No. 89-062 IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Respondent,



### -vGARY LEE SENN, Defendant and Petitioner. 

# - CLERKOFSUPREME STATEOF IONTAW

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, TheHonorable DouglasHarkin,andTheHonorable 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,CountyAttorney, Missoula, Montana F.R. Van Valkenburg, Deputy County Attorney, Missoula,Montana

Filed: Submitted on Briefs: May 16, 1990 Decided: July 19, 1990Justice Diane G. Barz delivered the Opinion of the Court. Defendant,Gary Lee Senn,appealsthedecision of theDistrict Court of theFourthJudicialDistrict, 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 accountabilityto forgery,a felonypursuant to 55 45-2-301and 45- 6-325,MCA. On July 22, 1988, another informationwas filed in the District Court of the Fourth Judicial District,Missoula County, JudgeJohnS. Hensonpresiding, charging defendant forthe 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. Defendantthen subsequentlyentered guilty pleas, pursuant to a plea agreement, to the offenses of forgery, accountabilityfor forgery,criminalpossessionofdangerousdrugs, and criminal possession of drug paraphernalia. On October 18, 1988,defendant filed amotion before Judge Henson towithdraw his guilty pleas regarding the offenses of criminal possession of dangerous drugs and the criminalpossession of drug paraphernalia. Defendant also subsequently filed a motion before Judge Henson to 2proceed 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 twentyyears in prison with fifteenyears 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'smotions on February 6, 1990 and Margaret L. Borglsaffidavit 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 thewithdrawal of guilty pleas and provides that At any timebefore 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 counsellsperformance was deficientwhen representinga criminaldefendant. 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 Statev. 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;Statev. Robbins (1985), 218Mont. 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 counsellsperformance was deficient, defendant must prove that counsellsperformance fell below the range of competence reasonably demanded of attorneys in light of the Sixth Amendment. Second, the defendant must 4demonstrate that the counsel's deficiency was so prejudicial that the defendant was denied a fair trial. To satisfy this requirement, the defendant must demonstrate thatbut for counsel's deficient performance, it is reasonably probable that the result of the challenged proceeding would have been different. Strickland, 466U.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. Hillv. Lockhart (1985), 474U.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 torepresent 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 concerninghisviews onhow 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 ashewould have preferred, does not establishhis counsel's competence or incompetence in such a situation. Defendant alsoalleges thathewas not adequately informed of the chargesagainst 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,Itin 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 themerits of his case,and the likely outcome of trial;and hewas 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 thathe was satisfiedwith her services and thathewas not suffering fromany sort of amental orphysical disability thatwould affecthim 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'sperformance fell below the range of competence reasonably demanded of attorneysin criminal cases. Defendantalso 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 ineffectiveassistance of counsel. Defendant's petition for post-conviction relief is denied.

We Concur:

Justices I i'