NO. 83-125 INTHE SUPREPIE COURT OF THE STATE OFMONTANA 1383

STATE OF MONTANA, Plaintiff and Respondent,
VS

### . HARVEY HINTZ and KENNETH SCHAFER, Defendants and. Appellants.

Appeal from: DistrictCourt of the Second JudicialDistrict, Inand forthe Countv of SilverBow Honorable Mark Sullivan, Judqepresidina. Counsel of Record: For Appellants: Harvey Hintz, Pro Se, Deer Lodoe, Montana Kenneth Schafer, Pro Se, Deer Lodse, Montana For Respondent: EIon. Mike Greely, Attorney General, Helena, Montana Robert McCarthy, County Attorney, Butte, Montana

Submittedon briefs-June 10, i98j Decided-August 4, 1953 Filed: 

### Abi; 4

## 1983Mr. Justice John Conway Harrison delivered the Opinion of the Court.
This 

### is an appeal pro 

### se from anorder dismissing appellants1 petitionfor post-conviction relief entered intheDistrict Court of theSecond Judicial

### District, County of SilverBow. On November 28, 1974, Raymond Joseph Merrick was shot and killed during a robbery of the Community Gas Station, located on Front and Main Street in Butte, Montana. The appellants 

### were arrested on the same day and each charged with one count of deliberate homicide and one count of robbery to which they pled "not guilty." Bond was 

### set in the amount of $75,000 for each defendant. Defendants could not post bond and both 

### were held in the Silver Bow County jail for a period of approximately one year. During that year psychiatric and psychological evaluations were made of the defendants atWarm SpringsStateHospital. Arrested with the defendants was one Mary Jean Munson who pled not guiltyand was latertreated asa separatedefendant and pleabargained with theState. On December 13, the day set for a plea, Kenny Schafer and Mary Jean Munson appeared with counsel M. P. Sullivan, and Hintz appeared without counsel. On December 17, Hintz appeared, represented by counsel Sullivan, and made application for psychiatric evaluation. In lateJanuary, a change of counsel occurred and Hintz obtained, by appointment, Michael McKeon of Anaconda to act
as counsel. Schafer continued to be represented by M. P. Sullivan and J. J. Parker. On January 28, pleas of not guilty
were entered to the information. On March 29, M. P. Sullivan withdrew ascounsel for Schafer and R. M. McCarthy was appointed
asSchaferlscounsel. On the following day, James E. Purcellwas appointed co-counsel for Schafer and the trial datewas set for April 15, 1975. During the next several months a number of extensionswere granted and continuanceswere allowed forpurpose of mental examinations. On June 4, 1975, the Honorable Arnold Olsen, having been disqualified, called intheHonorableJames D.Freebourn to handle allfurther matters. On September 29, 1975, trial was 

### set for Tuesday, November 4, 1975, and thereafter a number of defense motions were filed. On November 12, 1975, the two defendants entered pleas of guilty to the charge of deliberate homicide. The Honorable James Freebourn immediately sentenced each defendant to 100years in the Montana StatePrison. Atthe time of sentencing no pre-sentence investigation reports
were ordered nor made. Seven years later, on September 20, 1982, the defendants filed a pro se petition for post-conviction relief in the 

### District Court of Silver Bow County, alleging that "in light of the fact that no pre-sentence investigation report was made and
no reasons were articulated for the lengthy sentences, it 

### is possible that the sentencingjudge did not have sufficientinformation upon which to base a sentence. 

# . . ." After the State filed

### itsresponse, theHonorable M. P. Sullivan, DistrictJudge, denied the defendants request for post-conviction relief. Thereafter they filed a petition for rehearing, which was also denied. Thispro se appeal follows. The appellants allege thatseriouserrorwas committed inthe 

### District Court's failing to properly investigate the facts and circumstances of the case prior to imposing a sentence. The petitioners allege that the court records contain no statements from either of them inwhich theDistrict Court could have known that the shooting was an accident. They argue that if the District Court had taken the 

### time to read the files, they would have learned thatone witness to the incidentwho had been originallycharged asadefendant, Mary Munson, had signed a statement inwhich she told the county attorney's office that the shooting
was accidental. They argue thathad theDistrict Court inquired from themwhen accepting the change of pleas as to what actually occurred at the 

### time of the robbery, the truth would have been known and, inaddition, the court could have obtained thatinformation in a pre-sentence report had 

### it been furnished to thecourt. They allege that during the course of the robbery they shot the attendant Ray Merrick accidentally, when the deceased, Merrick, while standing on an elevated platform beside the cash register, slipped and fell againstpetitioner Schafer's arm that
was holding the gun. They argue that this caused the weapon to accidentally discharge, striking the deceased under his outstretched arm under the armpit causing immediate death. Petitioners argue the District Court did not follow the applicable statutes at the 

### time of their sentencing. Sections 95-2201, 2202, 2203, RCM, 1947. The controlling issue 

### iswhether theDistrict Court committed
error by not calling in another judge to hear the case after having been involved in the case asdefense counsel. The statutesof Montana require thatunder certaincircumstances thejudge must be disqualified and provides for the substitution of judges under this disqualification statute. Section3-1-802, MCA, provides for the disqualifications of judges- The presiding judge in the post-conviction relief proceedings should have disqualified himself pursuant to the above provisions and called in another judge. In view of the fact that it was error
on hispart not to do so, the order of theDistrictCourt denying post-conviction relief is vacated and the cause is remanded to the 

### District Court for a post-conviction hearing before another DistrictJudge.

We concur: 

# pA4&&L$w4q Chief Justlce