No. 81-363 INTHE 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 FirstJudicial District, Indnd 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, 1982Mr. Justice John C. Sheehy delivered the Opinion of the Court. Appeal by the defendant James Vernon Wilson from an order denying his petition forpost-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 againstWilson stemmed from a journey of criminal activities thatbegan in Nebraska on or about September 1, 1977, extended into Texas,back to Nebraska; thence north to a lonelymountain 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. Followinghis arrest, an information against Wilson including five felony counts was filed,and at his arraignment, Wilson pleaded not guilty. The informationwas amended a first time and Wilson's not guilty plea continued. Because Wilson was indigent,the District Court appointed two membersof 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, 1978was filed,which included in Count 

### I a felony murder charge, that involving the death of Kenneth McLean. On January 19, 1978,however, JamesWilson had written to the presiding district judge,asking permission to talk to the county attorneywithout 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, accompaniedby 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 questionwhich might incriminatehim 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.

"THECOURT: What about negligent homicide? "MR. GRAVELEY: I seeno way negligent homicide could apply. I have conferredwith defense counsel concerning this and as I recall they are in agreement with me that negligent homicide could not fit in the factswe have."THECOURT: Mr. Keegan? "MR. KEEGAN: That is correct,Your Honor. One further lesser included offense possible is aggravated assault. "THECOURT: 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 thenproceeded to instruct him as to his rights if he decided to go throughwith a trial by jury,attended by counsel. The court ascertained from his court-appointed counsel that Wilsonwas fully advised of all of his constitutional and statutoryrights. Wilson further told the court that he was satisfied with the advice his counselhad given to him as to his rights. Wilson further stated that hewas in a mental and physical condition to enter

a plea and both his counsel told the court that they sawno mental or physical reasonwhy 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 thepresence 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-counselwewish to advise the Court that this plea is entered against the advice of counsel. We have discussed it thoroughly with our client and justwant it on the record that both co-counsel believe that this is not a proper plea and this plea ismade against our advice. "MR. KEEGAN: Furtherwewould urge the Court at this time,Your Honor,not to accept theplea, but to take itunder advisement at this time. "THECOURT: Well,Mr. Wilson,your attorneys have advised you not to plead guilty to these offensesand Iwant to knowwhether or not it is your feeling at this time that youwant 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 discussionby stating "[ilt ismy 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 sameobjections, 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 againsthim in a trial if the court refused to accept the plea of guilty. On that basis, the District Court said, "Allright,Mr. Wilson, go ahead and tellme what youwant 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 (andDonna Mitchel's small child) fromNebraska 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, seewhat theywanted. We pretty well know they were after the horses, but 

## -- Mr. McLean got out of the truck. Mrs. McLean got out. Ididn't seeMrs. McLean with a gun at the time, but I seenMr. 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 shothim and Mr. McLean fell on the ground and Ihad the baby in the saddlewith me. Iwhipped the horse and started riding away. Ididn't even seeDonna. Ididn't even knowwhere shewas at. I started riding away, Idon't know, 20

## - 30 feet out. Idon't know how far itwas, but I stopped

## -- Igot the baby 

## -- on theway out Iheard a bullet go by my head. I figured itwas a bullet. You know, I can't swear to it,but Iheard something that sounded tome like a bullet, tome. But, Igot 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 throwingmy leg behind the horse. Ihad to throw it over the horse and the baby was screaming for her mother, saying, 'Mommy,thewoman shot at me.' And when 

### Igot off my horse I just

# -- Ihad the 22.250 tied to the side of the saddlewith pigging string and I just jerked it. And as I started running, I just ran. I runpast thewoman and I just seen a movement and turned and fired and Iwalked on over where Sundaywas. 

# .." The person at whom Wilson had fired his riflewas Marion McLean. Fivemonths later, Wilson testified at the trial of Andrew Sunday. His testimony (ofwhich 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. Thenwhat happened? A. Mr. McLean fell and I turned my horse and ran. "Q. Did you hear him say anything? A. Iheard Mr. McLean say, 'You son of a bitch.'"Q. And you turned your horse? A. And I ran. Had the baby on therewith me. "Q. Where did you go? A. About, maybe, 50 or 60 feet from where it started. "Q. Where was Donna atthis time? A. Donna was on the ground. Atthe time I stopped the horse, I didn't know where shewas atuntil I stopped the horse. "Q. How fardidyou go with the horse? A. Maybe 50 or 60 feet from where it started. "Q. What didyou do there? A. I took the baby by the arm and leaned over the saddle and laidher on the ground. "Q. Then what did you do? A. I got off thehorse? "Q. How did you get off the horse? A. Swung my leg over the front of the horse. Couldn't get off any otherway. "Q. You have a weapon inyour hands? A. At that time, no, sir. "Q. You saidyou started to yell and Donna-- what didyou say? A. I told Donna toget the hellover here and get the baby and get outof here. "Q. Then what? A. I got off the horse and I was tryingtountie the gun off the saddle. I had it tied on the side. "Q. Did you hear anything inthe timeperiod thatyou turned your horse and dropped the baby off? A. Shooting. "Q. How much shooting? A. Quitea bit. "Q. Do you have any idea of the number of shots? A. Ten or fifteen shots atleast. "Q. Okay. A. Hard tojudge. "Q. And asyou were untying the gun--what gun didyou have? A. A 22.250. "Q. Did you get it untied? A. No, sir. I jerked it loose. "Q. Then what didyou do? A. I turned and startedback towards where the McLeans were. "Q. Where was Sunday atthis time? A. He waswalking 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 knowwhere Mrs. McLean was and as Iwent 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 10years 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 reviewwas 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 differingelements and effects of homicide and mitigated deliberate homicide; thatWilson was never apprised of the difference between those two crimes,nor was accountabilityor felony murder ever explained to him. They further contend he was coerced intopleading 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. Statev. Huttinger (1979), -Mont

# . - 595 P.2d 363, 366, 36 St.Rep. 945. It is the policy of the law, if justicewill be subserved, to permit withdrawals of guilty pleas even after judgment. State v. District Court

(1928), 81Mont. 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, 96Mont. 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 fromhim 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 examinationwill be upheld. Statev. ~ewis(19781, 177Mont. 474, 484-85, 582 P.2d 346, 352. In any event, the grant or denial of a motion to withdraw a plea of guilty iswithin 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 discretionby 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. Therewas 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),175pfont. 189, 573 P.2d 179, this Court invalidated a guilty plea where the DistrictCourt did not determine whether defendant understood thediffering elements and effects of a deliberate homicide and mitigated deliberate homicide. InAzure, the defendant,after entering his guilty plea, sought to withdraw the plea because he felthe was not fully responsible for his actions on thenight of the shooting due to intoxication and emotional depression. Azure entered his plea of guilty

on September 14, 1976, and sought to revoke it sometimebefore September 28, 1976. Here Wilson substantiallydelayed 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 answermade by Wilson to a question by his counsel as to whether "inyour mind, Jim,were you in any way involved in the death of Mr. McLean?" Wilson's answerwas "No, sir." Yet, it is clear thatWilson'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 McLeanlsdeath, 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. (Seeother facts surrounding this incident in Statev. Sunday (1980), -Mont. - 

## , 609 P.2d 1188, 37 St.Rep. 561.) In acceptingWilson's plea of guilty to deliberate homicidewith 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 isinerror on thispoint. When the shooting started, Wilson took evasive action, but stopped inabout 60 feet. He got off his horse, jerked the rifle from the sideof thehorse, and returned tothe sceneof action. He fired a shot into Marion McLean's facemerely upon seeing her move. Clearly, the District Court was not inerror indeciding thatWilson committed deliberate homicide with respect toMrs. McLean. Counsel forWilson base their second issue, whether the court should have determined Wilson's competency toplead, upon such factors as hiswithdrawal of a notice thathe intended torely on mental disease or defect as a defense, and that hiswithdrawal of noticewas just before he would be transported toWarm Springs, Montana, forpsychiatric testing. Another factor claimed is thatWilson wrote a letter tothe DistrictCourt asking toconfer with the county attorney outside thepresence of defense counsel. These factors, and the fact that theplaintiff pleaded guilty against the advice of his own counsel are, counsel contend, sufficient toput the District Court on inquiry astohis competency. SinceWilson outlined the factsof the crimes tothe District Court atthetimeof entry of his plea, and five months later gave substantially the same testimony atthe trialof Andrew Sunday, it seems clear that he was fully possessed of hismental faculties atalltimeswe areconcerned with here. Itwould have been sheer speculation on the part of the District Court, based on the factors relied upon by Wilson's counsel, toconclude thatWilson was not competent tounderstand what he was doing when he enteredhis pleas of guilty. There is no substantial foundation in the record for a court tosuppose other than thatWilson fully knew what he was doing when he decided toplace himself atthe court's mercy by telling all.The record supports the District Court's finding that the defendantwas mentally and physically competent to plead to the charges and that he remainsmentally 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&&ictJudge, sitting forMr. Justice Frank B. Morrison, deeming himself disqualified

District Judge, sitting for Mr. Justice Fred J. Weber, deeming himself disqualified

Mr. JusticeDaniel J. Shea dissents and will file a written dissent later. -13-