State v. Zunick

State v. Zunick, 2014 MT 239 (Sept. 9, 2014) (4-1) Cotter, J., for the majority; McGrath, C.J., dissenting

Issue: Whether the district court erred when it did not provide Zunick the opportunity to withdraw his guilty plea at sentencing pursuant to § 46-12-211(4), MCA, and subsequently denying Zunick’s motion to withdraw his guilty plea.

Short Answer: Yes.

Reversed & remanded for resentencing

Facts: Zunick was charged with felony criminal endangerment and aggravated DUI, his third DUI, after being found in his vehicle in a roadside ditch with a blood alcohol of .202. After obtaining counsel, Zunick entered into a 1(b) plea agreement under which he was told the district court was not bound by the agreement, but if it chose not to follow the plea bargain Zunick would be “so informed and allowed to withdraw [his] pleas(s) of guilty.”

At the sentencing hearing, the state recommended a six-year commitment to the Department of Corrections with three years suspended, as agreed. The court sentenced Zunick to 10 years suspended. The court asked Zunick if he had any questions and whether he agreed with the sentence. Zunick said he had no questions and agreed with the sentence.

Procedural Posture & Holding: One year after the written order of judgment was entered, Zunick moved to withdraw his guilty plea on the grounds that the district court did not comply with § 46-12-211(4), MCA, which requires the court to inform the parties when it rejects a plea agreement.  The district court denied the motion, reasoning that although the sentence imposed was four years longer than the sentence agreed to in the plea agreement, it did not require any incarceration time, and that Zunick knowingly agreed to accept it. Zunick appeals, and the Supreme Court reverses.

Reasoning: In this case of first impression, the Court must decide whether a district court is required to recite all of the requirements listed in § 46-12-211(4), MCA, when it rejects a (1)(b) plea agreement. At the sentencing hearing, the district court did not tell Zunick it was rejecting the plea agreement, nor offer Zunick an opportunity to withdraw his guilty plea. The statute says the court “shall, on the record, inform the parties” that it is rejecting the plea agreement. “We reject the motion that the statute has been satisfied when a district court advises a defendant of the consequences of its possible rejection of a plea agreement in part at the change of plea hearing and then in part oat a later sentencing hearing.” ¶ 18.

Chief Justice McGrath’s Dissent: Zunick acquiesced to the sentence and did not move to withdraw his plea until he had already violated a condition of his sentence and failed in his attempt to have that condition modified.