No. 90-603 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJOHN WILLIAM AILLS, 

a/k/a DARRELL RANDALL STAHL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. Mayo Ashley, Helena, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; Joseph E. 

Thaggard, Assistant, Helena, Montana 

Mike McGrath, County Attorney; Carolyn Clemens, 

Deputy, Helena, Montana 

i i ~4 " % 

. , ' .* Submitted on Briefs: September 19, 1991 .? ' - - 

~ecided: October 30, 1991 

Filed: '_it" 1 '4 1) j99-l 

. 

, - ': ' "" - - 

- 

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Justice John Conway Harrison delivered the Opinion of the Court. 

Appellant John William Aills, a/k/a Darrell Randall Stahl, 

pled guilty to one count of deliberate homicide and one count of 

attempted deliberate homicide in the First Judicial District, Lewis 

& Clark County, Montana. The District Court accepted the guilty 

pleas. The appellant then moved to withdraw his guilty pleas, 

based on ineffective assistance of counsel. The District Court 

denied the motion and sentenced the appellant. We affirm. 

The issue before the Court is whether the District Court erred 

in refusing to allow the appellant to withdraw his guilty pleas. 

On May 18, 1990, the appellant entered the Carroll College 

cafeteria in Helena with a firearm. Numerous witnesses saw him 

shoot and kill Sharon Hance and seriously injure Emma Peschke. 

Shortly after the incident, law enforcement officials located the 

appellant hiding under a tree on the campus and arrested him for 

deliberate homicide and attempted deliberate homicide. On May 21, 

1990, the State charged the appellant and the court appointed two 

public defenders to represent him. The appellant pled not guilty 

to both counts, but later changed his pleas to guilty. After 

advising the appellant of his rights and maximum penalties for the 

offenses, the District Court accepted the guilty pleas. Two days 

before sentencing, the appellant made a motion to change counsel 

and to withdraw his previous guilty pleas. The court denied both 

requests on October 23, 1990 and later sentenced him to two 

consecutive life sentences. The court designated him ineligible 

for parole and a dangerous offender. The court also imposed two 
ten-year consecutive sentences for use of a dangerous weapon, one 

for each count. 

The appellant alleges that the District Court erred in denying 

his request to withdraw his guilty pleas. He bases his position on 

a theory of ineffective assistance of counsel for two reasons: 

first, for failing to inform the appellant that there was a 

possibility of changing venue if the matter went to trial; and 

second, for not informing the appellant of all his rights. 

This Court adopted a test to determine ineffective assistance 

of counsel in State v. Boyer (1985), 215 Mont. 143, 147, 695 P.2d 

829, 831. The test encompassed a two-pronged test adopted by the 

United States Supreme Court in Strickland v. Washington (1984), 466 

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. This Court recently 

discussed the Strickland test as follows: 

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

defendant must first demonstrate that counsel's 

performance was deficient. To demonstrate that counsel's 

performance was deficient, defendant must prove that 

counsel's performance fell below the range of competence 

reasonably demanded of attorneys in light of the Sixth 

Amendment. Second, the defendant must 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. 

State v. Senn (1990), 244 Mont. 56, 59, 795 P.2d 973, 975. 

In the case at bar, we find that neither prong of the test is 
satisfied. First, counsel's performance was not deficient since it 

did not fall below the range of competence reasonably demanded of 

attorneys. Counsel's failure to specifically inform the appellant 

that there was a possibility of a change of venue if the case went 

to trial does not establish that counsel rendered deficient 

performance. A motion to change venue is only appropriate after a 

case is set for trial. This case did not proceed to trial due to 

the appellant's guilty pleas, and guessing what counsel would have 

done is unnecessary. "In any case presenting an ineffectiveness 

claim, the performance inquiry must be whether counsel's assistance 

was reasonable considering all the circumstance^.^^ Strickland, 466 

U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. After 

considering all the circumstances in the instant case, we hold that 

counsel's performance was reasonable. 

Second, appellant was not denied a fair trial; he chose to 

plead guilty voluntarily after considering the overwhelming 

evidence against him. We have already determined counsel's 

performance was reasonable and not deficient; therefore, the 

assertion that the defendant would not have pled guilty and 

insisted on going to trial but for counsel's deficiency is moot. 

Furthermore, there is evidence that the appellant's attorneys and 

the District Court properly informed him of all his rights. 

We find the appellant's claim that he did not receive 

effective assistance of counsel is without merit when considering 

either or both of the reasons set forth by the appellant. The 

record indicates that the court appointed attorneys met with the 

appellant separately and together and informed him of the 
consequences of pleading guilty. In the October 23, 1990 

proceeding, the appellant's attorney responded to the court as 

follows: 

THE COURT: . . . explain to the Court as best you can 

what you have done with respect to this case so far as 

far as your investigation and communications with the 

defendant. 

MR. JACQUES: . . . I can definitely state to this Court 

he was advised on a number of occasions that an entry of 

plea does foreclose any possibility of a trial and [the] 

only thing left for the Court to do is pronounce 

sentence. Just prior to the entry of plea both Randi 

Hood and myself met with the defendant, talked 

extensively about the pros and cons of taking a case such 

as this through trial and there was extensive 

conversations and extensive discussions about whether or 

not it would be wise, based on the evidence, to take a 

matter such as this to trial. And it was in that 

discussion where Randi Hood was present that it was at 

least in my opinion made perfectly clear and he appeared 

to understand it at that time that there would be no 

trial and he had no right to a trial if a plea was 

accepted by this Court and there would be no chance to 

appeal any decision, that additionally was made aware to 

him, or finding of guilt or innocence. That that was a 

closed issue and the only thing that possibly could be 

appealed is whether or not this Court had sentenced 

properly. . . . 

THE COURT: Did you feel in your mind that he understood 

what he was doing? 

MR. JACQUES: Yes. 

THE COURT: And at the time he came here for the 

arraignment and at the time he plead guilty did you feel 

after conferring with him that he understood what the 

consequences of his pleading guilty to the charges would 

be? 

MR. JACQUES: There was no question in my mind. 

Further, the transcript of the September 14, 1990 proceeding 

in which the appellant voluntarily changed his pleas to guilty to 

both counts indicates that the District Court carefully advised the 
appellant of his rights and maximum penalties for the offenses as 

required by Montana law', and properly accepted the guilty pleas. 

The transcript of September 14, 1990 reads as follows: 

THE COURT: Mr. Aills, to remind you you have been 

charged by information with two offenses, count one 

deliberate homicide a felony, the maximum possible 

punishment for that offense is punishment by death, by 

life imprisonment or by imprisonment in the state prison 

for any term not less than 10 years nor more than 100 

years and you have been charged with count two attempted 

deliberate homicide a felony. The maximum possible 

punishment for that offense is punishment by death, by 

life imprisonment or by imprisonment in the state prison 

for any term not less than 10 years nor more than 100 

years. Do you understand that? 

A. Yes I do. 

THE COURT: Now it is my understanding that you are here 

for the purpose of change of plea? 

That is right. 

THE COURT: Okay. I would like to remind you before you 

enter a change of plea of the following rights that you 

have at this time. You are entitled to a fair, speedy 

and impartial trial by jury. You are entitled to and the 

state must prove the charges against you beyond a 

reasonable doubt. You have the right to confront your 

accusers, to cross examine any witnesses that might 

testify against you. You have the right to produce any 

witnesses who might testify in your behalf. You may 

refuse to testify and you may refuse to answer any 

individual questions that may tend to incriminate you. 

If you go to trial you might be found guilty of a lesser 

included crime. That means that a jury might find that 

you are innocent of the charges here but that you are 

guilty of a less serious crime. Pending the outcome of 

the trial you have the right to secure bail to release 

you from custody. The amount of bail will be determined 

Section 46-16-105 (1) , MCA, reads: "Before or during 

trial, a plea of guilty may be accepted when: (a) the defendant 

enters a plea of guilty in open court; and (b) the court has 

informed the defendant of the consequences of his plea and of the 

maximum penalty provided by law which may be imposed upon 

acceptance of such plea." 
by me. Do you understand those rights? 

A. Yes. 

THE COURT: Okay. Are you satisfied with your attorneys? 

A. Yea. 

THE COURT: Are you presently under the influence of any 

drugs, alcohol or any person? 

A. No. 

THE COURT: Before accepting your plea, have you been 

coerced, threatened or promised any benefits if you plead 

guilty? 

A. No. 

THE COURT: Do you understand the charges against you? 

A. Yea. 

THE COURT: Have you discussed them fully with your 

attorney? 

A. Yes. 

THE COURT: Do you have any questions about what we are 

doing now or about anything with regard to these charges? 

A. No. 

THE COURT: Okay. Do you understand that by entering 

pleas of guilty you have waived the rights that I have 

just read to you? 

A. Yes. 

Clearly the appellant was adequately informed of his rights 

and stated he understood the ramifications of entering pleas of 

guilty. Thus, when the appellant desired to withdraw his previous 

guilty pleas, the District Court properly denied the request. The 

transcript from the October 23, 1990 proceeding reveals the court's 

rationale for such denial. 
THE COURT: You have had -- before you pled guilty to 

' this offense you had extensive conversations with your 

attorney. You had plenty of opportunity to clarify any 

questions at that time. And when you pled guilty you 

were advised very severely and very thoroughly of the 

consequences of your guilty plea and this Court has no 

authority to allow you to withdraw a guilty plea just 

because you have sat and thought about it for a couple 

weeks and decided it might be - - that you would rather 

have a jury trial than plead guilty. 

THE COURT: On the basis of what you have told me today 

I find no legal basis for permitting you to withdraw your 

guilty plea. And I find no legal basis for withdrawing 

your attorney. . . . 

The District Court may allow withdrawal of a plea of guilty 

upon the showing of good cause pursuant to 5 46-16-105(2), MCA. 

Since we hold that the appellant's claim of ineffective assistance 

of counsel is without merit in the instant case, the appellant has 

failed to show good cause to withdraw his guilty pleas. Therefore, 

finding no abuse of discretion, we affirm the District Court. 

We concur: