¶1sitting in place of MR. JUSTICE MORRISON, dissenting:
¶2I dissent.
¶3In State v. Cavanaugh (Decided December 23, 1983), 673 P.2d 482, 40 St.Rep. 2007, Cavanaugh was sentenced September 19, 1977.
¶4Wilkinson was sentenced August 13, 1982.
¶5The Cavanaugh ruling is retroactive in favor of its subject to September 19, 1977, but on the way back by-passes a judgment on Wilkinson imposed five years later.
¶6The logic of the majority escapes me when both cases were pending before this Court at the same time.
¶7The Cavanaugh rule shpuld be retroactive from the date of its judgment, September 19, 1977.
¶8While it appears, practically, that Wilkinson has nothing to gain by reversal, I would reverse and remand for her option to change her plea if she wishes, in keeping with the doctrine of fundamental fairness.
¶9dissenting:
¶10I dissent to the manifest injustice done by this decision to Kathleen Rachel Wilkinson.
¶11Kathleen without dispute here had an invincible wish to bear the child she was then carrying outside the prison walls. To achieve this, she consented by plea bargain to provide the evidence without which the State could not have convicted Sigler, but the evidence incriminated herself. Now the State, worse than Shylock, has extracted the *455benefit of a fine quillet of the law — Judge Green told her before her sentencing but after she had fully performed her part of the agreement, that he was not bound by the plea bargain. It is not enough here, as it was in Cavanaugh, cited above in the majority opinion, that she be given a chance to withdraw her plea of guilty. Her prior evidence given in Sigler would convict her now. As Brandeis said in Omstead v. United States (1928), 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (Brandéis, J., dissenting), our government teaches the whole people by its example. The teaching here is, beware of the State: it will trick you if it can. We should order the District Court in this instance to follow scrupulously the terms of the agreement the State was so eager to procure (even though the result she sought to obtain is now beyond our power.) Only then can this Court wrap itself in the robe of “substantial fairness.”
¶12I also disagree that we must not apply the Cavanaugh rule here because of our prospective-only line in that case. Wilkinson got to this Court before Cavanaugh, and in a procedural process beyond Wilkinson’s control, Cavanaugh leapfrogged Wilkinson. Injustice is injustice. She sustained a greater injustice than did Cavanaugh. Are we powerless to remedy injustice?