No. 80-401 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

HAZEL LEE DAY, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth ~udicial ~istrict, 

In and for the County of Missoula 

Honorable Jack L. Green, Judge.presiding. 

Counsel of Record: 

For Appellant: 

Hirst, Dostal & Withrow, Missoula, Montana 

John Dostal argued, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mary Troland argued, Assistant Attorney General, Helena, 

Montana 

Robert L. Deschamps 111, County Attorney, Missoula, 

Montana 

Ed McLean argued, Deputy County Attorney, Missoula, 

Montana 

- - pp 

Submitted: September 14, 1981 

Decided: October 22, 1981 

Filed: OCT 2 2 598t 

Clerk 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

 his is an appeal by the defendant, Hazel Lee Day, from 

an order of the District Court, for the Fourth Judicial 

~istrict, denying defendant's motion to withdraw her plea of 

guilty. We affirm. 

On December 17, 1979, defendant was charged in Missoula 

County with having committed aggravated assault by shooting 

her former husband in the chest, shoulder and face with a 

Colt .32 caliber weapon. Counsel was appointed to represent 

the defendant and on January 10, 1980, after consulting with 

counsel, the defendant entered a plea of guilty to the 

offense charged. Defendant was sentenced to a term of two 

years in prison with the recommendation that she be transferred 

to the Life Skills Training Center in Billings; she is 

currently on parole. 

In May 1980, defendant moved to withdraw her plea based 

upon the allegation that, at the time of entering her guilty 

plea, the defendant was ignorant of the potential defense of 

justifiable use of force. The trial court admittedly did 

not advise defendant with respect to the defense. The 

attorney who represented the defendant at the time of the 

entry of plea, filed an affidavit stating that he had discussed 

the defense with defendant and that she understood that the 

defense was available to her but chose to plead guilty. 

Hazel Day is a 64-year-old woman, born in West Virginia, 

to a coal mining family. She was the oldest of seven children 

and quit school in third grade to help care for the rest of 

her family. When she was fourteen, her mother died of tuberculosis and at fifteen her father died in a coal mining 

accident. At sixteen, the defendant married, adopted four 
of her brothers and sisters, and ultimately reared five of 

her own children. 

In 1959, defendant divorced her first husband and 

remarried. Her second husband died in 1966, when struck by a 

car allegedly driven by the defendant. Defendant pleaded 

guilty to manslaughter and was sentenced to six years in the 

Maryland State Prison. Her criminal record from 1954 to 

1970, also contains four separate misdemeanor events of 

minor thefts and disorderly conduct. 

In March of 1976, defendant married Athol "Ted" Day; 

they were separated a month later and divorced in March 

1979. During the three years of marriage, they cohabitated 

for about three months. Ted had problems with alcohol 

abuse. Defendant described him as seldom sober and when 

drunk, a veritable wild man. He was physically abusive to 

defendant. In 1977, Ted Day struck the defendant in the 

back with a telephone with sufficient force to cause nerve 

damage in her right hand necessitating surgery. In the same 

year he attempted to pull defendant's tongue from her mouth 

requiring surgery. On another occasion he threw a knife at 

the defendant. 

After the divorce Ted Day continued to contact the defendant, harassing her and threatening her. On Monday, 

November 27, 1979, defendant came home from work at about 

4:00 p.m. and found her former husband at her trailer home. 

He persuaded defendant to drive him to Lolo, Montana, for 

the purpose of transacting some business. On the return 

trip from Lolo, he purchased some beer and, after pushing 

defendant from the driver's seat, motored to the Rattlesnake 

area north of Missoula, Montana. They remained there until 

approximately 11~30 p.m. Ted drank all of the beer and then 

drove to a Missoula motel where he obtained a room. He was 
drunk and the defendant testified that she asked to go home. 

Ted pushed her up the stairs to the motel room. She was 

frightened. In the motel room he became very abusive and 

told her to remove her clothes. According to the defendant's 

version, Ted tore off most of her clothes. When he saw 

defendant was not drinking with him, he began throwing food 

and beer cans all over the room. Ted then took a pistol 

from defendant's purse and, according to defendant, requested 

her to shoot him. He then laid the pistol down on the night 

table and began throwing defendant up against the wall. She 

stated that af ter she was hurt she reached for the pistol 

and pointed it at Ted telling him not to come closer. 

Defendant stated that he grabbed for her again and she shot 

him several times. Ted was taken to the hospital and 

ultimately recovered. 

A public defender was appointed to represent the defendant. 

She testified that she talked to her attorney approximately 

three times and that he advised her to plead guilty. She 

stated that she did not remember her attorney talking to her 

about self-defense, but this was disputed by an affidavit 

filed by her attorney. The attorney stated he advised the 

defendant more than once of her right to self-defense and 

that she understood that the defense was available to her. 

The attorney stated that she wished to enter a guilty plea. 

The defendant entered a guilty plea on January 10, 

1980, before Judge Jack L. Green. On that day, Judge Green 

advised defendant of the charge and the statutorily mandated 

punishment. He advised her of her constitutional rights, 

including right to trial by jury. After the information was 

read to her, the court asked defendant if she was prepared 

to plead. She stated that she was and she then entered her 

plea of guilty. The trial court then asked defendant to 
relate in her own words what had happened just prior to the 

incident in question and defendant summarized the facts 

which are set forth in this opinion. 

The plea was accepted and defendant was thereafter sentenced on February 25, 1980, before Judge John S. Henson. 

The sentencing judge had the benefit of a presentence report 

containing defendant's version of the facts surrounding the 

shooting incident. After reviewing the presentence report, 

Judge Henson sentenced defendant to two years in the Montana 

State Prison with the recommendation that she be transferred 

to the Life Skills Training Center in Billings, Montana. 

The sole issue on appeal is whether the defendant's 

plea was voluntary. The trial court found it was. We find 

no abuse of discretion. 

A guilty plea must be entered voluntarily and with an 

understanding of the charge. Defendant must understand the 

consequences of the plea and the maximum penalty provided by 

the law for the offense. State v. Doty (1977), 173 Mont. 

233, 237, 566 P.2d 1388, 1391. In Yother v. State (1979), 

- 14ont. - , 597 P.2d 79, 83, 36 St.Rep. 1192, 1197, this 

Court said: 

"The standard by which the validity of a guilty plea 

is judged is whether the plea represents a voluntary 

and intelligent choice among the alternative courses 

of action open to the defendant as affirmatively 

disclosed by the record." 

The granting or denial of a motion to withdraw a plea 

of guilty lies within the sound discretion of the trial 

judge and will be reversed on appeal only upon a showing of 

abuse of Mont. that discretion. State v. Nelson (1979), -- - I 

603 P.2d 1050, 1053, 36 St.Rep. 2228, 2232. Defendant 

contends that discretion was abused in that (1) the trial 

court should have recognized defendant's version of the 

facts as being inconsistent with the plea of guilty and (2) 
the trial court, under these circumstances, had a duty to 

advise the defendant regarding self-defense. 

We do not find the defendant's version of the facts to 

be inconsistent with the plea of guilty. The trial court 

could have found, after listening to the facts recited, that 

the defendant used excessive force under the circumstances. 

In other words the jury could find that defendant, having a 

loaded weapon, could have removed herself from the danger of 

the motel room. Furthermore, the trial court had evidence 

before it which tended to cast doubt upon defendant's credibility. 

The trial court found, and there is substantial credible 

evidence to support the finding, that defendant, after 

consulting with counsel, chose to enter a plea of guilty 

rather than subject herself to the uncertainty of a trial. 

The facts in this record do not make it incumbent upon 

the trial court to advise the defendant regarding statutory 

defenses potentially available to the defendant. Defendant 

was represented by counsel and counsel, according to his 

affidavit, properly discharged his duty by discussing these 

defenses with his client. A discussion of defense strategy 

goes beyond the realm of trial court duty. If trial courts 

had to discuss potential defenses with an accused, the judge 

would have to advise the accused regarding potential constitutional challenges, as well as affirmative defenses existing 

under statutes. These responsibilities properly are vested 

in defense counsel and not in the trial judge. 

We find that there is substantial credible evidence to 

support the trial court's refusal to set aside defendant's 

plea of guilty. ~efendant's factual recitation was given in 

mitigation of sentence and did not conflict with her plea of 

guilty. According to defense counsel's affidavit, defendant 
was fully informed regarding the defense of "self-defense", 

and with a full understanding entered a plea of guilty. The 

trial court did not abuse its discretion in failing to set 

aside defendant's plea under these circumstances. 

The judgment of the trial court is affirmed. 

We Concur: 

Chief Justice 1.. 

Justices 

Mr. Justice Daniel J. Shea will file a dissent later.