No. 92-266 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

STATE OF MONTANA, Plaintiff and Respondent,
-vsSHAWN H. DAVIS, Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD: For Appellant: Shawn 

### H. Davis, Pro Se, Deer Lodge, Montana For Respondent: Hon. Marc Racicot,Attorney General Jennifer Anders, Assistant, Helena, Montana Robert Deschamps, 111, County Attorney Karen Townsend, Deputy,Missoula, Montana 

### MOV

## -5 7992 Submitted on Briefs: october 14, 1992 

# aS.~L Decided: 

### November 

### 5, 1992 

# cLE%8$%% ONTANA £MECOURTJustice R. C. McDonough delivered the Opinion of the Court. This is an appeal from an order of the District Court of the Fourth Judicial District, Missoula County, denying appellant's petition forpost conviction relief,which requested in effect that petitioner be allowed to withdraw his guilty plea. We affirm. The appellant originally pled not guilty to felony theft, but later signed a plea agreement changing his plea to guilty. In accordance with the plea agreementhewas given a two-year deferred sentence and was ordered to pay restitution, costs and attorney fees. He was also ordered to serve 90 days in the county jail with credit for time served. A little over eleven months later the county attorney's office petitioned the court to revoke appellant's original deferred sentence for numerous parole violations. After hearing the deferred sentence was revoked or vacated and the appellant was sentenced to ten years in the Montana State Prison with five years suspended. Inhis petition forpost conviction relief appellant contends his counsel was ineffective in failing to investigate the value of the property allcgcd to have been stolen and in advising him to plead guilty to felony theft because a jury would have convicted him of only a misdemeanor (less than $300 in value) rather than felony theft (over $300 in value). The victim reported the following items stolen from his van: an overcoat, fire extinguisher, car stereo, several cassette tapes, and prescription
sun glasses. The total value of the stolen items, according to the 2victim, was more than $450. Only the overcoat, worth $150, the fire extinguisher,worth $50,and several cassette tapeswere found in appellant's car and could be introduced as physical evidence. The appellant's rationale is that the recovered physical evidence had a value of $200 and therefore a jury could find him guilty of only a misdemeanor. The State, however, had a strong circumstantial case against appellant for the theft of the other items reported stolen, which would place the value of all of the stolen property at over $300. It was this fact which caused defense counsel to advise the appellant to plead guilty. We conclude there is substantial evidence to support the District Court's findings and conclusions that counsel did not fail to properly investigate the value of the stolen property and evaluate the evidence. We further find there is substantial evidence in the record to affirm the District Court's findingsand conclusionsthat appellant was fully informed of all of the relative facts and facets of the
case by his counsel and that he "intelligently and knowingly," and voluntarily pled guilty and admitted the crime. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not be cited as precedent and shall be published by its filing as a public document with the Clerk 

### of this Court and by 

### a report of its result to the West Publishing Company.We Concur:November 5. 1992 CERTIFICATEOFSERVICE Ihereby certify thatthefollowingorderwas sentby United States mail, prepaid, to thefollowing named:
ShawnH. Davis Montana StatePrison 700ConleyLake Rd. Deer Lodge, MT 59722 HON. MARCRACICOT,Attorney General JenniferAnders, Assistant Justice Bldg. Helena,MT 59601 Robert Deschamps, 111,County Attorney KarenTownsend,Deputy 200W. Broadway Missoula, MT59802

EDSMITH CLERKOFTHESUPREMECOURT STATEOFMONTANA