No. 13482 

IN THE 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$M 
Mr. 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 District Court, Thirteenth 

Judicial District, Yellowstone County, on July 2, 1976, 

denying the motion of the appellant Pepperling to withdraw his guilty plea and to vacate 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 in Laurel, 

Montana. Under section 94-6-204(1), R.C.M. 1947, at the 

time of his arraignment, the defendant was served in 

open court by the county attorney with a Notice to Increase 

Punishment, in which notice the defendant was informed that 

the State of 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 for burglary committed in 1972. 

At the time of his arraignment, the defendant informed 

the court that he was indigent. Accordingly, the court 

appointed Michael Whalen, an attorney in Billings, one of 

three who act as public defenders in that court, to represent 

defendant in this case. 

Defendant told the court that of the three attorneys 

then employed by the county as public defenders, Michael 
Whalen, ~ohn Adams, and Russell Fillner, he would prefer 

not to have either Mr. Whalen or Mr. Adams appointed. 

 he court first appointed Mr. Fillner to represent him 

and then learned that Mr. Fillner was representing a codefendant charged in a separate information with the same 

crime. Because this appeared to present a conflict of 

interest, the court then appointed Mr. Whalen to represent defendant. This was approved by defendant at the 

time. 

On September 12, 1975, defendant came into court 

upon his petition -- pro se, that his counsel, Mr. Whalen, 

be dismissed and that he be assigned another counsel to 

represent him in the case. He informed the court that, "me 

and Mr. Whalen don't see eye to eye". He told the court 

that he felt he was entitled to fair representation and he 

just didn't feel that he would receive that representation 

from Mr. Whalen. The court stated that Mr. Whalen was an 

excellent attorney and well qualified in criminal matters 

and the court expressed its feeling that Mr. Whalen took 

a personal interest in the persons he was appointed to 

represent. The District Court explained to defendant the 

problem he was presenting to the court, inasmuch as defendant did not want the services of Mr. Adams, and Mr. Fillner 

was representing another party that might give rise to a 

conflict of interest. The court stated that it had appointed 

a competent attorney to represent him. 

Mr. Whalen was present at the hearing of September 12, 

1975. He stated to the court in the presence of defendant 

that there were two things that defendant had requested of 

him. One, defendant felt that Mr. Whalen should make a 

motion for discovery and two, he felt that Mr. Whalen should 
make a motion for separate trials. Mr. Whalen explained 

to the court that he had pointed out to defendant that he 

was in fact receiving a separate trial and that he would 

not be tried with the co-defendant. Further, Mr. Whalen 

had gone through the entire police file and had obtained 

and had in his possession copies of the statements of 

witnesses against defendant so that he had all of the information that any motion for discovery might reveal. He 

had made these copies of statements available to defendant. 

The court denied the motion of the defendant to dismiss his 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 

to visiting hours and inspection of mail. On September 15, 

1975, he presented to the court his written petition - pro 

- set stating that he was being harassed by the jailer in the 

county jail. On September 19, 1975, a hearing was had 

before the District Court respecting these petitions where 

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 court with 

his attorney Mr. Whalen, and there Mr. Whalen advised the 

court that defendant was 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 trial of the cause for 

September 24, 1975 at 1:30 p.m. 
Further, on September 19, 1975, defendant filed 

written motions, again pro - 

se, for (1) a request for dismissal 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 

for withdrawal of the judge was treated as a motion for 

disqualification, and on September 26, 1975, his motion 

was granted and the cause was transferred to Judge C. B. 

Sande. All of the other pending petitions and motions of 

defendant were denied on September 24, 1975. The trial was 

vacated and reset to October 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 this motion 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 at this hearing 

and told the court that he had advised defendant as to the 

proper requisites for an affidavit of disqualification of a 

judge in a criminal case. 

On the 6th day of October, 1975, defendant filed his 

motion through Mr. Whalen for an order of substitution of 

Judge Sande and thereafter, on October 15, 1975, ~udge ~harles 

Luedke assumed jurisdiction in the case. The trial of defendant was then reset for November 5, 1975, at 9:30 a.m. 
On October 22, 1975, defendant had again filed his 

written motion for dismissal of his counsel, and also a 

petition for a show cause hearing, which is in effect a 

motion for suppression of certain evidence obtained against 

him, and a third written petition to the same effect with 

respect to that evidence. These petitions were filed without the aid of his counsel, Mr. Whalen. On October 23, 1975, 

defendant filed his motion to disqualify Judge Luedke and 

at the same time, filed with 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 for November 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 disqualification of Judge Shanstrom. 

However, on November 5, 1975, at 9:30 a.m., the time set for 

trial, defendant and his counsel, Mr. Whalen, appeared before Judge Shanstrom and notified the judge that they 

wished to make a motion to change the plea of defendant 

from not guilty to guilty. 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 at Deer Lodge be brought to ~illings for the 

trial; and he had obtained the county attorney's entire 

case file prior to the date set for trial. 
In the proceedings which occurred on November 5, 1975, 

defendant was present in court with his counsel, Mr. Whalen. 

The court advised defendant that before accepting his plea 

of guilty, he should understand that the State was ready 

to proceed to trial at that time and that the witnesses 

were all subpoenaed and present and available to go to 

trial and that the full jury panel was also present, ready 

for the trial, and that any plea that he made would have 

to be voluntary on his part, freely made by him, and that 

he must agree there had been no coercion or duress, or 

threats made to him. To this statement, defendant agreed. 

The court further stated that hewan'ted the record to show 

that he had discussed with defendant's counsel what sentence he would impose on a plea of guilty and that he had 

informed him that he would impose a sentence of 20 years. 

Defendant stated he understood that. Defendant further 

stated that no other promises had been made to him and 

that he fully understood what the sentence would be. He 

also stated that he understood that if it was his desire to 

go to trial, everything was available at that time and that 

he could go to trial. Defendant stated that he would just 

as soon withdraw his plea. His counsel then reminded the 

court that it was his understanding that on a plea bargaining basis, the 20 year sentence imposed would run concurrently with any time to be served for defendant's violation as a parolee. The court said this was 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 time for pronouncing the judgment and sentence. 
On December 18, 1975, the District Court received in 

the mail from defendant, confined in the prison at Deer 

Lodge, his request - in forma pauperis for a copy of the 

transcript concerning his change of plea on November 5. 

 his transcript was furnished to defendant. On January 21, 

1976, the District Court received the motion of defendant, 

appearing pro -- se, to withdraw his guilty plea and to va- 

~ate the sentence imposed upon him. 

On July 11, 1976, Judge Shanstrom denied the motion 

to withdraw his guilty plea and to vacate the sentence. In 

its order of denial, the court stated that the matter of the 

change of plea was discussed in advance with counsel and 

the defendant, and during the proceedings, defendant asked 

the court if this would 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 

also pointed out that at the time of the change of plea, 

defendant knew that the jury was present in the jury box 

and all the prosecution witnesses were present and ready 

to go to trial and that the evidence overwhelmingly pointed 

to his guilt. The court further found that there was no 

merit to defendant's attempt to disqualify him and denied 

any motion to disqualify him in the case. With respect 

to defendant's representation by counsel, the ~istrict 

Court also noted that the Supreme Court has repeatedly held 

that the defendant is not entitled to counsel of his choice 

but rather to adequate and competent counsel. The Court 

stated that Mr. Whalen was a competent, capable and able 

defense attorney and that he adequately protected defendant 

at all stages of the proceedings. 
On ~uly 12, 1976, defendant filed his written notice 

of appeal, and was given permission to proceed on his 

appeal - in forma pauperis. 

Defendant had noted several grounds in his motion of 

the court for withdrawal of his guilty plea, but on his 

appeal, his single contention is that the District Court's 

refusal to dismiss his appointed counsel and appoint for 

him different counsel deprived him of the opportunity of a 

fair trial and caused him to plead 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 

filed by defendant on --- his own, even though he was represented by counsel at the time, to show the voluntariness 

of his decision to change his plea to guilty. As the District Court noted in denying defendant's motion to withdraw 

his guilty plea, defendant was "certainly well aware and 

well advised about his legal rights under the Constitution 

of the United States, the State of Montana, and certainly 

all of the additional qualifications as set down under the 

Miranda decision". 

It is clear from the record that defendant decided to 

change his plea --- on his own. There is no suggestion here 

that he changed his plea on advise of his counsel, or that 

his counsel misled him into changing his plea. 

The contentions of defendant are that at the time the 

trial had been set, his counsel was not prepared to go to 

trial, "did not wish to take the case to trial", had not 

investigated the facts of the case or interviewed the witnesses. Defendant then contends that, realizing the futility 

of going to trial with 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), 114 Mont. 185, 133 P.2d 761; State v. 

Stevens (1946), 119 Mont. 169, 172 P.2d 299; State v. 

Thomson (1976), 169 Ilont. 158, 545 P.2d 1070. 

The granting or refusal of permission to withdraw a 

plea of guilty and to substitute a 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), 120 Mont. 152, 184 P.2d 554; State 

v. Mack (1958), 134 Mont. 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 file with 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 defendant was not misled into pleading guilty 

and he did so with 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 "effective assistance". State V. McElveen 
(1975), 168 Mont. 500, 503, 544 P.2d 820. While the District Court here did not require hearings on the contentions of defendant with respect to his appointed counsel, 

such hearings are unnecessary where it appears that the 

contentions of the defendant are contradicted by facts in 

the record. See United States v. 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 dissatisfied with his appointed 

counsel, he was entitled to have the court appoint new 

counsel for him. His confidence in Faretta is misplaced. 

Faretta holds only that a criminal defendant, under the 

Sixth and Fourteenth Amendments of the United States Constitution, has a right to have appointed counsel dismissed and 

to proceed without counsel, should he wish to do so. Here, 

defendant is insisting that because 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. His right to 

counsel does not include the right to select an attorney of 

his own choosing, United States v. 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), 153 Mont. 445, 456 P.2d 304. 

We hold, therefore, that an indigent defendant has a 

right to appointed counsel, and that such counsel must render "effective assistance". We further hold, that once 

counsel has been appointed by the ~istkict Court, and such 

counsel is rendering effective assistance to the defendant, 
the defendant may 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 defendant voluntarily pleaded guilty to the 

crime charged. Since we 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 criminal proceedings 

before that plea, short of constitutional dimensions. Tollett v. Henderson (1973), 411 U.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 

af firmed. 
We Concur: 

............................... Justices