NO. 88-206 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDELMAR BLACK, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fifteenth Judicial District, 

In and for the County of Roosevelt, 

The Honorable M. James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

F. Woodside Wright, Helena, Montana 

For Respondent: 

Marc Racicot, Attorney General, Helena, Montana; 

Paul Johnson, Assistant Attorney General, Helena, 

Montana; Ralph Patch, Roosevelt County Attorney, 

Wolf Point, Montana 

Filed: 

Submitted: June 28, 1990 

Decided: September 7, 1990 

Clerk 
Justice William E. Hunt, Sr. delivered the Opinion of the Court. 

Appellant and defendant Delmar Black appeals from the order 

of the District Court of the Fifteenth Judicial District of the 

State of Montana, County of Roosevelt, which accepted defendant's 

plea of guilty to simple assault, a felony, and sentenced defendant 

to 5 years at the Montana State Prison. The sentence also required 

that defendant complete a sexual offender course while 

incarcerated. We affirm. 

The issues on appeal are: 

1. Whether defendant was denied his right to counsel at the 

evidentiary hearing ordered by this Court regarding defendant's 

claim of ineffective assistance of counsel. 

2. Whether defendant's claim of ineffective assistance of 

counsel on direct appeal. is res judicata due to the previous 

findings of fact and decision on this issue by the District Court 

and which was subsequently adopted by this Court. 

3. Whether defendant's plea of guilty was entered voluntarily 

and with knowledge of its consequences. 

4. Whether the sentence imposed upon defendant by the 

District Court was a legal sentence. 

5. Whether the delay in appointing counsel for defendant on 

direct appeal was a denial of due process. 

Defendant was charged by information with the felony offense 

of incest with his fourteen-year-old daughter, N.B. A jury trial 

was set to be held on February 8, 1988. On that date, but before 
the trial began, defendant's attorney and the county attorney 

approached the court with a plea agreement proposal. The plea 

agreement contemplated amending the charge against defendant from 

incest to simple assault. The county attorney made a motion 

requesting the court to allow such amendment and the motion was 

granted. 

The factual basis for the amended charge was that Black had 

physically and mentally injured his daughter in the course of 

soliciting her for sex and engaging her in lengthy discussions 

regarding sexual matters. After lengthy interrogation by the 

court, defendant's plea of guilty to the amended charge was 

accepted, and, pursuant to the plea agreement, defendant was 

sentenced to five years in the Montana State Prison, subject to 

the condition that he enroll in and complete the sexual offender's 

treatment program at the prison. 

On March 15, 1988, defendant filed a notice of appeal in 

District Court, together with a motion for appointment of counsel. 

In his motion for appointment of counsel, defendant stated that he 

needed new counsel because he intended to pursue a claim of 

ineffective assistance of counsel against the attorney originally 

appointed to represent him. The District Court did not act on 

defendant Is motion to appoint counsel so, on May 4, 1988, defendant 

filed in this Court a motion to compel the District Court to 

appoint counsel. This motion to compel was supported by a brief 

which contained, as exhibits, copies of defendant's previous 

motions. 
On June 14, 1988, this Court, after briefing by the State of 

Montana Attorney General, remanded the case to the District Court 

for an evidentiary hearing on defendant's claim of ineffective 

assistance of counsel. In our order, we denied defendant's request 

for appointment of counsel for the proceedings on remand. 

The evidentiary hearing was held on August 31, 1988. The 

original sentencing judge did not preside. Defendant, representing 

himself, attended the hearing and participated in the examination 

and cross-examination of witnesses. 

On September 7, 1988, the District Court entered its findings 

of fact and decision, concluding that defendant had not been denied 

effective assistance of counsel. In an order dated September 20, 

1988, we adopted the findings and decision of the District Court 

denying defendant's ineffective assistance claim. 

Counsel was then appointed by the District Court. This appeal 

on all the issues enumerated above, including the issue of 

ineffective assistance of counsel followed. 

The first issue is whether defendant was denied his right to 

counsel at the evidentiary hearing ordered by this Court regarding 

defendant's claim of ineffective assistance of counsel. A 

defendant is entitled to assistance of counsel through the critical 

stages of a criminal prosecution "where potential substantial 

prejudice inheres in the absence of counsel. It State v. Robbins, 

218 Mont. 107, 111, 708 P.2d 227, 230 (1985). See U.S. Const. 

Amend. VI. Direct appeals are considered to be part of these 

critical stages. However, petitions for post-conviction relief are 
collateral attacks that are civil in nature and are not governed 

by the Sixth Amendment requirements for counsel. See Coleman v. 

State, 38 St.Rep. 1352, 1353-54, 633 P.2d 624, 626-627 (Mont. 

1981). 

In this case, although defendant originally raised the issue 

of ineffective assistance of counsel on direct appeal, the 

resolution of such issue required consideration of factual matters 

not contained in the record thereby making it an inappropriate 

issue for direct appeal. Section 46-20-701, MCA; State v. Elliott, 

221 Mont. 174, 178, 717 P.2d 572, 575 (1986). Because defendant's 

filing failed to meet the requirements of a direct appeal, we 

appropriately treated such filing as a petition for post-conviction 

relief as provided in §§ 46-21-101 to 203, MCA. We then remanded 

defendant's claim to the District Court so that an evidentiary 

hearing could be held that would allow defendant to present those 

factual matters necessary to his claim. See State v. Laverdure, 

212 Mont. 31, 33, 685 P.2d 375, 376 (1984). 

Our treatment of defendant's claim is in keeping with the 

conclusions reached by the Ninth Circuit Court of Appeals in U.S. 

v. Birges, 723 F.2d 666 (9th Cir., 1984). In Birses, the court 

specifically stated that ineffective assistance of counsel claims 

raised on direct appeal and involving the consideration of facts 

beyond the record would more appropriately be addressed by a 

petition for post-conviction relief. Birses, 723 F.2d at 670. See 

also People v. Pope, 590 P.2d 859 (Cal. 1979) . Because defendant Is 

claim of ineffectiveness involved facts beyond the record and 
because all of the requirements for a petition for post-conviction 

relief were met, defendant's claim was appropriately classified as 

a petition for post-conviction relief. As a result, defendant was 

not constitutionally entitled to counsel. 

The second issue on appeal is whether defendant's claim of 

ineffective assistance of counsel on direct appeal is res judicata 

due to the previous findings of fact and decision on this issue by 

the District Court, which was subsequently adopted by this Court. 

This Court has applied the issues of res judicata and law of 

the case to preclude an appellant from raising issues on appeal 

which were previously resolved by this Court. State v. Perry, 232 

Mont. 455, 463-65, 758 P.2d 268, 273-74 (1988); State v. Smith, 220 

Mont. 364, 372, 715 P.2d 1301, 1306 (1986). The principle is that 

an issue that has been finally decided cannot again be relitigated. 

State v. Zimmerman, 175 Mont. 179, 185, 573 P.2d 174, 177 (1977). 

I1[W]here a decision has been rendered by the Supreme Court on a 

particular issue between the same parties in the same case, whether 

that decision is right or wrong, such decision is binding on the 

parties and the courts and cannot be relitigated in a subsequent 

appeal." Zimmerman, 175 Mont. at 185, 573 P.2d at 177. Two 

important policy rationales underlie these principles: judicial 

economy and the need for finality of judgments. Perry, 232 Mont. 

at 463, 758 P.2d at 273. They stand ''for the proposition that 

there must be an end to litigation at some point. Perry, 232 

Mont. at 464, 758 P.2d at 273. 
In this case, an evidentiary hearing was held on the issue of 

ineffective assistance of counsel. The District Court rendered a 

decision which we reviewed and subsequently affirmed. To afford 

defendant additional review of the same issue between the same 

parties would negate the intent of the doctrines of res judicata 

and law of the case. Defendant's claim of ineffective assistance 

has been fully litigated and reconsideration of that claim is 

barred. 

The third issue on appeal is whether defendant's plea of 

guilty was entered voluntarily and with knowledge of its 

consequences. We have already disposed of defendant's ineffective 

assistance of counsel claim and will not discuss defendant's 

assertion that his guilty plea was involuntary due to ineffective 

assistance of counsel. 

