NO. 83-125 

IN THE SUPREPIE COURT OF THE STATE OF MONTANA 

1383 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

HARVEY HINTZ and KENNETH SCHAFER, 

Defendants and. Appellants. 

Appeal from: District Court of the Second Judicial District, 

In and for the Countv of Silver Bow 

Honorable Mark Sullivan, Judqe presidina. 

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 

Submitted on briefs- June 10, i98j 

Decided- August 4, 1953 

Filed: Abi; 4 1983 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal pro se from an order dismissing appellants1 

petition for post-conviction relief entered in the District Court 

of the Second Judicial District, County of Silver Bow. 

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 at Warm Springs State Hospital. 

Arrested with the defendants was one Mary Jean Munson who 

pled not guilty and was later treated as a separate defendant and 

plea bargained with the State. 

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 late January, 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 as counsel for Schafer and R. M. McCarthy was appointed 

as Schaferls counsel. On the following day, James E. Purcell was 

appointed co-counsel for Schafer and the trial date was set for 

April 15, 1975. During the next several months a number of 

extensions were granted and continuances were allowed for purpose 

of mental examinations. On June 4, 1975, the Honorable Arnold 

Olsen, having been disqualified, called in the Honorable James D. 
Freebourn to handle all further 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 100 years in the Montana State Prison. 

At the 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 sentencing judge did not have sufficient information upon which to base a sentence. . . . " After the State 

filed its response, the Honorable M. P. Sullivan, District Judge, 

denied the defendants request for post-conviction relief. 

Thereafter they filed a petition for rehearing, which was also 

denied. This pro se appeal follows. 

The appellants allege that serious error was committed in the 

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 in which the District 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 that one witness to the incident who had been originally charged as a defendant, Mary Munson, had signed a statement 

in which she told the county attorney's office that the shooting 

was accidental. They argue that had the District Court inquired 

from them when accepting the change of pleas as to what actually 

occurred at the time of the robbery, the truth would have been 

known and, in addition, the court could have obtained that information in a pre-sentence report had it been furnished to the 
court. 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 against petitioner 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. Sect ions 

95-2201, 2202, 2203, RCM, 1947. 

The controlling issue is whether the District Court committed 

error by not calling in another judge to hear the case after 

having been involved in the case as defense counsel. The statutes of Montana require that under certain circumstances the judge 

must be disqualified and provides for the substitution of judges 

under this disqualification statute. Section 3-1-802, 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 his part not to do so, the order of the District Court denying 

post-conviction relief is vacated and the cause is remanded to 

the District Court for a post-conviction hearing before another 

District Judge. 

We concur: 

pA4&&L$w4q Chief Justlce