11/12/2025
DA 23-0328
Case Number: DA 23-0328
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 258
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DAVID ALLEN PEIN,
Defendant and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and For the County of Fergus, Cause No. DC-2016-66
Honorable Heather Perry, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Rufus I. Peace, Peace Law Group, LLC, Jacksonville, Florida
For Appellee:
Austin Knudsen, Montana Attorney General, Roy Brown, Assistant
Attorney General, Helena, Montana
Kent Sipe, Fergus County Attorney, Diane Cochran, Jean Adams,
Deputy County Attorneys, Lewistown, Montana
Submitted on Briefs: September 3, 2025
Decided: November 12, 2025
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 David Allen Pein (“Pein”) entered into a plea agreement and pleaded guilty to one
count of felony Criminal Possession of Dangerous Drugs with Intent to Distribute, in
violation of § 45-9-103, MCA (2015)1 (hereinafter, “Count VI”), on July 6, 2017. Pursuant
to the plea agreement, six other charges were dismissed with prejudice. Two remaining
charges, felony Criminal Distribution of Dangerous Drugs under § 45-9-101, MCA, and
felony Use or Possession of Property Subject to Criminal Forfeiture under § 45-9-206,
MCA, (hereinafter, “Count IV” and “Count VIII,” respectively) were subject to a deferred
prosecution agreement incorporated by reference into his plea agreement. His deferred
sentence for Count VI was revoked on April 18, 2023. The State then reinstated
prosecution on Count IV and Count VIII. Following a jury trial, Pein was convicted of
both counts in February 2024. Pein now appeals.
¶2 We restate the dispositive issues on appeal as follows:
1. Whether a deferred prosecution agreement2 entered pursuant to Montana’s
pretrial diversion statute, § 46-16-130, MCA, may be incorporated into a plea
agreement entered pursuant to § 46-12-211, MCA, Montana’s plea agreement
statute.
2. Whether marijuana is a Schedule I drug.
1
Unless otherwise noted, references to the Mont. Code Ann. in this Opinion refer to the 2015 Code
effective at the time. Med. Marijuana Growers Ass’n, Inc., v. Corrigan, 2012 MT 146, ¶ 20,
365
Mont. 346,
281 P.3d 210 (We apply “the law in effect at the time the crime was committed.”).
2
Unless otherwise noted, all references to the parties’ “deferred prosecution agreement” are to the
agreement captioned “Pre-Trial Diversion Agreement,” District Court Docket No. 36.
2
¶3 We conclude resolution of the first issue is dispositive, and we therefore do not reach
the other issues raised by Pein concerning the District Court’s subject matter jurisdiction,
double jeopardy, and the constitutionality of Montana’s forfeiture statute. However, we
will address Pein’s remaining argument challenging marijuana as a schedule I substance
because it relates to his conviction on Count VI, which is not disposed of by our resolution
of Issue 1.
FACTUAL AND PROCEDURAL BACKGROUND
¶4 The Lewistown Police Department suspected Pein was distributing marijuana and
began investigating him in early 2016. Law enforcement enlisted a confidential informant
(“CI”) to conduct three undercover purchases of marijuana from Pein at his residence. The
CI purchased a total of 1.35 ounces of marijuana from Pein. Law enforcement provided
the cash for the controlled transactions and recorded the serial numbers on the bills. On
September 29, 2016, police executed a search warrant on Pein’s residence. The search
resulted in the seizure of telephones, paraphernalia, marijuana seeds, scales, weapons,
$3,500 in cash, and 15.48 ounces of marijuana. Of the $3,500 seized, the serial numbers
of nine bills corresponded to the serial numbers of the currency provided to the CI for the
controlled buys.
¶5 The State charged Pein by Information with nine counts related to possession and
distribution of marijuana. Pursuant to the provisions of § 46-16-130, MCA, Pein and the
State entered into a deferred prosecution agreement on June 30, 2017, for Counts IV and
VIII. The State agreed to defer prosecution for ten years, contingent upon certain
conditions. If the conditions were satisfied, the State would dismiss the charges “with
3
prejudice.” Pein and the State entered into a plea agreement pursuant to § 46-12-211(1)(c),
MCA, for Count VI, which incorporated the deferred prosecution agreement “by
reference.” Pein pled guilty to Count VI on July 6, 2017. On February 20, 2018, the court
deferred the imposition of his sentence on Count VI for five years.
¶6 On May 31, 2018, Pein appealed his conviction on Count VI to this Court, raising
an as-applied challenge to § 50-46-307(4), MCA, of the now repealed Montana Medical
Marijuana Act. This Court affirmed. State v. Pein, DA 18-0304, 2019 MT 167N, ¶ 18,
2019 Mont. LEXIS 269 (“Pein I”).
¶7 On June 10, 2020, the State petitioned to revoke Pein’s deferred imposition of
sentence for Count VI after he had been charged with criminal possession of dangerous
drugs. Pein admitted to using methamphetamine and marijuana, and a search of his
residence revealed marijuana and paraphernalia. Simultaneously, the State moved to
schedule trial on Count IV and Count VIII because Pein had violated the terms of the
deferred prosecution agreement. On January 19, 2021, the State filed a second petition for
revocation of the deferred sentence after Pein accrued additional felony and misdemeanor
charges as well as providing a urine sample positive for THC.
¶8 On April 20, 2022, Pein unsuccessfully petitioned the District Court to expunge his
conviction for Count VI under the Montana Marijuana Regulation and Taxation Act
(“MMRTA”) provided for by Title 16, chapter 12, MCA (2021), on the basis the amount
of marijuana for which he was convicted of possessing was within the legal limits. Pein v.
State, No. DA 22-0314,
2023 MT 38N, ¶ 2,
2023 Mont. LEXIS 264 (“Pein II”). This Court
affirmed the denial of his expungement petition because “Pein pled guilty to possession
4
with intent to distribute more than fifteen ounces of marijuana[,]” a substantially greater
amount than the possession limit provided for by MMRTA. Pein II, ¶ 5. Upon the
conclusion of that appeal, the District Court held an adjudicatory hearing on the State’s
petitions to revoke and determined the allegations were true. On April 2023, Pein was
resentenced on Count VI to the Department of Corrections for four years, none suspended,
with credit for 317 days of time served and street time. On June 13, 2023, Pein initiated
the present appeal on the revocation of Count VI.
¶9 Meanwhile, his trial on Count IV and Count VIII continued concurrently. On
January 20, 2023, Pein moved to dismiss Count IV and Count VIII on the basis that
deferred prosecution agreements cannot be incorporated into plea agreements. The court
denied this motion on February 7, 2023.
¶10 The trial on Count IV and Count VIII occurred in February 2024. The jury found
Pein guilty on both counts. On April 30, 2024, the District Court sentenced Pein to the
Montana State Prison for 7 years on both counts, to run concurrently to each other and
Pein’s sentence on Count VI. The court credited Pein with 789 days for time served. Over
Pein’s objection, the court ordered the forfeiture of Pein’s home but stayed the execution
of that condition pending appeal. Pein amended his appeal of Count VI prior to briefing to
include the final judgment on Count IV and Count VIII. However, Pein has not raised any
issues pertaining to Count VI except his challenge to marijuana being a Schedule I drug.
STANDARD OF REVIEW
¶11 A district court’s interpretation and construction of a statute is a question of law we
review de novo for correctness. State v. Denny, 2025 MT 62, ¶ 11,
421 Mont. 218, 566
5
P.3d 503 (citation omitted). “This Court reviews a criminal sentence only for legality (i.e.,
whether the sentence is within the parameters provided by statute).” State v. Cleveland,
2014 MT 305, ¶ 10,
377 Mont. 97,
338 P.3d 606.
DISCUSSION
¶12 1. Whether a deferred prosecution agreement entered pursuant to Montana’s
pretrial diversion statute, § 46-16-130, MCA, can be incorporated into a plea
agreement entered pursuant to § 46-12-211, MCA, Montana’s plea agreement
statute.
¶13 Plea agreements in Montana are subject to specific statutory constraints.
Section 46-12-211(1), MCA, provides:
(1) The prosecutor and the [. . .] defendant [. . .] may engage in discussions
with a view toward reaching an agreement that, upon the entering a plea
of guilty or nolo contendere 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.
When a plea agreement has been reached, “the court shall, on the record, require a
disclosure of the agreement in open court.” Section 46-12-211(2), MCA. “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 . . . until there has been an opportunity to consider the
presentence report[.]” Section 46-12-211(2), MCA. If the court rejects a (1)(a) or (1)(b)
plea agreement, the court must give the defendant an opportunity to withdraw the plea and
advise the defendant that if the defendant persists in the guilty or nolo contendere plea, the
6
disposition may be less favorable than that contemplated by the plea agreement. Section
46-12-211(4), MCA. However, if the agreement is of the type specified in (1)(c), the court
must advise the defendant that, if the court does not accept the recommendation or request,
the defendant nonetheless has no right to withdraw the plea. Section 46-12-211(2), MCA.
Thus, § 46-12-211(1), MCA, sets out three—and only three—forms of plea negotiations a
prosecutor may undertake: dismiss other charges, agree to a specific sentence, or make a
sentencing recommendation. When the Legislature enumerates certain options in a statute,
courts presume it intended to exclude all others not listed. Had the Legislature wished to
authorize deferred-prosecution terms as part of a plea agreement, it would have done so
expressly.
¶14 The exclusive language of § 46-12-211(1), MCA, limits the agreement that may be
reached by the prosecutor and defense––“the prosecutor will do any of the following:”
(1) move for dismissal of other charges; (2) agree that a specific sentence is appropriate;
or (3) agree to make a recommendation, or not to oppose a defendant’s request, with the
understanding it is nonbinding on the court. In every sense, the statute contemplates
resolution of a specific charge and that a sentence be imposed or dismissed for the charges
addressed. It involves the court in the procedure, with the court being the final
decision-maker on acceptance or rejection of the plea agreement. A deferred prosecution
agreement is not one of the available options for the parties who are pursuing a plea
agreement pursuant to the provisions of § 46-12-211(1), MCA. This Court, trial courts,
and litigants must adhere to the plain language of the statute and are not free to be creative
by inserting what has been omitted. Section 1-2-101, MCA. Further, a deferred
7
prosecution is not a “specific sentence” under subsection (1)(b) because it is not a
“sentence.” Section 46-1-202(25), MCA.
¶15 Conversely, § 46-16-130, MCA, titled “Pretrial Diversion,” operates outside of the
court’s periphery. It contemplates an agreement between the prosecutor and the defendant,
with no involvement from the court prior to the filing of the charge. Section
46-16-130(1)(a), MCA. If prosecution has been commenced by the filing of a charge, “a
deferral of prosecution may be entered into only after the prosecutor provides notice to the
court.” Section 46-16-130(3), MCA (emphasis added). There is no requirement that the
court approve, reject, or accept the deferred prosecution agreement. Moreover, a deferred
prosecution agreement does not fall under the meaning of “sentence” defined as “the
judicial disposition of a criminal proceeding upon a plea of guilty or nolo contendere or
upon a verdict or finding of guilty.” Section 46-1-202(25), MCA.
¶16 A motion to dismiss under § 46-12-211(1)(a), MCA, terminates the prosecution at
once upon judicial approval. A deferred-prosecution agreement, by contrast, postpones
prosecution subject to future compliance and expressly anticipates possible reinstatement.
The Legislature’s use of different verbs—“move for dismissal” versus “defer
prosecution”—demonstrates two distinct mechanisms, one final and judicial, the other
temporary and executive. The Legislature enacted § 46-12-211, MCA, in 1979 as part of
a comprehensive revision of the criminal-procedure code, and it later adopted § 46-16-130,
MCA, in 1985 without amending the earlier statute to allow deferred prosecution within
plea negotiations. When the Legislature enacts a new statute but leaves a related, earlier
one unchanged, we presume it intended the two to operate independently. Musselshell
8
Ranch Co. v. Seidel-Joukova, 2011 MT 217, ¶ 14,
361 Mont. 1,
261 P.3d 570. “‘We
presume that the Legislature is aware of the existing law, including our decisions
interpreting individual statutes[.] We presume that if the Legislature disagreed with our
interpretation . . . it would have amended the statute accordingly.’” Musselshell, ¶ 14
(quoting Swanson v. Hartford Ins. Co.,
2002 MT 88, ¶ 22,
309 Mont. 269,
46 P.3d 584).
Thus, §§ 46-16-130 and 46-12-211, MCA, create standalone procedures for deferring
prosecution or resolving a case charge by plea, respectively. Section 46-12-211, MCA,
only contemplates final dispositions of criminal charges; a deferred prosecution agreement
is not a final resolution of a charge and, indeed, is a “pause” in the prosecutor’s case
inconsistent with the plea agreement statute.3
¶17 “As plea agreements are subject to contract law standards, ‘[t]he object of the
contract must be lawful when the contract is made[.]’” State v. Arellano,
2024 MT 108,
¶ 12,
416 Mont. 406,
549 P.3d 428 (quoting § 28-2-602, MCA). “If a contract has several
distinct objects, and at least one object is lawful and one is unlawful, then ‘the contract is
void as to the latter and valid as to the rest.’” Cleveland, ¶ 18 (quoting § 28-2-604, MCA).
Given these contract principles relate to plea agreements, we have held that contract
obligations cannot include the enforcement of an illegal, and therefore unenforceable,
provision. Arellano, ¶ 12; Cleveland, ¶ 23. Because a plea agreement functions as a
3
The Dissent maintains that pretrial diversion agreements are a “conditional dismissal” and thus
fall under the “move for dismissal of other charges” language of § 46-12-211(1)(a), MCA.
However, a “conditional dismissal” is inapposite with a “deferred prosecution agreement” where
the prosecution has been “deferred.” Nonetheless, a deferred prosecution could be handled
pursuant to § 46-12-211, MCA, if the state dismissed the charges without prejudice and then
entered into a deferred prosecution agreement independent of the plea agreement.
9
contract executed under judicial authority, it must serve a lawful and statutorily authorized
object. Arellano, ¶ 12. Combining a deferred-prosecution promise—wholly executive in
nature—with a judicially imposed sentence attempts to merge two incompatible
contractual objects.
¶18 Here, the plea agreement between Pein and the prosecutor for Count VI validly
resolved that count through a guilty plea and corresponding sentence. However, because
§ 46-12-211, MCA, did not authorize the prosecutor and defendant to incorporate a
deferred-prosecution provision for Counts IV and VIII into the plea agreement, we excise
the unlawful portion of the agreement and vacate Pein’s resulting convictions for
Counts IV and VIII because they arose from that invalid incorporation. Our decision does
not preclude the State from pursuing Counts IV and VIII through proper, independent
proceedings consistent with § 46-16-130, MCA, or by refiling the charges under the
ordinary rules of criminal procedure.
¶19 Thus, Pein’s plea agreement validly resolved Count VI with a guilty plea and
corresponding sentence, but could not include in its resolution the deferred prosecution
agreement related to Count IV and Count VIII. This Opinion does not seek to resolve the
continued validity of the deferred prosecution agreement as a stand-alone agreement
entered into by the parties pursuant to § 46-16-130(3), MCA.
¶20 2. Whether marijuana is a Schedule I drug.
10
¶21 Finally, Pein challenges his conviction on Count VI, arguing that marijuana is
incorrectly classified as a Schedule I drug.4 He relies on a perceived conflict between
§ 50-32-222(4)(x), MCA (2023), which lists marijuana as a Schedule I drug, and statutes
regulating the recreational and medical use of marijuana provided for in the MMRTA under
Title 16, chapter 12, MCA. Pein correctly notes the statutory criteria for a Schedule I drug
includes a substance which carries a “high potential for abuse” and “has no accepted
medical use[.]” Section 50-32-221, MCA (2023). Thus, he argues marijuana cannot
qualify as Schedule I when the MMRTA recognizes some medical benefits or otherwise
provides for the legalization of marijuana. However, to the extent the MMRTA exempted
certain practices related to marijuana from criminal prosecution, other aspects of the
cultivation, possession, and distribution remain subject to licensing requirements or other
regulations. See § 16-12-101(2)(c), MCA (2023). Section 45-9-103, MCA (2023), still
criminalizes distribution of marijuana outside of those regulated channels. This Court has
already determined that, due to the amount of marijuana at issue in Count VI, Pein does
not qualify for expungement under the MMRTA. Pein II, ¶ 5. We further decline to
reschedule marijuana by judicial fiat. Pein’s conviction on Count VI is affirmed.
CONCLUSION
¶22 A deferred prosecution agreement entered pursuant to § 46-16-130, MCA, is not
one of the available plea agreement options identified in § 46-12-211, MCA. The purposes
and underlying nature of the proceeding are likewise inconsistent and do not contemplate
4
Having vacated Pein’s convictions for Count IV and Count VIII, we only address Pein’s
argument as it relates to Count VI.
11
the same involvement from the court. Accordingly, Pein’s convictions for Count IV and
Count VIII are vacated and remanded for proceedings consistent with this opinion, which
may include consideration of Pein’s arguments regarding the statute of limitations and his
right to a speedy trial, which are not properly before this Court. Moreover, we do not
presume the State’s position on remand with respect to prosecuting this matter or other
issues which may arise and are not properly before this Court. Our decision here is narrow
in scope; we conclude only that that portion of Pein’s plea agreement entered pursuant to
§ 46-12-211, MCA, and which incorporated the deferred prosecution agreement, is invalid.
We leave it to the parties and the District Court to sort out and resolve the issues that have
been created by the procedural quagmire of this case. We reject Pein’s argument that
marijuana is incorrectly designated as a Schedule I substance and affirm his conviction on
Count VI.
¶23 Affirmed in part, vacated and remanded in part.
/S/ LAURIE McKINNON
We Concur:
/S/ KATHERINE M. BIDEGARAY
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ JIM RICE
Chief Justice Cory J. Swanson, concurring and dissenting.
¶24 I fully concur with the Court on Issue Two, but I dissent from the Court’s conclusion
on Issue One. The Court errs in holding pretrial diversion agreements cannot be combined
12
with plea agreements to discharge separate charges in a single Information. Pein was
charged with nine different counts related to his possession and distribution of marijuana.
After reaching an agreement with the State, Pein entered into a plea agreement for one
count, the State dismissed six counts with prejudice, and two counts were resolved through
a pretrial diversion agreement. For the guilty plea, the court deferred the imposition of the
sentence for five years. This resolution is permissible by the statute.
¶25 Section 46-16-130, MCA, formalizes the procedure for a prosecutor and a defendant
to enter into a pretrial diversion agreement. A pretrial diversion agreement may require
the defendant to agree to certain “reasonable conditions.” Section 46-16-130(1)(a), MCA.
If the charge has been filed, the prosecutor must provide notice of the agreement to the
court. Section 46-16-130(3), MCA. Most importantly, the statute requires: “[t]he
prosecution must be deferred for the period specified in the agreement unless there has
been a violation of its terms,” and “the agreement must be terminated and the prosecution
automatically dismissed with prejudice upon expiration and compliance with the terms of
the agreement.” Section 46-16-130(1)(c), (d), MCA. As the statute does not mandate how
the pretrial diversion agreements must be executed, the county attorney may seek to
dismiss the charge without prejudice, or the county attorney may leave the charges pending
but delay any prosecution. In this case, the County Attorney chose the latter method and
did not dismiss the two charges subject to the diversion agreement.1 However, since a
1
As standard in pretrial diversion agreements, Pein waived any speedy trial challenge to his
charges.
13
dismissal with prejudice is mandatory after the agreed upon time period elapses, it is not
merely a “pause,” as the Court suggests. Opinion, ¶ 16. It is a conditional dismissal of the
case. In Pein’s case, the only reason the dismissal did not occur is because Pein violated
its conditions.
¶26 A plea agreement may require the prosecutor to: “(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 . . . .” Section 46-12-211(1), MCA. Because pretrial diversion agreements
mandate the charge be dismissed at the end of the specified period, these conditional
dismissals fall under the “move for dismissal of other charges” subsection.
¶27 Additionally, the State can require performance of the plea agreement as a condition
of the pretrial diversion agreement. The pretrial diversion agreement statute allows the
State to condition the diversion agreement on “any other reasonable conditions.”
Section 46-16-130(1)(a)(v), MCA. It would be reasonable to condition the pretrial
diversion upon successful discharge of the terms of a plea agreement, and it would facilitate
global—and mutually agreeable—resolutions of complex cases.2
2
There are many reasons a deferred prosecution agreement could be preferred by a defendant over,
or in combination with, a plea agreement.
The option to have one’s case dismissed without making an admission or finding
of guilt is an attractive reason. For those who are subject to non-sentencing
consequences--such as loss of employment, driving privileges, housing
opportunity, or governmental benefits--as a result of their admission to or entry of
a guilty finding, the benefits of entering a diversion program are more favorable
than the risks of rejecting the diversion offer. Furthermore, some individuals may
be ready to enter diversion for their and their family’s benefit and would welcome
the chance to address certain life challenges with program support.
Christina E. Miller, Incentivizing Diversion, 55 N.M. L. Rev. 137, 137–38 (2025). Montana’s
14
¶28 Notably absent from both statutes is the requirement that every charge in a case be
disposed of in the same fashion. Both statutes limit the agreements to a single charge, and
not to the entire charging document. See § 46-16-130(3), MCA (“after a charge has been
filed . . . .”); § 46-12-211(1), MCA (“a plea of guilty or nolo contendere to a charged
offense or to a lesser or related offense . . . .”). The statutes do not prohibit the comingling
of different resolutions for separate charges. The parties may agree to a guilty plea on one
count but proceed to trial on other counts. “If the prosecutor is either unable or unwilling
to dismiss all charges against the defendant, and a reduction to a lesser offense is equally
impossible, defense counsel may sometimes bargain successfully for dismissal of a portion
of the charge against his client.” 25 Am. Jur. Trials 69, § 39 (1978). Similarly, the parties
may agree to a plea on one count, but enter a pretrial diversion on the second count, and
dismiss the other counts. The parties have multiple tools at their disposal and may seek to
combine them together to reach a fair agreement.
¶29 The record plainly indicates Pein took advantage of the offer for pretrial diversion
made by the County Attorney as part of his plea bargain. He had the advantage of what
would have been the final disposition of the charges against him had he not fallen again
into the hands of the law for a subsequent Criminal Possession of Dangerous Drugs and
Assault on a Peace Officer. Where the legislature has provided this tool and a defendant
agreed to its use, we should not find error. The Court has rendered an overly restrictive
drug courts also create a unique opportunity for drug offenders to divert their charges and seek
treatment.
15
interpretation of the plain language of the statute. Nowhere does the statute prohibit a
linked resolution of criminal cases.
¶30 I sympathize with the Opinion’s grappling with a convoluted case history analyzed
through the rubric of two statutes which provide a spare framework for the resolution of
complex cases. But the spare framework gives the parties room to bargain. The Opinion’s
suggestion that the parties could have achieved the same desired outcome if the prosecutor
had dismissed Counts IV and VIII without prejudice and then addressed those charges
through a deferred prosecution agreement, Opinion, ¶ 17 n.3, proves my point. The Court
not only elevates form over function, but it admits the reality that the plea agreement and
the deferred prosecution agreement must somehow be linked. As part of plea negotiations,
two charges could have been dismissed without prejudice and then subject to conditions of
deferral via the deferred prosecution agreement, while the remaining charges could then
have been dismissed with prejudice through a plea agreement. If Pein violated the deferred
prosecution agreement, the State could refile its Information. So, the Court endorses the
implicit linkage of two contract documents through an understanding but declares illegal
their explicit linkage through plain language spelling out the terms of the agreement. This
formulation risks requiring the parties to rely on external evidence of agreement, thereby
violating the parol evidence rule. See Hanson v. Town of Fort Peck, 2023 MT 208, ¶ 32
n.18,
414 Mont. 1,
538 P.3d 404. This is unnecessary, since the pretrial diversion statute
requires the parties to give notice to the court of the deferred prosecution agreement. So,
we will land at the same place at the end of the day: two agreements collectively resolving
the entire case. This Opinion merely mandates the two documents cannot state in plain
16
terms what all agree has happened: they were linked together in a global resolution,
dependent upon each other as part of the bargaining process.
¶31 The Opinion therefore errs in rendering an overly restrictive interpretation of the
statute, it invites less clarity in plea negotiation and contracting, and it does so without
offering any illumination to resolve the case. The Opinion ends by wishing the District
Court and parties good luck with figuring this out this “procedural quagmire.” Opinion,
¶ 22. We won’t give you a clear rule, we’ll just let you know if you get it wrong again.
And at the same time, the Court likely invites a greater quagmire in a future case, where
the details of the agreement are less clear due to this Opinion.
¶32 I respectfully dissent.
/S/ CORY J. SWANSON
17
