DA 16-0727

IN THE SUPREME COURT OF THE STATE OF MONTANA

2018 MT 40N

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

RANDY BILL RING,

 Defendant and Appellant.

APPEAL FROM: District Court of the Third Judicial District,

In and For the County of Powell, Cause No. DC 06-03

Honorable Ray Dayton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Randy Bill Ring, Self-Represented, Deer Lodge, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant

Attorney General, Helena, Montana

Lewis K. Smith, Powell County Attorney, Deer Lodge, Montana

Submitted on Briefs: January 24, 2018

 Decided: March 6, 2018

Filed:

__________________________________________

Clerk

03/06/2018

Case Number: DA 16-0727
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Justice James Jeremiah Shea delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating 

Rules, this case is decided by memorandum opinion and shall not be cited and does not 

serve as precedent. Its case title, cause number, and disposition shall be included in this 

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana 

Reports. 

¶2 Randy Bill Ring (“Ring”) appeals the Powell County District Court’s Order denying 

his Motion to Withdraw a Plea of Guilty of two counts of forgery in violation of 

§ 45-6-325(1)(b), MCA, and denying his Motion for Discovery. In 2006, the State charged 

Ring with two counts of forging signatures on a car and motorcycle lien. On October 16, 

2007, Ring signed a written Plea Agreement and Waiver of Rights pleading guilty to two 

counts of forgery, and the District Court held a change of plea hearing the same day. At 

the hearing, counsel presented the written Plea, and the District Court proceeded through a 

colloquy, questioning Ring about whether he understood the rights he was waiving and 

was entering his pleas freely and voluntarily. Ring acknowledged he understood the rights 

he was waiving, and stated that he was entering his pleas freely and voluntarily, and the 

District Court accepted Ring’s pleas. On April 3, 2008, the District Court entered a 

judgment and sentenced Ring to ten years suspended on each forgery count, to run 

concurrent with each other. In the judgment, the District Court specifically found that 

Ring’s guilty pleas were freely and voluntarily entered. 

¶3 In 2011, the State petitioned to revoke Ring’s forgery sentence; Ring admitted the 

revocation allegations and, on February 28, 2012, the District Court entered a judgment on 
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the Petition to Revoke. On March 1, 2012, the District Court entered an amended judgment 

revoking the suspended portion of Ring’s sentence. Ring applied for sentence review. In 

2013, the Sentence Review Division affirmed the District Court’s judgment. 

¶4 On April 20, 2016, Ring filed a Motion to Withdraw his Guilty Plea and a Motion 

for Discovery. On November 10, 2016, the District Court issued its order denying Ring’s 

Motion to Withdraw a Plea of Guilty and, because his Motion for Discovery was contingent 

on his Motion to Withdraw a Plea of Guilty, this Motion was also denied. The District 

Court held that Ring’s Motion to Withdraw a Plea of Guilty was time barred because he 

failed to present a factual basis for newly discovered evidence. Further, the District Court 

again held that Ring had entered valid guilty pleas based on the words of the signed plea 

agreement and the colloquy conducted prior to entry of the plea, and that there was “no 

factual basis presented to conclude [Ring] entered guilty pleas because defense counsel or 

anyone else threatened him.” Ring appeals.

¶5 Upon a showing of good cause, a district court may allow a defendant to withdraw 

a guilty plea before judgment or within one year after judgment of conviction becomes 

final. Section 46-16-105(2), MCA. This Court reviews a district court’s ruling on a motion 

to withdraw a plea to determine whether the plea was voluntary. State v. Muhammad, 2005 

MT 234, ¶ 12, 328 Mont. 397, 121 P.3d 521. Determining the voluntariness of a plea is 

not a discretionary matter, but a mixed question of law and fact to be reviewed de novo; 

thus, we review underlying findings of fact for clear error, questions of law for correctness, 

and the ultimate question of voluntariness de novo. State v. Warner, 2015 MT 230, ¶ 9, 

380 Mont. 273, 354 P.3d 620 (citing State v. Warclub, 2005 MT 149, ¶¶ 17, 24, 327 Mont. 
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352, 114 P.3d 254); see also State v. Lone Elk, 2005 MT 56, ¶ 19, 326 Mont. 214, 108 P.3d 

500, overruled in part by State v. Brinson, 2009 MT 200, ¶ 9, 351 Mont. 136, 210 P.3d 

164. Finally, a defendant’s claims of ineffective assistance of counsel (“IAC”) are mixed 

questions of law and fact we review de novo. Whitlow v. State, 2008 MT 140, ¶ 9, 343 

Mont. 90, 183 P.3d 861. 

¶6 A guilty plea is valid if made knowingly, voluntarily, and intelligently. State v. 

Keys, 1999 MT 10, ¶ 12, 293 Mont. 81, 973 P.2d 812. However, a guilty plea may be 

withdrawn for good cause, including involuntariness. Section 46-16-105(2), MCA; State 

v. McFarlane, 2008 MT 18, ¶ 11, 341 Mont. 166, 176 P.3d 1057; Warclub, ¶ 16. In 

determining the voluntariness of guilty pleas, we apply the United States Supreme Court’s 

standard from Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463 (1970), and we will not 

overturn a district court’s denial of a motion to withdraw a guilty plea “if the defendant 

was aware of the direct consequences of such a plea, and if his plea was not induced by 

threats, misrepresentation, or an improper promise such as a bribe.” Warclub, ¶ 32 (citing 

Brady, 937 U.S. at 755, 90 S. Ct. at 1472).

