No. 81-311 

IN THE SUPREBE COURT OF THE STATE OF MONTANE 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJOHN ALLEN BIGSMOKE, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Lake, The Honorable 

Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant: 

R. J. Pinsoneault, St, Ignatius, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Richard P. Heinz, County Attorney, Polson, Montana 

Submitted on Briefs: December 17, 1981 

Decided: March 25, 1982 

Filed: MAR 2 5 1988 ' 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the 

Court. 

On May 16, 1973, petitioner John Allen Bigsmoke appeared 

with court-appointed counsel before the District Court of 

the Fourth Judicial District, Lake County, Polson, Montana, 

and entered a plea of guilty to the crime of lewd and lascivious 

acts upon a child, in violation of section 94-4106, R.C.M. 

(1947). This plea was accepted as a compromise for petitioner's 

previous plea of not guilty to a charge of rape. Petitioner 

was sentenced to twenty years in the state penitentiary. 

After being denied relief by the Sentence Review Board and 

having parole revoked twice, petitioner filed this post 

conviction relief petition, requesting either reduction of 

sentence or withdrawal of guilty plea. This appeal results 

because the District Court, after hearing, denied petitioner 

relief. 

Two principal questions encompass the issues raised on 

appeal : 

(1) Whether the District Court abused its discretion 

in refusing to allow petitioner to withdraw his guilty plea? 

(2) Whether the District Court erred in concluding 

petitioner was not deprived of effective assistance of 

counsel at plea entry? 

The first issue is dispositive, however, because petitioner's 

contention that he received ineffective assistance of counsel 

is predicated solely upon a conclusion that his guilty plea 

was entered without understanding or voluntariness. 

On July 23, 1980, at hearing on petition, Bigsmoke 

testified that original defense counsel told him that if he 

pleaded guilty to the lesser charge he would probably get 
off with three years suspended. He contends that because 

his plea was entered with that understanding, he is entitled 

to withdraw such plea since the sentence imposed did not 

conform to his expectations. Defense counsel from the 

original proceeding died in 1974 so there was no way to 

refute or verify petitioner's testimony regarding their preplea entry discussions. Petitioner also testified that he 

did not understand what the crime of lewd and lascivious 

acts with a child was as neither the court nor counsel 

explained the elements of the lesser charge to him; accordingly, 

he contends he could not enter a voluntary and understanding 

plea. 

The District Court found otherwise. Absent an abuse of 

discretion the lower court's judgment in granting or denying 

petitioner relief will not be disturbed. State v. Nance 

(1947), 120 Mont. 152, 184 P.2d 554; Accord, State v. Lewis 

(1978), 177 Mont. 474, 582 P.2d 346. 

State v. Huttinger (1979), Mont. , 595 P.2d 

363, 36 St.Rep. 945, sets forth the factors a lower court 

should consider in determining whether a guilty plea should 

be withdrawn. We find no abuse of discretion in the lower 

court's application of those factors to the instant case. 

The court's interrogation of defendant at entry of plea 

adequately revealed his understanding of the charge and 

consequences of his plea despite petitioner's testimony to 

the contrary six and one-half years later. At entry of 

plea, the court specifically asked Bigsmoke if his plea 

resulted from any promises of leniency; he replied "no." 

Further the court informed the defendant that the maximum 

penalty was twenty-five years for the charge to which he 
pleaded and that the court alone had the power to impose 

sentence within that parameter; the defendant indicated that 

he understood. The lower court is not compelled to accept 

petitioner's unsupported, if not opportunistic, assertion 

that his guilty plea was entered solely upon misrepresentations of now deceased counsel when the plea entry transcript 

is devoid of any indication that, at that time, defendant 

had concrete expectations as to the sentence he would 

receive. Moreover, the District Court was entitled under In 

re McNair (1980), Mont. , 615 P.2d 916, 37 St.Rep. 

1487, to consider the long delay in filing the motion to 

withdraw in assessing petitioner's credibility during the 

1980 hearing. Finally, noting that petitioner had received 

the benefits of the 1973 plea bargain, the District Court 

correctly considered the possible adverse impacts on the 

prosecution were the court to presently set aside petitioner's 

obligations under that bargain and reopen the case anew. 

See State v. Haynie (1980), Mont. , 607 P.2d 1128, 

The judgment of the lower court is hereby affirmed. 

We .. - Concur: 

Chielf' Justice