NO. 91-455 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

STATE OF MONTANA, Plaintiff and Respondent,-vsDIANE BULL COMING, Defendant and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Custer, TheHonorable Richard G. Phillips, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Diane Bul ling, Pro Se,Warm Springs, Montana For Respondent: Hon. Marc Racicot, Attorney General; Clay R. Smith, Solicitor, Helena, Montana Keith D. Haker, Custer County Attorney, Miles City, Montana



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### . STATEOF MOiWAMA Submitted on Briefs: Decided: April AprilJustice Karla M. Gray delivered the Opinion of the Court The defendant,Diane Bull Coming, appeals from an order of the District Court of the Sixteenth Judicial District, Custer County, which denied her petition for postconviction relief. We affirm. The issues on appeal are: 1. Did the District Court err in dismissing the defendant's petition to modify her sentence? 2. Did the District Court abuse its discretion indismissing the defendant's petition if the petition is viewed as requesting withdrawal of her guilty plea? Thedefendantenteredaguiltyplea to robbery inviolationof 55 45-5-401(l)(a) and 45-2-302(3), MCA, pursuant to a plea agreement. She was sentenced on July 15, 1988, to 40-years' imprisonmentat theMontana StateWomen's Prisonwith the following conditions: (1)nondangerous offender status for parole eligibility purposes: (2) waiver of the right to seek sentence review under 5 46-18-903, MCA; and (3) evaluation for alcohol and chemical dependencyand, if founddependent,participation in anappropriate treatment program prior to release from prison. The plea agreement, guilty plea and sentence arose from the defendant's involvement in the kidnapping, robbery and homicide of John Etchemendy, Jr. on October 17, 1987. See State v. Kills on Top

(1990), 243 Mont. 56, 793 P.2d 1273, cert. denied, -U.S. 

## -, 111 S.Ct 2910, 115 L.Ed.2d 1073 (1991); State v. Kills on Top (1990),241 Mont. 378, 787 P.2d 336. The defendant filed a document pro se entitled "Petition for 2Amendment of Sentence" on May 22, 1991. The petition requested that her sentencebe reconsidered and that the remainingperiod of incarceration 

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### As grounds for her request, she alleged that the sister of her court-appointed attorney employed her at one time;thather attorney's familyhad socialandbusiness ties with the victim's family; and that she had never "been involved with criminal court procedures" and "did not understand most of theproceedings held." She also alleged that her attorney failedto explain adequately "themeaning and importanceof any and all procedures" and that he became the deputy county attorney approximately one month after her incarceration at the State Prison. The defendant further alleged various facts which she claimed would have resulted in 

### a more favorable sentence. The District Court treated the document as a petition for postconviction relief and ordered a response from the State. In its response, the State presented the transcript of the defendant's May 13, 1988 change-of-plea hearing. The transcript established that the defendant and the State had agreed that the defendant would testify in several other state court proceedings arising from the victim's kidnapping, robbery and homicide,plead guilty to robbery and waive any right to sentence review. In return, the State would dismiss two aggravated kidnapping counts, secure commitments from federal and Wyoming officials not to prosecuteher forcrimesallegedly committed intheir jurisdictions during the criminal episode and recommend 40-years1 imprisonment with nondangerousoffender status forparole eligibility purposes.The State alsopresented the affidavit of the defendant's attorney which stated that he represented her between the fall of 1987 and her sentencing date inJuly 1988,had not known thevictim and had

no business relationship with the victim's family prior to or duringhis representationof the defendant. Healso statedthathe had first discussed employment as a deputy county attorney in December 1988 and began employment in that position the following month. The District Court dismissed the petition on July 22, 1991. Based on its review of the record, the court concluded that the defendant did not establish ineffective assistance of counsel and that Ig[t]hetranscript of the hearing at which the guiltyplea was entered clearly showed that the Defendant acknowledged her knowledge of the plea agreement and that it was voluntary." The defendant appealed. I. Did the District Court err in dismissing the defendant's petition to modify her sentence? The defendant admits on appeal that her sole objective in filing the petition was to secure suspension of the remaining portion of her 40-year sentence. Section 46-21-101(1), MCA, sets forth the circumstances under which postconviction relief can be granted. Under this statute,the courtmay "vacate, set aside, or correcttt a sentence which is found to be invalid in some respect. Thedefendant does not disputethather 40-year sentence falls within the statutory maximum for robbery as provided by § 45-5-401(2), MCA. In addition, the defendant does not allege that the District Court abused itsdiscretion in imposinga 40-year sentence with no suspended period. The defendant's only allegations are a conflict of interest and ineffective assistance of counsel on the part of her attorney. Because the defendant seeks to suspend her sentence but not to challenge itsvalidity, the allegations do not provide a basis for postconviction relief under 5 46-21-101,MCA. Accordingly, we hold that the District Court did not err in dismissing the defendant's petition to modify her sentence. 11. Did the District Court abuse its discretion in dismissing the defendant's petition if the petition is viewed as requesting withdrawal of her guilty plea? Section46-16-105(2), MCA,provides that "[alt anytimebefore

or after judgment the court may, for good cause shown,permit the plea of guilty to be withdrawn and a plea of not guilty substituted." The determination of good cause is within the district court's discretion; absent an abuse of that discretion, this Court will uphold the district court's refusal to permit the withdrawal of a guilty plea. State v. Miller (1991), 248 Mont. 194, 197, 810 P.2d 308, 310. The existence of good cause for the withdrawal of a guilty plea is determined by reference to (1) the adequacy of the court's interrogation as to the defendant's understanding of the plea; (2) the promptness of the defendant's attempt towithdraw theplea;and (3) the fact that thedefendant's plea was the result of aplea bargain. State

### v. Walker (1986), 220Mont. 70, 72, 712 P.2d 1348, 1350. Applying these factors, no abuse of discretion has been established. The transcript of the change-of-plea hearing reveals an extensive examination by defense counsel, the prosecution and the District Court concerning the defendant's understanding of theplea agreement's terms and consequences. In response to every inquiry, the defendant stated that she understood the substantive rights being waived and that, in exchange for the State's promises, she would assist in the remaining state prosecutions and plead guilty to the robbery count. She was fully aware that the court was not bound by the State's sentencing recommendations and that no promises could be made with respect to when she would be paroled. The defendant specifically concurred in the recommended 40-year sentence and expressly waived the right to sentence review. She also testified that she had reviewed the plea agreement,had no questions concerning it and was satisfiedwith the services of her attorney. Nothing in the record before us establishes that the defendantwas ill-advised as to theguiltyplea or that she evinced any confusion over the plea's attendant benefits and detriments. Nor does the record indicatethat shewas ignorant ofher rights or the consequences of her act. Finally,thedefendantwaited almostthreeyearsbefore filing her petition for postconviction relief and offered no explanation for thedelay. This suggests that the petition was not the result of a bona fide claim that the defendant misapprehended the plea agreement but rather that she merely desired to alter theagreement. We hold that the District Court did not abuse its discretion in dismissing the defendant's petition if the petition is viewed as requesting withdrawal of her guilty plea. Affirmed.

We concur: -0-

w ~hie'f Justice