No. 81-363 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

JAMES VERNON WILSON, 

Defendant and Appellant. 

Appeal from: District Court of the First Judicial District, 

In dnd for the County of Lewis and Clark 

Honorable Peter Meloy, Judge presiding. 

Counsel of Record: 

For Appellant: 

Garrity, Keegan and Brown, Helena, Montana 

Thomas Keegan argued, Helena, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Charles Graveley argued, County Attorney, Helena, Montana 

Submitted: February 22, 1982 

Decided: June 7, 1982 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appeal by the defendant James Vernon Wilson from an 

order denying his petition for post-conviction relief in 

the District Court, First Judicial District, Lewis and Clark 

County. 

Wilson was charged in District Court under an amended 

information with five criminal counts: Count 1, that on 

September 6, 1977, he committed the offense of deliberate 

homicide by purposely or knowingly causing the death of 

Kenneth McLean, or that he was accountable for that death; 

Count 2, that on the same date he committed the offense of 

deliberate homicide by purposely or knowingly causing the 

death of Marion McLean; Count 3, that on September 5, 1977, 

he had committed the offense of felony theft; Count 4, that 

on September 4, 1977, he had committed felony burglary; and 

Count 5, that he had committed on September 6, 1977, a further 

offense of felony theft. 

The charges against Wilson stemmed from a journey of 

criminal activities that began in Nebraska on or about September 

1, 1977, extended into Texas, back to Nebraska; thence north 

to a lonely mountain setting near Lincoln, Montana, where 

Kenneth and Marion McLean were killed; and thence in flight 

to Portland, Oregon, where, on September 10, 1977, Wilson 

with his companions Andrew Sunday and Donna Mitchel was 

arrested. 

Following his arrest, an information against Wilson 

including five felony counts was filed, and at his arraignment, 

Wilson pleaded not guilty. The information was amended a 

first time and Wilson's not guilty plea continued. Because 

Wilson was indigent, the District Court appointed two members 
of the Lewis and Clark County Bar, David N. Hull, and Thomas 

Keegan, to defend him. It was as a result of a motion by 

these counsel for a more specific charge that the amended 

information of January 24, 1978 was filed, which included in 

Count I a felony murder charge, that involving the death of 

Kenneth McLean. 

On January 19, 1978, however, James Wilson had written 

to the presiding district judge, asking permission to talk 

to the county attorney without his court-appointed counsel 

being present. Thereafter, at the time for his arraignment 

on the second amended information, Wilson appeared before 

the District Court on January 30, 1980, accompanied by both 

of his appointed counsel. 

Wilson's first appearance before the court that day was 

at 9:30 a.m. The court advised Wilson in the presence of 

his counsel that he did not have to make any statements or 

answer any question which might incriminate him and that if 

he did, his statements could be used against him in a trial. 

He was told of the charges against him and the possible punishments that were imposed by law on those charges. The following 

colloquy between court, the counsel and Wilson occurred. 

". . . You should also be advised that on a finding 

of guilty or a plea of guilty it is possible that 

a jury could find you or a judge could find you 

guilty of a lesser included offense. Mr. Graveley, 

what would be the lesser included offenses? 

"MR. GRAVELEY: Your Honor, if the proper instructions 

were submitted to a jury or the judge if tried to 

the court, I believe a lesser included -- the only 

lesser included offense possible in the fact situation 

we have would be mitigated deliberate homicide. 

"THE COURT: What about negligent homicide? 

"MR. GRAVELEY: I see no way negligent homicide 

could apply. I have conferred with defense counsel 

concerning this and as I recall they are in agreement 

with me that negligent homicide could not fit in 

the facts we have. 
"THE COURT: Mr. Keegan? 

"MR. KEEGAN: That is correct, Your Honor. One 

further lesser included offense possible is 

aggravated assault. 

"THE COURT: Very well. Understand then, Mr. 

Wilson, that although you are charged with these 

deliberate homicides, it is possible that you 

could be convicted of a lesser included offense, 

mitigated homicide or aggravated assault. 

