No. 80-77 INTHE SUPrnMF, COURT OF THE STATE OF MONTANA 1980

IN RE WILLIAM E. McNAIR

ORIGINAL PROCEEDING: Counsel of Record: For Petitioner: WilliamE. McNair, Pro Se, Deer Lodge, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana 3. Fred Bourdeau, County Attorney, GreatFalls, Montana Michael G. Barer, Deputy County Attorney, Great Falls,

Montana

Submitted on briefs: April 15, 1980 Decided: 

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## t0 Filed:Mr. Chief Justice Frank I.Haswell delivered the Opinion of the Court. WilliamMcNair petitioned this Court inan original proceeding tovacate, set aside, or correct a sentence imposed upon him by the District Court, Cascade County. He brought his petition pursuant to section 46-21-101, et seq., MCA, alleging that he did not voluntarily and intelligently enter a guilty plea, and that he was denied effective assistance of counsel because counsel did not discuss with himthe possibility of the defense of mental defect or disease. We find that under the facts of this case, petitioner is not entitledto relief. On June 23, 1971, petitioner was arrested inconnection with a robbery of narcotics from Osco Drug inGreat Fa1ls, Montana. Atthe time of the arrest, petitionerwas unconscious

as a result of 

### a drug overdose, and was subsequently hospitalized. On July2, 1971, petitioner appeared incourt without counsel. At that time, counsel was appointed and petitioner was ordered transferred toWarm Springs StateHospital for

a psychological evaluation. The evaluation indicated that petitioner was competent to assist and participate inhis own defense. With counsel present, petitioner pleaded guilty to the charges on September 15, 1971. Pursuant to a recommendation by the county attorney, he was sentenced to twoyears inWarm Springs for drug treatment, with the remainder of his sentence to be served inDeer Lodge State Prison. InFebruary, 1980, 81hyears after sentencing, petitioner brought this motion before this Court for post-conviction re1ief. For purposes of this petition, we will address two issues: (1) Does the doctrine of laches apply so as to prevent a defendant from challenging the validity of his sentence, pursuant tosection 46-21-101, MCA? (2) Under the circumstances of this case, ispetitioner entitledto any post-conviction relief? The Cascade County Attorney urges this Court to dismissthe defendant's petitionfor the reason that it ismeritless and forthe reason that his attempt to withdraw his guilty plea is not timely. He argues that defendant isbarred, by laches, from raisingthese issues 81k years after he was sentenced. We find that defendant is not barred from raisingthe issues by motion to this Court. Section 46-21-102, 

### MCA, provides that "[a] petitionfor



# ..

# . relief may be filed at any time after conviction." This Court has not previously looked at this section but the legislative history of the comparable federal statute and the Uniform Post-Conviction ProcedureAct dictates the conclusionthat there isno time limit inwhich to initiatean action. The post-conviction hearing statutes are an attempt by the legislatureto consolidate a11 of the common-law statutory remedies normally available to challenge a sentence. Montana's act isbased inpart on the IllinoisCode of Criminal Procedure, and inpart on the UniformAct, but the Montana Code issilent as to the source of the section inquestion. The IllinoisCode of Criminal Procedure sets forth a20-year statute of limitations for initiatingan action, unless petitioner a1leges facts showing that the delay isnot due to his culpable negligence. See 38 111. Code of Crim.Proc. 

## 5 122-1. Montana did not choose to adopt this section, but didenact a statute with language similar to section 

### 1 ofthe 1955 Uniform Post-Conviction Procedure Act and the federal act, 28 U.S.C. 2255. The Commission comments to the Uniform Act indicatethat a statute of limitations for filingwas considered, but rejected, because of a question of constitutionality. And inconsidering a claimby the government that a petition under 28 U.S.C. 2255 was not filed at the proper time, the UnitedStates Supreme Court inHeflinv. United States (1959), 358 U.S. 415, 420, 79 S.Ct. 451, 454, 3 L.Ed.2d 407, 411 (Stewart J., concurring), noted that under the federal statute, a sentence could be attacked only by a prisoner presently serving, but that the section comparable to section46-21-102, MCA, "meansthat, as inhabeas corpus, there is no statute of limitations, no

resjudicata, and that the doctrine of laches is inapplicable." See also, ~onngrs v. U.S. (9th Cir. 1970), 431 F.2d 1207; C. Torcia, Wharton's Criminal Procedure

### $ 648 (12th ed. 1976). Inaccord with these authorities, we find that the Montana legislature did not intend to impose an absolute time constraint

on the filingof an application for post-conviction relief. Our finding that petitioner isentitledto file his petition at any time does not, however, necessitate a finding that he is entitledtothe relief sought. Numerous federal courts have considered the problem of delay, in$2255 motions, with many courts finding that delay can have a negative effect on the movant: "While motions under 28 USC $2255 may be made at any time, the lapse of time affects the good faithand credibility of the moving party." Aiken v. United States (M.D. N.Car. 1961), 191 F.Supp. 43, 50, aff'd296 F.2d 604 (4th Cir. 1961). See also Raines v. United States (4th Cir. 1970), 423 F.2d 526, 531. Ina case such as the one before us, we find that the81/2 year delay certainly raises questions of defendant's credibility in asserting his claims. Based on the records, files and affidavits presented to us, we deny the petition. Indoing so, we find the view of the District Court, District of Columbia, persuasive: "Obviously, the burden of proof on a motion to vacate a sentence under 28 U.S.C. $2255 ison the moving party, because there isa presumption of regularity of the conviction. The burden is particularly heavy 

### ifthe issue isone of fact and a longtime has elapsed since the trial of the case. While neither the statute of limitations nor laches can bar the assertion of a constitutional right, nevertheless, the passage of time may make it impracticable to retry a case 

### ifthe motion isgranted and a new trial is ordered. No doubt, at times such a motion isa product of an afterthought. Long delay may raise a question of good faith." United States v. Bostic (D. D.C. 1962), 206 F.Supp. 855, 856-57. Inaddition to the problem of good faith, we note that long delay may prove to be highly prejudicial 

### ifthe State is forced to try a case 81k years later. The practical problems of dying witnesses, fading memories, and changing government officials demand that the applications for relief mustbe made promptly. See Desmond v. United States (1st Cir. 1964), 333 F.2d 378, 381. InPacelli v. United States 

### (2nd Cir. 1978), 588 F.2d 360, 365, cert.denied, 441 U.S. 908, 99 S.Ct. 2001, 60 L.Ed.2d 378 (1979), the court citedRule 9(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts: 

### "A motion for relief made pursuant tothese rules may be dismissed 

### if it appears that the government has been prejudiced initsability to respond tothe motion by delay initsfiling unless the movant shows that it isbased on grounds ofwhich he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the government occurred."

That court noted that ajudge isclearly entitled to take delays into account inrulingon a motion for relief. The petitioner's allegations of error on which he bases his petition all are premised on the involuntary and unintelligent nature of his guilty plea. He asserts that he had incompetent counsel who did not advise him of the penalties involved, and he contends that he would not have entered a guilty plea if his counsel had advised him of the possibility of raising the issue of mental defect or disease. He questions his competence to stand trial. We note at the outset that petitionerwas sent to Warm Springs for an evaluation by the DistrictJudge. That evaluation, conducted by Dr. M. F. Gracia, found defendant "competent and able to assist and participate inhis own defense," although noting defendant's long history of drug and alcohol abuse. Priortothis evaluation, defendant conversed briefywith his appointed counsel

### , and following his release from Warm Springs, defendant consulted with his attorney three more times priortothe entry of the guilty plea. On September 14, 1971, defendant and his counsel appeared before the Honorable R. J. Nelson. The record shows that at that time, the defendant received, and was read, a copy of the information and the DistrictJudge informed himof his righttotake at least24 hours more before pleading inorder to adequately understand thecharges. Defendant's counsel requested the continuance, as the record shows: "MR. OVERFELT: Your Honor, inorder that the defendant may be fully apprised of the nature of the charge against him and the consequences of that particular charge, we request the court at thistime for an additional twenty-four hours, inwhich to enter the plea." Counsel's records, which were presented to us by affidavit show that defendant desired to enter a guilty plea pursuant to a plea bargain 

### if an arrangement could be worked out to get him into a drug treatment program. It appears from these same records that counsel had done initial research into the possible defenses of drug and alcohol addiction or mental defect, and had indicated to defendant a poor chance for himto use such a defense. On this basis, the decisionwas reached voluntarily by defendant to plead guilty. 

### A plea was not entered by defendant until the following day. 

### Atthat time the judge inquired into the voluntary nature of the plea. The record provides inpart: "THE COURT: Well, Mr. McNair,before Ican accept aGuilty plea, Imust ascertain that it's voluntarily made. Inother words, thatyou're not being coerced or forced to make this plea. "THE DEFENDANT: No, your Honor, I'mnot being forced. "THE COURT: All right, and you understand that Idon't care what anyone said toyou, as a Court Icannot make you and 

### will not make you any promises as to sentence? "THE DEFENDANT: Irealizethis." Following a presentence investigation, defendant was sentenced on September 29, 1971, with the first part of the sentence to be served at Warm Springs for drug treatment. Defendant's counsel indicates by affidavit that this sentencing was pursuant toa recommendation of the county attorney, based on plea negotiations between counsel and the county attorney. As the record shows, defendant has waited 

### 81b years before making an attempt to withdraw his guilty plea. This Court has previously noted that where a District Court has determined thata plea was voluntarily entered, withdrawal of that plea isa matterwithin the discretion of the court. 

### A long time interval before moving towithdraw the plea makes the situation less favorable tothe defendant. Inthe case of State v. Lewis (19781, Mont. 

## , 582 P.2d 346, 352, 35 St.Rep. 1089, 1096, this Court adressed the issue of laches as it applies to the withdrawal of a guilty plea: "Moreover, the claimof laches isgood against the defendant here because it isquite probable the records upon which the pleas of guilty were entered are now missing ortheir whereabouts unknown and the availability of witnesses would of course be a question. See State v. Sattler (19761, Mont. 

## ,549 P.2d 1080, 33 St.Rep. 475." See also, State v. Nance (1947), 120Mont. 152, 184 P.2d 554; State v. Sattler (1976), 170 Mont. 35, 549 P.2d 1080. We are faced with that problem here. We have before us a1legations of incompetent counsel leading to an invalid guilty plea. It is hard to imagine that this defendant was unable to determine for81hyears that he did not enter a voluntary and intell igent guilty plea. He a1leges one unsuccessful attempt to work with the University of Montana Defender Project in1974, at

a time after he had served his sentence and was inDeer Lodge for

a laterconviction. The record does not substantiatethis claim,

nor does it appear that he made any other attempts for five more years, until filingthis petition in1979. This Court noted inState v. Lewis, supra, that

## "Lilt has become common place inrecent times for defendants seeking post conviction re1

### ief to assail their representation by counsel during criminal proceedings as inadequate or deficient." We remarked there and we reiterate: 

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# ... Such an attack however must be grounded upon facts which appear inor are easily deduced from the record and which go beyond the mere conclusory a1legations inthe defendant's affidavit. There must be a showing of actual ineffectiveness on the part of counsel. Digiallonardo v. Betzer (1973), 163 Mont. 104,We have before us the court files and records and the affidavits of both petitioner and petitioner's counsel

# . Based on these records we have determined that petitioner's motion should be denied without a hearing. Section46-21-201, 

### MCA. The petitioner has raised no issues which we would expect to require



### a different resolution 

### if an evidentiary hearing were ordered now--8lb years after the plea and sentencing. He has made no showing inhis petitionthat he has any additional informationto orthat he put before the Court/can produce any witnesses with different recollections or any additional records which may have been lyingdormant for all thistime. Inviewing a11 the circumstances, we are convinced that petitionerwas adequately represented in1971 and that he was fullycompetent to enter a voluntary and intelligent guilty plea. It isunnecessary to reopen the case. The petition isdenied.

ChiefJustice



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... /' We cdncur: