      For Appellant: Lloyd E. Hartford, Billings.
    For Respondent: Joan E. Cook, Miller & Cook, Great Falls.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The District Court for the Thirteenth Judicial District, Yellowstone County, denied the motion of defendant John McFadden that Rule 11, M.R.Civ.R, sanctions be imposed against plaintiff Vladimir Jacildo and his attorney. McFadden appeals. We affirm.

The issue is whether the District Court erred in refusing to impose Rule 11 sanctions.

Vladimir Jacildo filed this action in January 1990 to recover damages for injuries he suffered while participating in a karate tournament in Billings, Montana, in October 1989. John McFadden was one of several defendants named. In June 1991, the District Court granted McFadden’s motion for summary judgment on grounds that McFadden, an agent of the corporation which sponsored the karate tournament, was not a proper party and that Jacildo had signed a liability waiver which released McFadden and the corporation from liability for ordinary negligence.

Jacildo moved to obtain leave to file an amended complaint naming additional defendants. His motion was denied. He then moved for reconsideration, under Rule 59(g), M.R.Civ.R, of the ruling on the motion to amend the complaint and the summary judgment for McFadden. The motion for reconsideration was also denied.

In September 1991, McFadden filed his motion for Rule 11 sanctions. After briefs were filed by both parties, the court denied the motion without comment. In October 1991, Jacildo and the remaining defendant agreed to a settlement and the action was dismissed with prejudice. Following that final disposition of the case, McFadden appealed.

Rule 11, M.R.Civ.R, provides in pertinent part
Every pleading, motion, or other paper of a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name, whose address shall be stated .... The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation .... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

Both Jacildo and his attorney signed the complaint filed in this case.

This Court has adopted the view that to satisfy Rule 11, M.R.Civ.P., a party need not be correct in his view of the law, but the party must have a good faith argument for his or her view of what the law is or should be. Bee Broadcasting Associates v. Reier (1989), 236 Mont. 275, 277-78, 769 P.2d 709, 710. The granting of a motion to dismiss is not dispositive of the issue of sanctions and the decision to order sanctions in a given case rests within the sound discretion of the district court. Bee Broadcasting, 769 P.2d at 711.

McFadden argues that the facts do not support the claim that he owed Jacildo a duty of care which he breached, proximately causing Jacildo’s injuries, or that Jacildo suffered out-of-pocket damages. McFadden also contends that a reasonable investigation should have disclosed that the liability waiver signed by Jacildo was legally enforceable and precluded the cause of action against McFadden and the corporation.

Jacildo maintains, as he did before the District Court, that his investigation prior to filing the complaint indicated that McFadden acted individually to arrange the karate tournament. He points out that under §§ 27-1-307 and -308, MCA, tort damages may be recovered for expenses paid by medical insurance. Jacildo’s attorney submitted affidavits describing her legal and factual investigation prior to filing the complaint. She cites an Illinois case which she argues supports the view that Montana law should be modified so that the liability waiver Jacildo signed could be avoided if a jury found negligence on the part of the defendants.

McFadden also contends that Jacildo’s Rule 59(g), M.R.Civ.P., motion to reconsider the summary judgment restated the same theory previously rejected by the District Court, was premature, and protracted this litigation. When Jacildo filed the motion, he set forth two supporting arguments not previously briefed. There is no evidence that Jacildo’s pleadings were interposed for an improper purpose.

We conclude that Jacildo has presented a good faith argument supporting his position. We therefore hold that the District Court did not abuse its discretion in refusing to allow sanctions.

Affirmed.

JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LAWRENCE R. SHEPPARD, Defendant and Appellant.
    No. 90-229.
    Submitted on briefs Apr. 4, 1992.
    Decided May 1, 1992.
    49 St.Rep. 382.
    253 Mont. 118.
    831 P.2d 370.

      For Defendant and Appellant: William Boggs, Missoula
    For Plaintiff and Respondent: Marc Racicot, Attorney General, Helena; Joseph Thaggard, Assistant Attorney General; Robert Deschamps, III, Missoula; Betty Wing, Deputy County Attorney, Missoula
   JUSTICE GRAY

delivered the Opinion of the Court.

Lawrence R. Sheppard appeals his conviction of sexual intercourse without consent, a felony, by a jury sitting in the District Court of the Fourth Judicial District, Missoula County. We affirm.

Sheppard presents the following issues on appeal:

1. Should Montana adopt the California rule that where the evidence clearly supports it, a lesser-included offense instruction must be given by the District Court sua sponte even if not requested by the defense?

2. Did the District Court’s failure to instruct the jury on the lesser-included offense of misdemeanor sexual assault deprive Sheppard of due process of law by denying him a fair trial?

In July 1989 Lawrence R. Sheppard and his wife moved from Florida to Missoula, Montana. When he arrived in Missoula, Sheppard went to Broughton’s, a Missoula bar. There he met several people, including 16-year-old C.K. and Terri Beckstrom. C.K. was living with the Beckstrom family after having moved out of her parents’ home. Testimony conflicted regarding lewd behavior of C.K. and others at the bar that evening.

After that initial meeting, Sheppard visited the Beckstrom household a few times and saw C.K. as one of a group of people there. Sheppard treated the group, including C.K., to lunch and on another occasion to ice cream.

On the evening before the alleged offense, Sheppard went out drinking and stayed out all night. He testified that he came to the Beckstrom household on the morning of August 25, allowed Beckstrom and others to take his van for a shopping trip, and went to sleep in an upstairs bedroom.

C.K. testified that when she went into the bedroom to find a cigarette, Sheppard offered her $5 for a back rub. She gave him a back rub, and Sheppard paid her $4. C.K. said that Sheppard then offered her $50 to “make him feel good,” and that she refused. C.K. stated that she thought this offer meant another back rub.

When Beckstrom and others returned to the house, Sheppard went out to his van. After a few minutes, one of Beckstrom’s children told C.K. that Sheppard wanted to talk to her. C.K. went out to the van and got in. Sheppard offered to take her for a ride for an hour, just to get away from the house and to buy some pants for himself. Sheppard said that he again offered C.K. $50 to make him feel good. C.K. testified that Sheppard made no mention of the $50.

Sheppard drove the van to a ski area parking lot. Sheppard got out and climbed into the carpeted area in the back of the van. C.K. stayed in the front passenger seat for a few minutes and then, at Sheppard’s request, brought him a beer. C.K. then joined Sheppard in the back of the van. She was seated with her legs folded under her and with her back up against the back of the van.

Sheppard began making sexual advances, touching C.K.’s leg, stomach, and breasts. Sheppard ran his hand between her legs and into her crotch area. C.K. stated that she told him several times to stop. Sheppard testified that C.K. did not tell him to stop until he touched her vaginal area and when he was told to stop, he did. C.K. testified that Sheppard lifted her skirt up and put his hand inside her panties. Without removing her panties, he inserted his finger into her vagina and then penetrated her momentarily with his penis. Sheppard denied penetration in any manner.

Sheppard asked C.K. “if it was okay if he took care of himself,” and masturbated on C.K’s leg. Sheppard wiped off her leg with a Kleenex which he threw outside the van. The Kleenex was later found by police.

Both testified that Sheppard then drove to the KOA campground and let C.K. out. Sheppard stated that he told C.K. that he would be back with the $50. C.K. denied that Sheppard told her that. Sheppard did not return to pick her up, and C.K. tried to walk to a friend’s house, but could not find it. After approximately an hour, she returned to the KOA store and called Beckstrom who sent a friend to give her a ride home. C.K. testified that she was very angry when the friend arrived, but that she did not talk to him about the rape because she did not know him very well.

When she returned to Beckstrom’s, C.K. told Beckstrom about the alleged rape and the incident was reported to the authorities. When Sheppard was arrested by sheriff’s officers that night, he denied any sexual contact with C.K. After Sheppard discovered that the Kleenex had been recovered, he gave a second statement saying that sexual contact occurred with C.K’s consent, but that no penetration occurred.

Physical evidence was consistent with events as described by either C.K. or Sheppard. Semen was found on the recovered Kleenex. From vaginal smears of C.K, two sperm and three sperm heads were later found in laboratory examinations. Expert testimony indicated that the low number of sperm found could be associated with momentary penetration or from intercourse a few days prior to the laboratory tests.

Sheppard was charged with sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA (1989), and was convicted lay a jury. The District Court sentenced Sheppard to the maximum twenty years in prison and enhanced the sentence another ten years because of Sheppard’s prior criminal record. Fifteen years of the thirty-year sentence were suspended.

I.

Should Montana adopt the California rule that where the evidence clearly supports it, a lesser-included offense instruction must be given by the court sua sponte, even if not requested by the defense?

One matter in addition to the issues raised by the appellant requires discussion before we begin our analysis of those issues. The State asserts that this Court should decline to review the District Court’s failure to give the lesser-included offense instruction sua sponte because of Sheppard’s failure to request the instruction or object at trial. Sheppard asserts that § 46-20-701(2), MCA (1989), which places limits on appellate review where there has been no objection in the trial court, is inapplicable in this case because any sua sponte action by a trial court by definition takes place without request or objection from trial counsel. We decline to consider the applicability of § 46-20-701(2), MCA (1989), to a trial court’s duty to act sua sponte.

To begin our analysis of the issues to be decided, Sheppard urges this Court to adopt the minority rule that a trial court has a duty to instruct the jury on a lesser-included offense, even absent a request for such an instruction. See, e.g., People v. Wickersham (Cal. 1982), 650 P.2d 311; State v. Coward (N.C.App. 1981), 283 S.E.2d 536. While conceding that this is a case of first impression in Montana, he argues that Montana statutory and case law both mandate this result.

Sheppard cites State v. Lundblade (1981), 191 Mont. 526, 625 P.2d 545 and § 46-16-401, MCA(1989), for the proposition that in Montana the trial judge has a duty to charge the jury on all essential questions of law, whether requested or not. Sheppard asks this Court to expand this duty by adopting the California rule compelling trial courts to instruct sua sponte if the evidence supports a conviction for a lesser-included offense. Wickersham, 650 P.2d at 320. The California Supreme Court based its policy requiring sua sponte instruction on a lesser-included offense on the following rationale: (1) a defendant has no right to an acquittal when the evidence is sufficient to convict him of a lesser-included offense; (2) the policy ensures that the verdict is neither harsher nor more lenient than the evidence merits; (3) the policy protects a defendant from poor representation by a lawyer who is unaware of possible lesser-included offenses; and (4) the policy fully guards the right of the accused to complete instructions. Wickersham, 650 P.2d at 319-21.

We concede that a district court’s failure to instruct the jury on essential questions of law can amount to error. See, e.g., State v. Williams (1979), 184 Mont. 111, 601 P.2d 1194. However, the general rule in Montana is that the court may instruct the jury sua sponte if evidence supports such an instruction. State v. DeMers (1988), 234 Mont. 273, 280-81, 762 P.2d 860, 864-65.

Further, the statute on which Sheppard relies denotes the trial court’s permissive power, rather than a mandatory duty, to give the jury a lesser-included offense instruction sua sponte. Section 46-16-401(1), MCA (1989), provides that the district court may instruct the jury as to its duties by means of general instructions on that subject. In addition, § 46-16-40l(4)(b), MCA (1989), refers to the court’s role of settling the instructions “offered by counsel or proposed to be given to the jury by the court.” (Emphasis added.) Conversely, § 46-16-401(4)(a), MCA (1989), clearly requires counsel to offer special instructions to the court if counsel desires such instructions to be given to the jury. While we agree that the trial court should instruct on all essential questions of law and may offer its own instructions, § 46-16-401, MCA (1989), does not expressly impose on the district court a duty to instruct the jury on questions of law not requested by counsel.

A lesser-included offense does not fall within the category of an “essential” question of law because defense counsel may want to omit such an instruction as a matter of strategy. Montana recognizes that, upon request, a defendant is entitled to an instruction about a lesser-included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater. State v. Ostwald (1979), 180 Mont. 530, 538, 591 P.2d 646, 651. However, the rule in Montana and the overwhelming majority of states is that if a request for such an instruction is not made, the appellate court will not overturn the conviction absent plain error. State v. Evans (1991), 247 Mont. 218, 226, 806 P.2d 512, 517; see, e.g., State v. Lucas (Ariz. 1985), 708 P.2d 81; Robinson v. State (Ga. Ct. App. 1990), 390 S.E.2d 652; People v. Alvarez (Ill. App. Ct. 1989), 542 N.E.2d 737; Huntley v. State (Okla. Crim. App. 1988), 750 P.2d 1134.

The United States Supreme Court recognizes a defendant’s right to a lesser-included offense jury instruction if requested, Keeble v. United States (1973), 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844, but has not ruled on whether courts must instruct the jury on lesser-included offenses sua sponte. Kubat v. Thieret (7th Cir. 1989), 867 F.2d 351, 365. Accordingly, federal courts will not consider a trial court’s failure to instruct on lesser-included offenses without a contemporaneous objection unless the omission of the instruction constitutes plain error pursuant to Rule 52(b), Fed.R.Crim.P. See, e.g., United States v. Lopez Andino (1st Cir. 1987), 831 F.2d 1164, cert. denied, 486 U.S. 1034, 108 S.Ct. 2018, 100 L.Ed.2d 605 (1988); United States v. Vincent (5th Cir. 1981), 648 F.2d 1046. The reason usually given is that the trial court is not to interfere with strategy of defense counsel who may opt to omit a lesser-included offense instruction in order to force the jury to find the defendant guilty of the crime charged or acquit him. Kubat, 867 F.2d. at 365-66.

Some courts have held that a defendant not only has a right to lesser-included offense instructions on request, but also has a right to forego such instructions for strategic reasons. See Lopez Andino, 831 F.2d at 1171. In contrast, the California Supreme Court in Wickersham noted that the trial court must instruct sua sponte on lesser-included offenses, even when a defendant objects for tactical reasons. Wickersham, 650 P.2d at 324 n. 8 (citing People v. Sedeno (Cal. 1974), 518 P.2d 913). Not only does such a policy impinge on the advocate’s role, but the result may be to unfairly surprise both the defense and the prosecution.

We conclude that under our adversarial system of justice, the prosecution and defense must have the option of foregoing a lesser charge instruction for strategic reasons. Lawyers, not judges, should try cases. Although the record does not enlighten us, both prosecution and defense counsel may have made a decision to force the jury to either convict or acquit of the offense charged without being given the opportunity to take the middle ground and convict of the lesser charge of misdemeanor sexual assault. Because mandatory sua sponte jury instruction on lesser offenses is inconsistent with Montana law and our public policy of allowing trial counsel to conduct the case according to his or her own strategy, we decline to adopt the minority rule. The District Court did not err in failing to instruct the jury sua sponte on the lesser offense of misdemeanor sexual assault.

II.

Did the District Court’s failure to instruct the jury on the lesser-included offense of misdemeanor sexual assault deprive Sheppard of due process of law by denying him a fair trial? The due process clause of the Fourteenth Amendment ensures a defendant’s right to a fair and impartial trial, which “requires a factfinding process free of any impermissible extraneous influences on the trier of fact.” Trujillo v. Sullivan (10th Cir. 1987), 815 F.2d 597, 601, cert. denied, 484 U.S. 929, 108 S.Ct. 296, 98 L.Ed.2d 246 (1987). Sheppard asserts that the District Court’s failure in this case to instruct the jury sua sponte on the lesser-included offense of misdemeanor sexual assault violated his right to due process. In support of his argument, Sheppard cites In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, in which the Supreme Court held that the due process clause guarantees defendants the full benefit of the reasonable doubt standard. He also cites Beck v. Alabama (1980), 447 U.S. 625, 634, 100 S.Ct. 2382, 2388, 65 L.Ed.2d 392, 400, in which the Supreme Court stated that “[plroviding the jury with the “third option” of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard. Sheppard apparently concludes that, in light of Winship and Beck, a lesser-included offense instruction is a right inherent in the due process clause and that the trial court’s giving of such an instruction sua sponte is included within that right.

Beck does not support the conclusions asserted by Sheppard. Beck involved a charge of capital murder. The defendant’s own testimony established that he was guilty of felony murder, a noncapital lesser-included offense. The trial court refused defense counsel’s requested lesser charge instruction in light of the Alabama statute prohibiting jury instruction on a lesser-included offense in a capital case. The jury convicted the defendant of the capital offense.

The Supreme Court struck down the Alabama statute. In holding that due process requires that a lesser-included offense instruction be given when the evidence warrants such an instruction, the Supreme Court stated:

That safeguard [lesser-included offense instruction] would seem to be especially important in a case such as this. For when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense — but leaves some doubt with respect to an element that would justify conviction of a capital offense — the failure to give the jury the “third option” of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.
Such a risk cannot be tolerated in a case in which the defendant’s life is at stake. As we have often stated, there is a significant constitutional difference between the death penalty and lesser punishments ....

Beck, 447 U.S. at 637. Given the Beck Court’s emphasis on the life and death nature of guilt determination in capital cases and “the significant constitutional difference between the death penalty and lesser punishments,” the due process clause does not necessarily require lesser-included offense instructions in noncapital cases as Sheppard maintains. Indeed, while praising the value of a lesser charge instruction as a means of strengthening the reasonable doubt standard, the Beck Court specifically declined to decide whether defendants have a due process right to such an instruction in noncapital cases. Beck, 447 U.S. at 638 n. 14.

The Supreme Court itself has stated that its decision in Beck was based on the Eighth Amendment. “Our holding in Beck, like our other Eighth Amendment decisions in the past decade, was concerned with insuring that sentencing discretion in capital cases is channelled so that arbitrary and capricious results are avoided.” Hopper v. Evans (1982), 456 U.S. 605, 611, 102 S.Ct. 2049, 2052, 72 L.Ed.2d 367, 373. Thus, it is possible that the Beck holding was based, not on the due process clause of the Fourteenth Amendment, but rather on a due process concept rooted in the Eighth Amendment prohibition against cruel and unusual punishment which requires a higher degree of procedural exactitude in capital cases to ensure that the death penalty is not imposed on the basis of caprice or emotion. Trujillo, 815 F.2d at 601. Consequently, “[a] majority of the circuits considering this difficult issue have held that the failure of a state court to instruct on a lesser included offense in a noncapital case never raises a federal constitutional question.” Pitts v. Lockhart (8th Cir. 1990), 911 F.2d 109, 112, cert. denied,_U.S._, 111 S.Ct. 2896, 115 L.Ed.2d 1060 (1991); Trujillo, 815 F.2d at 602; see, e.g., Valles v. Lynaugh (5th Cir. 1988), 835 F.2d 126; Chavez v. Kerby (10th Cir. 1988), 848 F.2d 1101 (due process did not entitle defendant charged with criminal penetration of child under thirteen to lesser-included offense involving sexual misconduct short of penetration); Perry v. Smith (11th Cir. 1987), 810 F.2d 1078.

Finally, it is important to remember that the defendant in Beck requested a lesser-included offense instruction at trial. The issue before the Supreme Court was whether in a capital case a state could statutorily preclude jury instruction on a lesser-included offense; the case did not involve whether the trial court should have given a lesser-included offense instruction sua sponte. At least one federal court has concluded that Beck does not require judges, as a matter of due process, to give lesser-included offense instructions sua sponte. Kubat, 867 F.2d 351. As the Kubat court observed, [tjhis [the Beck] holding is far from a rule requiring judges to sua sponte instruct the jury on lesser included offenses.” Kubat, 867 F.2d at 365.

Sheppard also relies on the Ninth Circuit’s decision in Bashor v. Risley (9th Cir. 1984), 730 F.2d 1228, cert. denied, 469 U.S. 838, 105 S.Ct. 137, 83 L.Ed.2d 77 (1984), to support his contention that due process mandates sua sponte lesser-included offense instructions by trial courts. Specifically, Sheppard claims that in Bashor “the court adopted as a hypothesis that, in certain cases, a failure to give a lesser-included offense instruction could violate a defendant’s due process rights, because it would contravene the rule — given constitutional status in the Ninth Circuit — that ‘a jury must be instructed as to the defense theory of the case.’ ” Sheppard overlooks the limited nature of the Ninth Circuit rule which requires the trial court to instruct the jury as to the defense theory of the case. This rule was adopted in United States v. Kenny (9th Cir. 1981), 645 F.2d 1323, cert. denied, 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 425 (1981), and pertains to a trial court’s refusal to give jury instructions offered by a defendant. Kenny, 645 F.2d at 1337. Like Beck, Kenny does not address whether a due process violation occurs when the court fails to give such an instruction sua sponte. Accordingly, we hold that the District Court’s failure to instruct the jury sua sponte on the lesser-included offense of misdemeanor sexual assault did not deprive Sheppard of his Fourteenth Amendment right to due process.

The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, WEBER and HUNT concur.