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: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Don Henry Bishop, Pro Se, Deer Lodge, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Carol E. 

Schmidt, Assistant Attorney General, 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: 

CLERK OF 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 appellant which was based on theories of 

ineffective assistance of counsel and involuntary guilty plea. 

2. Whether the District Court erred in not ordering the State 

to file a responsive pleading and in not holding an evidentiary 

hearing. 

3. Whether the ~istrict Court erred by committing a due 

process violation when it passed sentence on the appellant based 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 in Billings, Montana, after normal 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 Department 
identifying 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. On November 9, 1990, Bishop signed an "acknowledgement of 

waiver of rights by plea of guiltyw and 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 I can tell you that I'll never do it 

again because I've learned my lesson. . . . 

The court did not accept the county attorney's recommendation 

for sentencing, and instead imposed a twenty-five year sentence for 

3 
the 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 State v. Boyer (1985) , 215 Mont. 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. 

"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 

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, 466 U.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'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. Aills (lggl), 250 Mont. 533, 535, 822 P.2d 87, 88-89; 

quoting State v. 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 counsel misrepresented 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, the District Court received evidence from Bishop 

in the form of a brief which he presumptively entitled "pre-hearing 

brief.'' This brief purportedly sets forth evidence supporting 

Bishop's claim for ineffective assistance of counsel. After 

reviewing the record, we agree with the District Court that Bishop 

failed to present persuasive evidence to support such a claim. For 

instance, Bishop alleges that the substance of an investigative 

police report proves that there was no evidence to corroborate his 

accomplice's testimony. However, the report reveals that a 

corroborating statement was 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 guilty 
supports his contention that defense counsel 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 

corroborated by other evidence. Laubach, 201 Mont. 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 the testimony of the friend whose ranch upon which 

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 in addition to Bishop's own admissions regarding 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 statement corroborates 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 testimony does not alone 

establish counsel's ineffective assistance. In Aills, 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 of possibilities regarding change of venue 

if the case went to trial. This Court stated that this failure was 

not evidence of counsel's deficient performance to his client. 

u, 250 Mont. 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 sentencing hearing 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 regarding the alleged errors. Additionally, the record 

reflects that Bishop's counsel gave the judge the letter written by 

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's nothing in the presentence report that this 

defendant [Bishop] now contests? 

[BISHOP'S ATTORNEY]: 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 

represented Mr. Travis Spadt, Mr. Spadt was the clerk at the Kwik 

Way convenience store when it was robbed by Bishop. Mr. Spadt was 

also investigated for the crimes that Bishop admitted committing. 

In his claim for ineffective assistance of counsel based on a 

conf f ict of interest, Bishop has the burden to show that "an actual 

conflict of interest adversely affected his lawyer's perf~rmance.~' 

Cuyler v. Sullivan (l98O), 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 

64 L.Ed.2d 333, 348. The "possibility of 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's performance. 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 that neither prong 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 of attorneys, and defendant did not demonstrate 

that but for counsel's deficient performance he would not have pled 

guilty and insisted on going to trial. In addressing the issues of 

ineffective assistance of counsel, we note that Itin any case 

presenting an ineffectiveness claim, the performance inquiry must 

be whether counsel's assistance was reasonable considering all the 

circumstances.~ Strickland, 466 U.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, the plea agreement signed by Bishop clearly sets forth 

that the plea of guilty and the terms of the plea agreement are not 

binding upon the court. Instead, the terms of the agreement are 

merely that the county attorney's office agrees to recommend to the 

court a specific sentence. Further, during the November 16, 1990 

hearing in which Bishop changed is plea 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 through your 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 

recommendation ofthe county 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 the January 8, 1991, sentencing hearing the following 

discussion took place: 

THE COURT: . . . I take it that I explained to you, 

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 understood the ramifications 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 evidentiary hearing. 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 responsive pleading depends on whether "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 record we 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 is not error to deny an application for post-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 that his due process rights were violated 

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 although he 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 address my drug and/or alcohol problems." 

These interpretational differences simply do not rise to the 

level of Bishop proving that the statements in the presentence 

report were false or erroneous. Additionally, Bishop was 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 Bishop has proven any of the alleged errors to be 

false or erroneous. In the District Court's memorandum 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 Petitioner disagreed with 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 Bishop was on probation when he committed 

the December 2, 1989 armed robbery in Billings. As a result, he 

12 
broke 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 a very more serious offense 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 that has to be placed somewhere where he 

or she cannot injure other law-abiding members of 

society. I believe 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 

this matter some serious thought and taking into account 

the seriousness that the legislature has demonstrated, in 

how the legislature feels for these offenses, the offense 

of robbery is up to 40 years, the offense of burglary is 

up to 20 years, and, of course, an additional 10 years 

for the use of a weapon, in other words, 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 due process protection prohibits a 

court from relying on materially false information when 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 of 
the information relied upon by the District Court in sentencing him 

was materially false. 

Pursuant to the above discussion we hold the District Court 

did not err in denying Bishopfs motion for post-conviction relief. 

Af f inned. 

We concur: 1 

Chief Justice 
July 27, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Don Henry Bishop 

700 Conley Lake Rd. 

Deer Lodge, MT 59722 

Hon. Marc Racicot, Attorney General 

,& . L&L, 

.if <.- -L < t.,,., ?... :, -< O.'(. 

Justice Bldg. 

Helena, MT 59620 

Dennis Paxinos, County Attorney 

David W. Hoefer, Deputy 

P.O. Box 35025 

Billings, MT 59107 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA