NO. 85-438 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

STATE OF MONTANA, Plaintiff and Respondent,



### -vsALVIN LA TRAY,Defendant and Appell-an.t .

APPEAL FROM: DistrictCourt of the SixteenthJudicialDistrict, In and forthe County of Rosebud., The Honorable Alfred B. Coate, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Garry P. Bunke argued, Forsyth, Montana

For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Robert F.W. Smith argued, Asst. Atty. 

### General, Helena, Montana John S. Forsythe argued, County Attorney, Forsyth, Montana

Submitted: February 13, 1986 Decid.ed: Marc@13, 1986

Filed: 

## MAR

## 1J

## '1986

ClerkMr. Justice Nil-liam E. Hunt, Sr., delivered the Opinion of theCourt.

Defendant, Alvin J,a Tray, was originally charged with attempted. deliberate homicide on November 23, 1983. Approximately one month later, defendant entered intoa plea bargain agreement and pled guilty to aggravated assault in the SixteenthJudicialDistrictCourt, County of Rosebud. He

was sentenced January 16, 1984, to twenty years in the Montana State Prison, with two years added for use of a dangerous weapon. Over the next year, defendant filed several motions seeking to withdraw his guilty plea. The trial judge treated them as motions to withdraw and as a petition for post-conviction relief. A hearing was held on thosemotionsMay 25, 1985. They 

### weredenied from thebench. Defendant appeals. We affirm the decision of the trial judge

# . The issues raised are: 1. Whether defendant was denied his constitutional right of effectiveassistanceof counsel? 2. Whether the District Court should have granted defendant's petition forpost-conviction relief and permitted thewithdrawal of hisguiltyplea? The circumstances surrounding the crime are indispute. Athis plea bargain hearing, defendant admitted shootinghis roommate, H. D. Luloff on October 10, 1983. Defendant stated that Tami Huehner had offered to lure Luloff to the river withpromises of sex ifdefendantwould followthem and shoot Luloff. Defendant apparently was angry with Luloff, so agreed. Tami allegedly smoked a cigarette, al-lowing defendant to find them 

### in the dark. 

### Next, according 

### todefendant, Tami and Luloff approached defendant and Luloff introduced defendant toTami, following which defendant shot Luloff. Tami and defendant then leftthe scene. Tami has given at leastthree conflicting statements to authorities. Initially, she claimed to know nothing about the shooting. Later, at a deposition, she admitted to at leastbeing atthe scene. (Thedeposition isnot included in the record.) Still later, she gave a statement to Police Officer Odem alleging that Luloff had tried torape her down by the river, La Tray had appeared a.nd prevented the rape. She claimed she didnot know Luloff was shot till laterthat evening. Luloff allegesinhis statement that Tami approached him about going to the river and "fooling around." Luloff agreed. At the river, Tami left Luloff and wandered around. Luloff went down tothewater. On returning tothe vehicle, Luloff saw someone in a green O'Toolets jacket and then was shot. He saw Tami walking off with the individual in the green jacket as he was passing out. Defendant apparently

owns a green O'Toole's jacket, but when confronted by Luloff statedit had been stolen. An information was filed and served on defendant November 23, 1983, charging him with attempted deliberate homicide. The information was served while he was incarcerated in the Rosebud County Jail 

### on an unrelated charge. Athis initial appearance, defendant requested that counsel be appointed. John Houtz was appointedNovember 29, 1983. Prior to this point, several police officers, and especially Officer Odem, discussedthe case with defendant in his cell. Defendant allegedly signed a fourteen page confession as a result of those "talks." The confession 

### isnot inthe record. A plea bargain was alsodiscussed, after which Officer

### Odem tolddefendant he would contact the County Attorney. Attorney Houtz' activities ascounsel fordefendant were limited: 1) December 4

## - 30 minute conference with defenda~t 2) December 10

### - 15 minute talk with defendant and County Attorney 3) December 12

## - 10minute call from defendant 4) December 12

## - 2

## - 15 minute conferen.ces with Tom Lofland, defendant's probation officer 5) December 13

### - Conference with defendant regarding State's offertopleabargain 6) December 16

## - Sent letterrequestingdiscovery 7) December 22

## - Wrote lettertodefendant recommending plea bargain; dictatedpleabargain agreement 8) December 27

# - Sent copy of agreement to County Attorney; picked up witness statements 9) December 29

## - Entered change of plea

### - guilty of aggravated assault At the hearing on defendant's petition for post-conviction relief, Houtz testified that he had not attempted to suppress defendant's confession, despite defendant's request he do so, because he saw no grounds for suppression. He later stated that inrepresenting over one hundred defendants, he had only filed a motion to suppress

once ortwice and never successfully. Houtz indicatedthathe believed someone had "gott-en"to defendant before he was appointed and had arranged the plea ba.rgain. Houtz further stated that because of defendant

## 's confession, he felt the plea bargain would be best for defendant. When questioned about his efforts to adequately represent defendant, Houtz admitted that when he recommended

### to d.efendantthat he plea bargain, he had only interviewed the defendant,his probation officer and the victim. Sixteen potential witnesses were provided to Houtz by the State. Houtz was unaware that Luloff had stated in his statement to police that he could not identify his assailant. Luloff had apparently told Houtz the assailant was La Tray. Nor did Houtz know that Tami Huebnerhad told threevery inconsistent stories, onewhich could possibly have provided an excuse for the shooting. Even though Houtz learned of this information prior to defendan.tls plea,he never informed defendant. Defendant appeared before Judge Coate with his attorney

on December 29, 1983,and plead guilty to aggravated assault. The Judge conducted an intensive interrogation of defenda.nt prior to the plea to ensure that it was made knowingly and without coercion. In his petition forpost-conviction relief and at his subsequent hearing, defendant contended that he gave all the "right" answers because he knew that was the onlyway the judgewould accepthisplea. Defendanthad been warned by either Officer Odem or the County Attorney that he would get 210 years on the attempted deliberate homicide charge. Defendant wanted to avoid that possibility at all costs. In Strickland v. Washington (1984), 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, the United States Supreme Court adopted a two-prong test for evaluating claims of ineffective assistanceof counsel. 1. "Flhen a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-688, 104 S.Ct. at 2065, 80 L.Ed.2d at 693. 2. "The defendant must show that there 

### is a reasonable probability that, but 

### for counsel's

### unprofessional errors,the result of theproceeding would have been different." 

### Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. We adopted this test in Statev. Boyer (Mont. 1985), 695 P.2d

There is no question but tha.t counsel's efforts in representing defendant could have been more diligent. However, the dispositive question is whether defendant was prejudiced by his counsel's lack of diligence. We find that he was not. For all intents and purposes, it appears defendant had his plea bargain practically guaranteed before Houtz was appointed as his attorney. Houtz, after reviewing the case against his client, determined the plea bargain to be reasonable and fair. He therefore pursued and achieved finalizationof thatbargain. Under the circumstances, we also find the plea bargain to be reasonable and fair. We are not persuaded that had defendant been advised of Huebner's and Luloff's inconsistent statements, he would have opted to proceed to trial on the attempted deliberate homicide charge. Thus, counsel

## 's failure to advise his client of the complete case against him does not undermine our confidence in the eventual outcome, the plea bargain. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. We hold that defendant received the effective assistance 

### of counsel. The rule for allowing withdrawal of a guilty plea was recently set forth in State v. Laverdure (Mont. 1984), 685 P.2d 375, 377, 41 St.Rep. 1570, 1-572. Review of a motion to withdraw a guilty plea requires the consideration and. balancing 

### of at least three relevant factors: "(1) the adequacy

### of the interrogation by the District Court of the defendant at the entry of the guilty plea as to the defendant's understanding of the consequences of his plea, 12) the promptness with which the defendant attempts to withdraw the prior plea, and

(3) the fact that the defendant's plea was apparently the result of plea bargain in which the guilty plea was given in exchange for dismissal of another charge

# . . .." Statev. Huttinger (1979), 182Mont. 50, 

### 54, 595 P.2d 363, 366. The trial judge's interrogationofdefendantat the time he entered his guilty plea was adequate. Defendant does not dispute this conclusion. Furthermore, defendant'sefforts to withdrawhis plea were not timely. He requested.a transcript a year afterpleading guilty. His first motion was filed in January of 1985. Finally, defendant's plea was clearly the result of aplea bargain. Defendant's reasons for wanting to withdraw his guilty plea center around his ineffective assistance of counsel claim. For example, defendant contends that his lawyer's failure to accurately and fully advise him of the case against him resulted in his decision to plead guilty. However, our holding that defendant received effect-ive assistance of counsel significantly und.ermines this contention. Therefore,we affirm the trial judge's refusal topermit defendant towithdraw his guiltyplea. Affirmed.

We Concur: /