STATE v LA TRAY
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NO. 85-438 I N THE SUPREME COURT OF THE STATE O MONTANA F 1986 STATE O MONTANA, F P l a i n t i f f and Respondent, -vsALVIN LA TRAY, D e f e n d a n t a n d Appell-an.t . APPEAL FROM: D i s t r i c t Court of t h e S i x t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f Rosebud., The H o n o r a b l e A l f r e d B. Coate, J u d g e p r e s i d i n g . COUNSEL O F RECORD: For Appellant: G a r r y P. Bunke a r g u e d , F o r s y t h , Montana For Respondent: Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana R o b e r t F.W. S m i t h a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a , Montana J o h n S . F o r s y t h e a r g u e d , County A t t o r n e y , F o r s y t h , Montana Submitted: February 1 3 , 1 9 8 6 Decid.ed: Marc@ 13, 1 9 8 6 Filed: MAR 1 J '1986 Clerk J u s t i c e Nil-liam E. t h e Court. Hunt, Mr. Defendant, attempted. J,a Alvin deliberate Sr., Tray, d e l i v e r e d t h e O p i n i o n of was o r i g i n a l l y c h a r g e d w i t h homicide on November 1983. 23, A p p r o x i m a t e l y one month l a t e r , d e f e n d a n t e n t e r e d i n t o a p l e a bargain agreement and p l e d g u i l t y t o a g g r a v a t e d a s s a u l t in t h e S i x t e e n t h J u d i c i a l D i s t r i c t C o u r t , County o f Rosebud. was sentenced Montana January Prison, State dangerous 16, with weapon. s e v e r a l motions trial judge Over seeking treated 1984, the judge next year, them a s m o t i o n s t h o s e m o t i o n s May 2 5 , 1985. appeals. added We years for in use defendant the of t o withdraw relief. a filed t o withdraw h i s g u i l t y p l e a . p e t i t i o n f o r post-conviction Defendant twenty years two to He and The as a A h e a r i n g was h e l d on They w e r e d e n i e d from t h e bench. affirm the decision of the trial . The i s s u e s r a i s e d a r e : 1. Whether defendant was denied his constitutional r i g h t of e f f e c t i v e assistance of counsel? 2. Whether the District Court should have granted d e f e n d a n t ' s p e t i t i o n f o r p o s t - c o n v i c t i o n r e l i e f and p e r m i t t e d t h e withdrawal of h i s g u i l t y plea? The c i r c u m s t a n c e s s u r r o u n d i n g t h e c r i m e a r e i n d i s p u t e . A t h i s plea bargain hearing, roommate, H . defendant admitted shooting h i s L u l o f f on O c t o b e r 1 0 , 1983. D. t h a t Tami Huehner had o f f e r e d t o Defendant s t a t e d l u r e Luloff t o the river w i t h p r o m i s e s o f s e x i f d e f e n d a n t would f o l l o w them and s h o o t Luloff. agreed. defendant Defendant Tami to apparently allegedly find them in was smoked the angry a dark. with Luloff, cigarette, Next, so al-lowing according to defendant, Tami and L u l o f f approached d e f e n d a n t and L u l o f f i n t r o d u c e d d e f e n d a n t t o Tami, f o l l o w i n g which d e f e n d a n t s h o t Luloff. Tami and d e f e n d a n t t h e n l e f t t h e s c e n e . Tami h a s g i v e n a t l e a s t t h r e e c o n f l i c t i n g s t a t e m e n t s t o authorities. Initially, t h e shooting. Later, s h e c l a i m e d t o know n o t h i n g a b o u t a t a deposition, l e a s t being a t t h e scene. the record.) she admitted t o a t (The d e p o s i t i o n i s n o t i n c l u d e d i n Still later, s h e gave a statement t o Police O f f i c e r Odem a l l e g i n g t h a t L u l o f f had t r i e d t o r a p e h e r down by t h e r i v e r , La Tray had appeared a.nd p r e v e n t e d t h e r a p e . She c l a i m e d s h e d i d n o t know L u l o f f was s h o t t i l l l a t e r t h a t evening. L u l o f f a l l e g e s i n h i s s t a t e m e n t t h a t T a m i approached him about going agreed. to the river A t the river, and "fooling around." Lulof f Tami l e f t L u l o f f and wandered around. L u l o f f went down t o t h e w a t e r . O returning t o the vehicle, n Luloff saw someone i n a g r e e n O ' T o o l e t s j a c k e t and t h e n was shot. He saw Tami w a l k i n g o f f w i t h t h e i n d i v i d u a l i n t h e green jacket a s h e was p a s s i n g o u t . Defendant apparently owns a g r e e n O ' T o o l e ' s j a c k e t , b u t when c o n f r o n t e d by L u l o f f s t a t e d it had been s t o l e n . A n information November 23, 1983, homicide. The incarcerated in charge. was and information the Rosebud to this on defendant attempted deliberate was served County Jail A t h i s i n i t i a l appearance, Prior served c h a r g i n g him w i t h c o u n s e l be a p p o i n t e d . 1983. filed while on an he was unrelated defendant requested t h a t John Houtz was a p p o i n t e d November 29, point, several police officers, and e s p e c i a l l y O f f i c e r Odem, d i s c u s s e d t h e c a s e w i t h d e f e n d a n t i n his cell. Defendant allegedly signed confession a s a r e s u l t of those "talks." a fourteen page The c o n f e s s i o n i s not i n t h e record. A p l e a b a r g a i n was a l s o d i s c u s s e d , after which O f f i c e r Odem t o l d d e f e n d a n t he would c o n t a c t t h e County Attorney. A t t o r n e y Houtz' a c t i v i t i e s a s c o u n s e l f o r d e f e n d a n t were limited: 4 - 30 minute December 1 0 County A t t o r n e y - 15 1) December 3) talk with with defenda~t defendant and - 1 0 minute c a l l from d e f e n d a n t 1 2 - 2 - 15 minute c o n f e r e n . c e s w i t h Tom 2) minute conference December 1 2 4) December Lofland, defendant's probation o f f i c e r 5 ) December 1 3 - Conference w i t h S t a t e ' s o f f e r t o plea bargain 6) December 1 6 - defendant regarding Sent l e t t e r requesting discovery 7 ) December 2 2 Wrote l e t t e r t o d e f e n d a n t recommending p l e a b a r g a i n ; d i c t a t e d p l e a b a r g a i n agreement - 8 ) December 2 7 S e n t copy o f agreement A t t o r n e y ; p i c k e d up w i t n e s s s t a t e m e n t s 9 ) December 2 9 - E n t e r e d aggravated a s s a u l t At the hearing relief, post-conviction attempted to on Houtz suppress change of plea defendant's testified defendant's to County - g u i l t y of petition that he confession, had for not despite d e f e n d a n t ' s r e q u e s t h e do s o , b e c a u s e h e saw no grounds f o r suppression. H e l a t e r s t a t e d t h a t i n r e p r e s e n t i n g o v e r one hundred d e f e n d a n t s , h e had o n l y f i l e d a motion t o s u p p r e s s once o r t w i c e and n e v e r s u c c e s s f u l l y . Houtz i n d i c a t e d t h a t he b e l i e v e d someone had " g o t t - e n " t o d e f e n d a n t b e f o r e h e was a p p o i n t e d and had a r r a n g e d t h e p l e a ba.rgain. confession, Houtz he f u r t h e r s t a t e d t h a t because of defendant ' s felt the plea bargain would be best for defendant. When questioned about his efforts to adequately r e p r e s e n t d e f e n d a n t , Houtz a d m i t t e d t h a t when he recommended to d.efendant that he plea bargain, he had only interviewed the defendant, his probation officer and the victim. Sixteen potential witnesses were provided to Houtz by the State. Houtz was unaware that Luloff had stated in his statement to police that he could not identify his assailant. Luloff had apparently told Houtz the assailant was La Tray. Nor did Houtz know that Tami Huebner had told three very inconsistent stories, one which could possibly have provided an excuse for the shooting. Even though Houtz learned of this information prior to defendan.tls plea, he never informed defendant. Defendant appeared before Judge Coate with his attorney on December 29, 1983, and plead guilty to aggravated assault. The Judge conducted an intensive interrogation of defenda.nt prior to the plea to ensure that it was made knowingly and without coercion. In his petition for post-conviction relief and at his subsequent hearing, defendant contended that he gave all the "right" answers because he knew that was the only way the judge would accept his plea. Defendant had been warned by either Officer Odem or the County Attorney that he would get 210 years on the attempted deliberate homicide charge. Defendant wanted to avoid that possibility at all costs. In Strickland v. Washington (1984), 466 U.S. S.Ct. 2052, 80 L.Ed.2d 688, 104 674, the United States Supreme Court adopted a two-prong test for evaluating claims of ineffective assistance of counsel. 1. "Flhen a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-688, 104 S.Ct. at 2065, 80 L.Ed.2d at 693. 2. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding Strickland, 466 U.S. would have been different. " at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. We adopted this test in State v. Boyer (Mont. 1985), 695 P.2d There is no question but representing defendant could tha.t counsel's efforts have been more in diligent. However, the dispositive question is whether defendant was prejudiced by his counsel's lack of diligence. We find that he was not. For all intents and purposes, it appears defendant had his plea bargain practically appointed as his attorney. against his client, reasonable and guaranteed before Houtz was Houtz, after reviewing the case determined fair. He the plea bargain therefore pursued and to be achieved finalization of that bargain. Under the circumstances, we also find the plea bargain to be reasonable and fair. We are not persuaded that had defendant been advised of Huebner's and Luloff's inconsistent statements, he would have opted to proceed to trial on the attempted deliberate homicide charge. Thus, counsel ' s failure to advise his client of the complete case against him does not undermine our confidence in the eventual outcome, the plea bargain. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. We hold that defendant received the effective assistance of counsel. The rule for allowing withdrawal of a guilty plea was recently set forth in State v. Laverdure (Mont. 1984), 685 P.2d 375, 377, 41 St.Rep. 1570, 1-572. Review of a motion to withdraw a guilty plea requires the consideration and. balancing of at least three relevant factors: "(1) the adequacy of the interrogation by the District Court of the defendant at the entry of the guilty plea as to the defendant's understanding of the consequences of his plea, 12) the promptness with which the defendant attempts to withdraw the prior plea, and (3) the fact that the defendant's plea was apparently the result of plea bargain in which the guilty plea was given in exchange for dismissal of another charge State v. Huttinger (1979), 182 Mont. 50, 54, 595 P.2d 363, 366. . . . ." The trial judge's interrogation of defendant at the time he entered his guilty plea was adequate. dispute this conclusion. Furthermore, defendant's efforts to withdraw his plea were not timely. a year after pleading guilty. January of 1985. Defendant does not He requested. a transcript His first motion was filed in Finally, defendant's plea was clearly the result of a plea bargain. Defendant's reasons for wanting to withdraw his guilty plea center around claim. For example, defendant contends that his lawyer's failure to against his ineffective assistance of counsel accurately him However, resulted our assistance holding of and in fully advise him of the case his that counsel decision defendant significantly to plead received guilty. effect-ive und.ermines this contention. Therefore, we affirm the trial judge's refusal to permit defendant to withdraw his guilty plea. Affirmed. We Concur: /
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