¶7 A motion to withdraw a guilty plea must be filed within one year after the judgment 

becomes final. Section 46-16-105(2), MCA. A judgment becomes final “when the time 

of appeal to the Montana Supreme Court expires . . . .” Section 46-16-105(2)(a), MCA. 

An appeal of a criminal judgment “must be taken within 60 days after entry of the judgment 

from which the appeal is taken.” M. R. App. P. 4(5)(b)(i). A narrow exception applies 

when a convicted person raises a claim of actual innocence supported by evidence, which 

would result in a fundamental miscarriage of justice were he not allowed to withdraw his 
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guilty plea. Section 46-16-105(2), MCA; see also State v. Montgomery, 2010 MT 193, 

¶¶ 17–18, 357 Mont. 348, 239 P.3d 929. The burden remains on the convicted person to 

make a showing of innocence. Section 46-16-105(2), MCA; Montgomery, ¶¶ 17–18. 

¶8 A criminal defendant’s right to counsel under the Sixth Amendment of the United 

States Constitution and Article II, Section 24, of the Montana Constitution includes the 

right to effective assistance of counsel. Miller v. State, 2012 MT 131, ¶ 12, 365 Mont. 264, 

280 P.3d 272. We apply the two-pronged test set forth in Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052 (1984), to a defendant’s claim of IAC. Whitlow, ¶ 10. The first 

prong of the Strickland test requires the defendant to show that his counsel’s performance 

was deficient, which requires he prove that counsel’s performance fell below an objective 

standard of reasonableness. Whitlow, ¶ 10 (citing Strickland, 466 U.S. at 687, 104 S. Ct. 

at 2064); Bishop v. State, 254 Mont. 100, 103–04, 835 P.2d 732, 734 (1992). The second 

prong of the Strickland test requires the defendant to prove that his counsel’s deficient 

performance prejudiced the defense, which requires he demonstrate a reasonable 

probability that, but for counsel’s errors, he would not have pled guilty and would have 

insisted on going to trial. State v. Thee, 2001 MT 294, ¶ 9, 307 Mont. 450, 37 P.3d 741, 

overruled on other grounds by Whitlow, ¶ 13; State v. Turner, 2000 MT 270, ¶ 65, 302 

Mont. 69, 12 P.3d 934. 

¶9 Ring argues on appeal that his plea was not entered voluntarily, intelligently, and 

knowingly, and that he misunderstood the nature of the plea agreement and consequences 

of the plea. Ring further asserts that the plea colloquy transcript is incomplete because he 

had a private conversation with his counsel during the change of plea hearing where he 
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stated that he believed he was innocent and therefore did not wish to plead guilty. Ring 

also argues that his attorney told Ring that if he went to trial he would be convicted. Finally, 

Ring argues that his motion to withdraw is not time barred because he had discovered new 

evidence that supports his innocence and that sealed documents filed in the record contain 

evidence supporting his innocence.

¶10 The State counters that Ring provides no evidence to support his claim of actual 

innocence or to show a fundamental miscarriage of justice would occur should he not be 

allowed to withdraw his guilty plea, entered in 2007. Further, the State contends that under 

§ 46-16-105(2)(a), MCA, any motion to withdraw Ring’s guilty plea is time barred. We 

agree. 

¶11 Ring has not presented any evidence to support his claim of innocence; he merely 

asserts that new evidence exists. Further, when Ring signed the agreement he agreed orally 

and in writing that he entered the pleas knowingly, voluntarily, and competently and not 

because of pressure, coercion, or threats by the State or anyone else. Ring acknowledged 

that he reviewed the agreement and waiver of rights and that he was mentally competent 

and not under the influence of alcohol or other drugs. Ring has failed to support his claim 

of innocence or to show that a fundamental miscarriage of juice would occur were he not 

allowed to withdraw his pleas. See Montgomery, ¶¶ 17–18. Instead, he has proffered only 

insufficient conclusory statements that do not overcome the steep hurdle to avoid the time 

bar. See Montgomery, ¶ 18. Ring did not demonstrate good cause to withdraw his guilty 

pleas made in 2007. See Warclub, ¶¶ 16, 35; McFarlane, ¶ 11. Since his claim of 

innocence is not supported by evidence, Ring’s Motion to Withdraw a Plea of Guilty must 
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have been entered before the judgment or within one year after the judgment became final. 

See § 46-16-105, MCA; M. R. App. P. 4(5)(b)(i); see also Montgomery, ¶ 16 (we have long 

held that there must be some finality in criminal cases). 

¶12 Further, we agree with the District Court that Ring fails to support his claim that 

defense counsel acted coercively; instead, it appears defense counsel was merely advising 

Ring of his choice to plead guilty or proceed to trial. See Turner, ¶ 65. “There is no factual 

basis presented to conclude [Ring] entered guilty pleas because defense counsel or anyone 

else threatened him.” His pleas were validly made. See Keys, ¶ 12. 

¶13 Ring’s Motion to Withdraw was filed more than six years after his conviction 

became final on June 3, 2008. It is therefore time barred under § 46-16-105, MCA. The 

District Court did not err in dismissing Ring’s Motion to Withdraw his Guilty Plea and his 

Motion for Discovery. 

¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our 

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the 

Court, the case presents a question controlled by settled law or by the clear application of 

applicable standards of review. The District Court’s findings of fact are not clearly 

erroneous, and the District Court’s interpretation and application of the law were correct. 

¶15 Affirmed.

/S/ JAMES JEREMIAH SHEA

We Concur: 

/S/ MIKE McGRATH

/S/ LAURIE McKINNON

/S/ JIM RICE