Senate Bill No. 163

Introduced By christiaens, tuss, ryan, dowell



A Bill for an Act entitled: "An Act allowing the use of two-way electronic audio-video communication for entering pleas and sentencing in misdemeanor criminal cases if the prosecutor does not object NEITHER PARTY OBJECTS AND THE COURT AGREES; amending sections 46-12-211, 46-16-105, 46-17-203, 46-18-102, and 46-18-115, MCA; and providing an immediate effective date and an applicability date."



Be it enacted by the Legislature of the State of Montana:



Section 1.  Section 46-12-211, MCA, is amended to read:

"46-12-211.   Plea agreement procedure -- use of two-way electronic audio-video communication. (1) The prosecutor and the attorney for the defendant, or the defendant when acting pro se, may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty to a charged offense or to a lesser or related offense, the prosecutor will do any of the following:

(a)  move for dismissal of other charges;

(b)  agree that a specific sentence is the appropriate disposition of the case; or

(c)  make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that the recommendation or request may not be binding upon the court.

(2)  If Subject to the provisions of subsection (5), if a plea agreement has been reached by the parties, the court shall, on the record, require a disclosure of the agreement in open court or, on a showing of good cause in camera, at the time that the plea is offered. If the agreement is of the type specified in subsection (1)(a) or (1)(b), the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report. If the agreement is of the type specified in subsection (1)(c), the court shall advise the defendant that, if the court does not accept the recommendation or request, the defendant nevertheless has no right to withdraw the plea.

(3)  If the court accepts a plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.

(4)  If the court rejects a plea agreement of the type specified in subsection (1)(a) or (1)(b), the court shall, on the record, inform the parties of this fact and advise the defendant that the court is not bound by the plea agreement, afford the defendant an opportunity to withdraw the plea, and advise the defendant that if the defendant persists in the guilty plea, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.

(5) For purposes of this section, in cases in which the defendant is charged with a misdemeanor offense, a disclosure of the agreement through the use of two-way electronic audio-video communication, allowing all of the participants to be observed and heard in the courtroom by all present, is considered to be a disclosure in open court. However, audio-video AUDIO-VIDEO communication may not be used if the prosecutor NEITHER PARTY objects AND THE COURT AGREES to its use. The audio-video communication must operate as provided in 46-12-201."



Section 2.  Section 46-16-105, MCA, is amended to read:

"46-16-105.   Plea of guilty -- use of two-way electronic audio-video communication. (1) Before or during trial, a plea of guilty may be accepted when:

(a)  subject to the provisions of subsection (3), the defendant enters a plea of guilty in open court; and

(b)  the court has informed the defendant of the consequences of his the plea and of the maximum penalty provided by law which that may be imposed upon acceptance of such the plea.

(2)  At any time before or after judgment, the court may, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.

(3) For purposes of this section, in cases in which the defendant is charged with a misdemeanor offense, an entry of a plea of guilty through the use of two-way electronic audio-video communication, allowing all of the participants to be observed and heard in the courtroom by all present, is considered to be an entry of a plea of guilty in open court. However, audio-video AUDIO-VIDEO communication may not be used if the prosecutor NEITHER PARTY objects AND THE COURT AGREES to its use. The audio-video communication must operate as provided in 46-12-201."



Section 3.  Section 46-17-203, MCA, is amended to read:

"46-17-203.   Plea of guilty -- use of two-way electronic audio-video communication. (1) Before or during trial, a plea of guilty may be accepted when:

(a)  subject to the provisions of subsection (3), the defendant enters a plea of guilty in open court; and

(b)  the court has informed the defendant of the consequences of his the plea and of the maximum penalty provided by law which that may be imposed upon acceptance of the plea.

(2)  A plea of guilty in a justices' justice's court, city court, or other court of limited jurisdiction waives the right of trial de novo in district court. A defendant must be informed of the waiver before the plea is accepted, and the justice or judge shall question the defendant to ensure that the plea and waiver are entered voluntarily.

(3) For purposes of this section, in cases in which the defendant is charged with a misdemeanor offense, an entry of a plea of guilty through the use of two-way electronic audio-video communication, allowing all of the participants to be observed and heard in the courtroom by all present, is considered to be an entry of a plea of guilty in open court. However, audio-video AUDIO-VIDEO communication may not be used if the prosecutor NEITHER PARTY objects AND THE COURT AGREES to its use. The audio-video communication must operate as provided in 46-12-201."



Section 4.  Section 46-18-102, MCA, is amended to read:

"46-18-102.   Rendering judgment and pronouncing sentence -- use of two-way electronic audio-video communication. (1) The judgment shall must be rendered in open court. For purposes of this section, in cases in which the defendant is charged with a misdemeanor offense, a judgment rendered through the use of two-way electronic audio-video communication, allowing all of the participants to be observed and heard in the courtroom by all present, is considered to be a judgment rendered in open court. However, audio-video AUDIO-VIDEO communication may not be used if the prosecutor NEITHER PARTY objects AND THE COURT AGREES to its use. The audio-video communication must operate as provided in 46-12-201.

(2)  If the verdict or finding is not guilty, judgment shall must be rendered immediately and the defendant shall must be discharged from custody or from the obligation of his a bail bond.

(3)  (a) If the verdict or finding is guilty, sentence shall must be pronounced and judgment rendered within a reasonable time.

(b)  When the sentence is pronounced, the judge shall clearly state for the record his the reasons for imposing the sentence."



Section 5.  Section 46-18-115, MCA, is amended to read:

"46-18-115.   Sentencing hearing -- use of two-way electronic audio-video communication. Before imposing sentence or making any other disposition upon acceptance of a plea or upon a verdict or finding of guilty, the court shall conduct a sentencing hearing, without unreasonable delay, as follows:

(1)  The court shall afford the parties an opportunity to be heard on any matter relevant to the disposition, including the applicability of sentencing enhancement provisions, mandatory minimum sentences, persistent felony offender status, or an exception to these matters.

(2)  If there is a possibility of imposing the death penalty, the court shall hold a hearing as provided by 46-18-301.

(3)  Except as provided in 46-11-701 and 46-16-120 through 46-16-123, the court shall address the defendant personally to ascertain whether the defendant wishes to make a statement and to present any information in mitigation of punishment or reason why the defendant should not be sentenced. If the defendant wishes to make a statement, the court shall afford the defendant a reasonable opportunity to do so. For purposes of this section, in cases in which the defendant is charged with a misdemeanor offense, the requirement that the court address the defendant personally may be satisfied by the use of two-way electronic audio-video communication. However, audio-video AUDIO-VIDEO communication may not be used if the prosecutor NEITHER PARTY objects AND THE COURT AGREES to its use. The audio-video communication must operate as provided in 46-12-201.

(4)  (a) The court shall permit the victim to present a statement concerning the effects of the crime on the victim, the circumstances surrounding the crime, the manner in which the crime was perpetrated, and the victim's opinion regarding appropriate sentence. At the victim's option, the victim may present the statement in writing before the sentencing hearing or orally under oath at the sentencing hearing, or both.

(b)  The court shall give copies of any written statements of the victim to the prosecutor and the defendant prior to imposing sentence.

(c)  The court shall consider the victim's statement along with other factors. However, if the victim's statement includes new material facts upon which the court intends to rely, the court shall allow the defendant adequate opportunity to respond and may continue the sentencing hearing if necessary.

(5)  The court shall impose sentence or make any other disposition authorized by law.

(6)  In felony cases, the court shall specifically state all reasons for the sentence, including restrictions, conditions, or enhancements imposed, in open court on the record and in the written judgment."



NEW SECTION. Section 6.  Applicability. [This act] applies to guilty pleas entered and sentences pronounced after [the effective date of this act].



NEW SECTION. Section 7.  Effective date. [This act] is effective on passage and approval.

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