No. 02-626

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 193

STATE OF MONTANA, 

Plaintiff and Respondent, 

v.

DAVID THEODORE MORGAN, SR., 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twenty-First Judicial District, 

In and For the County of Ravalli, Cause No. DC 2000-99,

Honorable Jeffrey H. Langton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

David Theordore Morgan, Sr., pro se, Great Falls, Montana 

For Respondent:

Honorable Mike McGrath, Attorney General; Mark W. Mattioli, 

Assistant Attorney General, Helena, Montana 

George H. Corn, County Attorney, Hamilton, Montana

 Submitted on Briefs: April 25, 2003

 Decided: August 4, 2003

Filed:

__________________________________________

Clerk
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Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 David Theodore Morgan, Sr. (Morgan), pro se, appeals from the District Court’s order

denying his request for postconviction relief. We affirm. The two issues on appeal are the

following:

¶2 1. Did the District Court err in concluding that Morgan did not receive ineffective

assistance of counsel?

¶3 2. Did the District Court abuse its discretion in denying Morgan’s motion to

withdraw his guilty plea?

 Factual and Procedural Background

¶4 On June 24, 2000, while driving a stolen truck, Morgan engaged in a high-speed chase

with Idaho police. During the chase, Morgan rammed a patrol vehicle, causing it to set on

fire, and forced another patrol vehicle into a ditch. Morgan ultimately succeeded in eluding

the Idaho police. Four days later, a detective with the Ravalli County Sheriff’s Office

noticed a pickup driving erratically through Hamilton. When officers attempted to approach

the vehicle, Morgan began to speed north on Highway 93 during the beginning of the

afternoon rush hour. During the chase, Morgan reached speeds in excess of 100 miles per

hour and forced a number of vehicles off the road. Eventually, Morgan drove over a nail

strip set by Montana Highway Patrol Officer Tom Hamilton (Officer Hamilton) and was

forced to pull the vehicle off the highway. At that point, Morgan ran to a store and from

behind a fence he shot at Officer Hamilton’s vehicle. One bullet passed through the

vehicle’s door and hit Officer Hamilton in the right elbow before lodging itself in his bullet
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proof vest. Morgan also shot at two other officers attempting to capture him before he was

shot in the knee and apprehended. 

¶5 Following his arrest, Morgan was charged with eight felonies, including three counts

of attempted deliberate homicide and two counts of assault with a deadly weapon. Larry

Mansch (Mansch) of the Ravalli County Public Defender’s office was appointed to represent

Morgan. In January 2001, Morgan entered into an open and non-binding plea agreement.

In exchange for Morgan’s plea of no contest to three counts of attempted deliberate homicide

and one count of assault with a weapon, the State agreed to, and in fact did, amend the

original information to charge four of the eight felony counts. The agreement contained the

following bolded disclosure of the consequences of pleading guilty:

The Defendant understands that this is an open plea to the charges contained

in the Amended Information. This means the judge is free to impose any

sentence allowed by law for such crimes. . . . THE DEFENDANT UNDERSTANDS THAT THE MAXIMUM PENALTY FOR THE CHARGES TO

WHICH HE IS PLEADING GUILTY IS 320 YEARS OR LIFE IMPRISONMENT . . . .

¶6 After ordering a presentence investigation, the District Court sentenced Morgan to

three life sentences for the attempted deliberate homicide charges and 20 years for the assault

charge. The Sentence Review Division, comprised of three Montana District Court judges,

held a hearing in July 2001 to review Morgan’s sentence and Mansch again represented

Morgan. The Division unanimously affirmed Morgan’s sentence. In February 2002, Morgan

filed a petition for postconviction relief which the District Court denied.

Standard of Review
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¶7 The standard of review of a district court’s denial of a petition for postconviction

relief is whether the district court’s findings of fact are clearly erroneous and whether its

conclusions of law are correct. Watson v. State, 2002 MT 329, ¶ 6, 313 Mont. 209, ¶ 6, 61

P.3d 759, ¶ 6; State v. Charlo, 2000 MT 192, ¶ 7, 300 Mont. 435, ¶ 7, 4 P.3d 1201, ¶ 7. 

Claims of ineffective assistance of counsel are mixed questions of law and fact for which our

review is de novo. State v. Turner, 2000 MT 270, ¶ 47, 302 Mont. 69, ¶ 47, 12 P.3d 934,

¶ 47; Iaea v. Sunn (9th Cir. 1986), 800 F.2d 861, 864. Discretionary rulings in postconviction relief proceedings, including rulings related to whether to hold an evidentiary

hearing, are reviewed for an abuse of discretion. Watson, ¶ 6; State v. Hanson, 1999 MT

226, ¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9.

Discussion

I

¶8 Did the District Court err in concluding that Morgan did not receive ineffective

assistance of counsel?

¶9 A petitioner seeking to reverse a district court’s denial of a petition for postconviction

relief based on a claim of ineffective assistance of counsel bears a heavy burden. See Brown

v. State (1996), 277 Mont. 430, 434, 922 P.2d 1146, 1148. When considering ineffective

assistance of counsel claims in postconviction proceedings, this Court applies the twopronged test set forth by the United States Supreme Court in Strickland v. Washington

(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; see Hagen v. State, 1999 MT 8, ¶ 10,

293 Mont. 60, ¶ 10, 973 P.2d 233, ¶ 10. The Strickland test requires the defendant to show
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not only that his counsel’s performance was deficient, but that the deficient performance was

prejudicial to the defendant. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at

693. Pursuant to Strickland, a defendant alleging ineffective assistance of counsel must

demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694,

104 S.Ct. at 2068, 80 L.Ed.2d at 698. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80

L.Ed.2d at 698.

¶10 A court’s scrutiny of counsel’s actions must be highly deferential, and counsel’s

performance is strongly presumed to be within the wide range of reasonable professional

assistance. See State v. Campbell (1996), 278 Mont. 236, 246, 924 P.2d 1304, 1311. When

it is possible to dispose of an ineffective assistance of counsel claim based on the claim’s

failure to establish that the defendant was sufficiently prejudiced, it is best to follow that

course. Dawson v. State, 2000 MT 219, ¶ 21, 301 Mont. 135, ¶ 21, 10 P.3d 49, ¶ 21.

¶11 With these legal precepts in mind, we turn to Morgan’s claim of ineffective assistance

of counsel. Morgan, who has the burden of proving that his counsel’s performance was

deficient and prejudicial, bases his claim on three assertions: (1) counsel incorrectly advised

him that the State did not have to prove an essential element of the homicide charge; (2)

counsel incorrectly informed Morgan that the judge was “looking favorable” on him and

would give him a light sentence if he pled guilty; and (3) counsel inadequately represented

Morgan at the sentence review hearing. We review each assertion in turn.
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¶12 First, Morgan claims that his counsel misinformed him that the State would not have

to prove the element of intent on the attempted deliberate homicide charge, and that but for

this misinformation, he would have taken his chances at trial and would not have entered a

guilty plea. To this end, Morgan makes the incredible claim that the State would not have

been able to prove that Morgan intended to kill Officer Hamilton because “the shots were

fired at the door and not his window at his head.” Morgan’s assertion that the State could

not have proven intent is incredulous in light of the evidence presented by the State at

Morgan’s change of plea hearing. This evidence includes a videotape shot from the camera

attached to Officer Hamilton’s patrol vehicle which depicts the high-speed chase and the

officer’s voice the moment he was shot. As the District Court noted in its order denying

Morgan postconviction relief, even if Morgan’s counsel had incorrectly advised Morgan of

the elements to attempted deliberate homicide, “such a misrepresentation would have been

superfluous, in light of the overwhelming evidence of Morgan’s actions and intentions in

fleeing law officers and then firing at them.” Therefore, we agree with the District Court that

Morgan’s claim fails the second prong of the Strickland test because no reasonable

probability exists that Morgan would not have been found guilty of attempted deliberate

homicide.

¶13 Secondly, Morgan claims that counsel informed him that the judge was “looking

favorable” on him and would not give Morgan a harsh sentence if he pled guilty. Morgan

contends that he based his decision to plead guilty on counsel’s assurance that the judge

would go easy on him; however, this allegation runs contrary to the clear language of the
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plea agreement signed by Morgan on January 3, 2001. Specifically, the agreement states that

the plea is an open plea and that the “judge is free to impose any sentence allowed by law

for such crimes. . . . THE DEFENDANT UNDERSTANDS THAT THE MAXIMUM

PENALTY FOR THE CHARGES TO WHICH HE IS PLEADING GUILTY IS 320 YEARS

OR LIFE IMPRISONMENT . . . .” The plea clearly stated that the judge was free to

impose whatever sentence he believed appropriate. Even if Morgan’s counsel had informed

him that the judge was looking favorably on him and would not impose a lengthy sentence,

the plea agreement was explicit that the court made no promises about the length of sentence

that Morgan would receive. Therefore, we conclude that this second allegation fails the

second prong of Strickland. Any prejudice from counsel’s alleged comment regarding the

court’s possible leniency was negated by the clear language of Morgan’s plea agreement. 

¶14 Lastly, Morgan contends that his counsel inadequately represented him at the sentence

review hearing; however, Morgan does not cite any specific instances of ineffectiveness at

the hearing. Neither does Morgan provide the Court with a transcript of this hearing for our

review. Rather, Morgan would have this Court infer counsel’s ineffectiveness based on the

fact that the two had had a heated argument the day before the sentence review hearing. 

Since Morgan has not identified what in particular was ineffective about his counsel’s

performance at the hearing, we cannot determine whether or not he was prejudiced. We note

that Morgan’s sentence fell squarely within the range of an acceptable sentence for the

crimes committed. In conclusion, none of Morgan’s claims that he received ineffective

assistance of counsel demonstrate that a “reasonable probability” exists that, but for
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counsel’s poor performance, Morgan would not have been found guilty and sentenced as he

was. Therefore, we affirm the District Court’s denial of postconviction relief.

II

¶15 Did the District Court abuse its discretion in denying Morgan’s motion to withdraw

his guilty plea?

¶16 Section 46-16-105(1), MCA, provides that “[a]t any time before or after judgment,

the court may, for good cause shown, permit the plea of guilty or nolo contendere to be

withdrawn and a plea of not guilty substituted.” This Court has established three factors to

be considered when determining whether “good cause” under § 46-16-105, MCA, exists to

permit the withdrawal of a guilty plea: (1) the adequacy of the district court’s interrogation

as to the defendant’s understanding of his plea; (2) the promptness of the motion to

withdraw the prior plea; and (3) the fact that the defendant’s plea was apparently the result

of a plea bargain in which the guilty plea was given in exchange for dismissal of another

charge. Mallak v. State, 2002 MT 35, ¶ 17, 308 Mont. 314, ¶ 17, 42 P.3d 794, ¶ 17; State v.

Knox, 2001 MT 232, ¶ 11, 307 Mont. 1, ¶ 11, 36 P.3d 383, ¶ 11.

¶17 We apply these three factors to determine whether there was good cause to permit

Morgan to withdraw his guilty plea. Usually, this Court would first look to the District

Court’s interrogation of Morgan at the time of his plea; however, Morgan does not contend

that he did not understand the plea agreement and consequently, has not provided the Court

with a transcript of that hearing for our review. The second factor the Court considers is

whether the defendant’s application for withdrawal of his plea occurred within a reasonable
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period of time. Section 46-16-105(2), MCA, permits the withdrawal of a guilty plea “any

time before or after judgment;” however, as a general rule, the Court considers a motion to

withdraw a guilty plea untimely if it is filed over a year after entry of the plea. State v.

Osterloth, 2000 MT 129, ¶ 24, 299 Mont. 517, ¶ 24, 1 P.3d 946, ¶ 24. This one-year limit

is not a hard and fast rule, but rather a general guideline, and one for which exceptions will

be made in exceptional circumstances. State v. Graham, 2002 MT 237, ¶ 18, 311 Mont.

500, ¶ 18, 57 P.3d 54, ¶ 18. Here, Morgan did not move to withdraw his guilty plea until

some thirteen months after it was entered. Although Morgan is only one month outside of

the one-year limit, no exceptional circumstances exist that warrant an exception to the rule.

Therefore, we conclude that his application for withdrawal of his plea did not occur within

a reasonable period of time. 

¶18 The last factor that we consider is whether Morgan received a benefit in exchange for

his plea agreement. Morgan was initially charged with eight felonies. In exchange for his

pleading to the three counts of attempted deliberate homicide and one count of assault, the

State dismissed four other felony charges. Undeniably, Morgan received a substantial

benefit by having four felony charges against him dropped. After weighing the three factors,

we conclude that Morgan’s plea of guilty was knowing and voluntary; therefore, Morgan

did not establish good cause for withdrawing his plea. Affirmed.

/S/ W. WILLIAM LEAPHART
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We concur:

/S/ KARLA M. GRAY

/S/ JIM REGNIER

/S/ JAMES C. NELSON

/S/ JIM RICE