No 

No. 98-250

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 52

STATE OF MONTANA,

Plaintiff and Respondent,

v.

LLOYD WILSON,

Defendant and Appellant.

APPEAL FROM: District Court of the Seventeenth Judicial District,

In and for the County of Blaine,

The Honorable John C. McKeon, Judge presiding.

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COUNSEL OF RECORD:

For Appellant:

Edmund F. Sheehy, Jr., Cannon & Sheehy; Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; John Paulson,

Assistant Attorney General; Helena, Montana

Submitted on Briefs: November 12, 1998

Decided: March 18, 1999

Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

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¶1. On March 11, 1987, Lloyd James Wilson was charged by information in the 

Seventeenth Judicial District Court, Blaine County, with deliberate homicide (count 

one) and accountability for deliberate homicide (count two). On May 14, 1987, 

Wilson filed an acknowledgment of waiver of rights by plea of guilty, and entered a 

guilty plea to both counts in accordance with the plea agreement. On May 13, 1992, 

Wilson filed a motion to withdraw his guilty pleas and a motion for appointment of 

counsel. On December 14, 1992, the District Court deemed Wilson's motion to 

withdraw his guilty pleas to be a petition for postconviction relief. On June 3, 1996, 

Wilson filed an amended petition for postconviction relief. On November 5, 1997, the 

District Court denied Wilson's amended petition for postconviction relief. Wilson 

appeals the District Court's denial of his request for postconviction relief. We affirm 

the judgment of the District Court.

¶2. The issue presented on appeal is whether the District Court erred when it denied 

Wilson's petition for postconviction relief.

FACTUAL BACKGROUND

¶3. On March 11, 1987, Lloyd James Wilson was charged by information with 

deliberate homicide (count one) and accountability for deliberate homicide (count 

two) in connection with the murders of Richard and Bernadette Cowen at a farm 

house in Blaine County on January 21, 1987. A codefendant, Robert Bone, was 

similarly charged in the same proceeding for his role in the murders. See Bone v. 

State (1997), 284 Mont. 293, 944 P.2d 734. Judge Leonard H. Langen was the original 

presiding judge in this case.

¶4. On May 14, 1987, after Robert Bone had pled guilty to charges pursuant to a plea 

agreement, Wilson appeared before Judge Langen with counsel, filed an 

acknowledgment of waiver of rights by plea of guilty, and entered a guilty plea to 

both counts in accordance with the plea agreement set forth in the acknowledgment. 

The acknowledgment states the potential punishment for each count, including the 

maximum punishment of death or life imprisonment. The acknowledgment also 

recognizes the sentence enhancement for use of a dangerous weapon which is 

required to run consecutively to any sentence imposed for each initial offense. See 

State v. Byers (1993), 261 Mont. 17, 861 P.2d 860, overruled on other grounds by State 

v. Rothacher (1995), 272 Mont. 303, 310, 901 P.2d 82, 86-87; State v. Egelhoff (1995), 

272 Mont. 114, 124, 900 P.2d 260, 266. These potential sentences were reviewed 

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orally by Judge Langen during the hearing on Wilson's plea agreement. Judge 

Langen did not specifically advise Wilson at the hearing that any terms of 

imprisonment imposed for the two counts could be made to run consecutive to each 

other or that the application of "good time" earned by Wilson could in any way be 

limited.

¶5. The plea agreement recited in the acknowledgment shows that the State agreed 

not to seek the death penalty for Wilson and further agreed to recommend 

concurrent sentences of 100 years each for the two counts, and a consecutive sentence 

enhancement of two years for the use of a weapon. The acknowledgment further 

recognizes that the State's recommendations are not binding upon the court and that 

the judge is not required to allow Wilson to withdraw his guilty pleas even if the 

judge wishes to sentence him more harshly.

¶6. At the hearing on the plea agreement, Wilson stated that he had read the 

acknowledgment several times and knew it "pretty well by heart." Judge Langen 

reviewed the provisions of the acknowledgment with Wilson, and Wilson stated that 

he had consulted with his attorneys and understood the terms and conditions 

contained in the acknowledgment. Wilson also stated that he understood that the 

court is not bound by the recommendation and may make an entirely different 

determination as to what an appropriate and fair sentence would be under the 

circumstances. Judge Langen thereafter accepted Wilson's guilty pleas.

¶7. On July 6, 1987, Judge Langen sentenced Wilson to a term of 100 years at the 

state prison for count one, with an additional consecutive term of ten years for using 

a weapon during the commission of the offense. Judge Langen sentenced Wilson to a 

consecutive term of seventy-five years for count two, with a consecutive term of ten 

years for the use of a weapon. Judge Langen stated that he intended Wilson to serve 

a total of 195 years, pursuant to the applicable statutes, with no portion suspended. 

The judge declared Wilson to be dangerous for purposes of parole eligibility and 

restricted Wilson's eligibility for parole or participation in any supervised release 

program for the first thirty years of his sentence with no "good time" allowances to 

be given against the thirty-year term. 

¶8. Wilson did not appeal from the sentencing order. On May 13, 1992, five years 

after entering his guilty pleas, Wilson filed a motion to withdraw his guilty pleas. 

Judge Langen deemed his motion a motion for postconviction relief. Wilson filed an 

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amended postconviction petition on June 3, 1996, which the District Court denied on 

November 5, 1997, and filed on November 7, 1997.

DISCUSSION

¶9. Did the District Court err when it denied Wilson's petition for postconviction 

relief?

¶10. Wilson contends that the District Court erred because Judge Langen did not 

properly advise him of the consequences of his guilty pleas, because Judge Langen's 

limitation on his "good-time" allowances was illegal, and because, contrary to the 

assertion of the District Court, his claims were not procedurally barred. Wilson's 

amended petition for postconviction relief requested that the District Court order the 

withdrawal of his guilty pleas or, alternatively, modify his sentences. Wilson urges 

this Court to reverse the District Court's denial of his petition for postconviction 

relief and remand this matter for modification of his sentence.

¶11. The standard of review of a denial of postconviction relief is whether substantial 

evidence supports the findings and conclusions of the district court. See State v. 

Sheppard (1995), 270 Mont. 122, 127, 890 P.2d 754, 757 (citing State v. Barrack (1994), 

267 Mont. 154, 159, 882 P.2d 1028, 1031). We review a district court's findings to 

determine if they are clearly erroneous, and the district court's conclusions to 

determine if the court correctly interpreted the law. See Bone v. State (1997), 284 

Mont. 293, 302-03, 944 P.2d 734, 740. 

¶12. Section 46-16-105(1)(b), MCA (1985), governed the entry of guilty pleas at the 

time Wilson's guilty plea was entered. That statute provides that "[b]efore or during 

trial, a plea of guilty may be accepted when . . . the court has informed the defendant 

of the consequences of his plea and of the maximum penalty provided by law which 

may be imposed upon acceptance of such plea." We have interpreted § 46-16-105 (1)

(b), MCA (1985), as requiring the district court to advise the defendant of the 

consequences of his guilty plea and the maximum sentence which may be imposed. 

See State v. Buckman (1989), 236 Mont. 37, 43, 768 P.2d 1361, 1365. Wilson argues 

that he was not properly advised of the maximum penalty because the District Court 

did not inform him that he could receive consecutive sentences for both counts and 

for the use of a weapon, amounting to a possible cumulative maximum sentence of 

220 years. Upon review of the record, we reject Wilson's argument for several 

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reasons.

¶13. First, the acknowledgment that Wilson signed clearly advises him of the 

maximum punishment provided by law for deliberate homicide and for 

accountability for deliberate homicide. The acknowledgment also contains sufficient 

language to inform Wilson that he could receive consecutive sentences. Because the 

sections of the acknowledgment which describe the potential punishment for each 

count are set forth in separate paragraphs, they are sufficient to have informed 

Wilson that there was a separate potential punishment of up to 100 years for each 

offense. Following these paragraphs there is a provision which recites the additional 

sentence of up to ten years for committing an offense with a dangerous weapon. That 

provision states that the additional sentence will "run consecutively to the sentence 

imposed for the initial offense." Because Wilson pled guilty to committing two initial 

offenses, the language "the initial offense" in this provision necessarily implies that 

the additional punishment possible for the use of a dangerous weapon is attached to 

each initial offense. (Emphasis added). We agree with the District Court that the 

acknowledgment form itself is sufficient to have informed Wilson that because he 

committed two separate offenses, he was subject to potential punishment for each 

offense and an additional potential punishment for the use of a dangerous weapon in 

each offense.

¶14. Following the recital of potential punishments and the trial rights which Wilson 

waived by his guilty plea, the acknowledgment sets forth the State's agreed 

sentencing recommendations. The State agreed to recommend that Wilson "be 

sentenced to a period of 100 years . . . on each count" with "each of these 

sentences . . . to run concurrently with the other." This language is clear and it 

unambiguously states the recommendation that "each sentence" run "concurrently." 

The State's recommendation in the plea agreement is important since without it the 

State may well have urged the court to "otherwise order" the sentences to run 

consecutively, as § 46-18-401(4), MCA (1985), permits.

¶15. Second, Wilson's awareness of the possibility of consecutive sentences is 

evidenced by the use of both terms, "concurrent" and "consecutive," in his 

acknowledgment. In the acknowledgment, the State recommended "concurrent" 

sentences on the initial offenses, and a "consecutive" sentence enhancement for the 

use of a dangerous weapon. Used in this manner, the language of the 

acknowledgment itself shows the distinction between the two terms and the two types 

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of sentences.

¶16. Third, Judge Langen's colloquy at the plea agreement hearing removes any 

remaining doubt as to whether Wilson was made aware of the sentencing 

possibilities. The judge correctly stated the punishment for each count, including a 

possible sentence of death or life imprisonment. After reciting the punishment for 

count one, Judge Langen stated that if Wilson pled guilty to count two, "the statute 

provides for the same punishment - exactly the same punishment." Judge Langen 

then addressed the sentence enhancement for the use of a dangerous weapon. At no 

time did the judge advise Wilson that the total possible sentence for the crimes 

charged was only 110 years. The only reasonable conclusion to be made from the 

language of the acknowledgment and transcript of the hearing was that Wilson could 

possibly receive 100 years, plus an additional ten years, on each count.

¶17. We have held that a written acknowledgment, combined with oral questioning 

of the defendant, constitutes adequate interrogation. See State v. Johnson (1995), 274 

Mont. 124, 907 P.2d 150; State v. Duff (1993), 262 Mont. 288, 865 P.2d 238. In this 

case, the specific terms of the acknowledgment of waiver of rights, together with 

Judge Langen's colloquy at the hearing, were sufficient to have informed Wilson of 

the maximum sentence for each count and the possibility of consecutive terms of 

imprisonment. Because Judge Langen did not incorrectly state the total possible 

years of punishment, this case is distinguishable from State v. Brown (1993), 262 

Mont. 499, 865 P.2d 282. 

¶18. In Brown, the original trial judge, upon entry of the defendant's guilty pleas, 

incorrectly advised the defendant that the maximum total punishment possible 

pursuant to the charge was thirty years. The defendant was ultimately sentenced to 

forty years. Upon review, we concluded that the defendant had not been properly 

advised of the maximum punishment at the time he entered his guilty pleas and that 

the sentence should be modified accordingly. In the present case, we decline to apply 

the holding in Brown because Judge Langen did not mislead Wilson by incorrectly 

stating the total possible years of punishment. Rather, he correctly stated the 

maximum possible penalty for each count.

¶19. In State v. Buckman (1989), 236 Mont. 37, 768 P.2d 1361, we indicated that the 

court need not advise the defendant beyond the specific requirements of §§ 46-16-105 

and 46-12-204, MCA (1985). Section 46-12-204, MCA (1985), requires the court to 

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advise the defendant "of the punishment as set forth by statute for the crime 

charged" and that the defendant and his counsel should consider "the most severe 

sentence that can be imposed for a particular crime."

¶20. We conclude that Judge Langen correctly advised Wilson of the maximum 

possible punishment which could be imposed as a result of each plea of guilty. Judge 

Langen complied with the statutory requirements and no further advice concerning 

sentencing possibilities was required.

¶21. Next, Wilson contends that Judge Langen did not have statutory authority to 

restrict Wilson's right to earn "good time" against the thirty-year term during which 

he is ineligible for parole. Wilson cites State v. Hatfield (1993), 256 Mont. 340, 346, 

846 P.2d 1025, 1029, in support of his contention that a district court can only impose 

a sentence that is provided for by statute. Wilson maintains that § 46-18-202(2), 

MCA (1985), contains no language that would allow a district court to restrict a 

defendant's right to earn "good time."

¶22. "Good time" allowances are authorized by § 53-30-105, MCA (1985), granted by 

the Department of Corrections, and operate as a credit on a prisoner's sentence. 

Wilson's total sentence of 195 years is therefore reduced by any "good time" which 

he is granted. Upon review of Judge Langen's sentencing order, we conclude that 

Wilson is not limited in earning "good time" against his sentence, but rather, his 

thirty-year period of ineligibility for parole is not to be reduced by any "good time" 

credits he receives toward his total sentence. Judge Langen's order does not affect 

Wilson's ability to earn "good time" based upon his good behavior and therefore the 

restriction is well within the court's authority pursuant to § 46-18-202(2), MCA 

(1985).

¶23. Finally, Wilson argues on appeal that the District Court should not have raised 

sua sponte the issue of whether Wilson's postconviction claims were procedurally 

barred because of his failure to directly appeal the sentencing order to this Court. 

See § 46-21-105, MCA (1985). We conclude, however, that while the District Court 

did suggest that the statutory procedural bar could be applied to Wilson's claims, the 

District Court fully discussed Wilson's claims on their merits and, therefore, 

contrary to Wilson's assertions, the procedural bar of § 46-21-105, MCA (1985), was 

not the primary or alternative basis for the District Court's decision to deny Wilson's 

postconviction relief.

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¶24. The record in this case supports the District Court's finding that Wilson was 

aware of the possibility that he could be sentenced to consecutive terms of 

imprisonment following his guilty pleas to the separate offenses of deliberate 

homicide and accountability for deliberate homicide. The record also supports the 

District Court's finding that Wilson was sufficiently made aware that he could 

receive two separate additional sentences for the use of a weapon during the 

commission of each initial offense. Finally, the District Court correctly interpreted 

Judge Langen's sentence when it declined to modify the "good time" restriction on 

Wilson's thirty-year parole ineligibility.

¶25. Accordingly, we conclude that the findings and conclusions of the District Court 

which serve as the basis for its denial of Wilson's petition for postconviction relief are 

supported by substantial evidence. None of the District Court's findings are clearly 

erroneous and our review of the District Court's conclusions leads us to conclude 

that the court correctly interpreted the law.

¶26. The judgment of the District Court is affirmed.

/S/ JIM REGNIER 

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

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Justice W. William Leaphart, specially concurring.

¶ 27 Although I concur with the Court's conclusions that when the plea agreement and the 

sentencing colloquy are read together, Wilson was adequately advised that he faced a 100-

year sentence on each count plus ten years on each count. However, I think the preferable 

approach in implementing the requirements of § 46-16-105(1)(b), MCA (1985), is to 

explicitly advise a defendant of the maximum penalty provided by law assuming that 

consecutive sentences are imposed for each count involved in the plea. For example, the 

defendant in this case would have been forewarned that if consecutive sentences were 

imposed for both counts in the plea he would be exposed to a maximum penalty of 220 

years.

/S/ W. WILLIAM LEAPHART

Justice James C. Nelson joins in the foregoing specially concurring opinion.

/S/ JAMES C. NELSON

Justice Terry N. Trieweiler specially concurring.

¶27. I specially concur with the majority opinion. While I agree with the result, I do 

not agree with all the reasons given for that result. 

¶28. For example, as pointed out in the majority opinion, pursuant to § 46-16-105(1)

(b), MCA (1985), and as applied by our decision in State v. Buckman (1986), 236 

Mont. 37, 43, 768 P.2d 1361, 1365, the district court must advise a defendant of the 

maximum penalty provided by law before the district court can accept a guilty plea. 

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In this case, had the maximum penalty for each offense been 100 years of 

imprisonment and the possible enhancement by ten years for use of a weapon, I 

believe that this statute and our prior decision would have required that the District 

Court advise Wilson that all periods of imprisonment could be imposed 

consecutively, and that the maximum term of imprisonment would, in that event, 

have been 220 years. The District Court did not do that, nor was that information 

included at any point in the acknowledgment of waiver of rights. I disagree with the 

majority's conclusion that "[t]he acknowledgment also contains sufficient language 

to inform Wilson that he could receive consecutive sentences." Wilson was told that 

the sentence enhancement for each offense could run consecutive to the basic 

sentence for each offense, but was never advised that the term of imprisonment for 

one offense could be imposed consecutive to the term of imprisonment for the other 

offense. 

¶29. However, the maximum sentence provided by law for the offenses to which 

Wilson pled guilty was not imprisonment for a period of years. Section 45-5-102, 

MCA, provides the following possible sentences for deliberate homicide or deliberate 

homicide by accountability:

(2) A person convicted of the offense of deliberate homicide shall be punished by death as 

provided in 46-18-301 through 46-18-310, by life imprisonment, or by imprisonment in 

the state prison for a term of not less than 10 years or more than 100 years, except as 

provided in 46-18-219 and 46-18-222.

¶30. Punishment by death or imprisonment for life are both more severe sentences 

than imprisonment for a period of years, and Wilson was advised of both of those 

possibilities in the colloquy cited in ¶ 16 of the majority opinion. It is therefore my 

conclusion that without regard to the lack of any advice about the possibility for 

consecutive sentences, Wilson was advised of the maximum penalties provided by law 

for each of the offenses to which he pled guilty. For that reason, I specially concur 

with the majority's conclusion that the District Court's advice to Wilson satisfied the 

requirements of § 46-16-105(1)(b), MCA (1985).

¶31. I also concur with the remaining conclusions expressed in the majority opinion 

and with the reasons given therefore.

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/S/ TERRY N. TRIEWEILER

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