"A. Yes, sir." 

The District Court then proceeded to instruct him as 

to his rights if he decided to go through with a trial by 

jury, attended by counsel. The court ascertained from his 

court-appointed counsel that Wilson was fully advised of 

all of his constitutional and statutory rights. Wilson 

further told the court that he was satisfied with the advice 

his counsel had given to him as to his rights. Wilson further 

stated that he was in a mental and physical condition to enter 

a plea and both his counsel told the court that they saw no 

mental or physical reason why Wilson was not capable of entering 

his plea. On that basis, the court asked Wilson what his 

plea would be, taking the separate counts, and to each Wilson 

stated he was guilty, except as to Count IV, the burglary charge. 

At this point, in the presence of Wilson, the courtappointed counsel spoke up to express their objections. The 

following colloquy occurred : 

"MR. HULL: No, Your Honor. Also at this time on 

behalf of my co-counsel we wish to advise the 

Court that this plea is entered against the advice 

of counsel. We have discussed it thoroughly with 

our client and just want it on the record that both 

co-counsel believe that this is not a proper plea 

and this plea is made against our advice. 

"MR. KEEGAN: Further we would urge the Court at 

this time, Your Honor, not to accept the plea, but 

to take it under advisement at this time. 

"THE COURT: Well, Mr. Wilson, your attorneys have 

advised you not to plead guilty to these offenses 
and I want to know whether or not it is your feeling 

at this time that you want to plead guilty to these 

offenses despite the advice given by your counsel? 

"A. Yes, Your Honor. I' 

The court thereupon took the matter of accepting the 

pleas of guilty under advisement. 

Then, on the same morning, at 10:15 a.m., Wilson, both 

of his appointed counsel, and the county attorney appeared 

again before the district judge. The district judge began 

the discussion by stating "[ilt is my understanding, Mr. 

Wilson, that you requested to talk to the Court in chambers. 

Is that correct?" Mr. Wilson replied, "Yes, Your Honor." 

His counsel were asked for their objection and they stated 

their same objections, that they opposed his entry of pleas 

of guilty to the four counts, and that they had advised him 

of his rights to remain silent. The court again told Mr. 

Wilson that anything that he might say that incriminated 

him could be used against him in a trial if the court refused 

to accept the plea of guilty. On that basis, the District 

Court said, "All right, Mr. Wilson, go ahead and tell me 

what you want to say." Upon being sworn, Wilson then told 

in full his version of the events leading up to the deaths 

of the two McLeans. 

Omitting all of the detail of the odyssey of the trio 

(and Donna Mitchel's small child) from Nebraska to Montana, 

we come to the point in Wilson's statement to the court 

where the McLeans, riding in a pickup, arrived at the 

place in the mountains where Sunday, Wilson, Donna Mitchel and 

the small child were riding on horses. On the approach of 

the McLeans, Wilson told the court the following occurred: 
". . . And I told Sunday then to get -- not 

right then, because the pickup was nearly there 

when this happened, because I told him to get off 

his horse and talk to the people. And he had the 

30.30 across his saddle, you know, laying across 

his lap. And he got off his horse and he was standing 

there, you know, and as the truck started to pull 

up, he tries to hand me the 30.30 and said, 'Do you 

want the privilege?' And I told him then to just 

talk to the people, you know, see what they wanted. 

We pretty well know they were after the horses, 

but -- Mr. McLean got out of the truck. Mrs. McLean 

got out. I didn't see Mrs. McLean with a gun at the 

time, but I seen Mr. McLean's gun. Mr. McLean got 

out of the truck, cocked his gun. About the same 

time he was cocking his gun, he said, 'What is this 

bullshit? What kind of a prank do you think you 

are pulling?' Something like that. As he did that, 

he started walking forward and Sunday shot him and 

Mr. McLean fell on the ground and I had the baby 

in the saddle with me. I whipped the horse and 

started riding away. I didn't even see Donna. 

I didn't even know where she was at. I started riding 

away, I don't know, 20 - 30 feet out. I don't know 

how far it was, but I stopped -- I got the baby -- on 

the way out I heard a bullet go by my head. I figured 

it was a bullet. You know, I can't swear to it, but 

I heard something that sounded to me like a bullet, 

to me. But, I got Sissy out and grabbed her by the 

arm and pulled her off the horse and layed her down 

on the ground and I couldn't get off the horse by 

throwing my leg behind the horse. I had to throw it 

over the horse and the baby was screaming for her 

mother, saying, 'Mommy, the woman shot at me.' And 

when I got off my horse I just -- I had the 22.250 

tied to the side of the saddle with pigging string 

and I just jerked it. And as I started running, I 

just ran. I run past the woman and I just seen a 

movement and turned and fired and I walked on over 

where Sunday was. . ." 

The person at whom Wilson had fired his rifle was Marion 

McLean. Five months later, Wilson testified at the trial 

of Andrew Sunday. His testimony (of which we take judicial 

notice) included the following statements: 

"A. I seen the first shot. I seen Mr. XcLean 

fall. 

"Q. Where did it go? A. Hit Mr. McLean in 

the leg. 

"Q. Then what happened? A. Mr. McLean fell 

and I turned my horse and ran. 

"Q. Did you hear him say anything? A. I heard 

Mr. McLean say, 'You son of a bitch.' 
"Q. And you turned your horse? A. And I 

ran. Had the baby on there with me. 

"Q. Where did you go? A. About, maybe, 

50 or 60 feet from where it started. 

"Q. Where was Donna at this time? A. Donna 

was on the ground. At the time I stopped the 

horse, I didn't know where she was at until 

I stopped the horse. 

"Q. How far did you go with the horse? A. 

Maybe 50 or 60 feet from where it started. 

"Q. What did you do there? A. I took the 

baby by the arm and leaned over the saddle 

and laid her on the ground. 

"Q. Then what did you do? A. I got off 

the horse? 

"Q. How did you get off the horse? A. Swung 

my leg over the front of the horse. Couldn't 

get off any other way. 

"Q. You have a weapon in your hands? A. At 

that time, no, sir. 

"Q. You said you started to yell and Donna-- 

what did you say? A. I told Donna to get the 

hell over here and get the baby and get out of 

here. 

"Q. Then what? A. I got off the horse and I 

was trying to untie the gun off the saddle. I 

had it tied on the side. 

"Q. Did you hear anything in the time period 

that you turned your horse and dropped the 

baby off? A. Shooting. 

"Q. How much shooting? A. Quite a bit. 

"Q. Do you have any idea of the number of 

shots? A. Ten or fifteen shots at least. 

"Q. Okay. A. Hard to judge. 

"Q. And as you were untying the gun--what 

gun did you have? A. A 22.250. 

"Q. Did you get it untied? A. No, sir. I 

jerked it loose. 

"Q. Then what did you do? A. I turned and 

started back towards where the McLeans were. 

"Q. Where was Sunday at this time? A. He 

was walking towards Mr. McLean. Mr. McLean 

was on the ground. 
"Q. Did the defendant fire any shots after 

you had your gun in your hands? A. NO, he didn't. 

"Q. What did you do as you were approaching? A. 

I was walking by and I didn't know where Mrs. 

McLean was and as I went by I seen a movement and 

I just turned and fired. 

"Q. Do you know what happened with the bullet? 

A. Yes. It hit Mrs. McLean in the face." 

Wilson was sentenced to 100 years on Count I (Kenneth 

McLean), 100 years on Count I1 (Marion ~c~ean), 10 years on 

Count 111 (theft), and 10 years on the remaining Count 

(theft). The sentences are to run concurrently. 

Following his judgment of conviction and sentence, 

Wilson sought review of his sentence through the Sentence 

Review Division. Sentence review was denied on May 12, 

1978. 

On July 28, 1980, he filed his petition for postconviction relief before the District Court seeking to withdraw 

his guilty pleas. After a hearing, and having received 

briefs from counsel, the District Court entered its findings 

of fact, conclusions of law and order denying the petition 

for post-conviction relief on January 26, 1981. It is from 

this order of denial that Wilson here appeals. 

We affirm the decision of the District Court. 

Counsel for Wilson contend on appeal (1) that plaintiff's 

guilty plea does not represent a voluntary and intelligent 

choice among alternative courses of action open to him as 

affirmatively disclosed by the record, and further, (2) that 

the District Court erred in accepting Wilson's guilty plea 

without first determining his competence to plead. 

The basis of the first issue raised by counsel for 

Wilson is that the District Court did not explain to Wilson, 

or determine from him whether he understood the differing 
elements and effects of homicide and mitigated deliberate 

homicide; that Wilson was never apprised of the difference 

between those two crimes, nor was accountability or felony 

murder ever explained to him. They further contend he was 

coerced into pleading guilty by his girlfriend, Donna 

Mitchel, who played upon his blind love for her so that he 

would enter a guilty plea; that he was forced to look at 

gruesome pictures of the decedents by members of the sheriff's 

office, and that he was terrified of hanging. 

We have said that each case involving a motion to 

withdraw a plea of guilty must be examined on its own record 

inasmuch as no set rule or standard can be relied on in any 

given case. State v. Huttinger (1979), - Mon t . - 595 

P.2d 363, 366, 36 St.Rep. 945. It is the policy of the 

law, if justice will be subserved, to permit withdrawals of 

guilty pleas even after judgment. State v. District Court 

(1928), 81 Mont. 495, 502, 263 P. 979, 981. Further, all 

doubts should be resolved in favor of a trial on the merits 

and the trial court's discretion should be liberally exercised 

in favor of life and liberty. State v. McAllister (19341, 

96 Mont. 348, 353, 30 P.2d 821, 823. 

On the other hand, when at the hearing to enter a plea, 

the District Court carefully examines the defendant, finds 

him to be competent, and determines from him that his plea 

of guilty is voluntary, that he understands the charges and 

his possible punishment, that he is not acting under the 

influence of drugs or alcohol, that he admits his counsel is 

competent and he has been well advised, and he declares in 

open court facts upon which his guilt is based, then a plea 

of guilty accepted by the District Court on the basis of 

that examination will be upheld. State v. ~ewis (19781, 177 
Mont. 474, 484-85, 582 P.2d 346, 352. 

In any event, the grant or denial of a motion to 

withdraw a plea of guilty is within the sound discretion of 

the trial court. Matter of Hardy (1980), - Mont . I 

614 P.2d 528, 531, 37 St.Rep. 1358. A denial of a request to 

withdraw a guilty plea is subject to review only when there 

has been an abuse of discretion by the trial court. State 

v. Hilton (1979), - Mont . - 

, 597 P.2d 1171, 1173, 36 

St.Rep. 1314. 

In this case, there is no showing that his plea of 

guilty is caused by ignorance or lack of understanding. It 

is certain that no duress was used or fraud perpetrated upon 

him. There was no evidence of any influence overreaching 

his free will or judgment. In fact this case has a novel 

twist. We held in State v. McAllister, supra, where the 

defendant's guilty plea was based on reliance on his counsel's 

representation as to what his sentence would be, that refusal 

to permit withdrawal of his guilty plea was an abuse of 

discretion. Here we have the other side of the coin: 

Wilson persisted in pleading guilty in spite of his counsel, 

present in court, who insisted that he should not plead 

guilty. 

It is true that in State v. Azure (1977), 175 pfont. 

189, 573 P.2d 179, this Court invalidated a guilty plea 

where the District Court did not determine whether defendant 

understood the differing elements and effects of a deliberate 

homicide and mitigated deliberate homicide. In Azure, the 

defendant, after entering his guilty plea, sought to withdraw 

the plea because he felt he was not fully responsible for 

his actions on the night of the shooting due to intoxication 

and emotional depression. Azure entered his plea of guilty 

on September 14, 1976, and sought to revoke it sometime 
before September 28, 1976. 

Here Wilson substantially delayed his motion to withdraw 

his guilty pleas, which was part of a plea bargain he initiated 

himself. The failure of the court to explain the differences 

between deliberate homicide, mitigated homicide and aggravated 

assault resulted in no prejudice to Wilson. His voluntary 

statement to the court clearly showed he was an accomplice in 

Kenneth's deliberate homicide, and he was the perpetrator of 

Marion's deliberate homicide. Counsel for Wiison rely upon 

an answer made by Wilson to a question by his counsel as to 

whether "in your mind, Jim, were you in any way involved in 

the death of Mr. McLean?" Wilson's answer was "No, sir." 

Yet, it is clear that Wilson's statement to the court at the time 

of his entry of plea belies any contention he might make 

that he was not "involved" in the death of Kenneth McLean. 

He was directly and fully involved in the course of many 

criminal acts, a11 surrounding, leading up to or involving 

McLeanls death, even though Wilson didn't actually pull the 

trigger to fire the shot that killed McLean. 

With respect to the death of Mrs. McLean, he fired a 

shot which hit her in the face, though she had been shot 

earlier by Sunday. (See other facts surrounding this incident 

in State v. Sunday (1980), - Mont. - , 609 P.2d 1188, 37 

St.Rep. 561.) In accepting Wilson's plea of guilty to 

deliberate homicide with respect to Marion McLean, the court 

was agreeing that the facts related by Wilson constituted 

deliberate homicide. Further, the District Court in denying 

the petition for post-conviction relief, continued to rely on 

the same line of reasoning as far as Marion McLean is concerned. 

We are certainly not prepared to say the District Court is 
in error on this point. When the shooting started, Wilson 

took evasive action, but stopped in about 60 feet. He got off 

his horse, jerked the rifle from the side of the horse, and 

returned to the scene of action. He fired a shot into 

Marion McLean's face merely upon seeing her move. Clearly, 

the District Court was not in error in deciding that Wilson 

committed deliberate homicide with respect to Mrs. McLean. 

Counsel for Wilson base their second issue, whether the 

court should have determined Wilson's competency to plead, 

upon such factors as his withdrawal of a notice that he 

intended to rely on mental disease or defect as a defense, 

and that his withdrawal of notice was just before he would be 

transported to Warm Springs, Montana, for psychiatric testing. 

Another factor claimed is that Wilson wrote a letter to the 

District Court asking to confer with the county attorney 

outside the presence of defense counsel. These factors, and 

the fact that the plaintiff pleaded guilty against the 

advice of his own counsel are, counsel contend, sufficient 

to put the District Court on inquiry as to his competency. 

Since Wilson outlined the facts of the crimes to the 

District Court at the time of entry of his plea, and five 

months later gave substantially the same testimony at the 

trial of Andrew Sunday, it seems clear that he was fully 

possessed of his mental faculties at all times we are concerned 

with here. It would have been sheer speculation on the 

part of the District Court, based on the factors relied upon 

by Wilson's counsel, to conclude that Wilson was not competent 

to understand what he was doing when he entered his pleas 

of guilty. There is no substantial foundation in the record 

for a court to suppose other than that Wilson fully knew 

what he was doing when he decided to place himself at the 

court's mercy by telling all. 
The record supports the District Court's finding that 

the defendant was mentally and physically competent to plead 

to the charges and that he remains mentally and physically 

competent. 

We therefore affirm denial of post-conviction relief by 

the District Court. 

\ 

\ t / / I< / 

1,3/i .-/ (f&,lF\u\ 

Justice 

We Concur: 

Chief Justice 

u 

Justices 

- .,/{ /!l% 

Honjpoel. G. Roth, 

~is&&ict Judge, sitting 

for Mr. Justice Frank B. 

Morrison, deeming himself 

disqualified 

District Judge, sitting 

for Mr. Justice Fred J. 

Weber, deeming himself 

disqualified 

Mr. Justice Daniel J. Shea dissents and will file a written 

dissent later. 

-13-