No. 89-062 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vGARY LEE SENN, 

Defendant and Petitioner. 

- 

CLERK OF SUPREME 

STATE OF IONTAW 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, and The Honorable John 

S. Henson, Judges presiding 

COUNSEL OF RECORD: 

For Petitioner: 

Neil M. Leitch, Missoula, Montana 

For Respondent: 

Marc Racicot, Attorney General, Helena, Montana 

Peter Funk, Asst. Atty. General, Helena, Montana 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana 

F.R. Van Valkenburg, Deputy County Attorney, 

Missoula, Montana 

Filed: 

Submitted on Briefs: May 16, 1990 

Decided: July 19, 1990 
Justice Diane G. Barz delivered the Opinion of the Court. 

Defendant, Gary Lee Senn, appeals the decision of the District 

Court of the Fourth Judicial District, Missoula County, denying his 

motion to withdraw his plea agreement because of ineffective 

assistance of counsel for the criminal charges filed against him 

on June 15, 1988 and July 22, 1988. We affirm. 

On June 15, 1988, an information was filed in the District 

Court of the Fourth Judicial District, Missoula County, Judge 

Douglas G. Harkin presiding, charging defendant for the offenses 

of forgery, a felony pursuant to 5 45-6-325, MCA, and 

accountability to forgery, a felony pursuant to 55 45-2-301 and 45- 

6-325, MCA. On July 22, 1988, another information was filed in the 

District Court of the Fourth Judicial District, Missoula County, 

Judge John S. Henson presiding, charging defendant for the offenses 

of criminal possession of dangerous drugs, a felony pursuant to 5 

45-9-102, MCA, and criminal possession of drug paraphernalia, a 

misdemeanor pursuant to 5 45-10-103, MCA. 

At the arraignments, defendant entered a plea of not guilty 

for all of the charges. Defendant then subsequently entered guilty 

pleas, pursuant to a plea agreement, to the offenses of forgery, 

accountability for forgery, criminal possession of dangerous drugs, 

and criminal possession of drug paraphernalia. On October 18, 

1988, defendant filed a motion before Judge Henson to withdraw his 

guilty pleas regarding the offenses of criminal possession of 

dangerous drugs and the criminal possession of drug paraphernalia. 

Defendant also subsequently filed a motion before Judge Henson to 

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proceed pro se. Defendant's motion to withdraw his guilty pleas 

regarding the offenses of criminal possession of dangerous drugs 

and the criminal possession of drug paraphernalia was denied. On 

October 21, 1988, defendant filed motions before Judge Harkin to 

withdraw his guilty pleas for the offenses of forgery and 

accountability to forgery and to proceed pro se. The motion for 

pro se representation was granted but defendant's motion to 

withdraw his guilty pleas regarding forgery and accountability to 

forgery was denied. 

Pursuant to the plea agreement, defendant was sentenced to a 

term of twenty years in prison with fifteen years suspended on the 

forgery count. He received the identical sentence for the offense 

of accountability for forgery. Defendant received five years in 

prison for the offense of criminal possession of dangerous drugs 

and six months for the offense of criminal possession of drug 

paraphernalia. All of these sentences were to run concurrently. 

Defendant argues that his motion to withdraw his plea 

agreement should be granted because of ineffective assistance of 

counsel. On January 31, 1990, the State filed a motion before this 

Court for an order directing defendant's original court-appointed 

defense counsel, Margaret L. Borg, to respond by affidavit to 

defendant's charges of ineffective assistance of counsel. The 

State also moved this Court for an order identifying this action 

as a petition for post-conviction relief due to the necessity to 

supplement the existing record concerning the allegation of 

ineffective assistance of counsel. This Court granted the State's 
motions on February 6, 1990 and Margaret L. Borgls affidavit was 

filed with this Court on April 4, 1990. 

The essential issue raised on appeal is whether defendant's 

guilty pleas should be withdrawn based upon his claim of 

ineffective assistance of counsel. 

Section 46-16-105(2), MCA, addresses the withdrawal of guilty 

pleas and provides that 

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. 

In Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 

80 L.Ed.2d 674, the United States Supreme Court adopted a twopronged test for determining whether a counsells performance was 

deficient when representing a criminal defendant. Strickland, 466 

U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. This Court 

adopted this two-pronged test in State v. Boyer (1985), 215 Mont. 

143, 147, 695 P.2d 829, 831; see also State v. Docken (1986), 222 

Mont. 58, 61, 720 P.2d 679, 681; State v. Robbins (1985), 218 Mont. 

107, 114, 708 P.2d 227, 232. If a defendant is able to meet this 

two-pronged test, then the good cause requirement of 46-16- 

105 (2), MCA, is satisfied. 

Under the two-pronged test set forth in Strickland, the 

defendant must first demonstrate that counsel's performance was 

deficient. To demonstrate that a counsells performance was 

deficient, defendant must prove that counsells performance fell 

below the range of competence reasonably demanded of attorneys in 

light of the Sixth Amendment. Second, the defendant must 

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demonstrate that the counsel's deficiency was so prejudicial that 

the defendant was denied a fair trial. To satisfy this 

requirement, the defendant must demonstrate that but for counsel's 

deficient performance, it is reasonably probable that the result 

of the challenged proceeding would have been different. 

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; 

State v. Elliot (1986), 221 Mont. 174, 178, 717 P.2d 572, 575. 

When a guilty plea is at issue rather than the result of a trial, 

the defendant must demonstrate that but for counsel's deficient 

performance, the defendant would not have pled guilty, and would 

have insisted on going to trial. Hill v. Lockhart (1985), 474 U.S. 

52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210. 

In the present case, Margaret L. Borg, chief public defender 

for Missoula County, was appointed to represent defendant as to all 

the forgery and drug charges filed against defendant during the 

summer of 1988. Defendant argues that he had ineffective 

assistance of counsel because his attorney did not meet with him 

frequently enough, did not adequately inform him regarding the 

charges and possible defenses, and would not respond to his 

requests for additional discussions concerning his views on how to 

proceed with his defense. These allegations by defendant do not 

establish that his counsel's performance fell below the range of 

competence reasonably demanded of attorneys in criminal cases. 

Defendant's allegation that his counsel did not meet with him as 

often as he would have preferred, does not establish his counsel's 

competence or incompetence in such a situation. Defendant also 
alleges that he was not adequately informed of the charges against 

him or his possible defenses when he entered his guilty pleas 

pursuant to the plea agreement. However, contrary to defendant's 

assertions, the record demonstrates that defendant signed a 

document entitled "Plea of Guilty and Waiver of Rights,It in which 

he stated that he was satisfied with the services of his attorney; 

he had sufficient time to consult with his attorney; his attorney 

had done everything that he had asked her to do; he had discussed 

the merits of his case, and the likely outcome of trial; and he was 

not suffering from any emotional or mental disability nor was he 

under the influence of any drugs or alcohol. In addition, the 

record also demonstrates that at the time when defendant entered 

his guilty pleas regarding the drug charges, District Court Judge 

Henson questioned defendant regarding his satisfaction with his 

counsel. Defendant stated that he was satisfied with her services 

and that he was not suffering from any sort of a mental or physical 

disability that would affect him nor was he under the influence of 

any medication, drugs or alcohol. 

Defendant has failed to put forth any evidence to establish 

that his counsel's performance fell below the range of competence 

reasonably demanded of attorneys in criminal cases. Defendant also 

has not put forth any evidence to establish that but for his 

counsel's deficient performance, defendant would not have pled 

guilty, and would have insisted on going to trial. Rather, 

defendant has simply put forth conclusory statements that do 

nothing to establish his allegations that he had ineffective 
assistance of counsel. Defendant's petition for post-conviction 

relief is denied. 

We Concur: 

I Justices 

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