author: JUSTICE LEAPHART JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DIANNE ERETH, Defendant and Appellant.
    No. 97-584.
    Submitted on Briefs June 11, 1998.
    Decided August 11, 1998.
    1998 MT 197.
    55 St.Rep. 831.
    290 Mont. 294.
    964 P.2d 26.

      For Appellant: J. Kim Schulke, Attorney at Law, Great Falls.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Mark W. Mattioli, Ass’t Attorney General, Helena; Brant S. Light, Cascade County Attorney, Great Falls.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Appellant Dianne Ereth (Ereth) appeals from the denial of her motion to withdraw her Alford plea and from her conviction in the Eighth Judicial District Court, Cascade County. We reverse and remand.

¶2 Ereth raises the following issues:

¶3 1. Did the District Court err in refusing to allow Ereth to withdraw her guilty plea?

¶4 2. Did the District Court err in ordering Ereth to pay $10,000 in restitution to the victims?

¶5 Because we find issue one dispositive, we will not address issue two.

Factual and Procedural Background

¶6 On August 31, 1994, Ereth was charged by information with three counts of sexual intercourse without consent and two counts of sexual assault, all felonies. The charges involved J.A., an eleven-year-old boy, and K.A., a nine-year-old girl. Ereth lived with J.A., K.A., and their mother for a period of time and babysat the children. The information alleged that Ereth fondled J.A.’s genitalia and penetrated KA.’s vagina with her fingers and with a crochet hook. Ereth obtained representation from the Cascade Public Defender’s Office.

¶7 In September of 1995, at the suggestion of one of her public defenders, Ereth underwent a “sex offender evaluation.” She was evaluated by Lily Kravcisin (Kravcisin), a licensed professional counselor with Interconnections Counseling Group, Inc. (Interconnections). Kravcisin’s evaluation indicated that Ereth was willing to undergo counseling and psychotherapy to determine whether she was repressing memories of the offenses.

¶8 On December 6,1995, Ereth filed a signed plea agreement and a notice of acknowledgment and waiver of rights. The District Court issued an order stating that it would likely reject the agreement. Therefore, the State and Ereth entered into a second plea agreement. Under the terms of this agreement, Ereth agreed to enter an Alford plea to two counts of felony sexual assault. In return, the State agreed to recommend that Ereth receive a five-year sentence with three years suspended on each offense and to dismiss the two charges of felony sexual intercourse without consent and one felony assault charge. The agreement also stated: “The Court in it [sic] discretion may reject a waiver of the mandatory minimum for these charges and impose a sentence upon the Defendant of up to ten (10) years in the Montana State Prison with six (6) years suspended on both counts.”

¶9 This agreement and Ereth’s acknowledgment and waiver of rights were filed on February 5, 1996. Scott Albers (Albers), Chief Cascade Public Defender, wrote to the District Court, explaining that he could only convince Ereth to enter an Alford plea, not a guilty plea. Albers stated: “I do not believe that the defendant in this case is capable of admitting guilt. Although the facts of the case are against her the only plea which the defense will be able to bring forward is an Alford Plea.”

¶ 10 After filing the plea agreement, Ereth began sex offender counseling with Interconnections. On April 12, 1996, the District Court held a change of plea hearing. At the hearing, Ereth testified that she understood the nature of the proceedings and had received ample counseling from the Public Defender’s office regarding the options available to her. She described her understanding of an Alford plea as follows: “That I believe that the facts are overwhelming against me and I would be found guilty in a trial, but at this point I cannot admit to that guilt.”

¶ 11 Ereth testified that when she entered the Alford plea, she was not sure whether she committed the offenses charged. She stated:

Just in talking with the other members of my group [her Interconnections counseling group], I have come to believe that there is a possibility I could have done this. And I truly want to find out if I did do this. And that is my main goal right now in therapy.

Further, when'questioned by Albers, Ereth replied as follows:

Q: Is it your belief at this time that you may have committed the offenses involved and simply have blocked them out of your memory?
A: Yes, it is.
Q: Do you feel that’s a substantial possibility?
A: Yes, it is.
Q: And for that reason and that reason alone you’re unable to lay a factual basis yourself that you subjected these children to sexual contact?
A: Yes.

¶12 Debra Baumgart (Officer Baumgart), a deputy with the Cascade County Sheriff’s Department, testified regarding her videotaped interviews with J.A. and K.A. On the tape, J.A. and K.A. both describe being abused by Ereth. The State also introduced into evidence the report of Dr. Nancy Maynard, who performed a physical examination of the children. Dr. Maynard reported K. A. had vaginal tissue findings consistent with having been sexually abused.

¶13 Kravcisin also testified at the hearing. Kravcisin testified that Ereth was unable to remember the events surrounding this case, but that Ereth was horrified that she may have committed these crimes and wanted treatment. Kravcisin explained that she had been helping Ereth to explore her memory on both a conscious and unconscious level and that Ereth was close to “realizing” that she had abused J. A. and K.A. When asked by the District Court whether she had concerns about implanting false memories through hypnosis, Kravcisin replied, “I believe that for an untrained therapist, that a therapist can interogenically place into a client a memory...” but explained how the method she employed avoided implanting false memories.

¶14 Ereth then pled guilty to two counts of sexual assault and pled not guilty to one count of sexual assault and two counts of sexual intercourse without consent. The District Court entered the pleas and set sentencing for July 23, 1996.

¶15 On July 19,1996, Ereth filed a motion to withdraw her guilty pleas. In an attached affidavit, Ereth stated that she had always been uncomfortable about pleading and that through counseling, she had come to the “clear understanding” that she did not do the crimes with which she was charged. A hearing was held on the motion in October of 1996. Kravcisin again testified at the hearing. She stated that Ereth had not received treatment since July 1996. When asked by the District Court if she still believed that Ereth had suppressed a memory of committing the abuse, Kravcisin replied: “I don’t know quite frankly if she’s suppressed it or not. I believe there’s a possibility that she could have. I have not yet, in the work that I’ve had with her, found that suppression.”

¶16 Ereth testified that she had never been comfortable with the plea. She stated that Albers had told her if she went to trial, she would go to prison, and that she thought that a jury would never believe that she did not commit the crimes. She stated that when she entered the plea, she did not believe that she was guilty of the crimes charged and did not understand that an Alford plea was an admission of guilt.

¶17 Regarding her therapy with Kravcisin, Ereth testified that she had entered therapy on the advice of Albers — “On the chance that I had committed these crimes and had repressed it, the therapy would, • would let me know that I had — you know, it would bring that out if I had committed it.” However, she testified that she never reached a point in therapy where she believed she had committed the offenses. Ereth stated that in May of 1996, she attempted suicide and, after being released from the hospital, told Kravcisin that she could no longer live with the fact that she had pled guilty to something she did not do.

¶18 The District Court denied Ereth’s motion, holding that Ereth had entered her plea voluntarily and intelligently. The court found that Ereth knew what she was doing when she entered her plea and had simply changed her mind. The District Court set sentencing for March 20, 1997 and ordered Ereth to undergo a psychiatric evaluation to determine, for purposes of sentencing, whether she was suffering from a mental disease or defect.

¶19 Ereth was evaluated by Dr. John Mendenhall (Dr. Mendenhall). Dr. Mendenhall filed a report with the District Court on March 18,1997. Dr. Mendenhall found that, unlike most female sex offenders, Ereth does not suffer from a psychotic disorder. He found that Ereth “suffers from no dissociative or other mental disorder which statutorily or psychiatrically ought to give pause to the Court in passing sentence.”

¶20 Dr. Mendenhall also sent a letter to the court, outlining the concerns he had about the treatment program at Interconnections. Dr. Mendenhall stated:

The reports from Interconnections Counseling are based on non-scientific tenets. The methods used by that facility are not scientifically valid. The contentions of that facility that hypnosis can be useful in cases of this sort are dead wrong, known to be dead wrong, and are disavowed by every reputable professional organization in the field of mental health.
The contention of Lily Kraviscin [sic] that false memories can be implanted is correct. Her further contention that they cannot be implanted, by virtue of her advanced methods of hypnosis, by her, is not.... The implantation of false memories is, actually, quite easy. ... 25% of normal adult research probands can be made to believe, without hypnosis, without therapy, after a single exposure to a single oral story, that they personally experienced the events of the story. This number, in children, by the bye, approaches 100%.
The notion that Dianne Ereth, or anybody else, may have committed sexual crimes and “repressed” their memory is unsupported by scientific evidence. There is no credible evidence that repression of memory of being the victim of sexual abuse can happen, much less for being the perpetrator. Even those who make their livings in the sexual abuse industry, in the face of scholarly research raising very serious questions about any human ability to “repress memory,” have largely abandoned the idea of “repressed memory.”

¶21 On March 19, 1997, the day before sentencing was to be imposed, Ereth moved the court to reconsider her motion to withdraw her guilty pleas based on Dr. Mendenhall’s opinions. She also alleged that she had been coerced into the entry of the guilty plea by her counsel from the Public Defender’s Office. Eric Olson, a Deputy Public Defender, moved to withdraw. The court held a hearing at which Dr. Mendenhall testified about his findings and opinions regarding Interconnections. The District Court granted counsel’s motion to withdraw and stated that it would allow further briefing and a hearing on whether Ereth should be allowed to withdraw her Alford plea. J. Kim Schulke was appointed to represent Ereth.

¶22 A hearing was held on April 30, 1997. Ereth testified that Kravcisin had told her that only two percent of children who allege they have been sexually assaulted are lying and that it was likely that Ereth was simply repressing the memory. She stated that she was never informed by Albers or Kravcisin that, in the medical community, controversy surrounds the retrieval of repressed memories nor that it was not standard treatment. Ereth testified that had she known the information contained in Dr. Mendenhall’s letter and report, she never would have entered the pleas. She admitted, however, that she had agreed to plead guilty prior to starting counseling with Interconnections.

¶23 At the conclusion of the hearing, the District Court denied Ereth’s motion to withdraw her guilty plea. On June 13,1997, Ereth was sentenced to a term of five years, with three years suspended on each of the two counts, with the terms to be served consecutively. The court also ordered her to pay $10,000 restitution to the victims.

Standard of Review

¶24 We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177. We have held that the district court need not apply a particular rule or standard to determine whether to allow a defendant to withdraw his or her plea, but rather must consider each case “in light of its unique record.” Enoch, 269 Mont. at 11, 887 P.2d at 177 (citing State v. Radi (1991), 250 Mont. 155, 818 P.2d 1203).

Discussion

¶25 We balance three factors when considering a criminal defendant’s attempt to withdraw a guilty plea: (1) the adequacy of the court’s interrogation at the time the plea was entered regarding the defendant’s understanding of the consequences of the plea; (2) the promptness with which the defendant attempts to withdraw the plea; and (3) the fact that the plea was the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge. Enoch, 269 Mont. at 11-12, 887 P.2d at 177.

¶26 We have held that a plea is adequate where the court:

“examines the defendant, finds him to be competent, and determines from him that his plea of guilty is voluntary, he understands the charge and his 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.”

Enoch, 269 Mont. at 13, 887 P.2d at 178 (quoting State v. Mahoney (1994), 264 Mont. 89, 870 P.2d 65). In addition, “it is well-settled that a guilty plea must be a knowing and intelligent choice among the alternative courses of action open to the defendant.” Enoch, 269 Mont. at 13, 887 P.2d at 178 (citations omitted).

¶27 Thus, the purpose of inquiring into the adequacy of the court’s interrogation is to ensure that the defendant has been well advised and that he/she entered the plea knowingly, intelligently, and voluntarily. The United States Supreme Court has held that a plea of guilty must represent “a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ North Carolina v. Alford (1970), 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162. This Court will deem a guilty plea involuntary where it “appears that the defendant was laboring under such a strong inducement, fundamental mistake, or serious mental condition that the possibility exists that [s]he may have plead guilty to a crime of which [s]he is innocent.” State ex rel. Gladue v. Eighth Judicial Dist. (1978), 175 Mont. 509, 511, 575 P.2d 65, 66.

¶28 In this case, the District Court’s interrogation of Ereth at the change of plea hearing was substantial. Further, in deciding Ereth’s motion to withdraw and motion for reconsideration, the court held three hearings at which it heard the testimony of Ereth and several other witnesses. The District Court followed the proper statutory procedure at the change of plea hearing, and Ereth testified that she had signed and understood an acknowledgment and waiver of rights. However, Ereth argues that because she was under the mistaken assumption that she may have committed the offenses for which she was charged and she would, through therapy with Kravcisin, be able to recover memories of the offense, her Alford plea was not a voluntary, knowing and intelligent choice. Despite the lengths to which the District Court went to ensure that Ereth understood the consequences of the Alford plea, Ereth was not well advised. We agree with Ereth that her plea was not voluntarily, intelligently and knowingly made.

¶29 Dr. Mendenhall testified that “[t]he contentions of [Interconnections] that hypnosis can be useful in cases of this sort are dead wrong, known to be dead wrong, and are disavowed by every reputable professional organization in the field of mental health.” Dr. Mendenhall told the District Court that “[t]he notion that Dianne Ereth, or anybody else, may have committed sexual crimes and ‘repressed’ their memory is unsupported by scientific evidence.” However, when the District Court asked Kravcisin about the validity of repressed memory therapy, Kravcisin indicated that such therapy could be dangerous in the hands of untrained persons, but not in her own. Kravcisin told the court that she believed that Ereth wanted to remember her abuse of J.A. and K. A. and was close to “realizing” that she had committed the crimes.

¶30 Throughout the country, mental health professionals and courts alike are condemning the use of repressed memory therapies such as those used by Interconnections. See Julie M. Kosmond Murray, Comment, Repression, Memory, and Suggestibility: A Call for Limitations on the Admissibility of Repressed Memory Testimony in Sexual Abuse Trials, 66 U. Colo. L. Rev. 477 (1995); Douglas R. Richmond, Bad Science: Repressed and Recovered Memories of Childhood Sexual Abuse, 44 U. Kan. L. Rev. 517 (1996). However, our purpose here is not to discredit Kravcisin or her theory, but merely to suggest that with knowledge of the substantial amount of controversy which surrounds repressed memory therapy or of Dr. Mendenhall’s opinion that sexual abusers do not repress memories of their crimes, Ereth may have chosen not to enter her plea. However, Ereth was never told of the problems with Interconnections’ methods. Rather, she entered therapy on the advice of counsel. Further, Ereth was told by Kravcisin that because only two percent of children lie about being assaulted, it was likely that she was repressing memories of assaulting J.A. and K.A. and needed to recover those memories so she could get well.

¶31 At the change of plea hearing, Ereth testified that she could not recount the facts surrounding the sexual assault of J.A. and K.A. because, although she believed there was a substantial possibility she may have committed the offenses, she must have blocked them out of her memory. She testified that, “in talking with the other members of my group, I have come to believe that there is a possibility I could have done this.”

¶32 The State contends that Ereth entered the plea simply because she knew that if she went to trial, a jury would convict her. The State points out that at the change of plea hearing, Ereth testified: “I believe that the facts are overwhelming against me and I would be found guilty in a trial....” It is possible that Ereth entered an Alford plea simply because she thought the State had overwhelming evidence to convict her and then, after changing her mind, sought to withdraw the plea. However, it is also possible that Ereth truly believed that she had repressed any memory of committing the offenses for which she was charged and hoped, through therapy with Interconnections, she would be able to recover those memories and get help. We have held that “if there is any doubt that a guilty plea was not voluntarily or intelligently made, the doubt must be resolved in favor of the defendant.” Enoch, 269 Mont. at 18, 887 P.2d at 181. Given the role that repressed memory therapy played in Ereth’s decision-making process and given the air of uncertainty regarding the validity of this therapy, there is at least doubt as to whether Ereth’s Alford plea was entered voluntarily. Thus, we determine that Ereth’s pleas were not voluntarily, knowingly and intelligently made and that the first consideration set forth in Enoch, 269 Mont. at 11-12, 887 P.2d at 177, weighs in Ereth’s favor.

¶33 The second consideration under Enoch, 269 Mont. at 12, 887 P.2d at 177, is the promptness with which the defendant attempted to withdraw the pleas. “Because each case presents its own unique factual circumstances, we have declined to adopt specific parameters defining the timeliness of a motion to withdraw.”Enoch, 269 Mont. at 12, 887 P.2d at 178. In this case, Ereth filed her signed plea agreement and waiver of rights on February 5,1996 and began counseling with Interconnections that month. The change of plea was entered on May 9,1996. Ereth filed her notice of withdrawal of guilty plea on July 19, 1996, a few days before the date on which sentencing was set and ceased further counseling with Interconnections. Apparently, Ereth determined that the repressed memory therapy was not working within that period of time and promptly moved to withdraw her plea. We determine that, given the unique factual circumstances of this case, Ereth’s motion was filed in a reasonably prompt manner. Thus, this factor weighs in favor of allowing Ereth to withdraw her plea.

¶34 The third factor, whether the plea was given in exchange for dismissal of another charge, weighs against Ereth. The State agreed to dismiss two counts of sexual intercourse without consent and one count of sexual assault and waive the mandatory minimum sentence for the remaining charges in exchange for Ereth’s Alford plea. However, since we have determined that Ereth’s plea was not voluntarily, knowingly and intelligently made, we hold that the District Court abused its discretion in refusing to allow Ereth to withdraw her Alford plea.

¶3 5 Ereth also argues that the District Court erred in refusing to allow her to withdraw her plea because she received ineffective assistance of counsel. Because we hold that the District Court abused its discretion in refusing to allow Ereth to withdraw her plea, we will not address this argument.

¶36 Based on the foregoing, we reverse and remand.

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

JUSTICE NELSON

dissents.

¶37 I respectfully dissent from the Court’s determination that Ereth’s pleas were not voluntarily, intelligently and knowingly made. In my view they were, and, accordingly, I would affirm the decision of the District Court denying Ereth’s motion to withdraw her guilty pleas. First, it is necessary to review the pertinent trial court proceedings and the record.

¶38 At her change of plea hearing, Ereth testified that she spent considerable time discussing the proceedings against her with her counsel, Scott Albers. She stated that she had ample opportunity to obtain legal counsel and understood the alternatives available to her. She testified that she read the acknowledgment of waiver of rights with the help of her attorney and that she signed the waiver. She stated that she was not under the influence of alcohol or drugs. She testified that she had been fully apprised of the negotiations with regard to the plea agreement.

¶39 In explanation of her decision to enter the Alford plea, Ereth testified:

at this present time I do not wish to enter — do not wish to say that I did do this, but I feel that if this were to go to trial at this point, that the facts are overwhelming against me and it would result in a guilty verdict.

On being asked if she wished to proceed with her change of plea, she stated that she wished to proceed.

¶40 After receiving evidence regarding the children’s statements and videotaped interviews and Dr. Maynard’s physical examination findings substantiating sexual abuse, Albers questioned his client. Ereth testified that she had “no doubt” that she would be convicted if a jury believed the evidence introduced at the change of plea hearing. In response to her counsel’s inquiry about whether she understood the Alford pleas, she testified:

I believe that the facts are overwhelming against me and I would be found guilty in a trial, but at this point I cannot admit to that guilt.

¶41 Ereth then testified that she understood that she could receive a ten-year prison sentence; that she understood the severity of the situation; and that she would be required to register as a sex offender. She also stated that she wished to avoid going to trial:

Q. [By Mr. Albers] Now, you are entering this plea, as I understand it, because you wish to avoid the trial at all costs?
A. Yes, I do.
Q. Could you explain to the Court what you consider to be the eventual outcome of a trial?
A. The eventual outcome, I believe at this point [is] that I would be found guilty.

¶42 Ereth also testified with respect to Ms. Kravcisin’s evaluation:

Q. [By Mr. Albers] That evaluation is of concern to me because it would indicate for the Court that you may not have committed this crime.
A. Yes.
Q. That report indicates that you do not come from a family that has a heavy history of sexual abuse.
A. Right.
Q. It also has a number of statements from family members which would deny the fact that you possibly could have done this?
A. Yes.
Q. It’s my understanding that your horror of the crime that is charged and your terror of possibly going to prison are the two principal things motivating this plea at this time?
A. Yes.
Q. And that this is the best option that you can come up with or that I’ve been able to offer or any attorney has been able to offer to keep you out of prison?
A. Yes.

Finally, Mr. Albers asked if Ereth believed she was probably guilty, to which she responded, “Yes.”

¶43 Following Ms. Kravcisin’s testimony Ereth pleaded “guilty” to Counts I and V and “not guilty” to the remaining three counts of the information. Judge Johnson accepted Ereth’s Alford pleas and ordered a presentence investigation.

¶44 At the hearing on Ereth’s motion to withdraw her pleas, although she stated that she was not comfortable with the plea and was never happy with it, she nevertheless maintained that she personally believed a jury would not believe her and that she would be convicted. Moreover, on cross examination by the county attorney, Ereth admitted her plea was made freely and voluntarily; that she understood the consequences of her plea; that she suffered from no mental disability; that she believed she would be found guilty; and that she never informed anyone at the change of plea hearing that she was under undue influence or duress. Furthermore, she admitted that she indicated satisfaction with her attorneys at her change of plea hearing.

¶45 In denying Ereth’s motion to withdraw her plea, Judge Johnson stated that she had no question that Ereth “knew what she was doing.” Judge Johnson also noted that Ereth was “intelligent” and simply changed her mind. The court observed that there was no indication that Ereth’s pleas of guilty were anything but a voluntary and intelligent assessment of her situation and that it was this assessment of the charges and evidence presented which prompted her entry into a very beneficial plea agreement. The judge found that Ereth was simply “unhappy with the result of her choices.” I agree with the trial court’s appraisal.

¶46 The majority opinion concentrates almost entirely — and erroneously, in my estimation — on Ereth’s claim that she pleaded guilty under pressure from her attorney and on the basis of questionable repressed memory therapy. I cannot agree. As we pointed out in State v. Enoch (1994), 269 Mont. 8, 887 P.2d 175, “a guilty plea must be a knowing and intelligent choice among the alternative courses of action open to the defendant.” Enoch, 269 Mont. at 13, 887 P.2d at 178. See also North Carolina v. Alford (1970), 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162.

¶47 The record in this case indicates that Ereth chose to plead guilty because that alternative course of action was the one most likely to keep her out of a lengthy prison sentence. Given Ereth’s testimony at the various hearings regarding her change of plea, as referenced above, there is simply no merit to her claim that she was pressured by her attorney to plead guilty or that her pleas were somehow induced by her misapprehension of the repressed memory therapy in which she participated. In point of fact, her own testimony clearly indicates that her motivation for pleading guilty was simply to avoid a jury trial and the possibility of a lengthy period of incarceration for her crimes. Ereth stated on several occasions during the change of plea hearing that the “facts were overwhelming” against her and that she had “no doubt” that a jury would convict her. In truth, even under her own assessment of her situation, she had few viable options available except to plead guilty.

¶48 We have recognized that a plea is not involuntary simply because it was entered to avoid the possibility of a greater punishment had the case gone to trial. State v. Milinovich (1994), 269 Mont. 68, 71, 887 P.2d 214, 216 (citing Brady v. United States (1970), 397 U.S. 742, 751, 90 S.Ct. 1463, 1470, 25 L.Ed.2d 747). Moreover, Ereth’s unwillingness to admit her guilt, either then or now, is not a basis for allowing her to withdraw her pleas.

[A]dmission of guilt... is not a constitutional requisite to the imposition of criminal penalty. An individual accused of a crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.

Alford, 400 U.S. at 37, 91 S.Ct. at 167. Similarly, Ereth’s dissatisfaction with her previous decision is not a valid reason to allow her to go back on her plea agreement where the record clearly and unequivocally shows that her pleas were knowingly, voluntarily and intelligently made at the time.

¶49 The majority acknowledges the three-factor test which this Court utilizes in reviewing a district court’s denial of a criminal defendant’s attempt to withdraw a guilty plea. Enoch, 269 Mont. at 11-12, 887 P.2d at 177. Indeed, in considering whether the court’s interrogation of Ereth was adequate, the majority concludes that Judge Johnson’s interrogation was “substantial” and that she followed the proper statutory procedures at the change of plea hearing. Furthermore, we note that in deciding Ereth’s motion to withdraw and motion for reconsideration the court held three hearings at which it heard the testimony of Ereth and other witnesses. Nonetheless, in spite of this record, we conclude that Ereth’s plea was not voluntarily, intelligently and knowingly made. In coming to this conclusion we improperly substitute our judgment for that of the District Court’s, purely and simply.

¶50 In my opinion, Judge Johnson, in the proper exercise of her discretion, refused to contravene Ereth’s obviously voluntary pleas. The District Court thoroughly examined Ereth and found her not only to be competent but intelligent. Judge Johnson determined that Ereth’s pleas were voluntary even though she would not admit to her guilt; that she understood the charges and potential punishment; that she understood the rights she was waiving; that she was not under the influence of drugs or alcohol; and, that she was satisfied with her attorneys. The District Court, having heard the testimony and having judged Ereth’s credibility, was certainly in the best position to determine whether her pleas were knowing, intelligent and voluntary. This Court, on the record here, has no business interfering with Judge Johnson’s decision. See State v. Hilton (1979), 183 Mont. 13, 19, 597 P.2d 1171, 1174.

¶51 Ereth’s choice to plead guilty was an intelligent choice among alternative courses of action — she could go to trial, be convicted on the “overwhelming evidence” of her guilt and spend a substantial number of years behind bars or, alternatively, she could plead guilty and guarantee dismissal of some of the charges against her and a more favorable prison sentence. She, wisely, chose the latter.

¶52 I would hold that the District Court did not abuse its discretion in denying Ereth’s motion to withdraw her guilty plea and, accordingly, I would affirm Judge Johnson’s decision. I respectfully dissent from our failure to do so.

JUSTICE GRAY join in the foregoing dissent.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    VERNA JOYCE HAUCK, Plaintiff, Appellant and Cross-Respondent, v. MERLE L. SERIGHT, as an individual and as Personal Representative of the Estate of Alice A. Sisson, Deceased, Defendant, Respondent and Cross-Appellant.
    No. 97-532.
    Submitted on Briefs June 14, 1998.
    Decided August 11, 1998.
    1998 MT 198.
    55 St.Rep. 838.
    290 Mont. 309.
    964 P.2d 749.

      For Appellant: Robert L. Johnson, Attorney at Law, Lewistown.

      For Respondent: Jon A. Oldenburg, Attorney at Law, Lewistown; Leonard H. McKinney, Attorney at Law, Lewistown.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶1 In this will contest, the Tenth Judicial District Court, Fergus County, dismissed Verna Joyce Hauck’s claim for tortious interference with an expectancy. On Hauck’s other claims, a jury found that Merle Seright unduly influenced his aunt and Hauck’s adoptive mother, Alice A. Sisson, when she executed her October 30,1992 Will, but that Sisson was free from undue influence in other transactions. The court ordered formal probate proceedings as to Sisson’s October 27,1992 Will. Hauck appeals, and Seright cross-appeals. We affirm.

¶2 Hauck raises the following issues on appeal:

¶3 1. Did the District Court err in dismissing Hauck’s damage case against Seright for tortious interference with her expectancy from decedent Sisson?

¶4 2. Did the court err in adjudging that a $105,000 withdrawal from Sisson’s capital and a $100,000 quasi-testamentary disposition were valid transfers?

¶5 3. Did the court err in admitting Sisson’s October 27,1992 Will to probate?

¶6 4. Did the court err in granting Seright his attorney fees and costs?

¶7 On cross-appeal, Seright raises a fifth issue, arguing that the court erred in failing to grant his motions for directed verdict and for judgment notwithstanding the verdict.

Background

¶8 In the pretrial order, the parties stipulated to the following facts:

1. Plaintiff Verna Joy Hauck resides in Seal Rock, Oregon and she is the adopted daughter of the late Alice A. Sisson. Mrs. Sisson died in Lewistown, Montana on September 30,1995 at the age of ninety years. Defendant Merle L. Seright is a resident of Fort Benton, Montana and he is one of Mrs. Sisson’s nephews.
2. Mrs. Sisson was the widow of the late Laurence R. “Ray” Sisson who died in Lewistown, Montana on May 19,1990. Mrs. Sisson inherited all of Ray Sisson’s property.
3. After Mrs. Sisson’s death Merle Seright commenced informal proceedings in this court to administer her estate. The clerk appointed him personal representative under the terms of a Will he filed which was dated October 30, 1992. Merle Seright petitioned the court for an order admitting that Will to probate, and Joy Hauck contested claiming that the Will was procured by Merle Seright through undue influence. It conflicts with the provisions of a Will Mrs. Sisson executed on October 27,1992. In an independent action Joy Hauck complains that Merle Seright interfered with her expectancy of inheritance from Mrs. Sisson, and she asks that he respond to her in appropriate damages. The Will contest and the damage action have been consolidated for trial.

¶9 At trial, Hauck testified that she had known the Sissons all her life and that she had maintained a close relationship with them for many years. After Ray Sisson died in 1990, Hauck stayed with Alice Sisson for about a month and helped with her financial and other affairs. During that visit, Sisson adopted Hauck as her daughter and granted her a power of attorney. Sisson later canceled that power of attorney when she became aware that Hauck was receiving her bank statements.

¶10 In February 1991, Sisson executed another power of attorney naming Hauck as her attomey-in-fact. In April of that year, however, Sisson again revoked Hauck’s power of attorney and instead named Seright as her attorney-in-fact. Also during April of 1991, Sisson made a $100,000 account she held with the Edward D. Jones investment firm payable upon her death to Seright and his brothers and sisters.

¶11 On October 27,1992, while Hauck was again visiting her, Sisson executed a Will in the offices of her longtime Lewistown, Montana attorneys, Wilkins & Berger. In that Will, Sisson bequeathed to Hauck 40 percent of her estate, which exceeded $400,000 in total value. Three days later, on October 30, 1992, after Hauck had left town, Seright took Sisson to the offices of another Lewistown attorney, Leonard McKinney. There, Sisson executed a Will reducing Hauck’s share of her estate to $10,000 and canceling Hauck’s inheritance altogether if Hauck contested the Will.

¶12 In December 1992, upon Seright’s petition alleging that Sisson was incapacitated and unable to make a consistent estate plan, the District Court appointed Lewistown attorney Leonard McKinney as Sisson’s legal guardian. The petition was supported by the recommendation of Sisson’s physician, who stated that Sisson did not have good short term memory and was not able to perform moderately complex calculations.

¶13 Following Sisson’s death in September 1995, Seright applied for probate of her October 30,1992 Will. Hauck contested that Will. She also filed a separate action against Seright alleging that he had fraudulently represented to Sisson that Hauck was stealing from her, inducing Sisson to allow his name and those of his siblings to be placed upon her securities as beneficiaries at her death. The two matters were consolidated for trial.

¶ 14 Both parties presented evidence at trial that Sisson was susceptible to the influence of others in her decision making. Hauck admitted that her relationship with Sisson had cooled dramatically in the last years of Sisson’s life, but she contended that this was because of Seright’s improper influence upon Sisson. Seright presented witnesses who testified to the effect that Sisson distrusted Hauck and wanted to distance herself from Hauck financially as much as she could in spite of their adoptive mother-daughter relationship. Hauck contended that Seright influenced Sisson in April 1991 to make the $100,000 Edward D. Jones account payable to himself and his siblings upon Sisson’s death; to execute her October 30, 1992 Will; to transfer $105,000 from her Edward D. Jones account to him and his wife in December 1992; and, in January 1993, to list him and his siblings as the beneficiaries of a $100,000 IDS investment account. Seright presented evidence that it was Hauck who was influencing Sisson to make financial decisions which she really did not want to make, and that he had merely helped Sisson to carry out her own wishes.

¶15 The court ruled that there was no evidence of undue influence as to the April 1991 transfer of Edward D. Jones funds, and did not submit that issue to the jury. In answer to special interrogatories, the jury found that Sisson was not free from undue influence by Seright when she executed her October 30, 1992 Will. The jury found, however, that Sisson was free from undue influence from Seright when she transferred her Edward D. Jones funds to him and his wife in December 1992 and when she named Seright and his siblings as beneficiaries on her IDS account in January 1993.

¶ 16 After trial and after the parties filed various post-trial motions, the October 27 Will was admitted to formal probate.

Issue 1

¶17 Did the District Court err in dismissing Hauck’s damage case against Seright for tortious interference with her expectancy from decedent Sisson?

¶ 18 After Hauck presented her case in chief at trial, Seright moved to dismiss all of her claims. As to the claims for tortious interference with an expectancy, the court took the motion under advisement. At the close of the evidence, the court granted the motion to dismiss the claim for tortious interference with an expectancy as to the April 22, 1991 transaction in which Sisson transferred $100,000 into a payable-on-death Edward D. Jones account. The court stated that there was insufficient evidence to go to the jury on that claim. The court did not allow the jury to consider the tortious interference claim because “I think this is an undue-influence case.”

¶19 Tortious interference with an expectancy has not heretofore been recognized as a legal theory in Montana. Where it is recognized, the tort consists of intentionally and by fraud, duress, or other tortious means preventing another from receiving from a third person an inheritance or gift that he would otherwise have received. Restatement (Second) of Torts § 774B (1977).

¶20 The elements of undue influence are: (1) a confidential relationship between the person alleged to be exerting undue influence and the testator; (2) the testator’s physical condition affects her ability to withstand undue influence; (3) the testator’s mental condition affects her ability to withstand undue influence; (4) the unnaturalness of the disposition shows an unbalanced mind or a mind easily susceptible to undue influence; and (5) the demands and importunities may have affected the testator, taking into consideration the time, place, and surrounding circumstances. Matter of Estate of Jochems (1992), 252 Mont. 24, 28, 826 P.2d 534, 536.

¶21 The court allowed Hauck’s claims regarding the December 1992 and January 1993 transactions to go to the jury on a theory of undue influence. Hauck has not shown how it would have been to her advantage had the court instead or in addition allowed her to proceed on a theory of tortious interference with an expectancy as to those transactions. We conclude that the court did not err in ruling that this case was tried as a claim for undue influence.

¶22 The only claim which the court did not allow the jury to consider under any theory was Hauck’s claim that the April 1991 transfer was improper. In reviewing a directed verdict, this Court will consider only the evidence introduced by the party against whom the directed verdict is granted. If that evidence, when viewed in a light most favorable to the party, tends to establish the case alleged in the party’s pleading, we will reverse the directed verdict. The test is whether reasonable persons could draw different conclusions from the evidence. Wise v. Ford Motor Co. (1997), 284 Mont. 336, 343, 943 P.2d 1310, 1314.

¶23 Sisson’s Edward D. Jones agent provided the only direct evidence as to the April 1991 transaction. The agent testified that prior to that time, Sisson asked him on a number of occasions what she could do to move some of her assets out of her accounts and to get them out of her estate because “[s]he was concerned that those dollars because of the way things were going were going to end up in Joy Hauck’s hands, and she didn’t want that to happen.” He testified that she “absolutely” knew what she was doing when she made the transaction and that he felt no one had put any pressure on her to make the transaction.

¶24 We agree with the District Court that on this record there was no evidence to support a claim of tortious interference with expectancy as to the April 1991 transaction. For that reason, and because Hauck’s claims as to the October 30, 1992 Will and the December 1992 and January 1993 transactions went to the jury on theories of undue influence, we need not address whether tortious interference with an expectancy will be recognized as a cause of action in Montana. We hold that the District Court did not err in dismissing Hauck’s damage case against Seright for tortious interference with her expectancy from Sisson.

Issue 2

¶25 Did the court err in adjudging that a $ 105,000 withdrawal from Sisson’s capital and a $100,000 quasi-testamentary disposition were valid transfers?

¶26 The jury found in answer to special interrogatories that neither Sisson’s transfer of $105,000 in Edward D. Jones funds on December 18,1992, nor her January 27,1993 transfer of $100,000 in IDS funds was a matter of undue influence. Hauck argues that the court went beyond the jury’s verdict in stating in its judgment that these were “valid transfers.” She asks that such language be stricken from the judgment as being outside the issues submitted as to the December 18 transfer and as an improper preclusion of any future argument that the January 27 transfer was a voidable act by an unadjudicatedly incapacitated person. Hauck fears that the court’s order has the effect of authorizing Seright and his wife to keep the $105,000 — a result even Seright testified was not Sisson’s intention. He testified that he and his wife were merely holding this money for Sisson to cover any possible medical expenses she might incur.

¶27 The court’s order stated, “The transfer of funds by Alice A. Sisson to Merle and Priscilla Seright, from her account at Edward D. Jones, on December 18,1992, was a valid transfer and not as a result of undue influence,” and, “The transfer by Alice A. Sisson from IDS Bond Fund account no. ... on January 27, 1993, to trust accounts whereby [Seright and his siblings] are beneficiaries, were valid transfers and not as a result of undue influence.”

¶28 Our review of the court’s order shows that its language follows that used in the special interrogatories agreed to by the parties and upon which the jury rendered its verdict. We hold that the court did not err in its judgment.

Issue 3

¶29 Did the court err in admitting Sisson’s October 27,1992 Will to probate?

¶30 Under this issue, Hauck argues that as a result of the defeat of the October 30,1992 Will, Sisson should be deemed to have died intestate. Hauck makes a somewhat round-about argument that under the doctrine of dependent relative revocation, Sisson’s October 27 Will should be deemed revoked in order to comply with Sisson’s intent that Hauck inherit the bulk of her estate. Hauck argues for a determination of intestacy by which, as Sisson’s adopted daughter, she would inherit all of the property remaining within Sisson’s estate.

¶31 The doctrine of dependent relative revocation presumes that a testator who has canceled an old will preparatory to making a new will which thereafter fails would prefer the old will to an intestacy. Matter of Estate of Patten (1979), 179 Mont. 299, 301-02, 587 P.2d 1307, 1309. For the doctrine to apply, the new will must not have changed the testamentary purpose of the old will and must essentially repeat the same dispositive plans.

¶32 Hauck argues that the October 27 Will is strikingly dissimilar to the October 30 Will and that, because the doctrine of dependent relative revocation therefore does not apply, the October 27 Will is void. However, she offers no authority for this type of reverse application of the doctrine. Further, the two Wills differ only as to the relative shares to be received by Hauck and by Seright and his siblings. Sisson’s grants of $5,000 to the City of Lewistown, Montana ambulance service and $5,000 to each of three of her friends remain the same under both Wills and would not exist in intestacy. We conclude the District Court did not err in failing to invalidate the October 27 Will under the doctrine of dependent relative revocation.

¶33 Seright further responds to Hauck’s argument under this issue by stating that the validity of the October 27 Will was not a trial issue, that Will not having been challenged in these proceedings. He maintains that even if Sisson’s mental condition rendered her subject to undue influence on October 27,1992, no one has alleged undue influence as to the October 27 Will. In fact, in her original petition in the will contest, Hauck asked that the October 27 Will be admitted to probate.

¶34 An order admitting a will to probate is appealable under Rule 1, M.R. App.R Hauck’s notice of appeal states that she is appealing from the final judgment entered on July 21,1997, and from the order regarding post-trial motions entered August 26,1997. As part of the order regarding post-trial motions, the District Court ordered Sisson’s October 27 Will admitted to formal probate. We conclude that the court’s admission of that Will into probate is an appealable order which is properly a subject of this appeal.

¶35 Despite Hauck’s position that the validity of the October 27 Will was not an issue at trial, she presented evidence at trial that the October 27 Will was prepared by Sisson’s longtime attorneys, who, prior to and during the execution of the Will, carefully interviewed Sisson about her testamentary intent. Those attorneys preserved that interview on an audiotape, which was played for the jury at trial. The two attorneys who witnessed the October 27 Will both testified that they did not feel Sisson was being unduly influenced at the time she executed the Will, and the attorney who drafted the Will testified that he had no doubt that Sisson was competent when she executed it. There was no evidence at trial that Seright unduly influenced Sisson as to the October 27 Will.

¶36 We hold that the court did not err in admitting the October 27, 1992 Will to probate.

Issue 4

¶37 Did the court err in granting Seright his attorney fees and costs?

¶38 In arguing that the District Court erred in awarding costs and attorney fees to Seright for defense of the will contest, Hauck relies on § 72-12-206, MCA. That statute provides:

If the probate is revoked, costs, as provided in 25-10-201, but not attorney fees, must be paid by the party who resisted the revocation or out of the property of the decedent, as the court directs.

Hauck asserts that under this statute attorney fees are not included within the term “costs” and that there is no special statute authorizing payment of attorney fees from the assets of the estate in the unsuccessful defense of a will contest.

¶39 Seright acknowledges that under the above statute, attorney fees are not included within the term “costs.” He points out, however, that § 72-3-632, MCA, specifically authorizes payment of reasonable attorney fees by the estate if the personal representative (in this case, Seright) defends a will contest in good faith.

¶40 Section 72-3-632, MCA, states: “If any personal representative or person nominated as personal representative defends or prosecutes any proceeding in good faith, whether successful or not, he is entitled to receive from the estate his necessary expenses and disbursements, including reasonable attorneys’ fees incurred.” In this case, there is no claim that the attorney fees are unreasonable.

¶41 Hauck points out that she prevailed in the part of the action concerning Sisson’s October 30, 1992 Will, and that under Seright’s prevailing position, the IDS and Edward D. Jones accounts are not part of the estate. She argues that Seright’s success in defending those transfers was not in his capacity as personal representative, but in his individual capacity.

¶42 The fact remains, however, that as a significant part of this action Seright defended the October 30 Will under which he was personal representative of Sisson’s estate. Under § 72-3-632, MCA, he is entitled to reasonable attorney fees for that effort, whether he was successful in defending on that claim or not. Hauck’s claims under her various legal theories were factually intertwined. Additionally, if Seright had not defended the three transfers which the court and the jury upheld, the transferred property could have been determined to be part of the estate and Seright would have been remiss in his capacity as personal representative in not having included them therein.

¶43 We review an award of attorney fees to determine whether the trial court abused its discretion. Matter of Estate of Stone (1989), 236 Mont. 1, 4, 768 P.2d 334, 336. Here, we hold that the District Court did not abuse its discretion in awarding Seright his attorney fees.

Issue 5

¶44 Did the court err in failing to grant Seright’s motion for directed verdict or motion for judgment notwithstanding the verdict?

¶45 Seright contends there was not enough evidence that he exerted undue influence upon Sisson to allow the court to submit to the jury the issue of the validity of the October 30 Will. This Court’s standard of review of a decision on judgment as a matter of law through either denial of a motion for directed verdict or denial of a motion for judgment notwithstanding the verdict, is the standard set forth under Issue 1 above: whether the evidence, viewed in a light most favorable to the nonmoving party, tends to establish the case alleged in the party’s pleading. A judgment as a matter of law should be granted only if reasonable persons could not draw different conclusions from the evidence. Wise, 284 Mont. at 343, 943 P.2d 1310, 1314.

¶46 In this case, Hauck established that Sisson executed two different wills within three days in October 1992. In one, Hauck would receive 40 percent of Sisson’s $400,000 estate; in the other, Hauck would receive only $10,000 and Seright and his siblings were awarded the residue of the estate. In denying the motion for directed verdict, the District Court pointed to the evidence that Sisson vacillated and to her doctor’s testimony that she had a poor memory. Hauck points out that Seright admitted at trial that in October 1992 Sisson was approximately 87 years old, could not make a consistent plan for her estate; was elderly enough and confused enough that she could have been unduly influenced by him at that time; and that he could have forced her to do what he wanted her to do.

¶47 When viewed in a light most favorable to Hauck, the evidence tended to establish her case. Reasonable persons could have drawn different conclusions from the evidence. We hold, therefore, that the District Court did not err in failing to grant Seright’s motion for directed verdict or for judgment notwithstanding the verdict.

¶48 Affirmed.

JUSTICES GRAY, NELSON, REGNIER and HUNT concur.


author: JUSTICE GRAY CHIEF JUSTICE TURNAGE,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RUSSELL LEE WILLIAMSON, Defendant and Appellant.
    No. 97-135.
    Argued and Submitted February 12, 1998.
    Decided August 13, 1998.
    1998 MT 199.
    55 St.Rep. 843.
    290 Mont. 321.
    965 P.2d 231.

      For Appellant: Daniel A. Boucher (argued); Altman & Boucher, Havre.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Tammy Plubell (argued), Ass’t Attorney General, Helena; Stuart C. MacKenzie, Chinook City Attorney, Chinook.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Russell Lee Williamson (Williamson) appeals from the judgment entered by the Seventeenth Judicial District Court, Blaine County, on its order denying his motion to suppress evidence. We reverse.

¶2 The issue on appeal is whether the District Court erred in concluding that Officer Mark Weber had probable cause to stop Williamson and in denying Williamson’s motion to suppress on that basis.

