No. 92-620 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

GARY LEVIN JOSEPH DUFF, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Ed McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael Klinkhammer, Attorney at Law, 

Seeley Lake, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Micheal S. Wellenstein, Assistant Attorney General, 

Helena, Montana: Robert L. Deschamps, 111, Missoula 

County Attorney, Fred Van Valkenburg Deputy County 

Attorney, Missoula, Montana 

Submitted on Briefs: September 16, 1993 

Decided: December 7, 1993 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Defendant Gary Levin Joseph Duff filed a petition for 

post-conviction relief in the District Court for the Fourth 

Judicial District, in Missoula County, in which he asked that his 

guilty pleas to one count of aggravated assault and two counts of 

felony assault be set aside. The District Court denied his 

petition and Duff appeals from that denial. We affirm the District 

Court. 

The issue on appeal is whether the District Court correctly 

denied defendant's request to withdraw his guilty pleas based upon 

a claim of ineffective assistance of counsel, and a claim that the 

evidence was insufficient to support the charges against him. 

When reviewing an order denying post-conviction relief, this 

Court's inquiry is whether substantial evidence supports the 

findings and conclusions of the district court. Stale v. Coates (1990) , 

241 Mont. 331, 336, 786 P.2d 1182, 1185. 

On May 29, 1991, Duff entered separate pleas of not guilty to 

one count of aggravated assault pursuant to § 45-5-202(1), PICA, and 

two counts of assault pursuant to § 45-5-202(2)(b), MCA. However, 

on September 18, 1991, Duff changed his plea to guilty of all three 

charges and received a 40-year prison sentence and designation as 

a dangerous offender. He filed his petition for post-conviction 

relief on October 21, 1992. 

Duff contends that the evidence against him was inadequate to 

prove guilt beyond a reasonable doubt. It is an established rule 

however, that having pled guilty, he is precluded from attacking 

2 
the sufficiency of the evidence against him. See United States v. Broce 

(1989), 488 U.S. 563, 109 S. ct. 757, 102 L. Ed. 2d 927; State v. 

Turcutte (1974), 164 Mont. 426, 428, 524 P.2d 787, 788, 

Duff also attacks the validity of his guilty plea on the basis 

of ineffective assistance of counsel. 

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

this Court reiterated the standard for determining whether an 

attorney has provided effective legal assistance to a criminal 

defendant, as required by Strickland v. Washington (1984), 466 U,S. 668, 

104 S. Ct. 2052, 80 L. Ed. 2d 674: 

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

defendant must first demonstrate that counselis 

performance was deficient. To demonstrate that a 

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 counselis deficiency was so 

prejudicial that defendant was denied a fair trial. . . . 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. [Citations omitted]. 

Senn, 795 P.2d at 975. Duff argues that his attorney was 

ineffective by failing to negotiate a plea bargain, by encouraging 

Duff to plead guilty, by telling Duff he had no hope of an 

acquittal, and that he would receive at most, a sentence for five 

to seven years without designation as a dangerous offender. 

However, "[wlhen a claim of ineffective assistance of counsel 

is made, this Court has concluded that the attack must be based 
upon facts in the record or easily deducible from the record, and 

that there must be more than conclusory allegations." Stute v. Dess 

(l984), 207 Mont. 396, 398, 674 P.2d 501, 502. In this case, we 

agree with the State that no evidence was offered by Duff to 

support his conclusory allegations which were set forth previously. 

Duff also argues that, as a result of his counsel's 

inadequacy, his guilty plea was neither voluntary nor knowing, and 

therefore, the District Court had no authority to accept the plea. 

Section 46-16-105, MCA, provides that a plea of guilty may be 

accepted in open court after the judge has informed the defendant 

of the consequences of his plea and of the maximum applicable 

penalty. 

In State v. Murfz (1988), 233 Mont. 136, 143, 760 p.2d 65, 68-69, 

this Court held that a guilty plea was voluntary and intelligent 

where a district court addressed the following issues: the 

defendant's constitutional rights; the consequences of a guilty 

plea; and the possible maximum penalty involved; and that the court 

could not involve itself in the plea agreement and was not 

obligated to accept the recommended sentence. While in this case 

there was no plea agreement, we find that the colloquy between the 

District Court judge and Duff met the necessary constitutional 

requirements. The following is an excerpt of Duff's change of plea 

hearing: 

BY THE COURT: 

Q. Mr. Duff, I have your Plea of Guilty and Waiver of 

Rights form. Do you understand that by withdrawing your 
plea of not guilty and pleading guilty, you're giving up 

virtually all of your rights except the right to be 

represented by an attorney? 

A. (BY KFt. DUFF) Yeah. 

Q. Are you satisfied with the services of your 

attorney? 

A. Yes. 

Q. Has he done everything you have requested of him? 

A. Yes. 

Q. Are you attempting to plead guilty because of a plea 

bargain agreement? 

A. NO. 

. . . . 

Q. Have any threats or promises been made to you? 

A. NO. 

Q. Are you under the influence of alcohol, any 

medication, or drug which affects your reasoning power 

here today? 

A NO. 

Q. You have been charged with one count of aggravated 

assault and two counts of assault, both felonies. You 

wish to withdraw your pleas on all of those counts? 

A. Yes. 

The District Court referred to the waiver form at the outset 

of its interrogation. This Court has upheld a guilty plea under 

similar circumstances. "[A] written acknowledgment combined with 

oral questioning of the defendant constitute[s] adequate 

interrogation . . . ." Statev. Walker (1986), 220 Mont. 70, 73, 712 
Despite his indication at the change of plea hearing that his 

plea was not influenced by "threats" or promise^,^ Duff argues on 

appeal that he was coerced into pleading guilty in exchange for a 

smaller bond and a short period of time on house arrest. It is 

true that, 

a plea may be withdrawn if [a] defendant is persuaded or 

coerced into pleading guilty by his attorney, or if the 

plea is entered involuntarily or by one not competent to 

know the consequences of his action or by one who is 

induced to plead guilty by "fear, persuasion, promise or 

ignorance." [Citations omitted]. 

Stulev. Hilton (l979), 183 Mont. 13, 17, 597 P.2d 1171, 1173. However, 

the record shows that Duff signed a "Plea of Guilty and Waiver of 

Rights" in which he acknowledged his constitutional rights, the 

consequences of his guilty plea, a possible maximum penalty, the 

fact that his plea was entered voluntarily, his satisfactory 

relationship with his attorney, and his own mental and emotional 

clarity. 

Our review of the record indicates that there is no evidence 

to establish that Duff's attorney's performance was deficient. We 

further conclude that the District Court adequately interrogated 

Duff before accepting his guilty plea, that there was substantial 

evidence that Duff fully understood the circumstances and 

consequences of changing his plea to guilty, and that no evidence 

was offered to substantiate Duff's allegation that his plea was 

coerced. 

The last of Duff's arguments is that his attorney failed to 

explain the consequences of lesser included offenses. This issue 
was not raised in Duff's arguments to the District Court in support 

of his petition for post-conviction relief. It is a 

well-established principle that this Court will not review an issue 

raised for the first time on appeal. See Stale v. McColley (1990), 247 

Mont. 524, 528, 807 P.2d 1358, 1361. 

The order of the District Court is affirmed. 

We concur: 
December 7, 1993 

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

named: 

Michael Klinkhammer 

Attorney at Law 

P.O. Box 976 

Ste. 1, 3096 Hwy 83 So. 

Seeley Lake, MT 59868 

Won. Joseph P. Mazurek 

Attorney General 

Justice Bldg. 

Helena. MT 59620 

Robert L. Deschamps, 111, County Attorney 

Fred Van Valkenburg, Deputy 

Missoula County Courthouse 

Missoula. MT 59802 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA