No. 90-549 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN RE THE PETITION OF 

KORI LANE LAKE. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Mineral, 

The Honorable Ed P. McLean, Judge 

COUNSEL OF RECORD: 

For Appellant: 

Kori Lane Lake, Pro Se 

Deer Lodge, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Jennifer Anders, Assistant 

M. Shaun Donovan, Mineral County Attorney, Superior, 

Montana 

Filed: 

Submitted on Briefs: March 19, 1992 

Decided: April 21, 1992 
~ustice'~red J.Weber delivered the opinion of the ~istrict Court. 

After an evidentiary hearing, the District Court for the 

Fourth Judicial District, Mineral County, denied defendant's (Kori 

Lane Lake) petition for post-conviction relief. We affirm. 

The sole issue for our review is whether the ~istrict Court 

erred in determining that defendant's plea of guilty was voluntary 

and not the result of attorney incompetence. 

Defendant was charged by information with one count of 

attempted deliberate homicide and one count of robbery, arising 

from an incident which took place on July 29, 1989. On that date, 

defendant stabbed Joseph Shippentower in the throat, inflicting a 

laceration several inches long. After the stabbing incident, 

defendant took the victim's car and its contents, later abandoning 

them in a remote area away from the scene of the incident. 

Margaret Borg of the Missoula County Public Defender's Office was 

appointed to represent defendant. 

In the course of the hearing following the filing of his postconviction petition, defendant testified that he had admitted to 

Ms. Borg that he was responsible for the stab wound. However, he 

maintained that it was an Naccidentll and that he had been acting in 

self-defense against unwanted sexual advances by Mr. Shippentower. 

In addition the defendant admitted to the taking of the 

Shippentower car and its contents and to the later abandonment. 

In his statements to the police, Mr. Shippentower denied 

having made any sexual advances towards the defendant, and claimed 

that he was asleep when the attack took place. Because of the 
striking differences between the defendant's version of the 

incident and Mr. Shippentower's version, Ms. Borg testified that 

the case essentially boiled down to a credibility match between Mr. 

Shippentower and the defendant. 

Ms. Borg testified that as the date for trial approached, she 

began to question the defendant's ability to assist in his own 

defense. She testified that his attitude had become extremely 

hostile; that he had attempted suicide; and that he had burned off 

his hair in order to frustrate the State's attempt to obtain a hair 

sample. Defendant was transferred to Warm Springs where he 

underwent a psychological evaluation. Ms. Borg testified that the 

evaluation did not raise a question as to his fitness to proceed, 

nor did it demonstrate mental disease or defect. 

Ms. Borg discussed alternatives to a trial with defendant. 

She testified that she recommended that defendant accept the plea 

bargain which offered a reduction in the charges to one count of 

aggravated assault and one count of theft. She testified that in 

her opinion there was a chance that defendant could have been 

convicted on the attempted deliberate homicide charge if it went to 

trial. At a minimum, she felt that defendant would have been 

convicted of aggravated assault, the crime to which he ultimately 

pled guilty. 

Eventually defendant signed a waiver of rights agreement and 

entered his pleas of guilty to one count of aggravated assault and 

one count of theft. By signing the agreement, the defendant 

specifically acknowledged that he was satisfied with the services 
of his attorney; had sufficie,nt time to consult with his attorney; 

his attorney had done everything he asked her to do; and that he 

discussed the merits of his case with her, noting specifically that 

he did not have available to him the affirmative defense of 

justifiable use of force or mental disease or defect. 

Subsequently, defendant was sentenced to fifteen years in the 

Montana State Prison with five years suspended for aggravated 

assault, and ten years for felony theft, the sentences to run 

concurrently. He was also designated a dangerous offender for 

parole eligibility purposes. Defendant now appeals from the 

District Court's denial of post-conviction relief. 

Did the District Court err in determining that defendant's 

plea of guilty was voluntary and not the result of attorney 

incompetence? 

A petition for post-conviction relief is civil in nature 

rather than criminal. The standard for review is set forth in Rule 

52(a), M.R.Civ.P., which provides that findings of fact shall not 

be set aside unless clearly erroneous, and due regard shall be 

given to the opportunity of the trial court to judge the 

credibility of the witnesses. 

Defendant maintains he was denied effective assistance of 

counsel because Ms. Borg recommended he plead guilty to the lesser 

offense of aggravated assault, which he maintains denied him the 

opportunity to assert a defense of justifiable use of force at 

trial on the original charges. He further maintains Ms. Borg 

informed him that he was not entitled to the defense of justifiable 
use of force because he did not intend to kill Mr. Shippentower. 

The State maintains that defendant was not deprived of his Sixth 

Amendment right to counsel nor was his plea involuntary because of 

the acts or omissions of counsel or any other person. 

In evaluating ineffective assistance of counsel claims, this 

Court employs a two-part test from Strickland v. Washington (1984), 

466 U.S. 668, which requires the Court to evaluate whether 

counsel's performance was deficient and whether the deficient 

performance prejudiced the defense. When evaluating counsel's 

performance with respect to a guilty plea, the defendant must show 

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

pled guilty and would have insisted upon going to trial. State v. 

Langford (1991), 248 Mont. 420, 432, 813 P.2d 936, 947. 

Section 45-3-102, MCA, provides that a person is justified in 

the use of force against another person when and to the extent that 

he reasonably believes that such conduct is necessary to defend 

himself or another against such other's imminent use of unlawful 

force; and only if he reasonably believes that such force is 

necessarv to prevent imminent death or serious bodilv harm to 

himself or another. Ms. Borg testified that she advised defendant 

that the defense of justifiable use of force probably would not 

work in his case. She further testified that ''1 don't believe that 

the amount of force used in this case was appropriate under the 

circumstances of the case as I understand it, and I discussed that 

at length with Kori" . 

Defendant maintains that he was defending himself from Mr. 
Shippentower's unwanted sexual advances. However, the evidence 

does not show the defendant had reason to believe Mr. 

Shippentower's alleged advances placed defendant in danger of 

either imminent death or serious bodily injury. 

The record is void of any evidence that Ms. Borg's performance 

was deficient or that her performance prejudiced the defense. The 

District Court stated: 

After informed professional deliberation, review of 

all information in her possession and consultation with 

her investigator and other office staff members, former 

defense counsel, Margaret Borg concluded that if the case 

went to trial the complaining witness Shippentower, 

although "shakyw, would likely be believed by a jury with 

respect to the essential elements of the crimes charged 

and that, at a minimum, her client, Mr. Lake would be 

convicted of the lesser included offenses of Aggravated 

Assault and Theft, both felonies. Defense counsel 

further concluded that because of the excessive force 

used by Mr. Lake, self defense would not be a successful 

defense; that there was no evidence to support Mr. Lake's 

claim that the complaining witness had made homosexual 

advances towards him triggering the incident and, 

finally, after consultations with Missoula Psychologist 

Dr. Robert Shea, that the Defendant was not suffering 

from any mental disease or defect which would either 

provide a defense or impair his competency. At the same 

time Ms. Borg, and her investigator Mr. Locke, had grave 

concerns over Mr. Lake's ability to control himself at 

trial, particularly with respect to showing 

aggressiveness and hostility and concluded there was a 

significant risk that a jury would convict him of both 

Attempted Deliberate Homicide and Robbery leading to 

potential maximum punishment under applicable statutes in 

excess of 100 years. 

Defendant has failed to prove that but for Ms. Borg's 

allegedly deficient performance, he would not have pled guilty and 

would have insisted upon going to trial. State v. Leavens (1986), 

222 Mont. 473, 475, 723 P.2d 236, 237; State v. Langford (1991), 

248 Mont. 420, 432, 813 P.2d 936, 947. 
Defendant admitted that he stabbed Mr. Shippentower, although 

he maintained it was in self-defense. However, he was aware that 

Mr. Shippentower denied making any sexual advances; that Mr. 

Shippentower was prepared to have his girlfriend testify as to his 

heterosexual preferences; and, that he had trouble controlling his 

temper and that fact would be visible to a jury. The record 

reveals that the defendant voluntarily signed the plea agreement 

with a full understanding of the relevant facts and legal issues. 

Based upon our review of the record, we conclude that the 

findings and conclusions of the District Court are not clearly 

erroneous. We therefore affirm the holding of the District Court 

that the defendant's plea of guilty was voluntary and not the 

result of attorney incompetence. 

We Concur: / 

Chief Justice