No. 96-008 

IN THE SUPREME COURL OF THE STATE OF WONTANA 

1997 

DARRELL W. SPARKS, 

Defendant and Appellant 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Custer, 

The Honorable Kenneth R. Wilson Judge presiding. 

COUPTSEL OF RECORD: 

For Appellant: 

Darrell Wade Sparks, Pro Se, 

Spur, Texas 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Jennifer Aaders, Assistant Attorney General, 

Helena, Montana 

Garry P. Bunke, Custer County Attorney, 

Miles City, Montana 

Filed: 

Submitted on Briefs: January 30, 1997 

Decided : March 3, 1997 
Justice Jim Regnier delivered the opinion of the Court. 

Pursuant to Section I, Paragraph 3!c), Montana Supreme Court 

1995 Internal Operati~g Rules, the following decision shall not be 

cited as precedent and shall be published by its filing as a public 

document with the Clerk of the Supreme Court and by a report of its 

result in State Reporter Publishing Company and West Publishing 

Company. 

Darrell W. Sparks was charged in the Sixteenth Judicial 

District Court, Custer County, with one count of deliberate 

homicide pursuant to § 45-5-102 (1) (a) , MCA, and one count of 

aggravated burglary pursuant to § 45-6-204 (2) (a) , MCA. Sparks 

entered a plea of guilty to the lesser included offense of 

mitigated deliberate homicide pursuant to § 45-5-103 (l), MCA, and 

to the aggravated burglary charge and was sentenced by the District 

Court. Sparks appeals from the judgement, conviction, and order. 

We affirm. 

The following issues are presented on appeal: 

I. Was evidence pertaining to Sparks's guilt illegally 

suppressed? 

2. Did the sentencing court rely on inadmissible evidence at 

sentencing? 

3. Did the sentencing court rely on inaccurate information 

at sentencing? 

4. Did the sentencing court violate B 46-18-101, MCA, when 

sentencing Sparks? 

5. Did Sparks receive ineffective assistance of coznsel? 
6. Should this Court consider allegations of mental disease 

as a basis for invalidating Sparks's conviction and sentence? 

FACTUAL BACKGROUND 

On November 4, 1992, Darrell W. Sparks unlawfully entered the 

apartment of Steve Allen in Miles City and fatally shot his 

estranged wife, Marie Sparks. Sparks turned himself in to the 

Miles City Police Department and gave a statement in which he 

confessed to the crimes. 

Sparks was appointed counsel, J. B. Wheatcroft, who gave 

notice of intent to rely on a mental disease or defect to prove 

that Sparks did not have the state of mind which was an element of 

the offense charged. Soon after, Sparks requested new counsel and 

J. Dennis Corbin was substituted in place of Wheatcroft. 

On December 15, 1992, Sparks was admitted to Warm Springs 

State Hospital where personnel conducted a psychiatric evaluation, 

a social history report, and a psychological testing report. 

Sparks was diagnosed with a personality trait identified as an 

adjustment disorder with mixed disturbance of emotions and conduct 

and avoidant personality disorder. 

On May 20, 1993, Sparks signed an acknowledgment of rights and 

plea bargain agreement in which he pled guilty to mitigated 

deliberate homicide and one count of aggravated burglary. The 

prosecution recommended a sentence of forty years on the homicide 

charge, plus ten consecutive years for use of a weapon, and forty 

years on the burglary charge to be served concurrently with the 

other sentences. Following a hearing on July 27, 1993, the 
sentencing court adopted the recommendation in the plea agreement 

and sentenced Spar:ks accordingly. 

STANDARD OF REVIEW 

The standard of review of evidentiary rulings is whether the 

district court abused its discretion. State v. Crist (1992), 253 

Mont. 442, 445, 833 P.2d 1052, 1054. The district court has broad 

discretion to determine whether or not evidence is relevant and 

admissible, and absent a showing of an abuse of discretion, the 

trial court's determination will not be overturned. Crist, 253 

Mont. at 445, 833 P.2d at 1054. 

ISSUE 1 

Was evidence pertaining to Sparks's guilt illegally 

suppressed? 

Sparks argues that certain evidence was suppressed or withheld 

from him by the court, his own counsel, law enforcement, and the 

presentencing investigator in violation of his constitutional 

rights. First, a letter written by him to the District Court 

asking it to consider the fact that he was under the influence of 

a "hypnotic suggestion" at the time of the crime. Second, another 

letter written by him to the District Court corqlaining that the 

Miles City Police Department failed to return a family video and 

photographs to him. Next, Sparks claims that he never received a 

copy of an autopsy report of the victim and a transcript of his 

admissions made to the police. He also claims the testimony of his 

court-appointed psychologist, Dr. Trapel, was suppressed because he 
was excused prior to the completion of the sentencing hearing. 

Finally, Sparks believes that Dr. Tranel suppressed evidence 

favorable to him by not interviewing his children. 

In Brady v. Maryland (l963), 373 U.S. 83, 86-68, the United 

States Supreme Court held that suppression by the prosecutor of 

evidence that is favorable to the accused who has requested it 

violates due process where the evidence is material to either guilt 

or punishment. However, any rights that Sparks has under Brady 

with respect to each item of alleged suppressed evidence is waived 

by his guilty plea. A plea of guilty voluntarily and 

understandingly made constitutes a waiver of nonjurisdictional 

defects and defenses, including claims of violations of 

constitutional rights prior to the plea. The reasoning is that a 

person pleading guilty is convicted ar.d sentenced on his plea and 

not on the evidence. State v. Turcotte (1974), 164 Mont. 426, 428, 

524 P.2d 787, 788. See also Hagan v. State (1994), 265 Mont. 31, 

873 P.2d 1385 (the law provides that, upon entry of a guilty plea, 

a defendant waives all factual defenses, issues, and constitutional 

claims which arose prior to the entry of the plea). 

Sparks asserts that the first letter was wrongly suppressed by 

the District Court because the letter was sealed into the record 

without his knowledge and its contents should have been considered 

during sentencing. The record shows that during sentencing the 

District Court asked Sparks about the letter and confirmed that he 

did not intend for it to be considered as evidence of a potential 
defense that might invalidate his plea. We conclude that the claim 

that this letter was suppressed lacks merit. 

With respect to the ietter claiming that he never saw the 

family videotape a~d photographs, the autopsy report, the 

transcript of admissions, the failure of the investigator to 

interview his children, and the District Court's excusal of 

Dr. Tranel prior to the completion of the sentencing hearing, 

Sparks fails to show the relevance of how each would be exculpatory 

evidence under Brady. The Court sees no basis in the aryJment that 

any of the above-mentioned items of evidence were suppressed and 

prejudiced Sparks in the sentencing. 

ISSUE 2 

Did the sentencing court rely on inadmissible evidence at 

sentencing? 

Sparks claims that the District Court relied upon inadmissible 

evidence when sentencing him. He claims both the plea agreement 

and the Warm Springs report should not have been considered by the 

court. 

First, Sparks contends that the District Court should not have 

considered the plea agreement at sentencing because his version of 

the crime set forth in the agreement was not in his words but pure 

"legaleseN written upon advice from his attorney. He argues that 

the piea agreement should have taken into consideration that he 

committed the crime while under hypnotic suggestion. Also, he 

contends that the court should not have considered the plea 
agreement because it contains a statement limiting appeals upon 

eztry of a guilty piea. 

There is no indication that the version of the crime, as set 

forth in the plea agreement, played any part in the sentencing 

process. The District Court found no evidence to support his claim 

that he is mentally ill. There is also no reason to believe that 

the statement in the plea agreement limiting appeals had any effect 

during sentencing. 

Sparks also claims that the Warm Springs report was used 

against him at sentencing in violation of a motion to exclude which 

defense counsel filed prior to sentencing. Section 46-14-212, MCA 

(1991;, provided: 

A statement made for the purpose of psychiatric or 

psychological examination or treatment provided for in 

this section by a person subjected to examination or 

treatment is not admissible in evidence against the 

person at trial on any issue other than that of the 

person's mental condition. 

Defense counsel claimed that any statements inadmissible at trial 

would be inadmissible at sentencing, therefore the court should 

exclude any portions of the Warm Springs report attached to the 

presentencing investigator's report. 

The record provides that rhe District Court and the prosecutor 

did not improperly refer to the Warm Springs report during the 

hearing. Also, Sparks does not show and the record does not 

provide how the sentencing court improperly relied on information 

from Warm Springs. The Court concludes that the District Court did 

not rely upon the Warm Springs Report when sentencing Sparks. 
ISSUE 3 

Did tne sentencing court rely on inaccurate information at 

sentencing? 

First, Sparks objects to the Warm Springs report that stated 

he was suffering from a personality disorder. Sparks believes that 

he is suffering from a "schizotypal disorder." Sparks claims that 

the District Court relied on this inaccurate evidence at 

sentencing. 

Sparks clearly had the opportunity to bring this information 

to the attention of the District Court at the time of sentencing. 

Neither Sparks nor his attorney mentioned that the Warm Springs 

report was inaccurate at the time of sentencing. In any event, 

this Cour~ concludes that the District Court did not rely upon any 

information in the Warm Springs report when sentencing Sparks. 

Thus, any inaccurate information contained in the report had no 

effect upon Sparks's sentencing. 

Next, Sparks contends that the presentencing investigation 

report was incomplete because the investigator failed to interview 

his children. Sparks fails to show, however, that any prejudice 

resulted from the lack of this information. This Court sees no 

prejudice that resulted from the investigator failing to interview 

his children. 

Finally, Sparks contends that he was sentenced on incomplete 

information because Dr. TraneL, the court-appointed psychologist, 

was excused as a witness before sentencing was completed. The 

reccrd shows that Dr. Tranel had the opportanity to testify fully 

8 
and that his presence was not required for the full hearing. 

Again, Sparks fails to show how he was prejudiced by Dr. Tranei 

leaving the hearing before sentencing was complete. 

ISSUE 4 

Did the sentencing court violate § 46-18-101, MCA, when 

sentencing Sparks? 

Sparks claims the District Court did not sentence him in 

accordance with the crime committed or the circumstances of the 

offense because of its failure to consider the "hypnotic 

suggestion" defense. Subsection (3) of § 46-18-101, MCA, specifies 

the factors to be considered by a district court when sentences are 

imposed. These factors are: t-ype of crime committed, the prospects 

of rehabilitation of the offender, the circumstances of the crime, 

the criminal history of the offender, and consideration of 

alternatives to imprisonment of the offender in the state prison. 

The record clearly provides that both parties had the 

opportunity to argue the factors set forth in § 46-18-101, MCA, 

during the sentencing hearing. Sparks voluntarily agreed to the 

plea bargain agreement that set his sentence, and he got what he 

bargained for. State v. Turcotte (l9?4), 164 Mont. 426, 428, 524 

P.2d 787, 788. This Court concludes that the District Court 

properly sentenced Sparks in accordance with § 46-18-101(3), MCA. 

ISSUE 5 

Did Sparks receive ineffective assistance of counsel? 

Sparks argues that both his attorneys, Wheatcroft and Corbin, 

were ineffective. This Court reviews ineffective assistance of 

9 
counsel claims utilizing the two-part test in Strickland v. 

Washington 4 466 U.S. 568. Under this test, is the 

defendant's obligation to demonstrate that his counsel did not 

provide assistance within the range of competence demanded of 

attorneys in criminal cases and that counsel's deficient 

performance resulted in prejudice. Specifically, in the context of 

the type of issue presented here, the defendant must establish that 

but for his counsel's deficient performance he would not have pled 

guilty and would have insisted upon going to trial. Hill v. 

Lockhart (1985), 474 U.S. 52, 59; State v. Langford (19911, 248 

Mont. 420, 432, 813 P.2d 936, 947. 

Sparks has failed to demonstrate any factual basis for his 

ineffective assistance of counsel claim against Wheatcroft. 

Wheatcroft's involvement in the case consisted of filing a notice 

of the intent to rely upon mental disease or defect as a defense 

with the District Court. He was not involved in the plea 

bargaining or sentencing process. Sparks does not allege how 

Wheatcroft's brief involvement affected the outcome of his case. 

This Court concludes that Sparks has failed to meet the test in 

Strickland by not establishing how any deficiencies of Wheatcroft's 

performance would have led him to not pled guilty and, thus, would 

have insisted upon going to trial. 

Sparks first claims that Corbin did not allow him to view a 

family video and photographs which were held by the Miles City 

Police Department. Spirks alleges that the video contradicted 

10 
potential witness statements against him. However, Sparks does not 

allege how the failnre to let hiw. see these items prejudiced his 

case. This Court does not find any pre?udice in Corbin's failure 

to let Sparks view these materials. 

Next, Sparks argues that Corbin should have obtained a copy of 

the prescription drug Meclizine to prove that the drug existed and 

influenced his actions. Sparks claims that he had taken thirty 

Meclizine pills in the month before the killing and that the drug 

affected his actions. The record shows that the District Court 

took into account that Sparks was acting under extreme mental or 

emotional distress on the night of the killing. Also, Sparks does 

not show how a copy of a prescription for this medication would 

have affected the outcome of his case. The claim fails to meet the 

Strickland test. 

Third, Sparks claims that Corbin should have pursued a defense 

of hypnotic suggestion because it may have resulted in an 

acquittal. Also, Sparks claims that Corbin should have mentioned 

during the sentencing hearing that he was acting under hypnotic 

suggestion. 

For an acquittal, Sparks would have t.o prove that he did not 

have the requisite mental state, either purposely or knowingly, 

when the crime was committed. Sparks fails to prove that Corbin's 

disregard for this defense constituted ineffective assistance of 

counsel. The decision whether to go to trial to disprove the 

requisite mental state or to plead guilty to mitigated deliberate 

homicide is a tactical cne. This Court has previousiy stated that 
it will not second guess counsel's tactical decisions. State v. 

to do so pow. 

At the sentencing hearing, Corbin stated that Sparks had acted 

under extreme emotional and mental stress at the time of the 

homicide. Corbin successfully argued that, due to his mental 

state, Sparks should be found guilty of mitigated deliberate 

homicide rather than deliberate homicide. We do not see where 

Corbinl s failure to mention "hypnotic suggestion" prejudiced Sparks 

in any way. 

Third, Sparks ciaims that Corbin was incompetent because he 

allowed him to sign a plea agreement which forbade him from 

appealing and violated his Fifth Amendment right against 

self-incrimination. However, Sparks voluntarily signed the 

agreement, which provides that all factual and legal defenses which 

arose prior to entry of the plea are waived upon its entry. Sparks 

is not challenging the voluntariness of his plea. 

Fourth, Sparks claims that Corbin should have objected to 

statements from a relative of the victim at sentencing. The person 

stated that Sparks woald "kill againN and was a "parasite." Any 

objection to victim impact evidence would have served no purpose 

because Sparks had already agreed to the sentence through the plea 

bargain agreement. Sparks also fails to show any prejudice 

resulting from his attorney's failure to object during the 

testimony. 
Next, Sparks claims that his attorney should nor have objected 

to testimony regarding his statement of rem.orse in the plea bargain 

agreement because it was favorable to his case. However, the 

record does not show that the objection prevented the District 

Court from considering any statement of remorse or regret made by 

him in the plea bargain agreement. 

ISSUE 6 

Should this Court consider Sparks's allegations of mental 

disease as a basis for invalidating his conviction and sentence? 

Sparks asks this Court to consider "the disease" as a new 

issue upon appeal. Sparks was evaluated by Warm Springs personnel 

who concluded that he did not suffer from any mental disease or 

defect. Issues presented to this Court for the first time on 

appeal will not be considered. Akhtar v. Van De Wetering (1982) , 

197 Mont. 205, 209, 642 P.2d 149, 152. This Court does not 

function as a fact finder, that is the role of the District Court. 

Any claim that Sparks suffers from a mental disease or defect which 

somehow invalidates his conviction and sentence is rejected. 

We affirm. 

We Concur: