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STATE OF MONTANA v. ZACHARY BRENNAN NEWBARY
Case Number: 2020 MT 148
Judge: Beth Baker
Court: IN THE SUPREME COURT OF THE STATE OF MONTANA
Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Aislinn W. Brown, Assistant
Kirsten H. Pabst, Missoula County Attorney, Jennifer Clark, Deputy
Need help finding a lawyer for representation for appealing the order of the Fourth Judicial District Court denying his motion to withdraw his guilty plea in Montana?
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On October 14, 2014, the State charged Newbary with Aggravated Assault, a felony,
in violation of § 45-5-202, MCA, and Sexual Intercourse Without Consent, a felony, in
violation of § 45-5-503, MCA. The latter offense carries a possible maximum sentence of
life imprisonment. Section 45-5-503(2), MCA. Newbary pleaded guilty to both counts on
May 21, 2015. In exchange for his guilty plea, the State agreed to recommend a sentence
of twenty years, with twelve years suspended, for both offenses and that the sentences
should run concurrently. The State also agreed to recommend placement in the Boot Camp
Incarceration Program followed by pre-release and to recommend that the District Court
automatically suspend the remainder of Newbary’s sentence of imprisonment upon his
successful completion of the boot camp program.
¶3 The District Court held a sentencing hearing on November 12, 2015, and the parties
jointly recommended that the court follow the plea agreement. The District Court
announced that it would add a four-year parole restriction to the recommended sentence.
It continued the sentencing hearing at defense counsel’s request to give Newbary time to
consider the new sentence. At the continued sentencing hearing on November 25, Newbary
accepted the plea with the added parole restriction. The court sentenced him to
twenty years at Montana State Prison with twelve years suspended on each count; ordered
the sentences to run concurrently; imposed a four-year parole restriction; and
recommended that Newbary be placed in the boot camp program upon completion of the
first four years of his sentence. The court listed over forty conditions of probation in its
written judgment, including that “[i]f the Defendant enters and successfully completes the
Boot Camp Incarceration Program after the first four years of incarceration, pursuant to
§ 53-30-402, MCA and upon Defendant’s successful completion, the Court shall suspend
all or part of the remainder of the sentence of imprisonment.”
¶4 On July 1, 2017, the Montana Legislature repealed the statutes authorizing the
Boot Camp Incarceration Program. See 2017 Mont. Laws ch. 384. That November,
Montana Department of Corrections officials informed Newbary that he could not apply
for or enroll in the program due to the repeal. Newbary filed a Motion to Withdraw Guilty
Plea on April 30, 2018, arguing that the repeal of the boot camp program deprived him of
the expected benefits of enrollment in the program and the possibility for a sentence
reduction. Newbary contended that the repeal retroactively placed the State in breach of
the plea agreement and rendered his plea involuntary. The District Court denied
Newbary’s motion. Newbary appeals.
STANDARDS OF REVIEW
¶5 When a criminal defendant appeals the denial of his motion to withdraw a guilty
plea, we review the trial court’s findings of fact to determine whether they are clearly
erroneous and its conclusions of law to determine if they are correct.
State v. Warclub, 2005 MT 149, ¶ 24, 327 Mont. 352, 114 P.3d 254. Whether a plea is
voluntary is a mixed question of law and fact that this Court reviews de novo for
correctness. Warclub, ¶ 24. Whether the State has breached a plea agreement is a question
of law that we review de novo. State v. McDowell, 2011 MT 75, ¶ 12, 360 Mont. 83,
253 P.3d 812 (citing State v. Bullplume, 2011 MT 40, ¶ 10, 359 Mont. 289, 251 P.3d 114).1
¶6 1. Did the District Court err in denying Newbary’s motion to withdraw his guilty
¶7 Newbary argues that the District Court erred in denying his motion to withdraw his
guilty plea because the Legislature’s repeal of the boot camp program retroactively
rendered his plea involuntary and constitutes good cause for withdrawal.
¶8 A plea must be voluntary because the defendant is waiving his constitutional rights
to not incriminate himself and to a trial by jury. State v. Terronez, 2017 MT 296, ¶ 27,
389 Mont. 421, 406 P.3d 947 (citation omitted). This Court has adopted the standard
articulated in Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463 (1970), to determine
whether a plea is voluntary:
A plea of guilty entered by one fully aware of the direct consequences, including
the actual value of any commitments made to him by the court, prosecutor, or
his own counsel, must stand unless induced by threats (or promises to
discontinue improper harassment), misrepresentation (including unfulfilled or
In State v. Rahn, 2008 MT 201, ¶ 8, 344 Mont. 110, 187 P.3d 622, we reviewed for abuse of
discretion the district court’s determination about whether a plea agreement was breached. We
subsequently held that the abuse of discretion standard of review we applied in Rahn was incorrect.
State v. Shepard, 2010 MT 20, ¶¶ 7-8, 355 Mont. 114, 225 P.3d 1217. Although we did not
expressly overrule Rahn on the standard of review, we do so now to avoid any confusion. Whether
a plea agreement was breached is a question of law that we review de novo. Shepard, ¶¶ 7-8.
unfulfillable promises), or perhaps by promises that are by their nature improper
to the prosecutor’s business (e.g. bribes).
Warclub, ¶ 18 (citing Brady, 397 U.S. at 755, 90 S. Ct. at 1472); see also Terronez, ¶ 27.
The actual value of any commitments made to the defendant by the court, prosecutor, or
his own counsel are of significant consequence in determining the voluntariness of a plea.
State v. Hendrickson, 2014 MT 132, ¶ 29, 375 Mont. 136, 325 P.3d 694
(Cotter, J., dissenting) (citing State v. Lone Elk, 2005 MT 56, ¶ 21, 326 Mont. 214,
108 P.3d 500, overruled in part on other grounds by State v. Brinson, 2009 MT 200, ¶ 9,
351 Mont. 136, 210 P.3d 164). The defendant has the burden to show that his plea was
involuntary. Terronez, ¶ 27 (citing State v. Robinson, 2009 MT 170, ¶¶ 17-18,
350 Mont. 493, 208 P.3d 851). “If any doubt exists on the basis of the evidence presented
regarding whether a guilty plea was voluntarily and intelligently made, the doubt must be
resolved in favor of the defendant.” Terronez, ¶ 27 (quoting Hendrickson, ¶ 14). But a
plea is not necessarily “vulnerable to later attack if the defendant did not correctly assess
every relevant factor in entering into his decision.” Lone Elk, ¶ 26 (quoting
Brady, 397 U.S. at 757, 90 S. Ct. at 1473).
¶9 A defendant may withdraw his guilty plea within one year of final judgment for
Section 46-16-105(2), MCA. “An involuntary plea can justify withdrawal,
but is not the only basis for establishing good cause.” Terronez, ¶ 32 (internal quotations
2 The State concedes that it did not preserve for appeal the issue whether Newbary’s motion to
withdraw his guilty plea was statutorily time-barred. As a result, we decline to address the
timeliness of Newbary’s motion. See, e.g., State v. Akers, 2017 MT 311, ¶ 10, 389 Mont. 531,
408 P.3d 142.
and citations omitted). We analyze numerous case-specific considerations to determine
whether good cause is shown to withdraw a guilty plea, including an inadequate colloquy,
newly discovered evidence, intervening circumstances, or any other reason for withdrawal
that did not exist when the defendant pleaded guilty. Terronez, ¶ 32; Robinson, ¶ 11.
¶10 Newbary argues that the Legislature’s repeal of the boot camp program rendered his
plea “at least  involuntary.” Newbary claims that the repeal deprived him of the
opportunity for sentence reduction through completion of boot camp—which, he contends,
he relied upon in agreeing to plead guilty.3
At the time of Newbary’s sentencing, admission
to the boot camp program rested solely within the discretion of the Department of
Corrections screening committee. See Mont. Admin. R. 20.7.1201(4) (2012);
see also VanSkyock v. Manley, 2017 MT 99, ¶ 12, 387 Mont. 307, 393 P.3d 1068
(“When a district court commits a criminal defendant to DOC for placement pursuant to
§ 46-18-201(3)(a)(iv)(A), MCA, the sentencing court has no authority to direct or control
where or in what program DOC ultimately places the defendant for the term of
sentence. . . . The sentencing court may recommend a particular placement for DOC
consideration but the recommendation is not binding on DOC.”). The “actual value of the
commitment made” to Newbary was thus the promise to recommend his placement in the
boot camp program—a value he received when the State made its promised
recommendation in the written plea agreement and at sentencing.
3 Newbary does not allege—nor does the record support—that the State made misrepresentations,
bribes, or threats.
¶11 There is nothing in the record to suggest that Newbary was unaware that the actual
value of this commitment was a recommendation, not a guarantee, to place him in
boot camp. He acknowledges in his appellate brief that defense counsel
“carefully negotiated a plea agreement” with the State and “kept Newbary reasonably
informed.” What’s more, the District Court took measures to ensure that Newbary’s plea
was voluntary; after advising the parties that it would be adding a four-year parole
restriction to Newbary’s sentence, the court continued the sentencing hearing to allow
Newbary and his counsel additional time to consider the terms of the agreement. Our
review of the record thus convinces us that Newbary fully understood the direct
consequences of his guilty plea and the “actual value of the commitment made to him.”
Brady, 397 U.S. at 755, 90 S. Ct. at 1472.
¶12 Newbary additionally contends that the repeal of the boot camp program constitutes
an “intervening circumstance” or “other reason” showing good cause to withdraw his plea
under the “trilogy” of Brady, Lone Elk, and State v. Humphrey, 2008 MT 328,
346 Mont. 150, 194 P.3d 643. We are unable to locate any support for his position in these
decisions. In Brady, the defendant was charged with kidnapping in violation of
18 U.S.C. § 1201(a); pleaded guilty; and was sentenced to 50 years’ imprisonment.
Brady, 397 U.S. at 743-44, 90 S. Ct. at 1466. Brady decided to plead guilty in part to avoid
the maximum possible sentence under § 1201(a)—death. Brady, 397 U.S. at 743-44,
90 S. Ct. at 1466. While Brady was serving his sentence, the United States Supreme Court
in a different case struck down the statute’s death penalty provision and granted certiorari
in Brady’s case to consider whether its decision required the Court to set aside Brady’s
conviction. Brady, 397 U.S. at 756, 90 S. Ct. at 1473. Holding that it did not, the Court
[A]bsent misrepresentation or other impermissible conduct by state agents . . . a
voluntary plea of guilty intelligently made in the light of the then applicable law
does not become vulnerable because later judicial decisions indicated that the
plea rested on a faulty premise. A plea of guilty triggered by the expectations
of a competently counseled defendant that the State will have a strong case
against him is not subject to later attack because the defendant’s lawyer
correctly advised him with respect to the then existing law as to possible
penalties but later pronouncements of the courts, as in this case, hold that the
maximum penalty for the crime in question was less than was reasonably
assumed at the time the plea was entered. The fact that Brady did not anticipate
United States v. Jackson, [390 U.S. 570, 88 S. Ct. 1209 (1968)], does not
impugn the truth or reliability of his plea.
Brady, 397 U.S. at 757, 90 S. Ct. at 1473-74.
¶13 We do not doubt that the prospect of boot camp and its attendant opportunity for
sentence reduction factored into Newbary’s decision to plead guilty. Brady, however,
forecloses the outcome he would have us reach—that the repeal amounts to an
“intervening circumstance” sufficient to invalidate his guilty plea. The fact that
Newbary—not to mention the prosecutor or the District Court—did not anticipate the
statutory repeal does not impugn the truth or reliability of his plea even if in retrospect that
plea rested on the faulty premise that the boot camp program could be available to him
after the first four years of imprisonment.
¶14 Nor do the other cases Newbary cites—Lone Elk and Humphrey—lend support for
this rationale. In Lone Elk, ¶¶ 20-23, we adopted the federal voluntariness standard from
Brady and affirmed the district court’s denial of Lone Elk’s motion to withdraw guilty plea.
Based on our review of the record, we held in part that Lone Elk understood that his guilty
plea might require sexual offender treatment—which he had hoped to avoid by pleading
guilty and waiving his right to trial. Lone Elk, ¶ 27. We had no occasion in that case to
consider any “intervening circumstances” or “other reasons” showing good cause to
withdraw a guilty plea. And in Humphrey, ¶ 22, we held that a defendant’s subjective
perceptions bear on the voluntariness of his plea—in that case, Humphrey’s impression
that the district court would follow the plea agreement instead of imposing a harsher
sentence. We clarified, however, that the defendant’s subjective impressions must
reasonably be justified under the circumstances, judged by objective standards.
Humphrey, ¶ 23 (citations omitted). Accordingly, we held that Humphrey’s mistaken
impression that the sentencing court would follow the plea agreement was not reasonably
justified where the court merely sought to clarify the sentencing recommendation and
ensure that Humphrey was “willing to go forward, knowing that that is truly what the
recommendation is going to be[.]” Humphrey, ¶ 27.
¶15 Based on objective standards, we conclude that it was reasonable under the
circumstances at the time of his plea for Newbary to believe the boot camp program would
still be in operation at the end of his first four years of imprisonment. But this is not the
dispositive inquiry. Rather, we must assess whether Newbary was reasonably justified in
his mistaken impression that he would be accepted into and successfully complete the boot
camp program and consequently be entitled to the suspension of all or part of his remaining
sentence of imprisonment. In light of the circumstances already discussed above, we hold
that he was not. Our analysis in Humphrey informs the voluntariness of a plea, not the
existence of “intervening circumstances” or any “other reason” justifying withdrawal.
¶16 We find no support in the cited cases for Newbary’s proposition that the
Legislature’s repeal of the boot camp program provides good cause to withdraw his plea.4
Repeal or not, boot camp was never a foregone conclusion, but depended on later
discretionary decisions and uncertainties—including whether Newbary would be accepted
into the program and whether he would successfully complete it.
¶17 2. Did the State breach the plea agreement?
¶18 We reject Newbary’s argument that the State retroactively breached the plea
agreement when the Legislature repealed the boot camp program. A plea agreement is a
contract between the State and a defendant and thus subject to contract law standards.
Rahn, ¶ 14 (citing State v. Rardon, 2005 MT 129, ¶ 18, 327 Mont. 228, 115 P.3d 182). The
State may not retain the benefits of a plea agreement and simultaneously avoid its
obligations thereunder. Rahn, ¶ 14.
¶19 Rahn is instructive. In that case, the State agreed to recommend a lower sentence
“contingent upon Mr. Rahn being designated a Level 2 [sexual offender] or lower by a
MSOTA [Montana Sexual Offender Treatment Association] qualified evaluator.”
Rahn, ¶ 5. At sentencing, Rahn presented testimony from an MSOTA-certified evaluator
that he was a Level 2 offender. Rahn, ¶ 6. Over Rahn’s objection, the State presented
conflicting testimony by another evaluator that Rahn should be designated a Level 3
offender. Rahn, ¶ 6. The court allowed the testimony, rejected the plea agreement’s
4 Newbary also cites in passing to United States v. Turner, 898 F.2d 705 (9th Cir. 1990) and
United States v. Rios-Ortiz, 830 F.2d 1067 (9th Cir. 1987), but like Brady, Lone Elk, and
Humphrey, these decisions do not support his argument.
recommended sentence, and imposed a harsher sentence. Rahn, ¶¶ 6-7. We held that the
State breached the plea agreement and that the district court abused its discretion in
overruling Rahn’s objection. Rahn, ¶ 23.
¶20 Rahn stands in sharp contrast to what occurred here. The prosecutor did precisely
what she was obligated to do under the plea agreement: recommend Newbary for
placement in the boot camp program and a term of imprisonment far below the statutory
maximum for each offense, to run concurrently instead of consecutively. The State did not
breach its agreement with Newbary, and the District Court did not abuse its discretion in
¶21 Newbary urges this Court to apply our rules of statutory construction to the plea
agreement to ascertain the parties’ intent at the time of his guilty plea and to resolve the
ambiguity created by the plea agreement’s promise of a “boot camp recommendation.” For
reasons we have discussed in detail above, we find no ambiguity with respect to the State’s
agreement to recommend Newbary be placed in the boot camp program. There is no
evidence in the record to support Newbary’s contention that the “recommendation” had
“two conflicting meanings” or that he ever understood that his enrollment was guaranteed.
We therefore decline Newbary’s invitation to apply the rules of statutory construction to
his plea agreement. The District Court correctly held that Newbary’s plea was voluntary
and that the State fulfilled its obligations under the plea agreement despite the Legislature’s
repeal of the boot camp program.
¶22 3. Did the Legislature’s repeal of the Boot Camp Incarceration Program constitute
an ex post facto law?
¶23 Newbary contends for the first time on appeal that the boot camp program was a
sentence reduction program, and thus that its repeal constitutes an ex post facto law. We
generally do not consider arguments raised for the first time on appeal.
See, e.g., Rahn, ¶ 22 (citing State v. Long, 2005 MT 130, ¶ 35, 327 Mont. 238,
113 P.3d 290). Under the plain error doctrine, however, “[t]his Court may discretionarily
review claimed errors that implicate a criminal defendant’s fundamental constitutional
rights, even if no contemporaneous objection is made . . . where failing to review the
claimed error at issue may result in a manifest miscarriage of justice, may leave unsettled
the question of fundamental fairness of the trial or proceeding, or may compromise the
integrity of the judicial process.” State v. Price, 2002 MT 284, ¶ 23, 312 Mont. 458,
59 P.3d 1122 (citation omitted).
¶24 “[T]here is no question that ex post facto application of the law, if present in this
case, violates [the defendant’s] fundamental constitutional rights” under our federal and
state constitutions. Price, ¶ 24. We decline to reverse Newbary’s conviction for plain error
because he has not demonstrated that the Legislature’s repeal of the boot camp program
amounted to an ex post facto application of the law.
¶25 An ex post facto law is one which “makes an action done before the passing of the
law, and which was innocent when done, criminal; and punishes such action, or that
aggravates a crime, or makes it greater than it was, when committed.”
State v. Goebel, 2001 MT 155, ¶ 27, 306 Mont. 83, 31 P.3d 340 (citing Bouie v. Columbia,
378 U.S. 347, 353, 84 S. Ct. 1697, 1702 (1964)); see also State v. Mount, 2003 MT 275,
¶ 24, 317 Mont. 481, 78 P.3d 829 (In criminal matters, a law is ex post facto if
it: (1) punishes as a crime an act that was not unlawful when committed; (2) makes
punishment for a crime more burdensome; or (3) deprives a person charged with a crime
of any defense available under the law at the time the act was committed).5
In Goebel, ¶ 29,
we rejected a defendant’s ex post facto claim because the statute in question “did not alter
the definition of or the punishment for the [offenses] with which he [was] charged.” In
contrast, in Price, ¶ 11, the State charged Price with the offense of felony nonsupport for
failing to pay child support for the period between March 1988 and May 1996. Price raised
an ex post facto challenge on appeal. He pointed out that the Montana Legislature amended
the offense of nonsupport on October 1, 1993, to provide for felony penalties in addition
to misdemeanor penalties; thus his failure to make child support payments from
March 1988 to October 1993 was punishable only as a misdemeanor. Price, ¶ 27. We
reversed, agreeing that it was impossible to determine the period for which Price was
convicted for felony nonsupport, and remanded for a new trial. Price, ¶ 30.
¶26 It is true that the Legislature’s repeal of the boot camp program rendered impossible
Newbary’s enrollment in that program, as well as any sentence reduction that might have
resulted from his successful completion of it. The repeal does not, however, violate the
ex post facto clause. In contrast to Price, Newbary’s criminal act constituted a felony
offense prior to the repeal of the boot camp program. And the repeal of the boot camp
5 We do not accept the State’s reliance on the “intents-effects” test we adopted in Mount, ¶ 26, to
analyze ex post facto challenges in civil sanction contexts.
program did not affect the maximum potential sentence or enhance Newbary’s punishment
for the charged offense. The District Court sentenced him to twenty years’ imprisonment,
with twelve years suspended, and a four-year parole restriction. With or without the boot
camp program, he was eligible for parole after serving four years of incarceration.6
Furthermore, as explained in detail above, Newbary’s placement in boot camp was never
a guarantee. Newbary does not allege, nor does the record suggest, that the ultimate
unavailability of the boot camp program deprived Newbary of any defense available under
the law at the time he committed the offense. As in Goebel, the statute in question did not
alter the definition of or the punishment for the offenses with which Newbary was charged.
¶27 We are thus unpersuaded that the Legislature’s repeal of the boot camp program
violates Newbary’s right to be free from ex post facto application of the law.
Outcome: 8 In sum, the District Court did not err in denying Newbary’s motion to withdraw his
guilty plea. Despite the Legislature’s later repeal of the boot camp program, Newbary’s
plea was voluntary at the time of sentencing. The District Court did not err in determining
that Newbary failed to establish good cause to withdraw his plea or that the State fulfilled
its obligations under the plea agreement. Finally, the repeal of the boot camp program does
not constitute an ex post facto law. We affirm.