BACKGROUND

¶3 On June 20,1995, the Blaine County Sheriff’s Office dispatcher received a telephone call from Sue Reid (Reid) reporting a drunk driver in the vicinity of the C-Store convenience store (C-Store) in Chinook, Montana. The dispatch record indicates that Reid reported a “very drunk” older male, driving an old blue Chevy pickup truck which, at the time, was parked behind the C-Store, and gave the license plate number of the truck. The dispatcher contacted Officer Mark Weber (Weber) of the Chinook Police Department and, according to Weber’s incident report, informed him that Reid had reported a “possible drunk driver” and gave him a description of the driver and vehicle. While the dispatcher’s report describes the vehicle as a Chevy truck, Weber’s report indicates he was told it was a Ford truck. As Weber was responding to the call, the dispatcher again contacted him to relay the additional information that the driver had left the C-Store in the truck and was westbound on Highway 2.

¶4 When Weber reached the area of the C-Store, which is within the Chinook city limits, he did not see the truck. However, he could see a group of vehicles driving west on Highway 2 approximately a mile away and outside the Chinook city limits. Weber could not positively identify the blue pickup truck as being among the group of vehicles but, acting on his belief that it was, he activated the top lights on his patrol car and followed the vehicles along Highway 2.

¶5 Weber caught up with the group of vehicles approximately three miles outside of Chinook, at which point he could see a blue Ford truck several vehicles ahead of him. Before he could pass enough vehicles to get directly behind it, the truck turned off the highway onto a gravel road. Weber also turned onto the gravel road and pulled up behind the truck with the lights of his patrol car flashing. The truck finally stopped about a quarter of a mile up the road. Weber had not observed any erratic driving or other indicators of alcohol impairment prior to stopping the truck. However, after talking with and observing the driver, eventually identified as Williamson, Weber arrested him for driving under the influence of alcohol (DUI) and transported him to the Blaine County Sheriffs Office.

¶6 Williamson was charged in Chinook City Court with DUI, second offense, in violation of § 61-8-401, MCA. He moved to suppress all the evidence gathered subsequent to the time his truck was stopped on the basis that Weber did not have probable cause to stop him. The City Court denied the motion. Williamson subsequently pled guilty to the DUI charge, conditioned on his right to appeal the City Court’s ruling on his motion to suppress, and renewed his motion in the District Court. The District Court affirmed the City Court’s denial of the motion to suppress and Williamson appealed.

STANDARD OF REVIEW

¶7 We review a district court’s denial of a motion to suppress to determine whether the court’s findings of fact were clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Fitzgerald (1997), 283 Mont. 162, 167, 940 P.2d 108, 111. The pertinent facts in this case are undisputed and, as a result, we address whether the District Court correctly applied the law in concluding that Weber had probable cause to stop Williamson.

DISCUSSION

¶8 Did the District Court err in concluding that Weber had probable cause to stop Williamson and in denying Williamson’s motion to suppress on that basis?

¶9 Williamson asserted that Weber needed probable cause for the stop because he was acting outside his territorial jurisdiction as a city police officer and the information within Weber’s knowledge at the time of the stop did not rise to the level of probable cause. On that basis, he argued that all evidence obtained subsequent to the stop should be suppressed. In denying the motion to suppress, the District Court concluded that the relayed information and descriptions from the citizen informant, combined with Weber’s observation of a blue truck matching the description given to him, provided the officer with probable cause to stop Williamson. Williamson contends that the facts within Weber’s knowledge at the time he stopped Williamson did not establish the probable cause necessary to justify the stop.

¶ 10 Before addressing whether the District Court erred in concluding that Weber had probable cause to stop Williamson, we take this opportunity to clarify the difference between the probable cause necessary to effectuate a valid arrest and the particularized suspicion necessary to justify an investigative stop under § 46-5-401, MCA. We also discuss the applicability of the probable cause standard — rather than particularized suspicion — in this case.

¶11 Section 46-5-401, MCA, authorizes law enforcement officers to conduct investigatory stops by providing that

[i]n order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.

An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. State v. Lee (1997), 282 Mont. 391, 394, 938 P.2d 637, 639 (citation omitted). When such a stop is challenged, the prosecution must show that there was objective data from which an experienced officer could make certain inferences resulting in a suspicion that the person is or has been engaged in wrongdoing. Lee, 282 Mont. at 394, 938 P.2d at 639 (citing State v. Gopher (1981), 193 Mont. 189, 193, 631 P.2d 293, 296). A particularized suspicion determination must be based on the totality of the circumstances in a given case. Lee, 282 Mont. at 394, 938 P.2d at 639.

¶ 12 While an investigatory stop may be based on only a particularized suspicion of criminal activity, an officer must have probable cause to justify a warrantless arrest.

A peace officer may arrest a person when a warrant has not been issued if the officer has probable cause to believe that the person is committing an offense or that the person has committed an offense and existing circumstances require immediate arrest.

Section 46-6-311(1), MCA. Probable cause to arrest is established if the facts and circumstances within an officer’s personal knowledge, or related to the officer by a reliable source, are sufficient to warrant a reasonable person to believe that someone is committing or has committed an offense. Jess v. State, Dept. of Justice, MVD (1992), 255 Mont. 254, 261, 841 P.2d 1137, 1141; State v. Schoffner (1991), 248 Mont. 260, 264, 811 P.2d 548, 551. Probable cause is evaluated in light of a trained law enforcement officer’s knowledge, taking into account all the relevant circumstances. City of Missoula v. Forest (1989), 236 Mont. 129, 132, 769 P.2d 699, 701 (citation omitted). Furthermore, although not requiring evidence sufficient to prove a person’s guilt, probable cause cannot be established based on an officer’s mere suspicion of criminal activity. State v. Lahr (1977), 172 Mont. 32, 35, 560 P.2d 527, 529 (citations omitted). Clearly, then, the probable cause standard is more stringent than particularized suspicion. See, e.g., State v. Anderson (1993), 258 Mont. 510, 514, 853 P.2d 1245, 1248.

¶13 The issue in this case is whether Weber had sufficient justification for stopping Williamson. As stated above, ordinarily an officer needs only a particularized suspicion for such a stop. Under the circumstances of this case and for the reasons discussed below, however, Weber needed probable cause, rather than a mere particularized suspicion, to stop Williamson.

¶ 14 It is undisputed that Weber was outside the Chinook city limits when he stopped Williamson and that, although § 7-32-4301(2), MCA, permits a city to authorize its police to make arrests up to 5 miles outside the city limits, the City of Chinook has never extended the jurisdiction of its police pursuant to this statute. Thus, Weber was acting outside his jurisdiction as a City of Chinook police officer when he stopped Williamson.

¶15 It is well-established in Montana that a peace officer does not have the authority to make a warrantless arrest when acting outside his or her jurisdiction. See, e.g., State v. McDole (1987), 226 Mont. 169, 172, 734 P.2d 683, 685. This limitation on a peace officer’s authority to arrest is based on Montana’s statute defining a “peace officer” as

any person who by virtue of the person’s office or public employment is vested by law with a duty to maintain public order and make arrests for offenses while acting within the scope of the person’s authority.

Section 46-1-202(16), MCA. Under this statute, a peace officer’s duty to maintain public order and make arrests only arises when the officer is acting within the scope of his or her authority. That scope of authority, however, is limited by the territorial jurisdictional limits of the law enforcement entity for which the officer works. Thus, a peace officer outside his or her territorial jurisdiction is outside the scope of his or her authority as a peace officer and is not authorized to make arrests in the capacity of a peace officer.

¶ 16 It is equally well-established, however, that a peace officer outside his or her jurisdiction does not lose the general characteristics of a private citizen and may make an arrest under circumstances which would authorize a private citizen to do so. See State v. Hendrickson (1997), 283 Mont. 105, 108, 939 P.2d 985, 987; State v. Sunford (1990), 244 Mont. 411, 414-15, 796 P.2d 1084, 1086; McDole, 226 Mont. at 172, 734 P.2d at 685. In this regard, § 46-6-502(1), MCA, provides that a private citizen “may arrest another when there is probable cause to believe that the person is committing or has committed an offense ....” Consequently, a peace officer such as Weber, when acting outside his territorial jurisdiction and as a private citizen, may arrest another under the citizen’s arrest statute when he has probable cause to believe that person is committing or has committed an offense; he may not act pursuant to § 46-6-311, MCA. See Hendrickson, 283 Mont. at 108, 939 P.2d at 987; McDole, 226 Mont. at 172, 734 P.2d at 685. The officer is not acting within the scope of his or her authority as a peace officer and, therefore, may not use criminal procedure statutes expressly limited in application to “peace officers.” For this same reason, an out-of-jurisdiction peace officer may not use the investigatory stop statute — with its particularized suspicion, rather than probable cause, standard — because its use is limited, by its terms, to peace officers. See § 46-5-401, MCA.

¶ 17 Nor is this analysis at odds with our holding in Maney v. State (1992), 255 Mont. 270, 275, 842 P.2d 704, 707, that a person employed as a law enforcement officer is still a peace officer in fact even when making an arrest outside the officer’s territorial jurisdiction under the authority of the citizen’s arrest statute. There, a city police officer stopped and arrested Maney for DUI several miles outside the officer’s jurisdiction. Maney was transported to the county sheriff’s office where the arresting officer requested him to submit to a breathalyzer test; Maney refused the test. The city police officer then confiscated Maney’s driver’s license pursuant to Montana’s implied consent statute. Maney, 255 Mont. at 272, 842 P.2d at 705. Maney petitioned for reinstatement of his driver’s license, and the district court denied his petition. Maney, 255 Mont. at 272, 842 P.2d at 705.

¶ 18 Maney argued on appeal that there was no arrest by a “peace officer” as required by § 61-8-402(1), MCA, because the arrest was made in the officer’s capacity as a private citizen under § 46-6-502, MCA, and, as a result, the implied consent statute did not apply. Maney, 255 Mont. at 275, 842 P.2d at 707. We concluded that a person employed as a law enforcement officer is within the statutory definition of “peace officer” even when outside the geographical limits of his or her jurisdiction because “[a] person is a peace officer by virtue of holding the particular job.” Maney, 255 Mont. at 275, 842 P.2d at 707. Consequently, Maney had been arrested by a peace officer as required by the implied consent statutes, even though the officer’s authority for the arrest was derived from the citizen’s arrest statute, and the implied consent statute applied to Maney’s refusal to submit to the breathalyzer test. Maney, 255 Mont. at 275-76, 842 P.2d at 707.

¶19 Our holding in Maney that a law enforcement officer is a peace officer in fact even when outside his or her territorial jurisdiction does not equate to a holding that an out-of-jurisdiction officer retains the authority to make investigatory stops on particularized suspicion pursuant to § 46-5-401, MCA, however. A law enforcement officer is always a peace officer, no matter his or her geographical location, because the officer is always a person “vested by law with a duty to maintain public order and make arrests for offenses ...” Section 46-1-202(16), MCA. Nevertheless, an officer may only assert his or her authority as a peace officer when “acting within the scope of [his or her] authority.” Section 46-1-202(16), MCA. The distinction is between “being” a peace officer and “acting” as a peace officer; a law enforcement officer is a peace officer at all times pursuant to Maney, but may act as a peace officer only when acting within the scope of his or her authority.

¶20 As a result, it is clear in this case that Weber, a peace officer acting outside his territorial jurisdiction, was limited to the authority provided to private citizens under § 46-6-502, MCA, and was required to have probable cause to stop Williamson. He could not make an investigatory stop on particularized suspicion under § 46-5-401, MCA, and have that suspicion ripen into probable cause to arrest based on evidence obtained after the stop. See, e.g., Jess, 255 Mont. at 261, 841 P.2d at 1141 (particularized suspicion for investigatory stop may ripen into probable cause to arrest through facts or incidents occurring after the stop). We turn, then, to our review of the District Court’s conclusion that, considering the information within Weber’s knowledge at the time he stopped Williamson, probable cause existed to make the stop.

¶21 As discussed above, probable cause is established if the facts and circumstances within an officer’s personal knowledge, or related to the officer by a reliable source, are sufficient to warrant a reasonable person to believe that another person is committing or has committed an offense. Jess, 255 Mont. at 261, 841 P.2d at 1141; Schoffner, 248 Mont. at 264, 811 P.2d at 551. A probable cause determination must be based on an assessment of all relevant circumstances, evaluated in light of the knowledge of a trained law enforcement officer. Forest, 236 Mont. at 132, 769 P.2d at 701. Mere suspicion on the officer’s part is not enough to establish probable cause to believe a person has committed an offense. Lahr, 172 Mont. at 35, 560 P.2d at 529.

¶22 The information within Weber’s knowledge at the time he stopped Williamson consisted of the citizen informant’s relayed report of a “possible” drunk driver in an early 1960s model blue Ford pickup truck and his observation of a truck matching that description. Williamson argues that this information was not sufficient to establish probable cause because Reid’s report of a possible drunk driver did not include enough detail to provide a basis for her opinion that the driver might be intoxicated and Weber failed to adequately corroborate Reid’s information before initiating the stop.

¶23 Generally, a law enforcement officer may rely on the report of a citizen informant in determining that there is probable cause to believe an offense has been committed. See, e.g., Schoffner, 248 Mont. at 264-65, 811 P.2d at 551-52; Jess, 255 Mont. at 261, 841 P.2d at 1141; Santee v. State, Dept. of Justice, Motor Vehicle Div. (1994), 267 Mont. 304, 308, 883 P.2d 829, 832; State v. Hammer (1988), 233 Mont. 101, 107, 759 P.2d 979, 983; State v. Ribera (1979), 183 Mont. 1, 6-7, 597 P.2d 1164, 1168. The citizen’s report is not necessarily sufficient to establish probable cause, however, and a review of our cases addressing citizen informant reports in relation to probable cause determinations reveals that there must be some indication of the reliability of — and the basis for — the citizen’s report.

¶24 In Schoffner, for example, three citizens witnessed a man break into, enter and rummage around in a laundromat. One witness called the police and gave the dispatcher an ongoing account of the man’s actions as they occurred, as well as a description of the man. The dispatcher relayed the information to a police officer. Schoffner, 248 Mont. at 263, 811 P.2d at 551. The officer apprehended the defendant, who matched the description of the suspect, shortly thereafter a block away from the scene of the crime and the three eyewitnesses positively identified him at the scene as the man they saw burglarize the laundromat. Schoffher, 248 Mont. at 263-64, 811 P.2d at 551. The basis for and reliability of the citizen informants’ report was established by the detailed account of the offense as it was happening and the citizens’ identification of the defendant in the presence of law enforcement personnel. We concluded, under those facts and circumstances, that the officer had probable cause to arrest the defendant. Schoffner, 248 Mont. at 265, 811 P.2d at 552.

¶25 In Santee, three separate witnesses informed a police officer that they had seen a highly intoxicated man they believed was about to drive his vehicle. Each witness spoke personally with the officer and either identified the defendant as the intoxicated person or identified the vehicle he was driving. Santee, 267 Mont. at 306, 883 P.2d at 830-31. We held that the officer had probable cause to arrest the defendant based on the three witness reports, each of which corroborated the others, the witnesses’ identification of the defendant in the officer’s presence and the officer’s observation of the defendant driving his vehicle. Santee, 267 Mont. at 308-09, 883 P.2d at 832. In Hammer, we also held that probable cause existed based, in part, on the report of a citizen informant. There, the informant was the victim of the crime. He spoke personally with officers at the scene of the crime, described in detail the events which had occurred prior to the officers’ arrival and identified the defendant as his assailant in the presence of the officers. Hammer, 233 Mont. at 104-05, 759 P.2d at 982-83.

¶26 Similarly, in Jess, we concluded there was probable cause to arrest the defendant where a citizen informant reported that she had observed a person in a pickup truck driving erratically, described the erratic nature of the driving, described the vehicle and gave the license plate number, and identified the defendant as the driver. Jess, 255 Mont. at 256, 841 P.2d at 1138. Furthermore, prior to the defendant’s arrest, the arresting officer also observed the defendant, saw indications that he was intoxicated and spoke personally with the citizen informant to confirm the information the informant had provided earlier. Jess, 255 Mont. at 261, 841 P.2d at 1141.

¶27 Finally, in Ribera, we held that a citizen informant’s tip was not sufficient to establish probable cause to arrest the defendant where the citizen’s information was based on observations made by a third party rather than on his personal knowledge. We concluded that, where a citizen informant’s report is based on another person’s statements, law enforcement officers are required to make further inquiry as to the underlying facts and circumstances on which the report is based in order to reduce the possibility of a mistake and to satisfy the minimum standards for establishing probable cause. Ribera, 183 Mont. at 7, 597 P.2d at 1168.

¶28 Thus, a citizen informant’s report is not sufficient to establish probable cause unless there is information indicating the underlying circumstances and the basis of the citizen’s knowledge that an offense has been or is being committed. Reviewing citizen informant Reid’s report in this case, as it was relayed to Weber, we conclude that Reid’s information did not contain sufficient information, in and of itself, to establish probable cause that an offense was being committed. First, Reid’s relayed report was merely that there was a possible drunk driver near the C-Store, together with descriptions of the driver and his vehicle. It contained no details of the basis for her conclusion that the driver possibly was intoxicated. Consequently, this case is factually distinguishable from cases such as Schoffner, where one of the informants gave the dispatcher a “blow by blow” account of the suspect’s actions as they occurred; Hammer, where the citizen informant was the victim and described in detail the events of the assault; and Jess, where the citizen informant particularly described the erratic nature of the defendant’s driving she had observed. See Schoffner, 248 Mont. at 263, 811 P.2d at 551; Hammer, 233 Mont. at 104-05, 759 P.2d at 982-83; Jess, 255 Mont. at 256, 841 P.2d at 1138.

¶29 Second, unlike the facts in Santee, 267 Mont. at 308, 883 P.2d at 830-31, Hammer, 233 Mont. at 104-05, 759 P.2d at 982-83, and Jess, 255 Mont. at 261, 841 P.2d at 1138, Weber did not speak with Reid, either personally or through the dispatcher, to discover the facts underlying her report or otherwise determine the basis for her knowledge and opinion regarding intoxication. In some instances, such as the citizen report in Schoffner which described the details of the offense as it occurred, a citizen informant’s report may contain enough detail to be essentially self-authenticating. However, where a citizen informant’s report is lacking such detail, it is incumbent on law enforcement to probe into the basis for and veracity of the report before relying on the report to determine that probable cause exists. Indeed, in the present case, the record does not indicate whether Reid’s report was based on her personal knowledge and observation of the alleged drunk driver or on information obtained from a third party and relayed by Reid to the dispatcher. In such circumstances, it is even more imperative that law enforcement officers inquire further into the basis for the report in order to avoid the possibility of a mistake and to satisfy at least the minimum requirements of probable cause. See Ribera, 183 Mont. at 7, 597 P.2d at 1168.

¶30 The State of Montana (State) asserts that Schoffner is factually similar to the present case and supports a conclusion that Reid’s relayed report was sufficient to establish probable cause to stop Williamson. As discussed above, however, Schoffner is readily distinguishable in that there, one of the citizen informants gave law enforcement a detailed description of the defendant’s actions constituting the offense as they occurred. Moreover, all three witnesses in that case spoke personally with law enforcement officers and identified the defendant at the scene of the offense. Schoffner, 248 Mont. at 263-64, 811 P.2d at 551. Here, Reid’s relayed report is devoid of any information as to why she believed the man at the C-Store was intoxicated and Weber did not inquire into the basis for Reid’s report before he stopped Williamson’s truck.

¶31 We conclude that Reid’s relayed report of the possible drunk driver was insufficient, in and of itself, to establish probable cause justifying Weber’s stop of Williamson’s truck. A probable cause determination must be based on all the facts and circumstances within the officer’s knowledge, however. Jess, 255 Mont. at 261, 841 P.2d at 1141; Schoffner, 248 Mont. at 264, 811 P.2d at 551. Thus, we examine whether Weber had knowledge of any other facts or circumstances which, when combined with Reid’s relayed report, would have established probable cause to believe that Williamson was committing an offense.

¶32 Upon receiving Reid’s report of a possible drunk driver via the dispatcher, Weber proceeded to the C-Store where he observed a group of vehicles about a mile away traveling west on Highway 2. Weber followed these vehicles and, when he caught up to them, he observed a blue Ford truck in the middle of the group which he believed to be the truck described by the dispatcher. Although Weber followed the truck for several miles before stopping it, he did not observe any erratic driving or other indications that the driver may have been under the influence of alcohol. Therefore, the only information Weber had in addition to Reid’s report was his observation of a pickup truck matching the description he had been given driving down the highway in the direction indicated by the dispatcher. The District Court concluded that this limited corroboration of Reid’s report was sufficient to provide Weber with probable cause to stop Williamson. We cannot agree.

¶33 The information provided by Reid created, at most, a suspicion that an offense was being committed. Weber’s subsequent observation of Williamson’s truck provided no information which would raise this mere suspicion to a belief that an offense was being committed; the truck did not swerve, speed or otherwise indicate that the driver was impaired. Thus, when he stopped the truck, Weber still had nothing more than a suspicion that the driver was under the influence of alcohol. Such a suspicion is not enough to establish probable cause that an offense is being committed. Lahr, 172 Mont. at 35, 560 P.2d at 529.

¶34 Finally, the State asserts that the information within Reid’s knowledge established that she herself had probable cause to arrest Williamson under § 46-6-502(1), MCA. It further asserts that, pursuant to McDole, an out-of-jurisdiction officer may make an arrest “if a private citizen could have made a lawful arrest under the circumstances.” Thus, according to the State, because Reid could have made the citizen’s arrest, Weber automatically had the same authority to act. We disagree.

¶35 The probable cause Weber needed to stop Williamson is determined based on the facts and circumstances within his knowledge at the time he made the stop. See Jess, 255 Mont. at 261, 841 P.2d at 1141; Schoffner, 248 Mont. at 264, 811 P.2d at 551. Regardless of whether Reid had sufficient information to establish probable cause to arrest Williamson herself, our discussion above reflects that she did not provide that information to the dispatcher and, ultimately, Weber. As a result, Weber did not have sufficient information within his knowledge to establish probable cause to stop Williamson.

¶36 We conclude that, considering all the facts and circumstances within his knowledge at the time, Weber did not have probable cause to stop Williamson. As a result, we further conclude that the evidence obtained by him subsequent to the stop must be suppressed. We hold, therefore, that the District Court erred in concluding that Weber had probable cause to stop Williamson and in denying Williamson’s motion to suppress on that basis.

¶37 Reversed.

JUSTICES HUNT, LEAPHART, NELSON, REGNIER and TRIEWEILER concur.

CHIEF JUSTICE TURNAGE,

dissenting.

¶38 I respectfully dissent.

¶39 As found by the District Court, based on documents and facts stipulated by parties, on June 20,1995, Chinook Police Officer Mark Weber received a call from the Blaine County Sheriff’s Office dispatcher. Officer Weber was told by the dispatcher that a certain named citizen had reported a drunk driver — older male, very drunk, driving an old pickup blue in color with license 12T-249G. He was further informed by the dispatcher that the driver had just left the C-Store westbound on Highway #2. Officer Weber thereafter observed a group of vehicles westbound on Highway #2. He, believing that the vehicle bearing license number 12T-249G was in a group of westbound vehicles, activated the top lights and accelerated to catch the vehicles. He caught up with the west bound vehicles on Highway #2 and observed within this group an old blue pickup with license 12T-249G.

¶40 Officer Weber followed the vehicle off Highway #2 onto a gravel road and subsequently stopped the vehicle, resulting in the arrest of Williamson and his being charged with the offense of driving under the influence of alcohol.

¶41 The findings of the District Court in part state:

In this case, at the time of the stop of Defendant, Officer Weber was armed with knowledge of a private citizen’s report given at 12:50 P.M. of a “drunk ... very drunk” driver in an older model blue pickup having license number 12T-249G seen initially within the Chinook city limits and now heading west out of Chinook on Highway #2. This information was corroborated with Weber’s personal observation nine minutes later (at 12:59 P.M.) of an older model blue pickup with this same license number traveling west on Highway #2 within a few miles of the city limits. In his observations, Weber was able to confirm significant parts of this private citizen’s report, i. e., general vehicle description, license number, direction of travel, location of travel and close proximity in time to initial observation by private citizen.
It is this private citizen’s information together with the corroborating personal observations of Weber that provide probable cause for the stop and subsequent arrest of Defendant.
As stated, Officer Weber did make corroborating personal observations of presumptively reliable private citizen-based information. With this corroborating observation, it makes little sense that Officer Weber should have waited to observe additional corroborating information, such as erratic driving behavior or intoxication by Defendant, prior to stopping Defendant. To do so would have defeated the very purpose of Montana’s criminal statutes pertaining to drinking and driving.
As stated in McDole, Montana’s criminal traffic statutes are intended to limit injury to persons or property. “If the police officer had not arrested (the defendant), it is quite possible that he might have commenced driving again in his intoxicated condition and critically injured himself or others.” McDole, 226 Mont. at 173, 734 P.2d at 686. Likewise, if Officer Weber would have waited to personally observe erratic driving or intoxication, it is equally possible that Defendant would have subjected himself or others to critical injury.
Officer’s [sic] Weber’s stop in this case is consistent with the policy of this State to remove suspected drunk drivers from the roads as soon as possible. In conclusion, an officer outside of his jurisdiction can find probable cause to make a stop and arrest based upon information obtained from a private citizen informant and observations of the officer tending to confirm the reliability of the information. In the case such as this proceeding where the information alleges “drunk” driving, personal observation of the suspect’s driving or intoxicated condition may constitute corroboration but such observation is not required where other independent observation tends to confirm the reliability of the citizen-provided information. Under these circumstances, the inherent risk of critical injury to persons or property by allowing the suspected drunk driver to continue to stay on the roads supports an immediate stop and arrest.

I agree with the findings of the District Court.

¶42 The report of the private citizen is not only presumptively reliable, but the citizen was an accurate observer of the condition of Williamson, whose subsequent blood alcohol test after his arrest showed .225. This is 125 percent more than the minimum amount sufficient to establish presumptive driving while intoxicated. The citizen informant was not only presumptively reliable, but also an accurate observer of an intoxicated person.

¶43 The majority opinion states: “Probable cause to arrest is established if the facts and circumstances within an officer’s personal knowledge, or related to the officer by a reliable source, are sufficient to warrant a reasonable person to believe that someone is committing or has committed an offense.” Based on this standard, Officer Weber unquestionably had probable cause to arrest Williamson. Most certainly, the citizen informant’s information was sufficient to establish underlying circumstances and the basis of the citizen’s knowledge that an offense was being committed. The citizen personally observed the intoxicated condition of Williamson, his entry into the blue pickup truck, the truck’s license number and Williamson’s driving it away.

¶44 The majority opinion would require Officer Weber to abandon the pursuit and arrest of a drunk driver in order to make inquiries in and about Chinook to avoid the possibility of a mistake. There was no mistake made in this case by Officer Weber. The majority opinion that Officer Weber had nothing more than a suspicion that the driver was under the influence of alcohol is simply not correct.

¶45 I would affirm.