No. 80-77 

IN THE SUPrnMF, COURT OF THE STATE OF MONTANA 

1980 

IN RE WILLIAM E. McNAIR 

ORIGINAL PROCEEDING : 

Counsel of Record: 

For Petitioner: 

William E. McNair, Pro Se, Deer Lodge, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

3. Fred Bourdeau, County Attorney, Great Falls, Montana 

Michael G. Barer, Deputy County Attorney, Great Falls, 

Montana 

Submitted on briefs: April 15, 1980 

Decided : uu6 2 5 1880 

"I h I 4k.t - 1: - t 0 

Filed: 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

William McNair petitioned this Court in an original proceeding to vacate, 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 him the possibility of the defense of 

mental defect or disease. We find that under the facts of this 

case, petitioner is not entitled to relief. 

On June 23, 1971, petitioner was arrested in connection 

with a robbery of narcotics from Osco Drug in Great Fa1 ls, 

Montana. At the time of the arrest, petitioner was unconscious 

as a result of a drug overdose, and was subsequently 

hospitalized. On July 2, 1971, petitioner appeared in court 

without counsel. At that time, counsel was appointed and petitioner was ordered transferred to Warm Springs State Hospital for 

a psychological evaluation. The evaluation indicated that petitioner was competent to assist and participate in his 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 two years in Warm 

Springs for drug treatment, with the remainder of his sentence to 

be served in Deer Lodge State Prison. 

In February, 1980, 81h years after sentenci ng, petitioner 

brought this motion before this Court for post-conviction re1 i ef. 

For purposes of this petition, we will address two issues: 

(1) Does the doctrine of laches apply so as to prevent a 

defendant from chal lenging the validity of his sentence, pursuant 

to section 46-21-101, MCA? 

(2) Under the circumstances of this case, is petitioner 

entitled to any post-conviction relief? 

The Cascade County Attorney urges this Court to dismiss 
the defendant's petition for the reason that it is meritless and 

for the reason that his attempt to withdraw his guilty plea is 

not timely. He argues that defendant is barred, by laches, from 

raising these issues 81k years after he was sentenced. We find 

that defendant is not barred from raising the issues by motion to 

this Court. 

Section 46-21-102, MCA, provides that "[a] petition for 

. . . 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 Procedure Act dictates the conclusion that there 

is no time limit in which to initiate an action. 

The post-conviction hearing statutes are an attempt by the 

legislature to consolidate a1 1 of the common-law statutory remedies normally available to chal lenge a sentence. Montana's act 

is based in part on the Illinois Code of Criminal Procedure, and 

in part on the Uniform Act, but the Montana Code is silent as to 

the source of the section in question. The Illinois Code of 

Criminal Procedure sets forth a 20-year statute of limitations 

for initiating an action, unless petitioner a1 leges facts showing 

that the delay is not due to his culpable negligence. See 38 111. 

Code of Crim.Proc. 5 122-1. Montana did not choose to adopt this 

section, but did enact a statute with language similar to section 

1 of the 1955 Uniform Post-Conviction Procedure Act and the 

federal act, 28 U.S.C. 2255. The Commission comments to the 

Uniform Act indicate that a statute of limitations for filing was 

considered, but rejected, because of a question of constitutionality. And in considering a claim by the government that a petition under 28 U.S.C. 2255 was not filed at the proper time, the 

United States Supreme Court in Heflin v. 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 section 46-21-102, MCA, "means 
that, as in habeas corpus, there is no statute of limitations, no 

res judicata, 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). 

In accord with these authorities, we find that the Montana 

legislature did not intend to impose an absolute time constraint 

on the filing of an application for post-conviction relief. 

Our finding that petitioner is entitled to file his petition 

at any time does not, however, necessitate a finding that he is 

entitled to the 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 

faith and credibility of the moving party." 

Aiken v. United States (M.D. N.Car. 1961), 191 

F.Supp. 43, 50, aff'd 296 F.2d 604 (4th Cir. 

1961). See also Raines v. United States (4th 

Cir. 1970), 423 F.2d 526, 531. 

In a case such as the one before us, we find that the 81/2 

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. In doing 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 is on 

the moving party, because there is a presumption 

of regularity of the conviction. The burden is 

particularly heavy if the issue is one of fact 

and a long time 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 

if the motion is granted and a new trial is 

ordered. No doubt, at times such a motion is a 

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. 

In addition to the problem of good faith, we note that 

long delay may prove to be highly prejudicial if the 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 must 
be made promptly. See Desmond v. United States (1st Cir. 1964), 333 F.2d 

378, 381. In Pacelli 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 cited Rule 9(a) of the Rules Governing 

Section 2255 Proceedings for the United States District Courts: 

"A motion for relief made pursuant to these 

rules may be dismissed if it appears that the 

government has been prejudiced in its ability to 

respond to the motion by delay in its filing 

unless the movant shows that it is based on 

grounds of which he could not have had knowledge 

by the exercise of reasonable diligence before 

the circumstances prejudicial to the government 

occurred." 

That court noted that a judge is clearly entitled to take 

delays into account in ruling on 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 petitioner was sent to Warm 

Springs for an evaluation by the District Judge. That 

evaluation, conducted by Dr. M. F. Gracia, found defendant "competent and able to assist and participate in his own defense," 

although noting defendant's long history of drug and alcohol 

abuse. Prior to this evaluation, defendant conversed briefy with 

his appointed counsel , and following his release from Warm 

Springs, defendant consulted with his attorney three more times 

prior to the 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 

District Judge informed him of his right to take at least 24 

hours more before pleading in order to adequately understand the 
charges. Defendant's counsel requested the continuance, as the 

record shows: 

"MR. OVERFELT: Your Honor, in order 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 

this time for an additional twenty-four hours, 

in which 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 him to use such a 

defense. On this basis, the decision was reached voluntarily by 

defendant to plead guilty. 

A plea was not entered by defendant until the following 

day. At that time the judge inquired into the voluntary nature 

of the plea. The record provides in part: 

"THE COURT: Well, Mr. McNair, before I can 

accept a Guilty plea, I must ascertain that it's 

voluntarily made. In other words, that you're 

not being coerced or forced to make this plea. 

"THE DEFENDANT: No, your Honor, I'm not being 

forced. 

"THE COURT: All right, and you understand that 

I don't care what anyone said to you, as a Court 

I cannot make you and will not make you any promises as to sentence? 

"THE DEFENDANT: I realize this." 

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 

to a recommendation of the county attorney, based on plea negoti ations 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 that 
a plea was voluntarily entered, withdrawal of that plea is a 

matter within the discretion of the court. A long time interval 

before moving to withdraw the plea makes the situation less 

favorable to the defendant. In the 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 claim of laches is good against 

the defendant here because it is quite probable 

the records upon which the pleas of guilty were 

entered are now missing or their 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), 120 Mont. 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 

a1 legations of incompetent counsel leading to an invalid guilty 

plea. It is hard to imagine that this defendant was unable to 

determine for 81h years that he did not enter a voluntary and 

intell igent guilty plea. He a1 leges one unsuccessful attempt to 

work with the University of Montana Defender Project in 1974, at 

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

a later conviction. The record does not substantiate this claim, 

nor does it appear that he made any other attempts for five more 

years, until filing this petition in 1979. 

This Court noted in State v. Lewis, supra, that "Lilt has 

become common place in recent times for defendants seeking post 

conviction re1 i ef to assail their representation by counsel 

during criminal proceedings as inadequate or deficient." We 

remarked there and we reiterate: 

" . . . Such an attack however must be grounded 

upon facts which appear in or are easily deduced 

from the record and which go beyond the mere 

conclusory a1 legations in the 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. Section 46-21-201, 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 in his petition that he has any additional information to 

or that he 

put before the Court/can produce any witnesses with di fferent 

recollections or any additional records which may have been 

lying dormant for all this time. In viewing a1 1 the 

circumstances, we are convinced that petitioner was adequately 

represented in 1971 and that he was fully competent to enter a 

voluntary and intelligent guilty plea. It is unnecessary to 

reopen the case. 

The petition is denied. 

Chief Justice 

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We cdncur: