NO. 85-438 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsALVIN LA TRAY, 

Defendant and Appell-an.t . 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the 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 1 J '1986 

Clerk 
Mr. Justice Nil-liam E. Hunt, Sr., delivered the Opinion of 

the Court. 

Defendant, Alvin J,a Tray, was originally charged with 

attempted. deliberate homicide on November 23, 1983. 

Approximately one month later, defendant entered into a plea 

bargain agreement and pled guilty to aggravated assault in 

the Sixteenth Judicial District Court, 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 

those motions May 25, 1985. They were denied from the bench. 

Defendant appeals. We affirm the decision of the trial 

judge . 

The issues raised are: 

1. Whether defendant was denied his constitutional 

right of effective assistance of counsel? 

2. Whether the District Court should have granted 

defendant's petition for post-conviction relief and permitted 

the withdrawal of his guilty plea? 

The circumstances surrounding the crime are in dispute. 

At his plea bargain hearing, defendant admitted shooting his 

roommate, H. D. Luloff on October 10, 1983. Defendant stated 

that Tami Huehner had offered to lure Luloff to the river 

with promises of sex if defendant would follow them 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 to 
defendant, Tami and Luloff approached defendant and Luloff 

introduced defendant to Tami, following which defendant shot 

Luloff. Tami and defendant then left the scene. 

Tami has given at least three conflicting statements to 

authorities. Initially, she claimed to know nothing about 

the shooting. Later, at a deposition, she admitted to at 

least being at the scene. (The deposition is not included in 

the record.) Still later, she gave a statement to Police 

Officer Odem alleging that Luloff had tried to rape her down 

by the river, La Tray had appeared a.nd prevented the rape. 

She claimed she did not know Luloff was shot till later that 

evening. 

Luloff alleges in his statement that Tami approached him 

about going to the river and "fooling around." Lulof f 

agreed. At the river, Tami left Luloff and wandered around. 

Luloff went down to the water. On returning to the vehicle, 

Luloff saw someone in a green O'Toolet s 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 

stated it 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. At his initial appearance, defendant requested that 

counsel be appointed. John Houtz was appointed November 29, 

1983. Prior to this point, several police officers, and 

especially Officer Odem, discussed the case with defendant in 

his cell. Defendant allegedly signed a fourteen page 

confession as a result of those "talks." The confession is 
not in the record. A plea bargain was also discussed, after 

which Officer Odem told defendant he would contact the County 

Attorney. 

Attorney Houtz' activities as counsel for defendant 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 - 10 minute 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 offer to plea bargain 

6) December 16 - Sent letter requesting discovery 

7) December 22 - Wrote letter to defendant recommending 

plea bargain; dictated plea bargain 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 in representing over one 

hundred defendants, he had only filed a motion to suppress 

once or twice and never successfully. 

Houtz indicated that he 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.efendant that 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 Huebner had told three very inconsistent 

stories, one which 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 for post-conviction relief 

and at his subsequent hearing, defendant contended that he 

gave all the "right" answers because he knew that was the 

only way the judge would accept his plea. Defendant had 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 

assistance of 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 the proceeding 

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 State v. 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 

finalization of that bargain. 

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 . . . ." State v. Huttinger (1979), 

182 Mont. 50, 54, 595 P.2d 363, 366. 

The trial judge's interrogation of defendant at the time 

he entered his guilty plea was adequate. Defendant does not 

dispute this conclusion. Furthermore, defendant's efforts to 

withdraw his plea were not timely. He requested. a transcript 

a year after pleading guilty. His first motion was filed in 

January of 1985. Finally, defendant's plea was clearly the 

result of a plea 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 to permit 

defendant to withdraw his guilty plea. 

Affirmed. 

We Concur: 

/