NO. 91-613 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

DON HENRY BISHOP, Petitioner and Appellant,

-vsSTATE OF MONTANA, Respondent and Respondent.

APPEAL FROM: DistrictCourt of the Thirteenth Judicial District, In and for the County of Yellowstone, TheHonorableRobert

### W. Holmstrom,Judgepresiding.

COUNSEL OF RECORD: For Appellant: Don Henry Bishop, Pro Se,Deer Lodge,Montana For Respondent: Hon. Marc Racicot, Attorney General, Carol 

### E. Schmidt, Assistant AttorneyGeneral, Helena,Montana Dennis Paxinos, County Attorney, David W. Hoefer, Deputy County Attorney, Billings, Montana

. . submitted on Briefs: May 21, 1992 Decided: July 27, lgg2 Filed: CLERKOF SUPRE>,?E caUR~ STATE QF MONT~IN~ 

## k.Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from an order of the Thirteenth Judicial Pistrict Court, Yellowstone County, Montana, denying appellant's motion for post-conviction relief. We affirm. We rephrase the dispositive issues on appeal as follows: 1. Whether the District Court erred 

### when it denied postconviction relief to the appellantwhich was based on theories of ineffective assistance of counsel and involuntary guilty plea. 2. Whether theDistrictCourt erred innot ordering theState to file a responsive pleading and in not holding an evidentiary hearing. 3. Whether the ~istrictCourt erred by committing a due process violation

### when it passed sentenceon the appellantbased on
a presentencing report that contained alleged inaccuracies. On December 2, 1989, 

### an individual entered the King Avenue Kwik Way convenience store in Billings, Montana. The individual

wore a nylon stocking over his head 

### and face and pointed a handgun at the store clerk ordering him to place money from the cash register into a paper bag. The individual then forced the store clerk to place his hands in super glue which he had previously spread on the counter. On June 10, 1990, an individual entered the Great Harvest Bread Company inBillings,Montana, afternormal business hours and removed cash and checks. In mid-August, 1990, Dennis Henman (Henman) and Sandra Gust (Gust) both gave statements to the Billings Police Departmentidentifying the appellant, Don Henry Bishop (Bishop), as the individual who committed the previously-mentioned robbery and burglary. On September 11, 1990, Bishop was charged with robbery under § 45-5-401, MCA, and burglary under 

### 5 45-6-204,MCA. The courtappointed defense counsel for Bishop and the defendant pled not guilty. OnNovember 9, 1990, Bishop signed an "acknowledgement of waiver of rights by plea of guiltywand changed his plea from not guilty to guilty. By signing the form, Bishop acknowledged that the county attorney agreed to recommend a sentence of ten years in prison with an additional three years for the use of a weapon in the course of the robbery, and an additional five years for the offense of burglary. These sentences were to run concurrently. Also, in signing the form Bishop acknowledged that the recommendation by the county attorney was not binding upon the court in passing sentence. The record reflects that on November 16, 1990, the court accepted Bishop's change of plea to guilty. On January 8, 1991, the court conducted a hearing on sentencing at the conclusion of which the appellant, while responding to a question of whether he had anything additional to add before sentencing, made the following statement: Your honor, what I did was wrong, I accept full responsibility for these actions. But 

### I have a great deal in the past, and I've made two big mistakes 

## -- that's not the only mistakes I've made in my life 

## -- I regret doing it,and 

### Ican tell you that I'll never do it again because I've learned my lesson. 

## . 

# . . The courtdid not accept the county attorney's recommendation forsentencing,and instead imposed a twenty-fiveyear sentence for 3the offense of robbery and a ten year sentence for the offense of burglary with five years for the use of a weapon. The sentences

were to run concurrently. On August 15, 1991, Bishop filed a petition for post-conviction relief based on theories of ineffective assistance of counsel and an involuntary guilty plea. Bishop also moved for substitution of the judge. The petition and the motion were both denied and Bishop appeals to this Court. Denial of Post-Conviction Relief Bishop first claims that he is entitled to post-conviction relief because he received ineffective assistance of counsel for three reasons: (1) misrepresentation of the law regarding corroborating evidence; (2) failure to address errors in a presentence report; and (3) a conflict of interest. This Court previously adopted a test for ineffective assistance of counsel in Statev. Boyer (1985)

### , 215Mont. 143, 147, 695 P.2d 829, 831. The test is comprised of a two-prong test adopted by the United States Supreme Court in Strickland v. Washington (l984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. We recently discussed the two-prong test. "Underthe two-pronged test set forth in Strickland, the defendant must first demonstrate that counsel's performancewasdeficient. Todemonstrate that counsel's 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 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, 466U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; State v. Elliott

### (l986), 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'sdeficient performance, thedefendant 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. Aills (lggl), 250 Mont. 533, 535, 822 P.2d 87, 88-89; quoting Statev. Senn (1990), 244 Mont. 56, 59, 795 P.2d 973, 975. Bishop contends that he received ineffective assistance of counsel for the three previously-mentioned reasons, which we address individually. First, with regard to Bishop's assertion that his courtappointed counselmisrepresented the law on corroboration,we find

no persuasive evidence in the record. Bishop was not afforded a hearing on this matter for reasons we will discuss later in this opinion. Instead,theDistrict Courtreceived evidence from Bishop in the formof abrief whichhepresumptively entitled "pre-hearing brief.'' This brief purportedly sets forth evidence supporting Bishop's claim for ineffective assistance of counsel. After reviewing the record,we agreewith the District Court that Bishop failed topresent persuasive evidenceto support sucha claim. For instance, Bishop alleges that the substance of an investigative police reportproves that therewas no evidence to corroborate his accomplice's testimony. However, the report reveals that a corroborating statementwas given by Gust. The report states that Gust was interviewed and that she corroborated the accomplice's testimony. Bishop also claims that a November 9, 1990, letter he wrote to his girlfriend regarding his reluctance to plead guiltysupports

### his contentionthatdefensecounsel misrepresented 

### the law

on corroboration- However, the letter contains no statements regarding corroboration of accomplice testimony or his understanding thereof but instead merely presents the pro's and con's of signing a plea agreement. After reading the letter, we find no support for Bishop's contention. The District Court accurately describes Bishop's contentions as mere conclusory allegations which fail to establish that his defense counsel's performance was deficient, ish hop relies on State v. Laubach

(l982), 201 Mont. 226, 653 P.2d 844, for the proposition that a defendant must be informed of the fact that a conviction cannot stand 

### on the testimony of an accomplice unless their testimony is corroboratedby other evidence. Laubach, 201Mont. at 230-231, 653 P.2d at 846. 

### In Laubach, two individuals stole a motorcycle and stored it at a friend's ranch. One of the accomplishes testified against the other which was corroborated by other evidence including possession of the stolen cycle, his negotiation of the hiding

### place and thetestimony of the friendwhose ranchuponwhich the

### motorcycle was stared. Laubach 

### is 

### not helpful 

### to Bishop as 

### he contends. In fact, Laubach and the requirements of corroborating testimony are 

### met in the case at bar because the record reflects 

### that inadditiontoBishop's ownadmissionsregarding the theft

### and burglary incidents, 

### and the accomplice testimony of Henman, 

### is Gust's statement. Gust gave a statement to the Billings Police Department which identified Bishop as the suspect in each of the offenses. Gust's statementcorroborates the testimony of Bishop's

### accomplice Henman, and therefore meets the requirements set forth in Laubach. Further, Bishop's contention that he was not informed of the law regarding corroboration of accomplice testimonydoes not alone establishcounsel's ineffective assistance. InAills, 250

### Mont. at 534-535, 822 P.2d at 88, the appellant claimed ineffective assistance

### of counsel because his court-appointed counsel failed to specifically inform him ofpossibilities regarding change of venue if the casewent to trial. ThisCourt stated that this failurewas not evidence of counsel's deficient performance to his client. 

# u, 250Mont. at 535, 822 P.2d at 89. 

### Next, Bishop contends that the sentence imposed upon him was based on a presentence report that contained numerous errors. His allegation of ineffective assistance of counsel comes into play because he insists that his counsel failed to attempt to correct the errors. However, the record reflects that Bishop's counsel twice continued the sentencinghearing at Bishop's request so that he could gather information to refute the alleged errors in the presentence report. Counsel also moved the court to allow probation and parole to release documents that contained information regardingthealleged errors. Additionally,therecord reflectsthatBishop's counsel gave the judge the letter writtenby Bishop describing the alleged errors. Finally, what we find most convincing, is Bishop's own testimony at the sentencing hearing regarding the alleged errors.THE COURT: Other than that1,however, 1 take it that there'snothing in thepresentence report that this defendant [Bishop] now contests? 

