author: JUSTICE LEAPHART JUSTICE TRIEWEILER

text:
    STAGELINE ESTATES HOMEOWNERS’ ASSOCIATION, INC., a nonprofit corporation, Plaintiff and Respondent, v. RICHARD JACKSON and PAULA JACKSON, Defendants and Appellants.
    No. 97-654.
    Submitted on Briefs February 26, 1998.
    Decided April 30, 1998.
    1998 MT 98.
    55 St.Rep. 384.
    958 P.2d 52.
    288 Mont. 405.

      For Appellants: Richard Jackson; Richard Jackson and Associates, Whitefish.
    For Respondent: Stephen C. Berg; Warden, Christiansen, Johnson & Berg, Kalispell.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Richard L. Jackson and Paula Jackson (Jacksons) appeal from the decision of the Eleventh Judicial District Court, Flathead County, determining that Stageline Estates Homeowners’ Association, Inc.’s (Association’s) assessments against the Jacksons was in accordance with the Association’s Bylaws, Articles of Incorporation, and not beyond the scope of the Declaration of Covenants. The District Court entered judgment in favor of the Association in the amount of $3,286 representing delinquent assessments plus interest and attorney fees and costs. We affirm in part and remand for further consideration.

Factual and Procedural Background

¶2 Restrictive covenants concerning Stageline Estates subdivision in Flathead County were filed on April 21,1988 by way of a document entitled “Declaration of Covenants, Conditions and Restrictions” (Declaration). The Declaration established a Property Owners’ Association (POA). Pursuant to the Declaration, each owner of a lot subj ect to the covenants automatically became a member of the POA. The Declaration states that the purpose of the POA “shall be to maintain and provide for snow removal on the private road and any other private road utilized by the members to their lots, and to provide the architectural control for the subdivision.” In addition, the Declaration provided a means for the POA to annually assess the members for the maintenance of the roads, including snow removal. Finally, the Declaration provided that its provisions could be amended by an affirmative vote of 75% of its members.

¶3 On April 29,1991, the Association filed Articles of Incorporation with the Secretary of State as a nonprofit corporation. This document allegedly incorporated the original POA created by the Declaration. In addition, the Association enacted Bylaws on November 15, 1991. According to the Articles of Incorporation, the Association’s purpose is “[t]o promote the health, safety and welfare of the residents ... and to provide for the maintenance, preservation and architectural control of the residence lots and common areas ....” In addition, the Bylaws provide the Association with authority to assess the members for “the purpose of promoting the recreation, health, safety and welfare of the residents of the Properties, and in particular for the improvement or maintenance of the Properties, and for the facilities devoted to the use and enjoyment of the Common Area.” These assessments may be imposed annually or pursuant to a “special assessment.”

¶4 The Jacksons purchased their property within the subdivision on November 25, 1991. The Jacksons acknowledge that they purchased their property subject to covenants contained in the Declaration, but allege that the Articles of Incorporation and Bylaws were not recorded at the time they purchased their property and thus the terms of those documents are not binding on them.

¶5 The Jacksons paid annual assessments for the years 1992-94. The Jacksons stopped paying the assessments in 1995 and have not paid since. As a result, the Association filed a complaint in Justice Court on August 9, 1996 seeking to recover the unpaid assessments plus interest, attorney fees and costs. The Justice Court entered judgment in favor of the Association in the amount of $1,634. The Jacksons appealed to the District Court. The Association filed a second complaint in District Court. The Jacksons filed an answer and counterclaim asserting that they did not purchase their property subject to the Articles of Incorporation and Bylaws of the Association. The parties agreed to consolidate the Jacksons’ appeal from Justice Court with the new complaint instituted by the Association. The District Court entered judgment in favor of the Association in the amount of $3,286 concluding that the Association’s imposition of assessments was in accordance with its Articles of Incorporation and Bylaws, and not beyond the scope of the Declaration. The Jacksons appeal to this Court seeking a reversal of the District Court judgment and a declaration that they are not bound by the terms of the Articles of Incorporation and Bylaws. We affirm in part and remand for further consideration.

Discussion

¶6 The standard of review of a district court’s finding of fact is whether the court’s findings of fact are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. We limit the scope of this opinion to the issue of whether the Jacksons are responsible for past-due assessments for the years 1995-97. The Jacksons assert that they are not paying assessments because their property is subject only to the assessments authorized in the Declaration. The Declaration limits assessments to those collected for road maintenance and snow removal. The District Court found that the assessments collected by the Association for the years in question “seem to be used exclusively for road-related purposes” and are in concert with the overall intent of the Declaration. The court, therefore, concluded that the Association’s imposition of the assessments against the Jacksons was in accordance with its Articles of Incorporation and Bylaws and not beyond the scope of the Declaration and held that the Jacksons are liable for the unpaid fees.

¶7 The Jacksons do not seek to avoid their obligation to pay the costs of road maintenance and snow removal. However, the Jacksons contend that the authority given the Association in the Articles of Incorporation and Bylaws exceeds that contemplated by the Declaration and, thus, the Jacksons seek to preserve their right to object to the terms of the Articles of Incorporation and Bylaws in the event the Association seeks to enforce assessments other than those related to road maintenance. The District Court’s finding that the assessments collected to date by the Association were for the sole purpose of maintaining the road is not clearly erroneous. Additionally, the District Court’s conclusion that the assessments for road maintenance do not exceed the scope of the Declaration is correct. Therefore, since the road maintenance assessments are consistent with Article IV, sec. 5 of the Declaration, we hold that the Jacksons are responsible for the past-due assessments plus interest.

¶8 The Jacksons seek a declaration that their property is not bound by the terms of the Articles of Incorporation and Bylaws. The District Court did not rule on the merits of the Jacksons’ assertion that the Association has exceeded its authority in expanding the terms of the Declaration via the Articles of Incorporation and Bylaws. We remand to the District Court the issue of whether the Articles of Incorporation and Bylaws are binding on the Jacksons. Affirmed in part and remanded.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER and GRAY concur.

JUSTICE TRIEWEILER

dissenting.

¶9 I dissent from the majority opinion. Although Richard and Paula Jackson were bound by the Declaration of Covenants which applied to their subdivision, those covenants provided for assessments by the “property owners association” which assessments could be made for only limited purposes. Substitution of another entity for the property owners association, and assessment for purposes other than those mentioned in the original Declaration of Covenants, required amendment of the covenants by 75 percent of the property owners in the Jacksons’ subdivision. While the Articles of Incorporation and Bylaws, pursuant to which the plaintiff assessed the Jacksons, constituted actual amendments to the Declaration of Covenants, there was no evidence of 75 percent approval for those amendments and, therefore, no authority to assess pursuant to those Articles or Bylaws. When Jacksons sought clarification and assurance that their assessments would be used for the limited purposes provided for in the original covenants, that type of assurance was denied and the corporation’s attorney responded that the assessments would be used for all those purposes provided for in the Covenants, Articles, and Bylaws. Therefore, I conclude that Jacksons were justified when they withheld payment of assessments made by a corporation unauthorized to make those assessments and for purposes beyond those provided for in the original Declaration of Covenants. My reasons are more fully set forth as follows:

¶10 Jacksons purchased their property in a subdivision known as Stageline Estates in Flathead County on November 25,1991. At that time, there were on file with the Clerk and Recorder in Flathead County the documents referred to in the majority opinion as the Declaration of Covenants, Conditions and Restrictions. Apparently, there were no Articles of Incorporation or Bylaws on file at the Clerk and Recorder’s office which pertained to this real estate.

¶11 The Declaration of Covenants provided for a property owners association which included every property owner in the subdivision. The purpose of the property owners association was to maintain the private road through the subdivision and provide for snow removal on the road, as well as to provide for architectural control for the subdivision. Toward that end, the association was given the authority to make assessments against each lot “for the purpose of maintaining the road(s) and for providing snow removal.” No group of people other than the association was authorized by the original covenants to make assessments, and no reason for assessments was authorized, other than road maintenance and snow removal. The covenants otherwise primarily provided for architectural control. However, the covenants also provided as follows:

ARTICLE VIII — AMENDMENT
1. This Declaration may be amended by an instrument signed by Members representing 75% of the total maximum number of authorized votes, agreeing to such amendment. Said instrument must be recorded with the County Clerk and Recorder.

¶12 There is no evidence that the Articles of Incorporation and Bylaws pursuant to which the plaintiff corporation assessed the Jacksons in 1995, 1996, or 1997 was signed by 75 percent of the subdivision’s property owners, or that it was ever filed with the County Clerk and Recorder. Yet, unbeknownst to Jacksons, those corporate documents substantially amended the Declaration of Covenants by shifting authority to make assessments from the property owners association to a small group of directors, by substantially expanding the purposes for which assessments could be made, by providing exemptions from assessments to certain property owners, and in other important respects.

¶13 For example, pursuant to Article III of the Articles of Incorporation, the new entity, now known as Stageline Estates Homeowners Association, Inc., exists for the additional purposes of acquiring water rights, real and personal property, easements, and the installation and maintenance of wells, reservoirs, and water mains. The new corporation was given the authority to exercise all the powers and privileges previously exercised by the property owners association, including making assessments against property in the subdivision, but also to borrow money and pledge commonly owned property as security for its loans.

¶14 Pursuant to Article V of the Articles of Incorporation, the business and affairs of the corporation was now delegated to a board of three directors which included the original two developers, plus their attorney, as opposed to the previous property owners association.

¶15 The Bylaws reinforced the new corporation’s authority to annex additional residential properties and common areas, gave the directors the authority to employ a manager or independent contractor to handle the affairs of the corporation, gave the three directors authority to fix the amount of the annual assessment, provided for purchase of liability and hazard insurance by the board of directors, and expanded the purpose of assessments to include the following:

Article XIII, Section 2. Purpose of Assessments: The assessments levied by the Association shall be used exclusively for the purpose of promoting the recreation, health, safety and welfare of the residents of the Properties, and in particular for the improvement or maintenance of the Properties, and for the facilities devoted to the use and enjoyment of the Common Area.

¶16 In addition to the expanded purpose for the annual assessment, the Bylaws provided for special assessments for capital improvements which had not been provided for in the original Covenants, and exempted certain property owners from having to pay any assessments. Neither were those exemptions provided for in the original Covenants.

¶17 Jacksons have always been willing to honor their obligation for road maintenance and snow removal pursuant to the original Declaration of Covenants; however, they sought some sort of accounting before making that payment to assure that their contributions were being spent for an authorized purpose instead of the expanded and unauthorized purposes included in the Articles of Incorporation and Bylaws. For example, when Jacksons were notified of the board of directors meeting, the assessment made at that meeting, and the Bylaws pursuant to which the assessment was made by letter dated February 6,1995, and signed by the three directors, Richard Jackson responded by letter dated February 20, 1995, that

the Declaration of Covenants, Conditions and Restrictions which do govern the property do not provide for the establishment of any such organization. The only language in the Declaration of Covenants, Conditions and Restrictions which deal with a property owner’s association provide that by being owners of property in this subdivision, the owners automatically become members of such an association for the specific purposes as set out in that document.... Further, in the Declaration of Covenants under which we are all bound, the purpose of the property owners association is limited solely to (a) maintaining and providing for snow removal on the private road and any other road utilized by members to their lots and (b) to provide architectural control of the subdivision. ...
In regard to the “assessments,” the Declaration provides for annual assessments “for the purpose of maintaining the roads and for providing snow removal.” This is the only use authorized for any such assessments, and I, along with all the other property owners, am bound by it. However, there is no provision for any additional use of those assessments, and again no provision for any new organization to be formed which would bind the property owners in any way outside the simple and very specific requirements of the Declaration of Covenants itself.
... Further, the latest letter from the property owners association that I received, dated August 19,1994, reflects that there is a total of $3,758.32 in that fund, which it seems to me at the current cost of road maintenance and snow removal would be adequate to cover those costs for a considerable period of time without any further assessments against the property owners. However, if you think that this is not going to be sufficient money, and you have some reasons why you think an additional assessment against the property owners for road maintenance and snow removal would be necessary, I would appreciate it if you could spell out those reasons for me in a letter so that I can understand what has been planned.

¶18 No response to Richard Jackson’s legitimate inquiry is evident from the record before us. Instead, it merely appears that he was threatened with suit for past due assessments. In response to that threat, he made the following statements to the plaintiff’s attorney by letter dated July 12, 1996:

If my involvement is limited to my status as a member of the “Property Owners Association” established by the Declaration of Covenants, Conditions and Restrictions filed in the Deed Records as I believe it is, then I am ready, and have been ready at all times, to do the same as all other property owners are bound to do, that is, pay my pro rata share of the “costs of maintaining the roads and for providing snow removal in the neighborhood.”
On the other hand, if you somehow feel that I am bound by the rules and requirements or your new non-profit corporation, its By-laws, procedures, assessments for recreation, health, safety and welfare, exemptions from assessments, committees, etc. please tell me how that could have happened, because I have never agreed to anything more than is contained in the Declaration of Covenants, Conditions and Restrictions filed in the Deed Records, which run with the land.

¶19 After he was sued in Justice Court and judgment was entered in favor of the corporation, Richard Jackson indicated his intention to appeal that judgment so that his obligations could be clarified by the District Court. However, pending that appeal he offered to pay immediately any sums which the corporation could assure him would be used only for the costs of maintaining the roads and providing snow removal in the neighborhood. In response, the attorney for the defendant corporation stated:

You and the board have a fundamental difference of opinion as to the authority of the Association. This difference prevents settlement on the terms you propose. The board cannot, within its authority, create two classes of homeowners/members: one that pays its dues and assessments in accordance with the covenants, articles and bylaws, and another that is willing to pay its dues and assessments in accordance with its more restrictive interpretation of the same documents in consideration for which the board would waive enforcement of the documents as to nonroad maintenance/snow removal matters.

(Emphasis added.)

¶20 In other words, contrary to the inference in the majority opinion, at no time has the corporation been willing to limit its expenditure of the assessments made by its board of directors to those purposes specifically provided for in the Declaration of Covenants. Furthermore, during the trial of this matter, Martin White, who is vice president of the corporation, testified that only 70 to 80 percent of the proceeds from the corporation’s assessments is spent on snow removal and road maintenance. That means that 20 to 30 percent of the current corporation’s assessments is being spent for purposes not provided for in the original Declaration of Covenants. Therefore, I conclude that when the District Court found that the assessments for the years in question were used for a purpose consistent with the original declaration, that finding was clearly erroneous. Part of the fund’s use was consistent with the limitation provided for in the original declaration; however, part was not consistent. Furthermore, no one from the new corporation was ever willing to clarify until the time of trial what part of the assessments were being used for the original and only legally authorized purpose, and what part was going to be used for some new, expanded, and unauthorized purpose. Finally, I conclude that the board of directors of the new corporation had no authority to make any assessments in the first place. The only group with authority to make the assessments, absent an amendment to the original declaration, was the property owners association, which included each lot owner in the subdivision. To transfer the assessing authority to a small group of three people required an amendment to the Declaration of Covenants by 75 percent of the homeowners, and that was not done.

¶21 For these reasons, I dissent from the majority opinion. I would reverse the judgment of the District Court and remand this case to the District Court for entry of judgment in favor of the defendants, Richard and Paula Jackson.

JUSTICE HUNT joins in the foregoing dissenting opinion.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. THOMAS FENTON, Defendant and Appellant.
    No. 97-292.
    Submitted on Briefs February 12, 1998.
    Decided April 30, 1998.
    1998 MT 99.
    55 St.Rep. 389.
    958 P.2d 68.
    288 Mont. 415.

      For Appellant: Edmund F. Sheehy, Jr.; Cannon & Sheehy; Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Carol E. Schmidt, Assistant Attorney General; Helena; John T. Flynn, Broadwater County Attorney; Townsend.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 The defendant, Thomas M. Fenton, was charged in Broadwater County on December 30, 1996, with driving under the influence of alcohol or, alternatively, with driving with a blood alcohol concentration in excess of .10, and with obstructing a peace officer in violation of §§ 61-8-401, -406, and 45-7-302, MCA, respectively. Prior to trial in the First Judicial District Court in Lewis and Clark County, Fenton moved to have the result of his Intoxilyzer 5000 breath analysis test excluded from trial. The District Court denied Fenton’s motion in limine. Fenton then pled guilty to the offense of driving with a blood alcohol concentration over .10 in violation of § 61-8-406, MCA, but appeals from the District Court’s denial of his motion. We affirm the judgment of the District Court.

¶2 The issue on appeal is whether the District Court erred when it found that the Intoxilyzer 5000 breath analysis test was properly administered to Thomas Fenton and, therefore, erred when it denied Fenton’s motion in limine to have the results of the test suppressed.

FACTUAL BACKGROUND

¶3 On December 30, 1995, Montana Highway Patrol Officer Joe Cohenour arrested Thomas M. Fenton for driving while under the influence of alcohol or, alternatively, with driving with a blood alcohol concentration in excess of .10, and obstructing a peace officer. Fen-ton’s arrest was based upon his failure to pass the standard field sobriety tests, his failure to pass the sobriety tests administered at the Broadwater County Sheriff’s office, and his blood alcohol concentration of .140, as recorded by the Intoxilyzer 5000 breath alcohol analyzer.

¶4 On January 4, 1996, Fenton pled not guilty to the charges. On May 13, 1996, the Justice of the Peace for Broadwater County acquitted Fenton of driving under the influence of alcohol and of obstructing a peace officer, but convicted him of driving with a blood alcohol concentration in excess of .10. Fenton appealed his conviction to the District Court.

¶5 Prior to trial, Fenton moved to suppress the results of the Intoxilyzer 5000 breath test. Fenton contended that the test result did not establish that there was a fifteen minute period of observation, as required by law, before the test was administered.

¶6 At an evidentiary hearing to consider Fenton’s motion, Patrolman Cohenour testified regarding the operational procedures he is required to follow when administering the Intoxilyzer 5000 breath test. These procedures include observation of the defendant for a minimum of fifteen minutes immediately prior to the test to ensure that the defendant does not eat, drink, chew, or take anything orally during that period of time. Cohenour testified that following Fenton’s arrest, he observed all of the standard procedures and strictly adhered to the fifteen-minute rule.

¶7 Cohenour reported on the Breath Analysis Report Form that he began the fifteen minute observation of Fenton at 12:51 a.m. The Intoxilyzer 5000 print-out indicates that the test was performed at 1:04 a.m. Cohenour explained, however, that at the time he administered the test he recognized a discrepancy of four minutes between his watch and the time recorded by the Intoxilyzer 5000. As a result of the four minute discrepancy, he changed the time that was recorded on the Intoxilyzer 5000 computer print-out to 1:08 a.m. in order to accurately reflect the amount of time that had actually elapsed. Cohenour explained that there is a four minute difference between the Highway Patrol’s time and the Broadwater County Sheriff’s Intoxilyzer 5000 time. Cohenour adjusted the time recorded on the Intoxilyzer 5000 print-out to correspond with the Highway Patrol time that he used when documenting his arrest and processing of Fenton.

¶8 If the corrected time is used, it indicates a seventeen minute observation period before the administration of the Intoxilyzer 5000 test. If the corrected time is disregarded, only thirteen minutes transpired before the administration of the test.

¶9 On November 18,1996, the District Court issued an order which denied Fenton’s motion in limine to exclude the Intoxilyzer 5000 test result. The court held that the Intoxilyzer 5000 report should not be discarded because of the disparity between Montana Highway Patrol Time and the Broadwater County’s Intoxilyzer 5000 time.

¶10 On March 17, 1997, Fenton filed his notice of appeal from the District Court’s order which denied his motion in limine. The District Court issued an order which stayed Fenton’s sentence pending the outcome of his appeal.

STANDARD OF REVIEW

¶ 11 The standard of review for evidentiary rulings is whether the district court abused its discretion. See State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. See Gollehon, 262 Mont. at 301, 864 P.2d at 1263. See also State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067; State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380; State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054.

DISCUSSION

¶ 12 Did the District Court err when it found that the Intoxilyzer 5000 breath analysis test was properly administered to Thomas Fenton and, therefore, err when it denied Fenton’s motion in limine to have the results of the test suppressed?

¶13 Fenton was charged with violating § 61-8-406, MCA, by driving a vehicle while his blood alcohol concentration was .10 or more as shown by an analysis of his blood, breath, or urine. Absolute liability attaches to the commission of the offense; the State need not prove that the offense was committed knowingly, negligently, or purposely. See §§ 61-8-406 and 45-2-104, MCA. Thus, the critical proof necessary to establish the commission of the offense is the blood, breath, or urine test result. Given the offense charged and the necessity of the breath test results to establish that Fenton committed the offense, we have held that any error in the administration of the breath test evidence would necessitate dismissal of the charge for failure of proof. See State v. Woods (1995), 272 Mont. 220, 222, 900 P.2d 320, 322.

¶14 On appeal, Fenton cites Woods in which we held that a defendant, charged with an alcohol-related driving offense, is entitled to the procedural safeguards that are contained in the administrative rules of Montana. In Woods the State failed to demonstrate that the Intoxilyzer 5000 breath alcohol analyzer was calibrated and field certified as required by Rule 23.4.213(1), ARM. We concluded that because this procedural safeguard was not met, the breath alcohol evidence was inadmissible at trial and, therefore, the district court erred when it denied Wood’s motion to dismiss. See Woods, 272 Mont. at 223, 900 P.2d at 322.

¶15 Rule 23.4.212(7), ARM, requires that an Intoxilyzer 5000 test be administered pursuant to the Montana Division of Forensic Science’s Intoxilyzer 5000 operational checklist. That checklist requires that the subject of the test be observed for a minimum of fifteen minutes immediately prior to testing to ensure that the subject does not orally ingest any material prior to the test. Fenton maintains that this procedural safeguard, as set out in the operational checklist, was not met because the actual time which elapsed was only thirteen minutes, and not the required fifteen minutes. Based upon our decision in Woods, Fenton argues that because this procedural safeguard was not met, the District Court abused its discretion by allowing the results of his Intoxilyzer 5000 test into evidence.

¶16 We agree with Fenton that every defendant is entitled to the protection of the procedural safeguards that are contained in Montana’s administrative rules; however, we do not agree that the District Court abused its discretion when it found that those procedural safeguards were met in this case. Based on Cohenour’s testimony at the evidentiary hearing, there was sufficient evidence to explain the discrepancy between the time he recorded on the report form and the time that was recorded by the Intoxilyzer 5000 on the computer print-out. The weight given to that testimony is up to the District Court.

¶17 We further conclude that based on § 61-8-404, MCA, and the foundation laid by Cohenour’s testimony, the computer print-out of the Intoxilyzer 5000 result, with the time correction, is admissible at trial as competent evidence which bears on the question of whether Fenton was under the influence of alcohol.

¶18 We, therefore, affirm the judgment of the District Court.

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


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICHARD D. SCHAFF, Defendant and Appellant.
    No. 97-094.
    Submitted on Briefs December 4, 1997.
    Decided May 4, 1998.
    1998 MT 104.
    55 St.Rep. 396.
    958 P.2d 682.
    288 Mont. 421.

      For Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Respondent: Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Billings.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Richard D. Schaff (Appellant) was charged with one count of attempted deliberate homicide, one count of aggravated kidnaping, two counts of sexual intercourse without consent, one count of sexual assault, and one count of witness tampering. Pursuant to a plea agreement, Appellant pled guilty to attempted deliberate homicide and witness tampering in exchange for the State’s dismissal of the remaining charges. Prior to sentencing, Appellant moved to withdraw his guilty pleas. The Thirteenth Judicial District Court, Yellowstone County, denied Appellant’s motion. The District Court thereafter sentenced Appellant according to the terms of the plea agreement. Appellant now appeals the District Court’s denial of his motion to withdraw his guilty pleas. We affirm.

¶2 The sole issue presented for our review is whether the District Court erred in denying Appellant’s motion to withdraw his guilty pleas.

BACKGROUND

¶3 On September 28, 1995, Appellant met V.F., a 14-year old girl, in downtown Billings and offered to drive her to the west end of town. V.F. accepted Appellant’s offer. Instead of taking V.F. to the west end, Appellant drove out to the country and began making sexual advanees toward her. Appellant fondled V.F.’s breasts, inserted his finger in her vagina, and forced her to perform oral sex. When V.F. refused to continue with oral sex, Appellant hit V.F., dragged her out of the truck, and stabbed her several times with a small knife. V.F. dropped to the ground and played dead. Appellant then dragged V.F. off the road to a grassy field and left her. Appellant wiped off his knife, washed his hands in a nearby stream, and drove away. V.F. managed to make it to a nearby house where she called the police. V.F. described her attacker and his truck to the authorities, who then disseminated the information to the local media. An anonymous tip led authorities to Appellant and he was later apprehended.

¶4 On October 19, 1995, Appellant was charged by information with one count of attempted deliberate homicide, one count of aggravated kidnaping, and two counts of sexual intercourse without consent. The information was amended on January 8, 1996, to include one count of sexual assault, and amended again on July 19, 1996, to include one count of witness tampering.

¶5 On September 12, 1996, Appellant and the State of Montana (State) entered into a written plea agreement. Appellant agreed to plead guilty to attempted deliberate homicide and witness tampering in exchange for the State’s dismissal of the remaining charges. The State also agreed that it would bring no further charges against Appellant for any actions concerning V.F. or her family for any of the transactions then known to the State. Further, the State agreed to recommend that Appellant be sentenced to a prison term of 40 years, plus an additional consecutive term of 10 years for use of a weapon. The plea agreement provided that if the court did not accept the State’s recommendations for sentencing, Appellant could withdraw his guilty pleas.

¶6 A change of plea hearing was held on September 12, 1996. The District Court asked Appellant whether he had read the plea agreement and discussed it with his attorney to which Appellant replied that he had. The court informed Appellant that he was not required to plead guilty and that he was entitled to a jury trial. The court also informed Appellant of the State’s burden to prove his guilt beyond a reasonable doubt, and reviewed with Appellant his right to remain silent, his right to present witnesses on his behalf, and his right to confront witnesses against him. Finally, the court asked Appellant whether he was satisfied with the services of his attorney and Appellant replied that he was.

¶7 The court then questioned Appellant about the offenses to establish a factual basis for his guilty pleas. However, before Appellant answered, his attorney spoke up and informed the court that Appellant had been advised to keep his factual statements to a minimum so that, in the event Appellant later withdrew his guilty pleas, his basic right to remain silent would be preserved. Appellant’s attorney also explained to the court the nature of Appellant’s guilty pleas:

[Appellant’s] plea is, in fact, a compromise of what we perceive to be validly a contested case. We have done extensive investigation and research on this matter, and we do believe that while there is a substantial risk of conviction of the offenses to which he is pleading guilty, and perhaps a substantial risk of conviction on the other offenses as well, that he also had the opportunity to present lesser-included offense instructions and arguments to the jury, which could very well have proved persuasive. But in light of the overwhelming upside risk in this case, which would be somewhere around 520 years if all counts were proven and the court imposed maximum consecutive sentences, I have advised him frankly that this is a wise decision on his behalf, /aid with that proviso, Your Honor, Mr. Schaff is prepared to address your question.

The District Court and Appellant thereafter engaged in the following exchange:

THE COURT: Mr. Schaff, I understand the predicament that the court’s question poses to you; nonetheless, we do have to have a brief admission on the record as to what you have done in order that the court might be able to accept your plea of guilty, so—
MR. SCHAFF: Well—
THE COURT: —have at it.
MR. SCHAFF: I cut the victim and left her on the road.
THE COURT: Okay. Now, can you tell me — when you say you cut the victim, can you give me any more detail than that?
MR. SCHAFF: Cut her with a pocket knife.
THE COURT: Okay. Now, do you — if my recollection is correct, the affidavit in support of this references stabbing, I believe as opposed to cutting. Do you draw a distinction between the two or are you trying to make a distinction?
MR. SCHAFF: Not really.
THE COURT:. Okay. I mean, would the court be correct in assuming then that you are admitting that you did stab her on a number of occasions?
MR. SCHAFF: Yes.
THE COURT: Was it your intent to do that?
MR. SCHAFF: No.
THE COURT: I don’t mean intent to commit deliberate homicide, was it your intent to stab her? Was it some sort of accident?
MR. SCHAFF: No, it wasn’t an accident.

The State then interjected with the following offer of proof:

ATTORNEY FOR STATE: As to Count I, the State — for the attempt of deliberate homicide, the State had intended to introduce in excess of 100 exhibits as to this count, including hairs and articles of clothing. Specifically, the State would have introduced the hairs examined by the state crime lab, an expert would testify that microscopically those were of the victim, who is a minor.
And that that hair was cut hair, not pulled out by the roots, and not fallen hair, but hair that had been cut from a sharp instrument. That hair was found in defendant’s vehicle. In addition, the minor victim’s article of clothing, specifically a flannel shirt, was examined by the state crime lab and it would have had eight slits caused by a sharp instrument within that article of clothing and would examine — those would have been around the shoulder and neck area.
In addition, the emergency room physician, Dr. Theade of St. Vincent, treated the minor child and would have testified that she suffered from wounds committed by those consistent with a sharp instrument like a knife. She would also testify that those wounds were superficial and not life threatening.
However, if we went to trial the minor victim would have testified, and that would have been an issue of fact for that jury. Her testimony would have been that she played opossum after the attack took place, and she played dead. And the defendant eventually left her alone in the [sic] an isolated area southwest of Montana, but in Yellowstone County.

¶8 The court further questioned Appellant concerning the factual basis of the charge of witness tampering. The court then explained the maximum penalties for the offenses under the sentencing guidelines and informed Appellant of his right to withdraw his guilty pleas if the court ultimately refused the State’s recommendations for sentencing. Upon Appellant’s indication that he was sober, that no threats had been made to him, and that it was his desire to plead guilty, the court accepted Appellant’s guilty pleas and set the date for sentencing.

¶9 On November 12,1996, before his sentencing, Appellant filed a motion to withdraw his guilty pleas. At the hearing on the motion, Appellant testified that he was not dissatisfied with his attorney, but that he simply made a wrong decision. Appellant testified that his attorney advised him of the possibility of a 520-year prison term if found guilty of the six felonies, but that a more likely prison term would be 110 years. Appellant testified that prior to entering the plea agreement, he had reviewed V.F.’s statement and the other evidence and was informed of the strengths and weaknesses of the State’s case. Appellant testified that although he believed V.F. was lying, he went ahead and signed the plea agreement out of fear that the jury would find him guilty and that the court would impose a lengthy sentence.

¶10 Appellant further testified that the plea offer was made available for only one day and that he felt pressured to accept it. However, Appellant also testified that he and his attorney discussed plea negotiations a few days prior to the State’s formal plea offer, and that during these preliminary negotiations, the State indicated the possibility of a 50-year sentence. Appellant testified his attorney told him the decision was his to make. Finally, Appellant informed the court that the State had not yet fulfilled its obligation of dismissing the four remaining charges.

¶11 In his brief in support of the motion to withdraw the guilty pleas, Appellant emphasized that he never admitted an intent to kill VF. and argued that there was no factual basis for his guilty plea to attempted deliberate homicide. Appellant further argued that because the State had not yet dismissed the remaining four charges, he had not received the benefit of the bargain and no prejudice to the State existed by permitting him to withdraw his guilty pleas.

¶12 On December 13, 1996, the court denied Appellant’s motion. In its memorandum and order, the court found that Appellant “had plenty of time to consider the State’s offer” and concluded that Appellant’s plea was not involuntary simply because he was afraid he would receive a much longer sentence if he went to trial. The court applied the three-part test announced in State v. Huttinger (1979), 182 Mont. 50, 54, 595 P.2d 363, 366, to determine whether Appellant should be allowed to withdraw his plea. The court found that Appellant “entered his guilty plea voluntarily and with a full understanding and waiver of his rights.”

¶13 On December 19, 1996, the court sentenced Appellant according to the terms of the plea agreement. Appellant filed his notice of appeal on January 10, 1997.

STANDARD OF REVIEW

¶14 “[I]t is a well-settled legal principle that a guilty plea must be a voluntary, knowing, and intelligent choice among the alternative courses of action open to the defendant.” State v. Bowley (1997), 282 Mont. 298, _, 938 P.2d 592, 595 (quoting State v. Radi (1991), 250 Mont. 155, 159, 818 P.2d 1203, 1206). To ensure voluntariness of a guilty plea, Montana law requires that before accepting the plea the district court must engage in a detailed inquiry of the defendant to ensure his understanding of the charge and the consequences of the plea. See generally Sections 46-12-204, 46-12-210, 46-12-212, and 46-16-105(1), MCA.

¶15 A district court may permit a defendant to withdraw his guilty plea at any time, before or after judgment, for good cause shown. Section 46-16-105(2), MCA. In Montana, there exists no statute or rule of procedure for district courts to apply when determining whether a defendant has shown good cause. Instead, each case is considered in light of its unique facts and is subject to the sound discretion of the district court. Bowley, 282 Mont. at _, 938 P.2d at 595.

¶16 Although the determination of good cause is discretionary, this Court has set forth some general principles to guide district courts in their analyses. One general principle is that “all doubts should be resolved in favor of a trial on the merits... and the discretion of the court should be liberally exercised in favor of life and liberty.” State v. McAllister (1934), 96 Mont. 348, 353, 30 P.2d 821, 823. See also State v. Enoch (1994), 269 Mont. 8, 18, 887 P.2d 175, 181; Huttinger, 182 Mont. at 55, 595 P.2d at 367. Another principle states:

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.

State v. Cameron (1992), 253 Mont. 95, 101, 830 P.2d 1284, 1288 (emphasis supplied).

¶17 Appellant argues that the second principle is unduly restrictive and conflicts with the first principle. Appellant also asserts that the second principle is a misstatement of the law. Appellant traced the above quotation from Cameron to State v. Miller (1991), 248 Mont. 194, 197, 810 P.2d 308, 310 to Benjamin v. McCormick (1990), 243 Mont. 252, 256, 792 P.2d 7, 10 to State v. Mesler (1984), 210 Mont. 92, 96, 682 P.2d 714, 716 to McAllister. Appellant discovered that Mesler misquoted McAllister. In McAllister, we stated:

A change of plea will ordinarily be permitted if it fairly appears that the defendant was in ignorance of his rights and of the consequences of his act, or if influenced unduly and improperly either by hope or fear in making it, or if it appears that the plea was entered under some mistake or misapprehension.

McAllister, 96 Mont. at 353, 30 P.2d at 823 (emphasis supplied). Our research reveals that this same mistake appears in State v. Haynie (1980), 186 Mont. 374, 380, 607 P.2d 1128, 1131. We believe the substitution of the word only for ordinarily significantly changed the application of the second principle from liberal to restrictive. Because the fundamental purpose of allowing the withdrawal of a guilty plea is to guard against the conviction of an innocent person, Bowley, 282 Mont, at _, 938 P.2d at 595, we believe the liberal application is the better one. Therefore, we undertake to correct the mistake. In the future, the two principles discussed above can be combined and succinctly stated as follows:

A change of plea will ordinarily be permitted if it fairly appears that the defendant was in ignorance of his rights and of the consequences of his act, or if influenced unduly and improperly either by hope or fear in making it, or if it appears that the plea was entered under some mistake or misapprehension. If there is any doubt that a plea is involuntary, the doubt should be resolved in the defendant’s favor.

McAllister, 96 Mont. at 353, 30 P.2d at 823.

¶ 18 We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. Bowley, 282 Mont. at _, 938 P.2d at 595. To determine whether a district court abused its discretion in denying a defendant’s motion to withdraw a guilty plea, we consider three factors:

(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.

Bowley, 282 Mont. at _, 938 P.2d at 595; Huttinger, 182 Mont. at 54, 595 P.2d at 366.

DISCUSSION

¶19 Did the District Court err in denying Appellant’s motion to withdraw his guilty pleas?

A. Adequacy of the court’s interrogation

¶20 A judge’s interrogation of a defendant seeking to enter a guilty plea is sufficient if the judge:

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

State v. Mahoney (1994), 264 Mont. 89, 94-95, 870 P.2d 65, 69 (citations omitted). Appellant only disputes that portion of interrogation requiring the court to establish a factual basis for his guilty plea to attempted deliberate homicide.

¶21 Appellant argues that the court failed to establish a factual basis for the guilty plea because he refused to admit that he intended to kill the victim, an essential element of the crime with which he was charged. Appellant points to the colloquy with the court where he admitted stabbing V.F. several times with a small knife but denied intending to kill her.

¶22 The State counters that a court need not extract an admission from the defendant of every element of the crime in order to establish a factual basis for the guilty plea. We agree with the State. Section 46-12-212, MCA, provides:

Determining accuracy of plea. (1) The court may not accept a guilty plea without determining that there is a factual basis for the plea in charges of felonies or misdemeanors resulting in incarceration. (2) A defendant who is unwilling to admit to any element of the offense that would provide for a factual basis for a plea of guilty may, with the consent of the court, enter a plea of guilty to the offense if the defendant considers the plea to be in the defendant’s best interest and a factual basis exists for the plea.

Section 46-12-212, MCA, does not require a defendant to establish every element of the offense charged in order for his guilty plea to be accepted. The statute does not preclude the State from offering proof that a factual basis exists for a defendant’s guilty plea. Rather, the statute simply requires that a factual basis for the defendant’s plea be established. We hold that the absence of an admission from Appellant concerning the mental state element of attempted deliberate homicide did not, of itself, render the court’s interrogation inadequate and his plea involuntary.

¶23 Appellant next attacks the quality of the evidence on which the court relied to establish a factual basis for the mental state element of the offense. Appellant argues that at best the State’s offer of proof demonstrates only that V.F. suffered superficial knife wounds, not that he intended to kill V.F. Appellant’s argument is not persuasive.

¶24 In State v. Sellner (1997), [286 Mont. 397], 951 P.2d 996, we stated:

Attempted deliberate homicide requires proof that Appellant had the purpose to cause the death of another human being and acted toward purposely or knowingly causing the death of another human being. Sections 45-4-103 and 45-5-102, MCA. “Purposely” means it was the defendant’s conscious object to engage in that conduct or cause that result. Section 45-2-101(63), MCA. A person acts knowingly with respect to a given result when the person is aware of a high probability that the result will be caused by the person’s conduct. Section 45-2-101(34), MCA.

Sellner, [286 Mont. 397], 951 P.2d at 998. Where “purposely or knowingly” causing a result is an element of an offense, that element can be established if the result involves the same kind of harm or injury as contemplated by the defendant, although the actual degree of injury is greater than intended. Section 45-2-201(2)(b); State v. Rothacher (1995), 272 Mont. 303, 307, 901 P.2d 82, 85. In Montana, circumstantial evidence is an “acceptable and often convincing method of proving criminal intent.” State v. Brogan (1993), 261 Mont. 79, 89, 862 P.2d 19, 25-26 (citations omitted). “The existence of a mental state may be inferred from the acts of the accused and the facts and circumstances connected with the offense.” Section 45-2-103(3), MCA.

¶25 Appellant has presented no facts from which a credible argument could be made that when he stabbed V.F. eight times, he was not aware of a high probability that his actions would result in serious bodily injury to or the death of V.F. Appellant admitted stabbing V.F. several times and admitted that these acts were voluntary and not accidental. At the very least, Appellant’s admissions, coupled with over 100 exhibits and other circumstantial evidence to which the State referred in its offer of proof, provide a sufficient factual basis from which to believe that Appellant intended to inflict serious bodily injury to V.F. In fact, we do not view it a stretch to infer from the facts and circumstances of the offense that Appellant intended to kill V.F. The record shows that V.F. played dead and that Appellant dragged her to a nearby field and left her for dead. We hold that sufficient evidence was presented during the court’s interrogation of Appellant from which the court could establish a factual basis for the mental state element of attempted deliberate homicide. Thus, the first factor weighs heavily in favor of the court’s denial of Appellant’s motion to withdraw his guilty plea.

¶26 The State notes that although not labeled as such, Appellant’s plea was, in effect, an Alford plea, referring to North Carolina v. Alford (1970), 400 U.S. 25, 91 S. Ct. 160, 27 L.Ed.2d 162. In Alford, the United States Supreme Court held that when a defendant clearly expresses his desire to plead guilty despite his belief in his innocence, and the state demonstrates a “strong factual basis for the plea,” there is no constitutional error in accepting the defendant’s plea. Alford, 400 U.S. at 38, 91 S.Ct. 160. Appellant correctly points out that this argument was not made to the District Court. We will not address issues or theories raised for the first time on appeal. See Sections 46-20-104(2) and -701(2), MCA; State v. Woods (1997), 283 Mont. 359, 372, 942 P.2d 88, 96-97. Therefore, we decline to address this argument on the merits.

B. Promptness of motion

¶27 The District Court did not address factor two, the promptness of Appellant’s motion to withdraw his guilty plea. The record indicates that Appellant’s motion to withdraw his guilty plea was made before sentencing and within two months of the court’s acceptance of the guilty plea. Both Appellant and the State agree that Appellant’s motion was timely. Accordingly, the second factor weighs in Appellant’s favor.

C. Existence of a plea bargain

¶28 The third factor we must consider is the fact that Appellant’s guilty plea was the result of a plea bargain. Consideration of this factor is intended to prevent the parties to a plea agreement, either a defendant or the State, from escaping the obligations of the plea agreement after accepting its benefits. State v. Milinovich (1994), 269 Mont. 68, 74, 887 P.2d 214, 217; Bowley, 282 Mont. at _, 938 P.2d at 599 (citing State v. Allen (1981), 197 Mont. 64, 68-69, 645 P.2d 380, 382).

¶29 Appellant’s plea agreement provided that in exchange for Appellant’s pleas of guilty to attempted deliberate homicide and witness tampering, the State would dismiss with prejudice the remaining four charges at Appellant’s sentencing and would bring no further charges against Appellant for any actions concerning V.F. or her family for any of the transactions then known to the State. Appellant pled guilty to the two charges. However, at the time Appellant made his motion, the remaining four charges had not been dismissed because Appellant had not yet been sentenced. Appellant argues that because dismissal had not yet occurred, he had not received the benefits of his plea agreement. Thus, Appellant reasons, having fulfilled his part of the bargain, and having not realized the benefit of the bargain, he would not have escaped his obligations of the plea agreement after accepting its benefits, and no prejudice would have resulted to the State had he been allowed to withdraw his guilty pleas.

¶30 The State contends that Appellant received the benefit of the bargain when he pled guilty and insulated himself from further state action on the remaining and future related charges. The State further contends that just because the dismissal of the remaining charges had not yet occurred does not mean that Appellant had not received the benefit of his bargain. Finally, the State argues that “absent some legitimate infirmity in the plea process itself, a criminal defendant cannot simply change his mind and back out of an otherwise voluntary plea agreement.” We agree with the State.

¶31 The plea agreement here certainly conferred some benefits upon Appellant: Appellant avoided the consequences of six felony convictions, and the State refrained from bringing further charges against Appellant. We note that the third factor is resolved in the defendant’s favor when the State has in fact breached the plea agreement. See Bowley, 282 Mont. at _, 938 P.2d at 599. In this case, the State never breached the plea agreement. Nothing in the record suggests that at the time Appellant made his motion, the State would renege on the remainder of its obligation and refuse to dismiss the remaining four charges at sentencing. We note that after denial of Appellant’s motion, the State in fact fulfilled its obligations and Appellant was sentenced according to the plea agreement. Upon these facts, we resolve the third factor in favor of the court’s denial of Appellant’s motion to withdraw his guilty plea.

¶32 In sum, the three factors discussed above illustrate that no good cause existed for the court to allow Appellant to withdraw his guilty pleas. Although the promptness factor weighs in Appellant’s favor, the other two factors do not. The District Court’s interrogation was adequate in establishing a factual basis for. the guilty plea, and the Appellant’s guilty plea was the result of a valid and enforceable plea agreement with the State. The fact that the State had not yet dismissed the four remaining charges when Appellant made his motion to withdraw guilty pleas did not constitute a breach of the plea agreement on the part of the State. Nothing in the record suggests Appellant would not have received the full benefit of the plea bargain at sentencing.

¶33 Similarly, nothing in the record establishes that Appellant’s plea was based on a fundamental mistake, misapprehension, or misunderstanding to its consequences. Indeed, the record shows that Appellant weighed the evidence for and against him, considered the likelihood of convictions on all counts, and made a voluntary and intelligent decision to enter a plea agreement in order to avoid a lengthy sentence. “[A] plea agreement presupposes fundamental fairness in the process of seeming such an agreement between the defendant and the prosecutor ....” Bowley, 282 Mont. at _, 938 P.2d at 599. Fundamental fairness requires that Appellant not be allowed to withdraw his guilty plea.

¶34 We hold that the District Court did not abuse its discretion in denying Appellant’s motion to withdraw his guilty pleas.

¶35 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART, NELSON and REGNIER concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. EUGENE A. POLLACK, Defendants and Respondents.
    No. 97-321.
    Submitted on Briefs December 18, 1997.
    Decided May 4, 1998.
    1998 MT 105.
    55 St.Rep. 403.
    958 P.2d 75.
    288 Mont. 436.

      For Appellant: Mark E. Jones, Missoula.
    For Respondent: Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Robert L. “Dusty” Deschamps, III, Missoula County Attorney, Karen Townsend, Assistant Missoula County Attorney, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶ 1 Eugene A. Pollack (“Pollack”) appeals from the judgment of the Fourth Judicial District Court, and from the order denying his motion to dismiss the charges against him for lack of speedy trial. We affirm.

¶2 The only issue on appeal is whether the District Court erred when it failed to dismiss the charges against Pollack for lack of speedy trial pursuant to § 46-13-401(2), MCA.

BACKGROUND

¶3 On April 14, 1996, in Missoula County Justice Court, Pollack was charged with driving under the influence of alcohol and with driving without liability insurance. On April 15, 1996, he appeared in court and pled not guilty.

¶4 An omnibus hearing was originally set for June 6,1996. On the date of the scheduled hearing, attorney Bruce Hussey appeared on behalf of Pollack and requested a continuance. According to the District Court’s opinion, Hussey had informed the court that another attorney, Mark Jones, would be representing Pollack and he therefore requested the continuance to allow Jones the opportunity to appear on Pollack’s behalf. The court granted his request, and the omnibus hearing was continued until July 11, 1996.

¶5 On June 6, 1996, the State also moved to amend the citation against Pollack to correct a technical mistake that occurred when the statute numbers with which Pollack was charged were accidentally transposed. The original citation mistakenly charged Pollack with driving without proper insurance in violation of § 61-6-304(1), MCA, which is the penalty provision for driving without insurance. The State requested the citation be amended to charge Pollack with the violation of § 61-6-301(4), MCA.

¶6 On June 10¡ 1996, Jones filed a notice of appearance as the attorney of record for Pollack and a demand for discovery. The State responded to the discovery demand on June 13, 1996.

¶7 At the rescheduled omnibus hearing held July 11, 1996, the court set a trial date for November 8, 1996, which was six months and 24 days after Pollack had entered his pleas of not guilty. On October 23, 1996, Pollack filed a motion to dismiss the charges against him on the ground that the trial was not scheduled to occur within six months of his guilty plea as required by § 46-13-401(2), MCA. The Justice Court denied the motion, and Pollack pled guilty to both charges, but reserved his right to appeal the adverse determination of his motion to dismiss.

¶8 Pollack appealed to the Fourth Judicial District Court, Missoula County. The District Court affirmed the Justice Court’s order denying the motion to dismiss. It held that the delay in the trial past the six-month time limit was caused by Pollack’s request to continue the omnibus hearing, which resulted in good cause for the delay. Pollack appeals the District Court’s decision.

DISCUSSION

¶9 We review the District Court’s legal conclusion to determine whether it is correct. State v. Fitzgerald (1997), 283 Mont. 162, 165, 940 P.2d 108, 110 (citing State v. Mantz (1994), 269 Mont. 135, 137, 887 P.2d 251, 253).

¶10 Pollack argues that § 46-13-401(2), MCA, requires that his case be dismissed because the court scheduled his trial to occur more than six months after he entered his guilty plea. Section 46-13-401(2), MCA, provides:

After the entry of a plea upon a misdemeanor charge, the court, unless good cause to the contrary is shown, shall order the prosecution to be dismissed, with prejudice, if a defendant whose trial has not been postponed upon the defendant’s motion is not brought to trial within 6 months.

The State, on the other hand, contends that good cause to the contrary is shown, because the trial date was delayed due to Pollack’s request for a continuance of the omnibus hearing. We agree.

Ill This Court has explained that it will dismiss a misdemeanor charge pursuant to § 46-13-401, MCA, only if two conditions are met: (1) the defendant has not asked for a postponement; and (2) the State has not shown good cause for the delay. Fitzgerald, 283 Mont. at 165, 940 P.2d at 110 (citing State v. Crane (1989), 240 Mont. 235, 238, 784 P.2d 901, 903).

¶12 In Fitzgerald, we held that “any pretrial motion for continuance filed by a defendant which has the incidental effect of delaying the trial beyond the six month time limit could be said to ‘postpone trial’ for purposes of § 46-13-401(2), MCA.” Fitzgerald, 283 Mont. at 166-67, 940 P.2d at 111. In that case, the trial was delayed beyond the six-month time limit because the court had accommodated Fitzgerald by continuing the omnibus hearing on two occasions. Fitzgerald, 283 Mont. at 164, 940 P.2d at 109. This Court thus held that “good cause” existed and § 46-13-401(2), MCA, did not mandate dismissal. As we stated:

After these delays caused by Fitzgerald, the Justice Court cannot be expected to alter its schedule to ensure that the misdemeanor charge is tried within six months. A Justice Court must retain a measure of flexibility over scheduling to hear cases on its docket. As such, we determine that the trial date of March 26, 1996, fell within the “good cause to the contrary” exception of § 46-13-401(2), MCA.

Fitzgerald, 283 Mont. at 167, 940 P.2d at 111.

¶13 Similarly, in this case, the District Court found that the delay in the trial beyond the six-month time limit was due to Pollack’s request to continue the omnibus hearing. According to our holding in Fitzgerald, the trial date fell within the “good cause to the contrary” exception to § 46-13-401(2), MCA.

¶ 14 Pollack challenges the court’s factual finding that the delay was attributable to him. He argues that the State caused the delay by filing the motion to amend the citation. Pollack admits that the State’s motion, which was filed only to correct transposed numbers in the statutory cite, had “little, if any, effect upon the charges against him.” He nevertheless insists that he was required to request a continuance of the omnibus hearing in order to properly evaluate and respond to the motion. But Pollack did not advance this theory to the District Court. It is well-settled that a party may not change his theory on appeal from that presented to the district court. State v. Greywater (1997), 282 Mont. 28, 35, 939 P.2d 975, 979. We thus decline to address the merits of his argument. We hold that the District Court did not err when it failed to dismiss the charges against Pollack for lack of speedy trial pursuant to § 46-13-401(2), MCA.

¶15 Affirmed.

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


text:
    MICHAEL BARE, Appellant/Claimant, v. LIBERTY MUTUAL FIRE INSURANCE CO., Respondent/Insurer for UNITED PARCEL SERVICE, Employer/Respondent.
    No. 97-434.
    Submitted on Briefs December 11, 1997.
    Decided May 4, 1998.
    1998 MT 106.
    55 St.Rep. 405.
    958 P.2d 71.
    288 Mont. 440.

      For Appellant: Laurie Wallace, Bothe & Lauridsen, Columbia Falls.
    For Respondent: Larry Jones, Liberty Mutual Fire Insurance Company, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Michael Bare appeals from the order and judgment of the Workers’ Compensation Court. The court dismissed Bare’s claim for permanent total disability benefits pursuant to § 39-71-702, MCA (1989), because he had failed to exhaust the rehabilitation panel procedures set forth at §§ 39-71-1012 through 39-71-1033, MCA (1989). We affirm.

¶2 The issue before this Court is whether the Workers’ Compensation Court erred when it dismissed Bare’s petition on the basis that it lacked jurisdiction to determine a claimant’s disability status under the 1989 version of the Workers’ Compensation Act prior to the exhaustion of the rehabilitation panel procedures.

¶3 On February 14, 1990, Bare injured his neck when he tripped and landed with his chin and neck on a package he was carrying. The injury occurred in the course and scope of his employment with United Parcel Service. The insurer, Liberty Mutual Fire Insurance Company (“Liberty Mutual”), accepted liability and paid Bare temporary total disability benefits through March 7, 1997.

¶4 On February 25, 1997, Bare requested a mediation conference regarding the issue of permanent total disability, which was held on March 18, 1997. When mediation did not resolve the dispute, Bare filed a petition for a hearing before the Workers’ Compensation Court, alleging that he was permanently, totally disabled. The court dismissed the petition on May 27, 1997, holding that the face of the petition showed a lack of jurisdiction because Bare had not exhausted the rehabilitation panel procedures. It held that its jurisdiction to determine whether a worker was able to return to work was limited to appellate jurisdiction over the Department’s final decision. It further concluded that it had original jurisdiction only when the Department determined that none of the return-to-work options set forth in § 39-71-1012, MCA (1989), were appropriate. It is from this order that Bare appeals to this Court.

¶5 In the meantime, however, Bare utilized the rehabilitation panel procedures and on June 10,1997, the panel found that the first appropriate return-to-work option for Bare was to “return to a related occupation suited to the claimant’s education and marketable skills.” Section 39-71-1012(2)(e), MCA (1989). On June 17, 1997, Bare appealed the Department’s initial order of determination. The record before the Court does not reflect whether the Department has entered a final order of determination or whether the Workers’ Compensation Court has heard or determined the matter. In any event, that case is not before this Court.

¶6 We review the Workers’ Compensation Court’s conclusions of law to determine whether its interpretation is correct. Gibson v. State Comp. Mut. Ins. Fund (1992), 255 Mont. 393, 396, 842 P.2d 338, 340 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603). Additionally, it is well-settled that the statutes in effect on the date of the injury determine a worker’s entitlement to compensation benefits. Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 321, 730 P.2d 380, 382. Because Bare was injured in 1990, his claim is governed by the 1989 version of the Workers’ Compensation Act.

¶7 Bare argues that he was entitled to proceed directly to the Workers’ Compensation Court with regard to his claim that he was permanently totally disabled. He contends that by dismissing his petition for a hearing, the court ignored the fact that it has exclusive jurisdiction over the issue of whether he was entitled to benefits under the Act pursuant to § 39-71-2905, MCA (1989).

¶8 Liberty Mutual, on the other hand, contends that although broad, the jurisdiction of the Workers’ Compensation Court is not without limits. It maintains that the rehabilitation panel process embodied at §§ 39-71-1001 through 39-71-1033, MCA (1989) is a dispute resolution mechanism which the parties were required to satisfy prior to filing a petition with the Workers’ Compensation Court. Section 39-71-2905, MCA(1989). Although the statutes are not a model of clarity, we agree with Liberty Mutual’s analysis.

¶9 The Act provides that a claimant may petition the Workers’ Compensation Court only after “satisfying dispute resolution requirements otherwise provided in this chapter.” Section 39-71-2905, MCA (1989):

A claimant or an insurer who has a dispute concerning any benefits under chapter 71 of this title may petition the workers’ compensation judge for a determination of the dispute after satisfying dispute resolution requirements otherwise provided in this chapter.... After parties have satisfied dispute resolution requirements provided elsewhere in this chapter, the workers’compensation judge has exclusive jurisdiction to make determinations concerning disputes under chapter 71, except as provided in 39-71-317 and 39-71-516. (Emphasis added.)

The words “this chapter” refers to Chapter 71 of Title 39, which includes the rehabilitation panel statutes contained at §§ 39-71-1001 through 39-71-1033, MCA(1989). We conclude that the rehabilitation statutes are such a “dispute resolution requirement.”

¶10 First, utilization of rehabilitation services is expressly required. In his petition, Bare claims that he is a “disabled worker” which is defined as “one who has a medically determined restriction resulting from a work-related injury that precludes the worker from returning to the job the worker held at the time of the injury.” Section 39-71-1011(2), MCA (1989). The Act specifically requires all disabled workers to use the rehabilitation services. See § 39-71-1014(1), MCA (1989) (“Rehabilitation services are required for disabled workers....”) (emphasis added). Hence, according to the plain language of the Act, Bare was required to utilize the rehabilitation services. See also Higginbotham v. Stoltze-Connor Lumber (1991), 248 Mont. 161, 167-68, 810 P.2d 295, 299 (stating that the rehabilitation statutes require the parties to follow the rehabilitation procedure and holding “[fjrom the date of remand the statutory procedures in the rehabilitation sections shall be followed.”)

¶11 The Act further elaborates on the steps a disabled worker must proceed through when using the rehabilitation services:

(1) If a disabled worker is capable of returning to work, the designated rehabilitation provider shall evaluate and determine the return-to-work capabilities of the disabled worker pursuant to 39-71-1012(2)(a) through (2)(d).
(2) If an insurer’s designated rehabilitation provider has determined all appropriate services have been provided to the disabled worker under 39-71-1012(2)(a) through (2)(d) and the worker has returned to work, the insurer shall document that determination to the department.
(3) If the worker has not returned to work as provided in subsection (2), the insurer shall notify the department. The department shall then designate a rehabilitation panel as provided in 39-71-1016 and refer the worker to the panel.

Section 39-71-1015, MCA (1989)(emphasis added). The Act thus required Bare, who has not returned to work, to eventually submit to a rehabilitation panel. The rehabilitation panel is charged in part with identifying the first appropriate rehabilitation option set forth in § 39-71-1012, MCA (1989). See § 39-71-1017(2)(a), MCA (1989). Nothing in the Act, however, prevents the panel from finding that none of the options are appropriate.

¶12 Upon receiving the rehabilitation panel’s report, the Department of Labor and Industry (“Department”) then issues its initial order of determination, either accepting or rejecting the panel’s findings and recommendations. Section 39-71-1018, MCA (1989). At that point, if a disabled worker such as Bare disagrees with the determination, he may submit written exceptions to the order and may ultimately appeal a final order to the Workers’ Compensation Court. Section 39-71-1018, MCA (1989).

¶ 13 In addition to being a requirement, the rehabilitation services also provides a mechanism by which the parties may resolve their dispute. The claimant and the insurer may resolve the dispute by agreement, § 39-71-1013, MCA (1989), or they may accept either the Department’s initial order of determination or the final order of determination after a hearing. In any event, they are not required to file an appeal with the Workers’ Compensation Court.

¶14 Bare contends that such an interpretation of these statutory provisions robs him of his right to a hearing before the Workers’ Compensation Court, which is charged with acting as a fact-finder to resolve such disputes. Unfortunately for the claimant, in Martelli v. Anaconda-Deer Lodge County (1993), 258 Mont. 166, 852 P.2d 579, this Court impliedly rejected Bare’s arguments. Martelli was decided under the 1987 version of the Act, which for all relevant purposes is identical to the 1989 version of the Act. In that case, Martelli suffered injuries during the course of his employment and proceeded through the rehabilitation panel procedures. Following a contested case hearing before the Department (then known as the Division), the Department issued a final order stating that an appropriate rehabilitation option pursuant to § 39-71-1012, MCA (1987) was for Martelli to return to a related occupation suited to his education and skills. Martelli, 258 Mont. at 167, 852 P.2d at 580. Martelli did not appeal the order to the Workers’ Compensation Court as provided for in § 39-71-1018, MCA (1987). Instead, over one year later, he filed a petition directly with the Workers’ Compensation Court seeking permanent total disability benefits. Martelli, 258 Mont. at 168, 852 P.2d at 580. To the employer’s contention that he was required to have filed an appeal with the Workers’ Compensation Court in order to present the issue to that court, he, like Bare in this case, argued that the Workers’ Compensation Court has exclusive jurisdiction over the issue of his entitlement to permanent total disability benefits under the Act. Martelli, 258 Mont. at 168, 852 P.2d at 580.

¶15 This Court rejected Martelli’s position. The Court held that the doctrine of collateral estoppel precluded the court from determining the issue, because in order to determine whether Martelli was entitled to permanent total disability benefits, the Workers’ Compensation Court would first have to determine that he could not return to work in a related occupation suited to his education and skills, which was the return-to-work option already chosen by the rehabilitation panel. Martelli, 258 Mont. at 169, 852 P.2d at 581. Because the parties could not relitigate the issue, the Workers’ Compensation Court was bound by the Department’s determination that he could work in a suitable occupation. It thus could not determine that Martelli was permanently and totally disabled. Martelli, 258 Mont. at 169, 852 P.2d at 581.

¶16 Although the issue of whether the rehabilitation procedures must first be exhausted before the Workers’ Compensation Court has jurisdiction over a person’s claim to permanent total disability benefits was not directly at issue, the effect of the decision was to require exhaustion. Otherwise, nothing would have prevented Martelli from filing a petition for hearing before the Workers’ Compensation Court at any time. As the dissent in Martelli noted, the majority’s opinion limited the role of the Workers’ Compensation Court in determining disability benefits to that of an appellate court, even though the scope of review on an appeal would not be the equivalent of a full fact-finding hearing before the Workers’ Compensation Court guaranteed by § 39-71-2905, MCA. Martelli, 258 Mont. at 171-72, 852 P.2d at 582-83 (Trieweiler, J., dissenting). Although the author of this opinion joined with the dissent, Martelli is the law and we are bound to follow it.

¶17 Bare next argues that the legislature could not have intended to divest the court of jurisdiction, because by “artfully pleading” a petition, a claimant can easily “reinvest” the court with jurisdiction by presenting, an additional dispute over which the Workers’ Compensation Court does have original jurisdiction. Once the Court has acquired jurisdiction over the additional dispute, it would then have jurisdiction to decide all the issues that arise between the parties. See Carlson v. Cain (1985), 216 Mont. 129, 141, 700 P.2d 607, 615. That theory of course is speculation as it is applied to this case, and we need not address it today.

¶18 Finally, Bare maintains that requiring a party to exhaust the rehabilitation panel provisions will result in excessive litigation, because the Workers’ Compensation Court could reverse the Department’s decision and require him to resubmit his case to the Department. However, that is the nature of appellate procedure. The legislature expressly gave the court appellate jurisdiction over the final determination of the Department, and it is not the function of this Court to rewrite the statute simply because the process is cumbersome.

¶ 19 We hold that the Workers’ Compensation Court lacks jurisdiction to determine a claimant’s disability status under the 1989 version of the Act prior to the exhaustion of the rehabilitation panel procedures. In this case, Bare did not exh aust those procedures prior to filing the petition for hearing. Thus, the court did not err in dismissing his petition.

¶20 Affirmed.

JUSTICES GRAY, NELSON, LEAPHART and REGNIER concur.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PHILLIP EARNEST KEATING, Defendant and Appellant.
    No. 97-072.
    Submitted on Briefs March 26, 1998.
    Decided May 5, 1998.
    1998 MT 109.
    55 St.Rep. 430.
    958 P.2d 690.
    288 Mont. 447.

      For Appellant: David F. Ness, Missoula.
    For Respondents: Honorable Joseph P. Mazurek, Attorney General; C. Mark Fowler, Assistant Attorney General, Helena; Mike McGrath, County Attorney; Vicki Frazier, Deputy County Attorney, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶1 Phillip Earnest Keating appeals his conviction, by jury trial in the First Judicial District Court, Lewis and Clark County, of two counts of possession of dangerous drugs (one felony and one misdemeanor), and two counts of misdemeanor possession of drug paraphernalia. We affirm.

¶2 The issue is whether the District Court erred in denying Keating’s motion to suppress evidence.

¶3 At 3:30 a.m. on June 10, 1995, a Helena, Montana, city police officer on routine patrol noticed a small pickup truck with its dome light on and passenger door open parked next to Uncle Pete’s Pawn Shop. The officer pulled over to investigate. While he was doing so, a man walked out of the pawn shop holding several fishing items. Recognizing the man as Fabian Gong, who was then under the supervision of a local probation officer, the police officer asked him what he was doing. Gong replied that he was doing his laundry.

¶4 A second Helena police officer arrived. Gong, who appeared worried and near tears, then told the officers that he worked at the pawn shop and had a key. He said that he and the owner, Phillip Keating, were doing inventory. Under the circumstances, the second officer decided to verify Gong’s statement. He went to the open front door of the pawn shop and identified himself loudly as a police officer. He then entered the store, in which an overhead light was turned on, with his gun drawn and a flashlight in his other hand. As he entered, he noticed a male whom he recognized as Keating standing behind the counter with his back toward the door.

¶5 Keating turned around with a semiautomatic pistol in his hand, aiming it at the police officer. He loudly ordered the officer to leave the store because he had no right to be there. Keating continued to shout at the officer for several minutes while the officer repeatedly ordered Keating to put the gun down. Finally, Keating walked out from behind the counter and knelt down in compliance with the officer’s orders. Once Keating was on the floor, a third officer who had arrived on the scene handcuffed him. Meanwhile, outside, Gong had again changed his story about what he was doing at the pawn shop at 3:30 a.m., now explaining that he and Keating were gathering items for a flea market sale they were having the next morning.

¶6 One of the officers conducted a protective sweep of the premises, looking for other persons and for weapons. He found Keating’s pistol on a counter. Also on the counter were two razor blades and a scale with a white powder residue and what appeared to be marijuana debris in the tray. The officers found a four-inch long plastic straw in the left front breast pocket of Keating’s jacket. Keating, with whom all of the officers were acquainted, was behaving out of character, “very hyper” and “very agitated.”

¶7 Keating was transported to the local hospital where, pursuant to a warrant, his blood was tested for drugs. He was charged with felony assault and four drug offenses: misdemeanor possession of dangerous drugs (marijuana), felony possession of dangerous drugs (methamphetamine), and two counts of misdemeanor possession of drug paraphernalia (the scale and the straw). The jury was unable to reach a verdict on the felony assault charge but found Keating guilty on all four drug charges.

DISCUSSION

¶8 Did the District Court err in denying Keating’s motion to suppress evidence?

¶9 Before trial, Keating moved the District Court to suppress all evidence found within Uncle Pete’s Pawn Shop and to dismiss the charges against him. His motion was based upon his argument that his arrest was made without probable cause and in violation of his statutory and constitutional rights; that a search was illegally conducted and that it was conducted without probable cause, without a search warrant and in violation of his statutory and constitutional rights; and that exigent circumstances did not justify the police officers’ entry into his place of business.

¶10 Keating’s trial counsel acquiesced in the court’s decision to consider the suppression issue based on the documents filed with the District Court, which consisted of police reports and the parties’ briefs. Based upon its review of those documents, the court found that there was probable cause for the officers to believe that a burglary was going on at Uncle Pete’s Pawn Shop and that it was reasonable for them to enter the building in order to protect the owner’s property. The court held that the police reasonably believed that a burglary was in progress at the pawn shop and that their subsequent actions were reasonable and appropriate under all the facts and circumstances. After the decision was rendered, Keating moved for reconsideration and for an evidentiary hearing. The court’s refusal to grant that motion is the basis for this appeal.

¶11 This Court’s standard of review of the denial of a motion to suppress is whether the court’s findings of fact are clearly erroneous and whether the findings were correctly applied as a matter of law. State v. New (1996), 276 Mont. 529, 533, 917 P.2d 919, 921.

¶12 In general, a criminal defendant is entitled to a hearing on a suppression motion. See City of Helena v. Lamping (1986), 221 Mont. 370, 719 P.2d 1245. However, no evidentiary hearing is required on a motion to suppress when the parties have stipulated to the facts. State v. Chatriand (1990), 243 Mont. 375, 378, 792 P.2d 1107, 1109. In his motion for reconsideration, Keating did not identify any facts which might affect the validity of the court’s ruling.

¶13 Keating now asserts that he pointed out, in both his motion to suppress and his motion for reconsideration, contested issues of fact which made it necessary to hold an evidentiary hearing. For one, he states that the police “knew” that Gong was assisting him with inventory prior to entry into the pawn shop and that the pickup truck outside the pawn shop belonged to him. But there is nothing to indicate that Gong told the officers, or that they were otherwise aware before they entered the pawn shop, that the pickup belonged to Keating, who had recently purchased it used. Also, as described above, Gong’s statements about what he was doing at the pawn shop at 3:30 a.m. were inconsistent.

¶ 14 Keating further asserts that before the police entered the pawn shop, he yelled out, “whoever is out there stay out, I’ve got a gun.” While he so testified at trial, this information was not before the court when it decided the motion to suppress. Moreover, as with his claim that he was blinded by the officer’s flashlight when the officer entered his store, Keating does not explain what effect a shouted threat from an unidentified person would have on a determination of whether the officer was justified in entering the pawn shop.

¶15 The propriety of the denial of the motion to suppress must be based upon the factual evidence before the District Court when it decided the motion. In State ex rel. Zander v. District Court (1979), 180 Mont. 548, 553, 591 P.2d 656, 659, this Court held that a warrantless entry is appropriate under the exigent circumstances doctrine when prudent officers are warranted in their belief that a felony has been attempted or committed and in concluding that a prompt entry was necessary to protect property and to detect any suspect inside. Further, any items incidentally discovered in plain view can be seized without a search warrant.

¶16 In Zander, a neighbor reported that someone was tampering with the kitchen window in the Zanders’ trailer home. A police officer dispatched to the residence confirmed with the neighbors that the Zanders were not home and that the door was always locked if they were away. The officer noticed a light on in the trailer, but could see no one inside and no signs of forced entry. He tested the door and found it unlocked. When no one answered his knock, the officer entered and began searching for a possible burglar. In his search of the trailer, he discovered marijuana plants growing in a room where a light was on. This Court held that the officer’s entry into the trailer was proper and justified, and concluded that the discovery of the marijuana plants was lawful under the plain view doctrine. Zander, 180 Mont. at 553, 591 P.2d at 659.

¶17 This Court has recently reaffirmed that when officers acting on probable cause and good faith reasonably believe from the totality of the circumstances that the nature of the crime or characteristics of the suspect pose a risk of danger to the arresting officer or third persons, exigent circumstances justify a warrantless entry, search, or seizure of the premises. State v. Wakeford, 1998 MT 16, [287 Mont. 220], 953 P.2d 1065. In Wakeford, we upheld a warrantless entry into a motel room. Police investigating a report that an occupant of the room was possibly suicidal had heard two people arguing inside, a male and a female. Wakeford answered their knock, holding the door only slightly ajar. He was sweating and breathing heavily, his eyes were dilated, and his hands were hidden. While he admitted that he had been fighting with a woman inside the room, he refused to allow the officers to check on her safety. The officers’ subsequent entry was justified under the exigent circumstances doctrine because it was necessary to check on the female’s safety and to see if Wakeford had a gun in his hand. Drug paraphernalia which the officers thereafter discovered in plain view within the room was admissible into evidence under the plain view doctrine despite the absence of a search warrant. Wakeford, ¶ 27.

¶ 18 In this case, the evidence before the court in relation to the motion to suppress consisted of an affidavit in support of a subsequent application for a search warrant and police reports, including three written reports of the incident written by the three police officers involved. One officer documented the following reasons justifying the initial entry: “the involved suspicious vehicle with vehicle door nearest business in open position, time frame involved being 0330 Hrs., which is a normally ‘closed’ hour for this business, individual identified as Fabian Gong exiting business with merchandise in hand and entry door to business in open position.”

¶19 Other police reports filed with the court documented that Helena police officers had responded to burglar alarm calls at Uncle Pete’s in the past, and that Keating had filed complaints about crime in the neighborhood. When he was found outside the pawn shop, Gong appeared worried and near crying and gave several different stories as to what he was doing. The police officers’ reports document the following additional reasons justifying a “sweep” of the store: when he finally came out from behind the counter, Keating did not hand over (or have on his person) the gun with which he had threatened the uniformed officers; Keating’s behavior (he “appeared to be pacing rapidly in the counter area, yelling back towards officers irrational statements and unintelligible statements”); and, before he gave up, Keating “ran to the west side of the counter. It appeared that Keating was attempting to conceal something.” The scale was discovered in plain view on the counter.

¶20 In denying the motion to suppress, the District Court wrote:

The officers were faced with an individual with a known criminal record leaving a business at 3:30 a.m. He had a suspicious story and appeared near tears to the officers. The officers then noticed that the door of the business was open. The officers certainly had every right to enter the building to make sure that it was secure and that no burglary was going on. These officers would certainly be under a great deal of criticism if they had merely closed the door and walked away without any further investigation.

The facts stated above by the District Court are supported by substantial evidence and are not otherwise clearly erroneous.

¶21 In further applying the exigent circumstances doctrine, the District Court said:

Here, the officers could certainly prudently believe that a felony had been, or was being, committed at this place of business. This is near an area where the police have had many reports of criminal activity; it is 3:30 a.m.; they have an individual coming out of a store carrying items that certainly seem strange for one going on a laundry trip; and they have the door of the building left wide open. It was certainly reasonable for the officers to go inside.
Further, once the officers were confronted by Keating pointing a gun at them, they were certainly well within their rights to take protective measures and to ultimately secure Keating. They had a right to go pick up the gun that Keating was pointing at them and the evidence that was seized thereafter, the scales and the residue thereon, were in plain sight.

We agree with the District Court. We hold that the Helena police officers were justified by the exigent circumstances in making a warrantless entry into Uncle Pete’s Pawn Shop and in then conducting a plain view sweep of the shop after Keating yielded to them. The District Court did not err in denying the motion to suppress evidence seized from the pawn shop.

¶22 Affirmed.

JUSTICES REGNIER, NELSON, LEAPHART and HUNT concur.