### 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,AssistantAttorney 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: 

## OCT22 598t

ClerkMr. 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 DistrictCourt, for the Fourth Judicial ~istrict, denying defendant's motion towithdraw her plea of guilty. We affirm. On December 17, 1979, defendantwas charged inMissoula County with having committed aggravated assaultby shooting her former husband inthe chest, shoulder and facewith 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 

### termof two years inprison with the recommendation that she be transferred to the Life SkillsTraining Center inBillings; she 

### is currently on parole. InMay 1980, defendantmoved towithdraw her plea based upon the allegation that, atthe time of entering her guilty plea, the defendantwas ignorant of the potential defense of justifiable use of force. The trialcourt admittedly did not advise defendantwith respect to the defense. The attorney who represented the defendant atthe 

### timeof the entry of plea, filedan affidavit stating thathe had discussed the defense with defendant and that she understood that the defense was available to her but chose toplead guilty. Hazel Day 

### is a 64-year-old woman, born inWestVirginia, to a coal mining family. She was the oldest of seven children and quit school in third grade tohelp care for the 

### rest of her family. When shewas fourteen, her mother died of tuberculosis and atfifteenher father died ina coalmining accident. Atsixteen, the defendant married, adopted fourof her brothers and 

### sisters, and ultimately reared five of her own children. In 1959, defendant divorced her firsthusband and remarried. Her second husband died in 1966, when struck by a

car allegedly drivenby the defendant. Defendant pleaded guilty tomanslaughter and was sentenced to sixyears in the Maryland StatePrison. Her criminal record from 1954 to 1970, also contains four separatemisdemeanor events of minor thefts and disorderly conduct. InMarch of 1976, defendantmarried Athol "Ted" Day; they 

### were separated a month later and divorced inMarch 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. Hewas physically abusive to defendant. In 1977, Ted Day struck the defendant in the back with a telephone with sufficient force to cause nerve damage inher righthand necessitating surgery. In the same year he attempted topull defendant's tongue from her mouth requiring surgery. On another occasion he threw a knife at the defendant. After the divorce Ted Day continued tocontact the defendant, harassing her and threatening her. On Monday, November 27, 1979, defendant came home from work atabout 4:00 p.m. and found her former husband ather trailer home. Hepersuaded 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, afterpushing 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 allof the beer and then drove to

### a Missoula motel where he obtained a room. Hewasdrunk and the defendant testified that she asked to go home. Ted pushed her up the 

### stairs to the motel room. She was frightened. In themotel room he became very abusive and told her toremove her clothes. According to the defendant's version, Ted tore off most of her clothes. When he saw defendant was not drinkingwith him, he began throwing food and beer cans allover 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 after she was hurt she reached for the pistol and pointed 

### it atTed 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 torepresent the defendant. She testified that she talked to her attorney approximately three times and that he advised her toplead guilty. She stated that she did not remember her attorney talking toher about self-defense, but thiswas disputed by an affidavit filedby her attorney. The attorney statedhe advised the defendant more than once of her right to self-defense and that she understood that the defense was available toher. The attorney stated that she wished toenter a guiltyplea. The defendant entered a guiltyplea on January 10, 1980, before Judge Jack L. Green. On thatday, Judge Green advised defendant of the charge and the statutorilymandated punishment. He advised her of her constitutional rights, including right to trialby jury. After the information was read toher, the court asked defendant if she was prepared toplead. She stated that shewas and she then entered her plea 

### of guilty. The trialcourt then asked defendant torelate inher own words what had happened just prior to the incident inquestion and defendant summarized the facts which are setforthinthis opinion. The plea was accepted and defendantwas 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 StatePrison with the recommendation that she be transferred to the Life SkillsTraining Center inBillings, Montana. The sole issue on appeal 

### iswhether the defendant's plea was voluntary. The trial court found itwas. We find

no abuse of discretion. A guiltyplea 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. Statev. Doty (1977), 173Mont. 233, 237, 566 P.2d 1388, 1391. InYother v. State (1979), 14ont. 

## , 597 P.2d 79, 83, 36 St.Rep. 1192, 1197, this 

### - 

## - Court said: "The standardby which the validityof 

### a guiltyplea 

### isjudged 

### iswhether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant asaffirmatively disclosedby the record." The granting ordenial of a motion towithdraw a plea of guilty 

### lieswithin the sound discretion of the trial judge and 

### willbe reversed on appeal only upon a showing of Mont. abuse of thatdiscretion. Statev. Nelson (1979), 

### -- 

## - I 603 P.2d 1050, 1053, 36 St.Rep. 2228, 2232. Defendant contends thatdiscretionwas abused inthat (1)the trial court should have recognized defendant's version of the facts asbeing inconsistentwith the plea of guilty and (2)the trial court, under these circumstances, had a duty to advise the defendantregarding self-defense. We do not find the defendant's version of the facts to be inconsistentwith 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 courthad evidence before 

### itwhich tended to castdoubt 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 inthisrecord do notmake 

### 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 trialcourtduty. If trialcourts had to discuss potential defenses with an accused, the judge would have to advise the accused regarding potential constitutional challenges, as

### wellasaffirmative defenses existing under statutes. These responsibilities properly 

### are vested indefense counsel and not inthe trialjudge. 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 conflictwith her plea of guilty. According todefense 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 courtdid 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. Sheawill file a dissent later.