### [BISHOP'SATTORNEY]: That's

### my understanding,your Honor. Is that correct, sir? 

### MR. BISHOP: Yes, 

### sir. Therefore,we do not 

### find that counsel's performance was deficient



### as alleged 

### by Bishop. Bishop also contends that he received ineffective assistance of counsel because his court-appointed counsel had a conflict of interest. The public defender representing Bishop apparently also representedMr. Travis Spadt, Mr. Spadtwas the clerk at the Kwik Way convenience storewhen it 

### was robbed by Bishop. Mr. Spadtwas also investigated for the crimes that Bishop admitted committing. In his claim for ineffective assistance of counsel based on a conffict of interest,Bishop has theburden to show that "an actual conflict of interest adversely affected his lawyer'sperf~rmance.~' Cuyler

### v. Sullivan (l98O), 446U.S. 335, 350, 100 S.Ct. 1708,1719, 64 L.Ed.2d 333, 348. The "possibilityof conflict 

### is insufficient to impugn 

### a criminal conviction.If Cuvler, 446 U.S. at 350, 100 S.Ct. at 1719, 64 L.Ed.2d at 348. 

### The record is devoid of any evidence that 

### ish hop's interests were adversely affected by his counsel'sperformance. Accordingly,ish hop's claim of ineffective assistance of counsel due to a conflict of interest fails. After 

### a review of the record

### we find thatneitherprong of the

l1thatl1 referring to testimony and cross-examination of the probation/parole officer who prepared Bishop's presentence investigation regarding Bishop's alleged post-arrest threats against his accomplice.Strickland test is satisfied. Counsel's performance was not deficient since it did not fall below the range of competence reasonably demanded ofattorneys,anddefendantdid not demonstrate thatbut forcounsel'sdeficient performancehewould not havepled guilty and insisted on going to trial. Inaddressing the issues of ineffective assistance of counsel, we note that Itinany case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistancewas reasonable considering all the circumstances.~Strickland, 466U.S. at 688,104 S.Ct. at 2065, 80 L.Ed.2d at 694. Considering all the circumstances of the case at bar, we hold that Bishop's counsel's performance was reasonable. Bishop also contends that the District Court should have granted his request for post-conviction relief because his guilty plea was involuntary. We disagree. The record is replete with information that defeats Bishop's assertion. As referenced previously, theplea agreement signedby Bishop clearly sets forth that theplea of guilty and theterms of theplea agreementarenot binding upon the court. Instead, the terms of the agreement are merely that the county attorney's office agreesto recommend to the court a specific sentence. Further, during the November 16, 1990 hearing inwhich Bishop changed isplea from not guilty to guilty, the following conversation took place: THE COURT: Apparently there has been some sort of a plea bargain entered into between the county attorney's office and yourself throughyour attorney, and I take it you understand that this Court is not bound by any such plea bargains? 

### MR. BISHOP: Yes, sir.

### THE COURT: You understand also that if I accept your plea of guilty and later decide not to follow the recommendationofthecounty attorney's office concerning sentence in this case, that you do not have a right to withdraw your plea of guilty? MR. 

### BISHOP: Yes, sir. THE COURT: Are you suffering any emotional or mental disability of any kind? MR. 

### BISHOP: No, sir. Again at theJanuary 8,

### 1991, sentencing hearing the following discussion took place: 

### THE COURT: 

# ... Itake it that 

### I explained toyou, did I not, Mr. Bishop, at the time I accepted your plea of guilty, 

## . 

# . . that if the Court saw fit not to go along with the plea bargain, you did not have an opportunity to withdraw your plea automatically; you understood that, did you not? MR. BISHOP: Yes, sir. Clearly, Bishop understoodtheramifications of entering pleas of guilty and was adequately informed of his rights. Responsive Pleading and Evidentiary Hearing 

### Bishop contends that the circumstances in his case require a responsive pleading and an evidentiaryhearing. We disagree. With respect to the responsive pleading, we find that under 9 

### 46-21- 201(1), MCA, the court may or may not require a responsive pleading. Such a responsivepleading depends onwhether "the files and records of the case conclusively show that the petitioner is not entitled to relief." Section 46-21-201(1), MCA. After reviewing the recordwe find that the files and records of the case did in fact conclusively show that Bishop was not entitled to relief. Therefore,no responsive pleading was necessary.

### With regard to the evidentiary hearing, we have previously said, ll[I]t isnot error todeny an application forpost-conviction relief without an evidentiary hearing if the allegations are without merit or would otherwise not entitle the petitioner to relief." Coleman v. State (1981), 194 Mont. 428, 433, 633 P.2d 624, 627. 

### Coleman controls in the case at bar. Clearly Bishop's allegations were without merit and therefore, the District Court did not err in not requiring an evidentiary hearing. Due Process Violation 

### Bishop also contends thathis dueprocessrights wereviolated because his sentence was based upon a presentence report that contained various inaccuracies. We do not agree. Bishop pointed out the alleged inaccuracies in a letter he wrote to his attorney who, in turn, forwarded the letter to the court. In his letter, Bishop criticized the content of his presentence report almost on a point-by-point basis. However, we find that most of Bishop's criticisms are interpretive in nature and he presented no substantial evidence to refute the contents of the presentence report. For instance, the presentence report stated that Bishop had not utilized his vocational training and abilities to hold a steady job and, consequently, had been unsuccessful in this venture. To support the statement that Bishop could not hold a steady job, the report indicated that Bishop held ten different jobs during a twenty month period. Bishop refuted this statement by stating in his letter that he had not held ten jobs in twenty months, and althoughhe changed jobs frequently,he always had the

### permission of his parole officer. The report also indicated that Bishop had a chemical dependency problem which he refused to address. The report referred to a parole violation report which listed Bishop as receiving three positive tests for amphetamine

use. Bishop, on the other hand, merely makes the statement: 

### "I have not failed to addressmy drug and/or alcohol problems." These interpretational differences simply do not rise to the level of Bishop proving that the statements in the presentence reportwere falseorerroneous. Additionally, Bishopwas given the opportunity at his sentencing hearing to cross-examine James Corcoran, the probation/parole officer who prepared Bishop's presentence investigation report. After a review of the record we do not find that Bishophas proven any of the alleged errors to be false or erroneous. In the District Court'smemorandum in support of the order which denied Bishop's post-conviction relief, the court properly made a summation of this area as follows: Finally, on the date set for sentencing, the Court inquired of 

### Petitioner [Bishop] if the report contained matters Petitionerdisagreedwith and allowed Petitioner to present testimony, including an examination of the probation officer who prepared the presentence report.



# . . . Petitioner has presented nothing more than conclusory statements regarding counsel's deficient performance. After a review of the record we find that to determine Bishop's sentencing, the District Court primarily relied on his criminal history. During the sentencing hearing the court noted that Bishop's previous record consisted of two armed robberies and

an escape. Further,that Bishopwas on probationwhenhe committed the December 2, 1989 

### armed robbery in Billings. As a result, he 12broke the law by violating the terms of his parole as well as violating the Federal Firearms Act. The court went on to say: [Ylou appear that you are a person who could be a productive member of society if it were not for your criminal behavior, but in view of your record, I think you're the type of person that society must be protected from.In my view, when someone walks into a [Kwik] Way store or other store and points a gun at the clerk and says give me your money, that you're very close to committing averymore seriousoffense that could

## --what if that person doesn't do it, shooting happens, people are killed, society has established rules that say a person who does thathas to be placed somewhere where he or she cannot injure other law-abiding members of society. Ibelieve you fit in that category, sir,based upon your record. 

# . . 

# . Under the circumstances, I feel that the plea bargain is inappropriate, and, therefore, after giving thismatter some serious thought and taking into account the seriousness that the legislaturehas demonstrated,in how the legislature feels forthese offenses,the offense of robbery is up to 40years, the offense of burglary is up to 20 years, and, of course, an additional 10 years for theuse of aweapon, in otherwords,you're before me with maximum sentences hanging over your head of 70 years, if my mathematics are right.

[I] feel that the 10-year[s] for the armed robbery is inappropriate, three years for the use of a weapon is inappropriate, and five years for the burglary is inappropriate;these are the terms of the plea bargain.

It is apparent that in reviewing the presentence report, the District Court relied most heavily on Bishop's criminal history. The Fourteenth Amendment's dueprocess protection prohibits a court from relying onmaterially false informationwhen sentencing

a defendant. United States v. Wilson (9th Cir. l99O), 900 F.2d 1350, 1353. We find that Bishop has failed to prove that any ofthe information relied upon by theDistrict Court in sentencing him

was materially false. Pursuant to the above discussion we hold the District Court did not err in denying Bishopfsmotion for post-conviction relief. Af finned.

We concur: 

# 1

Chief JusticeJuly 27, 1992 CERTIFICATEOFSERVICE Ihereby certify that the followingorderwassentby UnitedStates mail, prepaid,tothefollowing named:

DonHenry Bishop 700ConleyLakeRd. DeerLodge,MT 59722

Hon.MarcRacicot, Attorney General

. 

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# O.'(. JusticeBldg. Helena,MT 59620 DennisPaxinos,CountyAttorney DavidW.Hoefer,Deputy P.O. Box35025 Billings,MT 59107 EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA