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, 

The Honorable Richard G. Phillips, Judge presiding. 

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 

APR 3 0 1992, Filed: . . . . ZJ 3e.i ,~ >. . . 

.r 9 

CLERK OF SUPM.E . STATE OF MOiWAMA 

Submitted on Briefs: 

Decided: 

April 

April 
Justice 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 in dismissing 

the defendant's petition if the petition is viewed as requesting 

withdrawal of her guilty plea? 

The defendant entered a guilty plea to robbery in violation of 

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' 

imprisonment at the Montana State Women's Prison with 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 

dependency and, if found dependent, participation in an appropriate 

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 

2 
Amendment of Sentence" on May 22, 1991. The petition requested 

that her sentence be reconsidered and that the remaining period of 

incarceration be suspended. As grounds for her request, she 

alleged that the sister of her court-appointed attorney employed 

her at one time; that her attorney's family had social and business 

ties with the victim's family; and that she had never "been 

involved with criminal court procedures" and "did not understand 

most of the proceedings held." She also alleged that her attorney 

failed to explain adequately "the meaning and importance of 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 

prosecute her for crimes allegedly committed in their jurisdictions 

during the criminal episode and recommend 40-years1 imprisonment 

with nondangerous offender status for parole eligibility purposes. 
The State also presented the affidavit of the defendant's attorney 

which stated that he represented her between the fall of 1987 and 

her sentencing date in July 1988, had not known the victim and had 

no business relationship with the victim's family prior to or 

during his representation of the defendant. He also stated that he 

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]he transcript of the hearing at which the guilty plea 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 court may "vacate, set aside, or 

correcttt a sentence which is found to be invalid in some respect. 

The defendant does not dispute that her 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 its discretion in imposing a 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 its validity, 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? 

Section 46-16-105(2), MCA, provides that "[alt any time before 

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 to withdraw the plea; and (3) the fact that the defendant's 

plea was the result of a plea bargain. State v. Walker (1986), 220 
Mont. 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 the plea 

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 satisfied with the services of her 

attorney. Nothing in the record before us establishes that the 

defendant was ill-advised as to the guilty plea or that she evinced 

any confusion over the plea's attendant benefits and detriments. 

Nor does the record indicate that she was ignorant of her rights or 

the consequences of her act. 

Finally, the defendant waited almostthree years before filing 

her petition for postconviction relief and offered no explanation 

for the delay. 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 the 
agreement. 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