No. 13482 INTHE SUPREME COURT OF THE STATE 

### OF MONTANA 1978

STATE OF MONTANA,Plaintiff and Respondent,

-vsRICHARD CLARENCE PEPPERLING, Defendant and Appellant.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Jack D. Shanstrom, Judge presiding. Counsel of Record: For Appellant: Richard Pepperling, Pro Se, Deer Lodge, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Harold F. 

### Hanser, County Attorney, Billings, Montana

- - Submitted on briefs: May 9, 1978 Decided: 

## JUL

# 26

# 3$MMr. Justice John C. Sheehy delivered the Opinion of the Court

# . This 

### is an appeal by the defendant Richard Clarence Pepperling from an order of the DistrictCourt, Thirteenth Judicial 

### District, Yellowstone County, on July 2, 1976, denying themotion of the appellant Pepperling towithdraw his guilty plea and tovacate his sentence. His guilty plea was made on November 5, 1975 to a charge of burglary with increased punishment, and a sentence of 20 years 

### was given to him 

### as a result of said plea. This case come on regularly for consideration without oral argument under the Internal Operating Rules of this Court. On August 22, 1975, an information was filed against the defendant, charging him with the crime of burglary of the Fraternal Order of Eagles building located inLaurel, Montana. Under section 94-6-204(1), R.C.M. 1947, atthe 

### timeof his arraignment, the defendantwas served in open courtby the county attorneywith a Notice to Increase Punishment, inwhich notice the defendant was informed that the Stateof Montana would seek increased punishment of the defendant as a prior convicted felon, on two previous convictions, one for grand larceny committed in 1971, and

one forburglary committed in 1972. Atthe 

### timeof his arraignment, the defendant informed the court that he was indigent. Accordingly, the court appointed Michael Whalen, an attorney inBillings, one of threewho actaspublic defenders inthatcourt, torepresent defendant in this case. Defendant told the court that of the three attorneys then employed by the county aspublic defenders, Michael

### Whalen, ~ohn Adams, and Russell Fillner, he would prefer not tohave eitherMr. 

### Whalen orMr. 

### Adams appointed. he 

### court firstappointed Mr. 

### Fillner to represent him and then learned thatMr. 

### Fillner was representing a codefendant charged ina separate information with the same crime. Because this appeared topresent a conflict of interest, the court then appointed Mr. 

### Whalen to representdefendant. This was approved by defendant atthe time.

### On September 12, 1975, defendant came into court upon his petition

## -- pro se, that his counsel, Mr. 

### Whalen, be dismissed and thathe be assigned another counsel to represent him in the case. He informed the court that, "me and Mr. 

### Whalen don't see eye toeye". He 

### told the court that he felthe was entitled to fairrepresentation and he just didn't feel that he would receive thatrepresentation from Mr. 

### Whalen. The court stated that Mr. 

### Whalen was an excellent attorney and 

### wellqualified incriminal matters and the court expressed its feeling thatMr. 

### Whalen took

a personal interestinthepersons he 

### was appointed to represent. The District Court explained todefendant the problem he was presenting to the court, inasmuch asdefendant did not want the services of Mr. 

### Adams, and Mr. 

### Fillner

was representing another party thatmight giverise to a conflictof interest. The court stated that it 

### had appointed

a 

### competent attorney torepresent him. Mr. 

### Whalen was present atthe hearing of September 12, 

### 1975. He stated tothe court inthe presence of defendant that therewere two things thatdefendant had requested of him. One, defendant feltthatMr. 

### Whalen should make a 

### motion for discovery and two, he feltthatMr. 

### Whalen shouldmake a motion for separate trials. Mr. Whalen explained to the court that he had pointed out to defendant thathe

was infactreceiving a separate trial and that he would not be triedwith the co-defendant. Further, Mr. Whalen had gone through the entirepolice fileand had obtained and had inhis possession copies of the statements of witnesses against defendant so that he had 

### allof the information that any motion for discovery might reveal. He had made these copies of statements available to defendant. The court denied themotion of the defendant to dis

### misshis counsel and to appoint substitute counsel. On the same day, September 

### 12, 1975, defendant Pepperling presented to the court his written petition

# =- se, objecting to the regulations of the county jail relating tovisiting hours and inspection of mail. On September 15, 1975, he presented to the court his written petition - pro 

### set stating thathe was being harassed by the jailer in the - county jail. On September 19, 1975, a hearing was had before the District Court respecting these petitionswhere defendant was represented by Mr. Russell Fillner. Upon hearing the evidence presented by plaintiff, the ~istrict Court denied the petitions. On September 19, 1975, defendant came into courtwith his attorney Mr. Whalen, and there Mr. Whalen advised the court that defendantwas dissatisfied with Mr. ~halen's services and was asking for substitution of counsel. The court took the matter under advisement and on that day again denied petitioner's request that his counsel be dismissed and that substitute counsel be appointed. ~eanwhile, the court 

### set the trialof the cause for September 

### 24, 1975 

### at 1:30 p.m.Further, on September 19, 1975, defendant filed writtenmotions, again

## pro se, for 

### (1)a request for dis

### - missal of his counsel, and (2) a request for postponement of his trial. On September 22, 1975, defendant filed his 

### letter in support of his motion for postponement of his 

### trial. On September 

### 24, 1975, defendant filed a written motion pro 

### -- se, for change of venue, charging prejudice against him in the county, and his written request for the dismissal of the presiding judge. A motion of defendant forwithdrawal of thejudge was treated as a motion for disqualification, and on September 26, 1975, his motion

was granted and the causewas transferred toJudge C. B. Sande. Allof the other pending petitions and motions of defendant were denied on September 24, 1975. The trial

### was vacated and reset toOctober 21, 1975. On September 26, 1975, defendant, again acting on his own, filed a written petition for the dismissal of Judge Sande. A hearing was held on thismotion on October 3, 1975, with Judge Jack Shanstrom presiding and in this case, after 

### a hearing of testimony adduced both by defendant and the county, the motion for the disqualification of Judge Sande was denied. Mr. Whalen was present atthishearing and told the court thathe had advised defendant 

### as to the proper requisites for an affidavit of disqualification of a judge ina criminal case. On the 6th day of October, 1975, defendant filedhis motion through Mr. Whalen for an order of substitutionof Judge Sande and thereafter, on October 15, 1975, ~udge ~harles Luedke assumed jurisdiction inthe case. The trialof defendant was then reset forNovember 5, 1975, 

### at9:30 a.m.On October 22, 1975, defendant had again filedhis written motion for dismissal of his counsel, and also a petition for 

### a show cause hearing, which 

### is ineffect a motion for suppression of certain evidence obtained against him, and a third written petition to the 

### same effectwith respect tothat evidence. These petitions were filedwithout the aid of his counsel, Mr. Whalen. On October 23, 1975, defendant filed his motion todisqualify Judge Luedke and atthe 

### same time, filedwith the court his petition that Judge Luedke dismiss his counsel and appoint another attorney for him. October 24, 1975, Judge Luedke reset the 

### trial of defendant forNovember 

### 4, 1975, and on that same date, Judge Jack Shanstrom of the Sixth Judicial District assumed jurisdiction. On October 29, 1975, defendant, through his counsel, moved the court for the disqualificationof Judge Shanstrom. However, on November 5, 1975, at9:30 

### a.m., the time 

### set for trial, defendant and his counsel, Mr. Whalen, appeared beforeJudge Shanstrom and notified the judge that they wished tomake a motion tochange the plea of defendant from not guilty toguilty. In the meantime, before the trial date, Mr. Whalen, as defendant's counsel, had given notice to the county attorney of two additional alibi

### witnesses required by defendant; Mr. Whalen had requested and obtained an order that a potential defense witness imprisoned atDeer Lodge be brought to ~illings for the trial; and he had obtained the county attorney's entire

case fileprior to the date 

### set for trial.In the proceedings which occurred on November 5, 1975, defendant was present incourtwith his counsel, Mr. Whalen. The court advised defendant that before accepting his plea of guilty, he should understand that the Statewas ready toproceed totrial 

### atthat 

### timeand that the witnesses

were allsubpoenaed and present and available to go to trial and that the fulljury panel 

### was alsopresent, ready for the trial, and that any plea thathe made would have tobe voluntary on his part, freely made by him, and that he must agree there had been no coercion or duress, or threats made tohim. To this statement, defendant agreed. The court further stated thathewan'tedthe record to show thathe had discussed with defendant's counsel what sentence he would impose on a plea of guilty and thathe had informed him thathe would impose a sentence of 20 years. Defendant stated he understood that. Defendant further stated that no other promises had been made tohim and that he fullyunderstood what the sentencewould be. He also stated thathe understood that if it 

### was his desire to go to trial, everything was available atthat 

### timeand that he could go to trial. Defendant stated thathe would just

as soon withdraw his plea. Hiscounsel then reminded the court that 

### itwas his understanding that on a plea bargaining basis, the 20 year sentence imposed would run concurrentlywith any time tobe served for defendant's violation 

### as a parolee. The court said thiswas his understanding and that the sentence and the parole violation time, if any, would run concurrently. Thereupon the ~istrict Court accepted the plea of guilty then made by defendant and imposed the sentence of 20 years, defendant having waived his right for further 

### timefor pronouncing the judgment and sentence.On December 18, 1975, the District Court received in themail from defendant, confined inthe prison atDeer Lodge, his request 

### - informa pauperis for a copy of the transcript concerning his change of plea on November 5. his transcriptwas furnished to defendant. On January 21, 1976, the 

### District Court received the motion of defendant, appearing pro 

### -- se, towithdraw his guiltyplea and tova- ~ate the sentence imposed upon him. On July 11, 1976, Judge Shanstrom denied the motion towithdraw his guilty plea and tovacate the sentence. In 

### its order of denial, the court stated that thematter of the change of plea was discussed inadvance with counsel and the defendant, and during the proceedings, defendant asked the court if thiswould run concurrently with the sentence he was presently serving and that the accused 

### was advised by the court that it would run concurrently. The court alsopointed out that atthe 

### timeof the change of plea, defendant knew that the jury was present inthe jury box and allthe prosecution witnesses 

### were present and ready togo totrial and that the evidence overwhelmingly pointed tohis guilt. The court further found that there was no 

### merittodefendant's attempt to disqualify him and denied any motion todisqualify him inthe case. With respect todefendant's representation by counsel, the 

### ~istrict Court alsonoted that the Supreme Court has repeatedly held that the defendant is not entitled tocounsel of his choice but rather toadequate and competent counsel. The Court stated thatMr. Whalen was a competent, capable and able defense attorney and that he adequately protected defendant atallstages of the proceedings.

### On ~uly 12, 1976, defendant filedhis written notice of appeal, and was given permission toproceed on his appeal - 

### informa pauperis. Defendant had noted several grounds inhismotion of the court forwithdrawal of his guiltyplea, but on his appeal, his singlecontention is 

### that the District Court's refusal todismiss his appointed counsel and appoint for him different counsel deprived him of the opportunity of a fair trial and caused him toplead guilty. The principal force of his argument is 

### that he did not receive effective assistance of appointed counsel. We have set out the repletion of motions and petitions filedby defendant on his own, even though he was repre

### --- sented by counsel atthe time, to show the voluntariness of his decision tochange his plea toguilty. As 

### the Dis

### trictCourt noted indenying defendant's motion towithdraw his guilty plea, defendant was 

### "certainly

### well aware and well

### advised about his legal rights under the Constitution of the United States, the Stateof Montana, and certainly allof the additional qualifications as setdown under the Miranda decision". It 

### is 

### clear from therecord that defendant decided to change his plea 

### --- on his own. There 

### is

### no suggestionhere thathe changed hisplea on advise of his counsel, or that his 

### counselmisled him into changing his plea. The 

### contentions of defendant are that atthe time the trialhad been set, his counsel was not prepared togo to trial, 

### "did not wish to take the 

### case to trial", had not investigated the facts of the case or interviewed the wit

### nesses. Defendant then contends that, realizing the futility of going to trialwith his attorney, he had no other choice

### but to plead guilty. He now contends he was innocent of the charge. Assignments of error not contained in the record need not be considered by an appellate court. See State v. Wong Son (1943),114Mont. 185, 133 P.2d 761; Statev. Stevens (1946),119 Mont. 169, 172 P.2d 299; Statev. Thomson (1976),169 Ilont. 158, 545 P.2d 1070. The granting or refusal of permission to withdraw a plea of guilty and to substitutea plea of not guilty rests in the discretion of the trial court and is subject to review only where an abuse of discretion has been shown. State v. Nance (1947),120Mont. 152, 184 P.2d 554; State

v. Mack (1958), 134Mont. 301, 330 P.2d 968. Here the record does not support defendant's contentions regarding his counsel, nor does it show that the District Court abused its discretion in denying defendant's motion to change his plea of guilty. With respect to his counsel, the record points the other way: the attorney had obtained the full county attorney's filewith respect to defendant, had made that file available to defendant, had applied to the court to procure witnesses to attend the trial, and was present with the defendant on the morning the trial had been set,ready to go to trial. It further appears that defendantwas notmisled into pleading guilty and he did sowith full understanding as to the consequences. State v. Nance, supra. Since Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 

### L.Ed.2d 799, an indigent defendant in a state criminal prosecution is entitled to have counsel appointed to represent him. The indigent's right to counsel includes the right to have "effectiveassistance". State V. 

### McElveen(1975), 168Mont. 500, 503, 544 P.2d 820. While the DistrictCourt here did not require hearings on the contentions of defendant with respect tohis appointed counsel, such hearings areunnecessary where 

### it appears that the contentions of the defendant are contradicted by facts in therecord. See United Statesv. Morrissey (2nd Cir. 1972), 461 F.2d 666. Defendant 

### relies on Faretta v. California (1974), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, to support his contention that since he was dissatisfiedwith his appointed counsel, he was entitled tohave the court appoint new counsel for him. His confidence inFaretta ismisplaced. Faretta holds only that a criminal defendant, under the Sixth and Fourteenth Amendments of the United States Constitution, has a right tohave appointed counsel dismissed and toproceed without counsel, should he wish todo so. Here, defendant 

### is insisting thatbecause he was dissatisfied with his appointed counsel, the court should have discharged that attorney from representing defendant and appointed different counsel. No case so far concedes that right. Rather, the cases are in the other direction. Hisright to counsel does not include the right to select an attorney of his own choosing, United Statesv. Clark, (W.G. Okla. 1976), 429 F.Supp. 89, 98, or require that the particular attorney appointed must be approved by the defendant, Petition of Hunsinger (1969), 153Mont. 445, 456 P.2d 304. Wehold, therefore, that an indigent defendant has a right toappointed counsel, and that such counsel must render "effectiveassistance". We further hold, that once counsel has been appointed by the ~istkict Court, and such counsel 

### is rendering effectiveassistance to the defendant,

### the defendantmay not have his appointed counsel dismissed or discharged and obtain different counsel or demand that certain counsel be appointed for him. When his appointed counsel is rendering effective assistance, the defendant has the choice of (1) continuing with the counsel so appointed, or (2) 

### having his counsel dismissed and proceeding on defendant's own,pro se. See Faretta v. California, supra. Here the defendantvoluntarily pleaded guilty to the crime charged. Sincewe find that he was receiving effective representation by his appointed counsel, such plea of guilty by defendant wiped out any claim of defendant

as to defects or irregularities in the criminalproceedings before thatplea, short of constitutional dimensions. Tollett v. Henderson (1973), 411U.S. 258, 93 S.Ct. 1602, 36 

### L.Ed.2d 235. Defendant,having received the benefit of plea bargaining in his case, is bound thereby. The State is entitled to be assured that defendant will be held to his bargain. The order of the District Court denying the motion of defendant to change his plea from guilty to not guilty is affirmed.

### We 

### Concur:



# ............................... Justices