Section 46-16-105, MCA, governs a district court's acceptance 

of a guilty plea and provides that: 

(1) Before or during trial, a plea of guilty may be 

accepted when: 

(a) the defendant enters a plea of guilty in open court; 

and 

(b the court has informed the defendant of the 

consequences of his plea and of the maximum penalty 

provided by law which may be imposed upon acceptance of 

such plea. 

A guilty plea is presumed to be provided voluntarily and with 

full knowledge of its consequences when: 

the District Court carefully. . . 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. . . 

State v. Docken, 222 Mont. 58, 62-63, 720 P.2d 679, 682 (1986) 

citing State v. Lewis, 177 Mont. 474, 582 P.2d 346 (1978). ''[A] 

plea of guilty accepted by the District Court on the basis of that 

examination will be upheld. . ." Docken, 222 Mont. at 63, 720 P.2d 

at 682, citing Lewis. 

In State v. Martz, 233 Mont. 136, 760 P.2d 65 (1988), we added 

that the district court must also inform the defendant of the 

following before accepting his or her guilty plea: 

1) [the defendant's] constitutional rights; 

2) the consequences of a guilty plea; 

3) the possible maximum penalty involved; and 

4) that the court could not involve itself in the plea 

agreement and was not obligated to accept the recommended 

sentence. 

Martz, 233 Mont. at 143, 760 P.2d at 69. 

In this case, it is evident from the record that the District 

Court properly examined defendant and correctly determined that 

defendant's plea was entered voluntarily and with full knowledge 

of its consequences. Defendant's assertion that he was never 

informed by the District Court that he would have to attend a 

sexual offender's program is directly contrary to the record as set 

forth in the transcript of the sentencing hearing where, when 

directly questioned by the court defendant specifically 

acknowledges such requirement: 
THE COURT: But you understand that. . . if you entered 

a plea here of guilty, you would be sentenced to five 

years in the state prison and that you will undergo 72 

weeks or 73 weeks of sexual offenders therapy? 

DEFENDANT: Yes. 

Defendant also asserts that his plea was not entered with full 

knowledge because his hearing loss and the medication he was taking 

for his arthritis interfered with his ability to fully understand 

the consequences of his plea. The record fails to support 

defendant's assertion. During the questioning by the District 

Court, defendant answered all questions without hesitation and 

without request that the court repeat itself. 

Defendant's plea of guilty was entered voluntarily and with 

full knowledge. The court informed defendant of the consequences 

of his plea and of the possible maximum penalty which may be 

imposed. There is nothing in the record to suggest that defendant 

was unable to hear or understand what the court asked or that he 

was not in full control of his faculties. 

The fourth issue on appeal is whether the sentence imposed 

upon defendant by the District Court was a legal sentence. 

Defendant argues that the District Court did not have the 

authority to require the defendant to complete a sexual offender's 

course while incarcerated. Defendant is mistaken. 

In imposing the appropriate sentence, the district court must 

comply with the requirements set forth in 98 46-18-201 through 
-261, MCA. Under 5 46-18-202 (1) (e) , MCA, the district court is 

given broad discretion in imposing restrictions upon a defendant 

beyond those specifically required by statute: 

The district court may also impose any of the following 

restrictions or conditions on the sentence provided for 

in 46-18-201 which it considers necessary to obtain the 

objectives of rehabilitation and the protection of 

society: 

(e) any other limitation reasonably related to the 

objectives of rehabilitation and the protection of 

society. 

In imposing additional limitations there must be a correlation 

established between the additional limitations and either the 

rehabilitation of the offender or the protection of society. In 

State v. Sullivan, 197 Mont. 395, 642 P.2d 1008 (1982), the 

District Court found that the burglary committed by the defendant 

was significantly influenced by excessive alcohol use. This 

connection between the crime committed and alcohol justified the 

District Court's sentence prohibiting defendant's use of alcohol 

while on parole. This Court reasoned that failure to restrict 

defendant's alcohol use "would not aid in his rehabilitation nor 

would it be conducive to the protection of society." Sullivan, 197 

Mont. at 403, 642 P.2d at 1012. 

In this case, the District Court properly included within 

defendant's sentence the condition that defendant complete a sexual 

offender's course while incarcerated. Defendant was convicted of 

assault upon his fourteen year old daughter. There is ample 

support in the record, based upon the examination of defendant at 

10 
the plea hearing, that the assault took the form of both bodily 

injury and invitations or solicitations concerning sexual 

intercourse which resulted in mental and emotional impairment to 

the daughter. The sexual nature of the assault established a 

significant connection between the crime and the need for defendant 

to attend the sexual offender's program. In order to protect 

society and to promote rehabilitation of the defendant, the 

District Court properly determined that defendant needed to attend 

the sexual offender's program. The sentence was proper. 

The fifth issue on appeal is whether the delay in appointing 

counsel for defendant's direct appeal was a denial of due process. 

Defendant alleges that the 21 month delay between the date of 

filing his notice of appeal and request for appointment of counsel 

to the date counsel was appointed was a denial of due process. We 

disagree. 

Due process protection under both the United States 

Constitution and the Montana Constitution requires that a defendant 

be given a fair and meaningful appeal. U.S. Const. Amend. XIV; 

Mont. Const., Art. 11, § 17. Because each case revolves around a 

unique set of facts, wconsideration of the facts and circumstances 

of each casen must be evaluated to determine whether that 

particular defendant has been afforded a fair and meaningful 

appeal. ~ankins v. Wicker, 582 F.Supp. 180, 182-183 (W.D. Pa. 

1984). 

This Court has not specifically dealt with this issue. 

Therefore, we look to the line of cases originating with United 
States v. Alston, 412 A.2d 351 (D.C. 1980), for support. See State 

v. Chapple, 660 P.2d 1208 (Ariz. 1983); State v. Hall, 487 A.2d 166 

(Vt. 1984); Lopez v. State, 769 P.2d 1276 (Nev. 1989). 

Alston held that a delay in the processing of an appeal rises 

to the level of a due process violation only upon a showing of 

prejudice to the defendant. Alston, 412 A.2d at 357. Prejudice 

to the defendant is the sole determining factor in assessing 

whether a defendant was given a fair and meaningful appeal. 

Alston, 412 A.2d at 357; Chapple, 660 P.2d at 1226; Hall, 487 A.2d 

at 171. In alleging prejudice due to appellate delay, defendant 

must show that: 1) he is "unable to present an adequate appeal 

because of the delay, or 2) that he will be unable to defend 

adequately in the event a retrial is ordered." I Hall 487 A.2d at 

171, citing Chapple, 660 P.2d at 1225-1226 and Alston, 412 A.2d at 

356-357. 

In this case, defendant has failed to show that the delay in 

hearing his appeal and in the appointment of counsel prejudiced his 

appeal. Delay alone is not adequate to raise a due process concern 

absent some proof of prejudice occasioned by the delay. Chapple, 

660 P.2d at 1226 (15-month post-conviction incarceration without 

appeal does not, absent a showing of prejudice, violate due 

process). See also Alston, (33 1/4-month delay did not result in 

prejudice); Hall, (17-month delay did not result in prejudice). 

Defendant has only presented general allegations concerning 

prejudice resulting from denial of appointment of counsel. It has 

already been determined that defendant was not entitled to counsel 
atthe evidentiary hearing on remand. Immediately after the 

hearing, counsel was appointed to represent defendant in his 

current appeal. Defendant has failed to show that subsequent 

appointment of counsel was prejudicial. 

Additionally, the time period defendant refers to as a delay 

is questionably labeled. Defendant filed his notice of appeal on 

March 15, 1988. After briefing, this Court issued an order 

remanding the case to the District Court and denying defendant 

appointment of counsel on remand. The District Court heard the 

remand on August 31, 1988, and issued its order on September 7, 

1988. Upon review of the District Court's order, this Court issued 

its order adopting the District Court's findings on October 7, 

1988. Counsel for defendant was then appointed and the appeal was 

briefed by both parties. Based upon the above it is evident that 

this Court proceeded in an orderly, timely, and legally proper 

fashion to review and dispose of the case. 

Affirmed. / 

xe Concur: