NO. 85-264 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSLELAND F. DOCKEN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gregory A. Jackson, Helena, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Barbara Claassen, Asst. Attorney General, Helena 

John P. Connor, County Attorney, Boulder, Montana 

Submitted on Briefs: April 17, 1986 

Decided: June 12, 1986 

Filed: .Nit 12 r986 

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Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Leland Docken appeals from a guilty plea on a charge of 

deliberate homicide and sentence by the District Court of the 

Fifth Judicial District, Jefferson County, to 100 years in 

the Montana State Prison. We affirm. 

Docken raises two issues on appeal. Was he denied 

effective assistance of counsel? Was his guilty plea entered 

intelligently and voluntarily? 

The victim, Terrance McGlynn was an associate professor 

at the Butte School of Mines, and the defendant's 

father-in-law. He was last seen on April 14, 1984 in Butte 

in the company of the defendant. When he failed to return 

home, an investigation into his disappearance began. On 

April 21, 1984, Docken was arrested by Butte-Silver Bow 

authorities, and given his Miranda warning. Within minutes 

he gave a 110-page transcribed statement which indicated he 

argued with the victim who had advised his daughter to 

divorce Docken. A struggle ensued and Docken shot and killed 

McGlynn. Docken led authorities to the grave site where the 

body of the victim was found. Autopsy reports indicated the 

victim died as a result of a single .22 caliber gunshot wound 

to the chest. The evidence indicated that the gun used was 

borrowed by defendant from his brother-in-law two days prior 

to the shooting. It was fully loaded when borrowed and when 

returned one day after the shooting, there had been one shot 

fired. The bullet that killed the victim was forensically 

shown to have come from that gun. The pick and shovel used 

to dig the grave were in Docken's possession prior to the 

incident. Witnesses placed Docken at or near the scene of 
the grave, on the day of the incident. Two days after the 

killing, Docken went to Billings and made purchases on the 

victim's credit card. Docken at all times denied 

recollection of the events up to and including the statement. 

Docken was arraigned on June 4, 1984. He entered a plea 

of not guilty. His court-appointed lawyers filed notices of 

intent to rely on the defenses of mental disease or defect 

and justifiable use of force. He also requested 

psychological evaluation and treatment. The court granted 

the request for psychological evaluation and counseling. On 

July 27, 1984, the defendant's counsel filed a notice of 

withdrawal of defenses of mental disease and justifiable use 

of force. 

On August 3, 1984, the defendant signed two documents 

entitled "Memorandum to File" which outline the facts related 

to the charge of deliberate homicide and the circumstances of 

the appellant's decision to plead guilty. One memorandum 

states, "[tlhe purpose of this memorandum is to demonstrate 

that I made my decision independently and on my own, although 

after consultation with both the prosecuting attorney and my 

attorneys." The memoranda were prepared by his attorneys to 

ensure that the appellant understood the charges, the nature 

of the plea bargain, and the consequences of pleading guilty, 

including the possible sentence. 

The defendant signed an "Acknowledgment of Waiver of 

Rights by Plea of Guilty" on August 6, 1984. Thereafter, he 

pled guilty before the District Court to the charge of 

deliberate homicide. He was sentenced, following a hearing, 

to 100 years imprisonment as a dangerous offender. 

The defendant did not file a motion to withdraw his 

guilty plea. On October 23, 1984, he filed a pro se motion 
for a new trial. The motion claimed, inter alia, that he was 

denied effective assistance of counsel. On November 13, 

1984, he filed a notice of appeal from the judgment and 

sentence. 

The District Court denied the defendant's motion for a 

new trial and set a hearing on the defendant's other 

post-conviction requests. At the hearing, the court released 

the court-appointed attorneys from representation of the 

defendant. Docken stated that his guilty plea was not 

voluntarily entered, claiming that he ''didn't understand it 

exactly at the time." Thereafter, the District Court 

appointed the current counsel to represent him "for purposes 

of his appeal and/or petition to withdraw his plea of 

guilty. " 

The first issue on appeal is whether Docken was denied 

effective assistance of counsel. Recently this Court stated 

that " [plersons accused of a crime are entitled to the 

effective assistance of counsel acting within the range of 

competence demanded of attorneys in criminal cases." State 

v. Rose (1980), 187 Mont. 74, 86, 608 P.2d 1074, 1081. The 

standards for effective assistance of counsel were set out by 

the United States Supreme Court in Strickland v. Washington 

(19841, - U.S. - , 104 S.Ct. 2052, 80 L.Ed.2d 674, and 

adopted by Montana in State v. Boyer (Mont. 1985), 695 P.2d 

829, 831, 42 St.Rep. 247, 250: 

First, the defendant must show that counsel's 

performance was deficient. This requires showing 

that counsel made errors so serious that counsel 

was not functioning as the "counsel" guaranteed the 

defendant by the Sixth Amendment. Second, the 

defendant must show that the deficient performance 

prejudiced the defense. This requires showing that 

counsel's errors were so serious as to deprive the 

defendant of a fair trial, a trial whose results 

are reliable. 
Boyer, 695 P.2d at 831, 42 St.Rep. at 250. 

To show prejudice: 

The defendant must show that there is a reasonable 

probability that, but for counsel's unprofessional 

errors, the result of a proceeding would have been 

different. A reasonable probability is a 

probability sufficient to undermine confidence in 

the outcome. 

State v. Robbins (Mont. 19851, 708 P.2d 227, 232, 42 St-RepThe United States Supreme Court recently held the same 

standards apply when the claim of ineffective assistance of 

counsel is made with regard to a guilty plea. Hill v. 

Lockhart (1985) , - U.S. , 106 S.Ct. 366, 88 L.Ed.2d 203. 

Docken contends he was denied effective assistance of 

counsel because his attorneys did not move to suppress his 

confession. He contends the confession wa.s not freely, 

voluntarily, and intelligently given because Docken 

repeatedly asserted he could not recall the statement and 

that .his chronic alcohol and drug abuse had altered his 

memory. However, there is no evidence in the record that he 

was under the influence of alcohol or drugs when he made the 

statement. As to his claim that he did not remember the 

statement, he reiterated the sequence of events to the court 

before entering a plea and signed a memorandum restating the 

facts. Under the circumstances, Docken has not shown that 

counsel's decision not to file a motion to suppress was 

error. Thus he does not meet the first tier of the 

ineffective assistance of counsel standard. 

Docken next contends counsels' withdrawal of the 

affirmative defenses of justifiable use of force and mental 

disease or defect deprived him of a defense. He contends 

that with all his defenses removed he had no hope of 
prevailing at trial and had to plead guilty. He claims the 

failure of his counsel to pursue these defenses constitutes 

ineffective assistance. 

The record shows that the defense of justifiable use of 

force was unsupported by the facts. The defense of mental 

disease or defect was withdrawn after Docken was evaluated by 

doctors at Warm Springs State Hospital. They stated he did 

not have a mental disease or defect and that he could have 

acted with the requisite mental state. 

In view of this evidence, Docken cannot meet the first 

tier of the ineffective assistance of counsel test by showing 

his counsel erred by withdrawing these defenses. In fact, 

the record reflects a diligent effort made by counsel in 

spite of the overwhelming evidence of their client's guilt. 

Next Docken contends that he did not enter his guilty 

plea with full understanding of the consequences, and that he 

should have been informed of his right to appeal a jury 

conviction. 

The standards for entry of a guilty plea were set in 

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

In Lewis, we stated: 

We hold that when in the sentencing procedure, the 

District Court carefully, as here, examines the 

defendant, finds him to be competent, and 

determines from him that his plea of guilty is 

voluntary, he understands the charge and his 

possible punishment, he is not acting under the 

influence of drugs or alcohol, he admits his 

counsel is competent and he has been well advised, 

and he declares in open court the facts upon which 

his guilt is based, then a plea of guilty accepted 

by the District Court on the basis of that 

examination will be upheld; and a motion later made 

by the defendant, as here, to gainsay in effect 

what the defendant earlier represented to the 

District Court, apparently to receive a lighter 

sentence, can not be given any degree of credence. 
177 Mont. at 485, 582 P.2d at 352. 

The record shows that the guilty plea accepted by the 

District Court explained the charge, the minimum and maximum 

punishment, his rights as a defendant and at trial, what 

rights he waived by pleading guilty, the consequences of a 

guilty plea, that the county attorney agreed not to seek the 

death penalty, but could recommend any sentence, and set out 

the factual basis for the guilty plea. It also states he is 

competent, not under the influence of alcohol or drugs and 

has been well advised. In addition, three days prior to the 

entry of the guilty plea in open court, Docken signed two 

memoranda to file. One memorandum describes the events 

leading up to the murder and the murder of his father-in-law. 

It discusses the conferences Docken had with his attorneys 

during which the possibility of a guilty plea was discussed. 

It states that after pondering this decision in many 

conferences, Docken instructed his attorneys to make 

arrangements for the entry of his plea. The memorandum 

states that his attorneys repeatedly advised that the 

decision to plead guilty was entirely in his control, and 

that decision was made independently. 

The other memorandum discusses the possible sentence for 

deliberate homicide and that the county attorney agreed to 

not recommend the death penalty in exchange for a guilty 

plea, but reserved the right to recommend any sentence, 

including imprisonment for 100 years. It states that his 

attorneys made no recommendation for or against a guilty 

plea, but that after consideration he decided to plead guilty 

to avoid the trauma of trial for his parents, children, 

family, and wife. Given the evidence in the record that the 

defendant gave his guilty plea intelligently and voluntarily, 
we hold the District Court did not err in refusing to set 

aside his guilty plea. We affirm the conviction and sentence 

of the defendant. ') 

,&j!dv7 

Justice 

We Concur: