Bone v. State

96-143

No. 96-143

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

ROBERT HENRY BONE,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Respondent.

APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Blaine,
The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks (argued), Appellate Defender Office,
Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General;
John Paulson (argued), Assistant Attorney General;
Helena, Montana

Mark Harshman, Blaine County Attorney,
Chinook, Montana

Heard: April 15, 1997

Submitted: April 22, 1997

Decided: August 28, 1997

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Filed:

__________________________________________
Clerk

Justice Jim Regnier delivered the opinion of the Court.

On March 11, 1987, Robert Bone was charged in the Seventeenth Judicial District
Court, Blaine County, with the offenses of deliberate homicide, in violation of
45-5-
101(1) and -102(1)(a), MCA (1985), and, deliberate homicide by accountability, in
violation of 45-2-302(3) and 45-5-101(1) and -102(1)(a), MCA (1985). On April 13,
1987, Bone entered pleas of guilty to both counts pursuant to a plea agreement. The
District Court sentenced Bone to two concurrent terms of 100 years at the State
Prison,
with two consecutive terms of two years each for the use of a weapon during the
commission of the offense. Bone submitted a petition for post-conviction relief to
the
District Court, which was denied. Bone appeals the District Court's denial of his
amended petition for post-conviction relief. We affirm.
The issues on appeal are as follows:
1. Are the District Court's findings of fact concerning Bone's claims of
ineffective assistance of counsel supported by substantial evidence in the record,
and did
the court correctly apply the appropriate legal standards in review of these claims?
2. Did the District Court err in concluding that the court's guilty plea
colloquy
was adequate?
3. Did the District Court err in concluding that Bone was not denied his
rights
to due process and access to the courts?
4. Did the District Court err in concluding that Bone was not prejudiced by
the
violation of the attorney-client privilege?
FACTUAL BACKGROUND
In late February 1987, Bone was arrested on the charges of deliberate homicide
and deliberate homicide by accountability for the deaths of Bernadette and Richard
Cowan. After his arrest, Bone remained in custody throughout the proceedings. The
District Court appointed Mark Suagee, a contract public defender, to represent Bone
in
March 1987.
Suagee first met with Bone on March 2, 1987. During this meeting, Suagee was
informed of Bone's prior criminal history, his family history, and of Bone's
treatment by
a Havre psychiatrist, Dr. Earle. Suagee obtained an authorization and release from
Bone
to obtain information from Dr. Earle.
Suagee spoke with Dr. Earle and viewed his records before Bone authorized
entering a plea. Suagee ascertained from Dr. Earle's records that Bone had
previously
undergone a psychiatric evaluation at the Montana State Hospital in 1977. Suagee
also

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learned from Dr. Earle that Bone was receiving prescription medications for
"depression"
and auditory hallucinations. These medications included the prescription drugs
Haldol,
Norpramin, and Desyrel. Suagee relied upon Dr. Earle to inform him of any changes
made in the medications given to Bone while he was in custody.
Suagee stated that at the time he represented Bone he was aware of the decision
in Ake v. Oklahoma (1985), 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53, under which
Bone would have been entitled to seek the appointment of a psychiatrist to assist in
"evaluation, preparation, and presentation of the defense." Ake, 470 U.S. at 83.
Suagee
testified that he talked with Dr. Earle regarding Bone's mental competency and from
those conversations he had developed no "articulable concern" that there was a
problem
with Bone's competency to stand trial. Suagee did not seek an additional mental
evaluation or the appointment of a psychiatrist to aid in the preparation of Bone's
defense.
In Suagee's deposition, he stated that he believed the presence or indicia of
premeditation ruled out mitigated deliberate homicide as a viable or possible
defense.
The charge of mitigated deliberate homicide was referred to by the county attorney
in the
sense of being a "crime of passion." Suagee aggressively sought a plea bargain on
the
lesser offense of mitigated deliberate homicide; however, the county attorney
steadfastly
refused to consider this, as he believed he had a strong case for deliberate
homicide.
The prosecutor informed Suagee very early on that the State would seek the death
penalty for Bone if he went to trial and was convicted. Suagee spoke with other
attorneys
who had experience with capital cases and he familiarized himself with the applicable
law. Suagee did not believe that Bone would be sentenced to death in light of the
mitigating evidence, but did advise Bone that he could not absolutely rule out the
possibility of a death sentence in light of the existence of statutory aggravating
circumstances.
Bone appeared in the District Court with Suagee for the first time on March 11,
1987. He did not enter a plea to the charges, as the arraignment was continued to
April
13, 1987. During the period between his initial appearance and March 18, 1987,
Suagee
discussed with Bone a plea agreement which would include a 100-year sentence on the
charges. The State agreed not to request the death penalty or seek any restrictions
on his
eligibility for parole in return for this plea of guilty. On March 18, 1987, Bone
stated
he was ready to enter a plea of guilty. The State, however, required a videotaped
statement before the county attorney was willing to absolutely consummate the plea
agreement. Bone provided this videotaped statement on March 18 prior to entering
into
the written plea agreement. At the time the statement was given and the plea
agreement

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was entered into, Suagee was aware that Bone was taking prescription medications,
although he was unaware of the side effects of those medications.
On April 13, 1987, Bone appeared in court for his arraignment and entered his
pleas of guilty. Bone informed the court that he had been taking prescription
medication
but said that it did not affect him mentally or influence his actions in court.
Bone also
stated that he felt he had been adequately represented by counsel. In its plea
colloquy,
the District Court did not affirmatively discuss the possibility with Bone that he
could be
found guilty of mitigated deliberate homicide at trial. The court did not
specifically
discuss the mental states of purposely or knowingly. The District Court accepted
Bone's
pleas of guilty and ordered preparation of a pre-sentence report. On July 6, 1987,
the
District Court sentenced Bone to a term of 100-years imprisonment on each charge to
run
concurrently, with an enhancement of two years on each count for use of a weapon, to
run consecutively. The court file was sent to the Sentence Review Division in August
1987.
In October 1987, Bone sent the District Judge a letter in which he alleged
ineffective assistance of counsel and asked to withdraw his guilty pleas. Bone
wrote in
this letter that his counsel did not advise him of all of his rights and that he
felt he should
have had the opportunity to have a thorough mental evaluation to determine his mental
capacity. The District Court directed copies of this letter to be sent to Mark
Suagee so
that he could respond to Bone's allegations. The District Court entered an order on
November 19, 1987, in which it noted that the file had been sent to the Sentence
Review
Division and that Bone's post-conviction claims could not be considered until the
matter
was returned to the District Court. Suagee filed an affidavit on January 11, 1988,
discussing his representation of Bone. The District Court file was returned to the
court
by the Sentence Review Division on January 18, 1988. In March 1988, Bone wrote
another letter to the District Court inquiring as to his case status and asking the
court to
render a decision "so I can continue with this action if need be."
The District Court directed Suagee to file a supplemental affidavit. In a file
memorandum, the court stated its intention to "enter an Order closing out this case
without the necessity of a hearing as allowed by statute." No order of dismissal was
entered. Suagee filed his supplemental affidavit on April 18, 1988.
On September 17, 1991, Bone wrote to the clerk of court and inquired again as
to the status of his case. On April 3, 1992, Bone filed a petition for post-
conviction relief
with this Court. The State responded to this by moving to dismiss the petition on
the
ground that the petition for post-conviction relief was still pending before the

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Seventeenth
Judicial District Court. This Court dismissed the petition to allow the District
Court to
issue a final order.
On July 14, 1992, Bone filed in the District Court a motion to amend the
petition
for post-conviction relief, together with the amended petition and supporting
documents.
After receiving no response for four months, Bone filed with this Court a petition
for writ
of mandamus or supervisory control in which he requested that the District Court be
ordered to assume jurisdiction and address his petition. On December 10, 1992, the
District Court entered an order on the petition for post-conviction relief and
appointed
counsel for Bone.
The matter was set for an evidentiary hearing on June 3, 1993. Counsel for Bone
moved to substitute the District Court Judge and continue the hearing date. The
Honorable John Warner accepted jurisdiction and the hearing was continued. Bone was
granted leave without objection by the State to file an amended petition.
The evidentiary hearing was held on August 21 and 22, 1995. Dr. Joseph Rich,
M.D., a board certified psychiatrist, testified by deposition as to the nature and
effect of
the prescription medication Haldol, which Bone was taking at the varying rate of one
to
five pills daily while incarcerated. Daniel Donovan, a criminal defense attorney,
testified
as an expert witness for Bone. He stated that in his expert opinion Suagee provided
deficient representation contrary to the requirement for effective representation as
mandated by state and federal constitutional provisions. Also testifying at the
hearing
were Mark Suagee, Don Ranstrom (the former county attorney who prosecuted the case
for the State), family members of Bone, Bone's jailer prior to his sentencing, and
Robert
Bone himself. The court, after considering the evidence and the testimony presented
at
the evidentiary hearing, filed an order denying the amended petition for post-
conviction
relief on March 4, 1996. Bone appeals from this order.
STANDARD OF REVIEW
We review a district court's denial of a petition for post-conviction relief to
determine whether the district court's findings are clearly erroneous and whether its
conclusions of law are correct. State v. Baker (1995) 272 Mont. 273, 280, 901 P.2d
54,
58. When reviewing the district court's findings of fact to determine if they are
clearly
erroneous, we apply the following criteria first set forth in Interstate Production
Credit
Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287: (1) the Court will
determine whether the findings are supported by substantial evidence; (2) if the
findings
are supported by substantial evidence, the Court will determine if the trial court
has

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misapprehended the evidence; and (3) if the findings are supported by substantial
evidence
and that evidence has not been misapprehended, this Court may still find "a finding
is
'clearly erroneous' when, although there is evidence to support it, a review of the
record
leaves the court with the definite and firm conviction that a mistake has been
committed."
Vernon Kills on Top v. State (Mont. 1996), 928 P.2d 182, 197-98, 53 St. Rep. 1197,
1210.
The District Court concluded, based upon its findings of fact, that Bone did not
receive ineffective assistance of counsel. We review claims of ineffective
assistance of
counsel under the standards set forth in Strickland v. Washington (1984), 466 U.S.
668,
104 S. Ct. 2052, 80 L. Ed. 2d. 674. The two-prong test set forth in Strickland was
adopted by this Court in State v. Boyer (1985), 215 Mont. 143, 695 P.2d 829.
The first prong of the Strickland test is to determine whether counsel acted
within
the range of competence demanded of attorneys in criminal cases. Strickland, 466 U.
S.
at 687. A defendant must overcome the presumption that under the circumstances the
action which he challenges might be considered sound trial strategy. Strickland,
466 U.S.
at 689. Counsel's trial tactics and strategic decisions not only are entitled to
great
deference when reviewed on a claim of ineffective assistance of counsel, but they
cannot
be the basis upon which to find ineffective assistance of counsel. State v. Gonzales
(1996), 278 Mont. 525, 532, 926 P.2d 705, 710; State v. Sheppard (1995), 270 Mont.
122, 128, 890 P.2d 754, 757. This Court has recently held that non-strategic
decisions
are not accorded great deference but are only accorded slight deference if based on
professional deliberation. Hans v. State (Mont. 1997), 54 St. Rep. 654. We further
stated in Hans that "[n]on-strategic decisions not based on professional
deliberation, or
those that stem from neglect or ignorance, are accorded no deference." Hans, 54 St.
Rep. at 659.
The second prong of the Strickland test requires a defendant to show that
counsel's
deficient performance prejudiced the defense so as to deny the defendant a fair
trial. In
order to show prejudice, the petitioner must show that there is a reasonable
probability
that, but for counsel's errors, he would not have pled guilty and would have
insisted on
going to trial. Hill v. Lockhart (1985), 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88
L. Ed.
2d 203, 210. This Court has utilized the Strickland standard when reviewing claims
of
ineffective assistance of counsel in petitions for post-conviction relief. Lester
Kills On

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Top v. State (1995), 273 Mont. 32, 49, 901 P.2d 1368, 1379.
ISSUE 1
Are the District Court's findings of fact concerning Bone's claims of
ineffective
assistance of counsel supported by substantial evidence in the record, and did the
court
correctly apply the appropriate legal standards in review of these claims?
Bone first contends that the District Court erred in failing to consider the
testimony
of his expert legal witness, Daniel Donovan. Donovan, a criminal defense attorney,
was
called by Bone to testify. He stated that, in his expert opinion, Suagee provided
deficient
representation. Bone argues that this testimony should have been accorded conclusive
weight as it was uncontroverted, unchallenged, and unimpeached. The District Court
did
not specifically mention Donovan in its findings and conclusions. The State asserts
that
although the District Court did not mention Donovan specifically, the court did
consider
his testimony and the court's order addresses the substance of Donovan's opinion
given
at the evidentiary hearing, thus there is no reversible error.
Donovan based his conclusion that Suagee's representation was deficient
primarily
on the basis that Suagee failed to obtain the assistance of a psychiatrist and/or
psychologist to evaluate Bone with respect to the question of his fitness to proceed
or his
ability to assist in his own defense, as well as to his mental state at the time of
the
offense. Donovan stated that he was concerned with the effect the medications had on
Bone's ability to discuss the case and make judgments concerning the case. In
addition,
Donovan testified that he believed there should have been some exploration factually
to
determine whether Bone was under the influence, control, or domineering effect of his
co-defendant, Lloyd Wilson, which might have provided an alternative defense theory
centering on the lesser included offense of mitigated deliberate homicide.
The State did not present an expert to counter Donovan's testimony, but did
cross-
examine Donovan as to the bases for his opinion. On cross-examination, the State
further
questioned Donovan about the materials he reviewed in this particular case. Donovan
had
previously explained on direct examination that he had reviewed the following
materials:
the amended petition, response to the amended petition, answers to petitioner's
request
for admissions, answers to petitioner's first set of interrogatories, the
application for leave
to file information, the information, the written sentencing judgment, the
transcript of the

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April 13, 1987, change of plea hearing, the transcript of Suagee's deposition, the
deposition of Dr. Rich, other deposition exhibits, and notes from Suagee's file.
The State
noted in its cross-examination that Donovan did not review the videotape of Bone's
statements and had never spoken with Bone directly and, therefore, apart from
Suagee's
deposition, Donovan had no direct information about the decision which Suagee reached
concerning the mental evaluation of his client. On cross-examination, the State also
elicited Donovan's admission that obtaining a mental evaluation could be a double-
edged
sword which has the potential for hurting the defense.
This Court has observed that uncontradicted credible evidence generally cannot
be
disregarded by a court or jury; however, the trier of fact is not bound by expert
opinion
evidence. State v. Swazio (1977), 173 Mont. 440, 568 P.2d 124. We have previously
held that "the interpretation of an expert witness's opinion and the amount of weight
given to that opinion compared to the other evidence presented is within the
province of
the trier of fact." State v. Trask (1988), 234 Mont. 380, 385, 764 P.2d 1264, 1267.
Bone contends that the District Court refused to consider or mention Donovan's
testimony. The failure to specifically cite or discuss Donovan's testimony in the
court's
order does not necessarily support the contention that the court did not take the
testimony
into consideration when reviewing the evidence regarding ineffective assistance of
counsel. Although the State did not specifically rebut each of the contentions
raised by
Donovan, the record does include other evidence presented on the issue of whether
Suagee's performance was deficient by failing to obtain a mental evaluation or
otherwise
failing to investigate the effects of the medication taken by Bone, or the influence
and
control of Bone by his co-defendant, Lloyd Wilson. The amount of weight and
credibility given to Donovan's testimony was within the confines of the District
Court's
discretion. There is no evidence that the court failed to consider Donovan's
testimony,
only that it did not specifically mention Donovan in its order. This failure to
cite to the
testimony of an expert witness in the court's findings and conclusions does not
constitute
reversible error when there is other evidence present in the record upon which the
District Court relies. Furthermore, the field of expert testimony in this instance,
namely
the competency of trial counsel, is a body of knowledge that is certainly not
foreign to
an experienced trial judge.
Bone next argues that the District Court's findings of fact relative to
counsel's
failure to conduct an appropriate investigation are not supported by the record.
Bone

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contends that the record does not support the District Court's findings that Suagee
properly investigated the following issues: (1) the effects of the anti-psychotic
medication;
(2) Bone's competency to enter a plea agreement and the possibility of obtaining a
mental
health evaluation; (3) the availability of the lesser offense of mitigated deliberate
homicide; and (4) the possibility of the imposition of the death sentence.
As we have previously stated, counsel's trial tactics and strategic decisions
are
entitled to great deference when reviewed on a claim of ineffective assistance of
counsel,
but non-strategic decisions are only accorded slight deference if based on
professional
deliberation, and no deference if the non-strategic decisions stem from neglect or
ignorance. Gonzales, 278 Mont. 525, 926 P.2d 705; Hans, 54 St. Rep. 654.
Bone argues that Suagee failed to adequately investigate the effects of the
antidepressant and antipsychotic medications that Bone was being given and that Bone
was prejudiced by this failure. He asserts that the District Court's findings are
erroneously focused on factors which excused this failure to investigate and that the
findings are inaccurate as well as incomplete.
The court did not specifically address Suagee's admitted failure to
investigate. The
record provides that Suagee was aware from his first meeting with Bone that Bone was
taking prescription medication. Suagee was not aware of the effects of these
medications
nor of the amount of medication Bone was actually taking. He testified as to his
awareness at the evidentiary hearing:
Q: [BY HOOKS] Were you aware at the time when Mr. Bone decided to
plead and at the time that he actually entered his plea that Haldol can cause
problems with one's concentration, can effect short-term memory, can
impair or affect the executive functions of the brain which include abstract
thinking, judgment, analytical thinking, can cause the person who is on
Haldol to become sedated, can make them much more passive, and can
make them susceptible to domination of others, and that Haldol is a drug
of a type very similar to the drug the Russians use to medicate their
political dissidents to keep them quiet?

A: [BY SUAGEE] Is the question am I or was I aware of that?

Q: Were you aware at the time Mr. Bone decided to plead guilty, or at the
time that he did formally go into court and plead guilty, of the side effects
of Haldol as I've just articulated them to you?

A: I can't really say that I was.

Q: Were you aware at the time that Mr. Bone appeared in court and
entered his guilty pleas, that he was on Haldol at the time?

A: Yes.

Q: Were you aware that at the time or at a period of time, about two
weeks prior to the entry of a plea, if Haldol had been increased from one

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5 milligram pill a day to five 5 milligram pills a day according to the jail
logs?

A: No I wasn't aware of that.

Transcript of Evidentiary Hearing, pp. 219-20.
The failure of counsel to investigate the effects of the medication that Bone
was
taking, specifically the effects of the strong antipsychotic drug Haldol, was not a
strategic
decision. The failure to investigate was not based on professional deliberation but
stemmed from neglect or ignorance by counsel and thus is accorded no deference by
this
Court.
The court cited Bone's remorse as justification for not investigating the
nature of
the prescription medication. The record is very clear that Bone was remorseful and
anxious to enter a plea and that Bone's desire to plead guilty was not blindly
acquiesced
to by counsel. However, this remorse expressed by his client does not excuse
counsel's
duty to investigate the amount and effects of the medication his client was taking.
"The
duty to investigate exists regardless of the accused's admissions or statements to
the
lawyer of facts constituting guilt or the accused's stated desire to plead guilty."
Harris
by and through Ramseyer v. Blodgett (W.D. Wash. 1994), 853 F. Supp. 1239, 1255
(quoting from the ABA Standards for Criminal Justice 4-4.1 (2d ed. 1980). Bone may
have been remorseful and may not have had any distinct physical manifestations
indicating adverse side effects; however, this does not excuse counsel from asking
Bone's psychiatrist what effects the medication might have on Bone's analytical
abilities.
Nor does it excuse Suagee's failure to determine how heavily medicated his client was
at the time Bone was considering entering a plea of guilty to deliberate homicide and
deliberate homicide by accountability. Counsel's failure to investigate the nature,
effects,
and amounts of Bone's medication constitutes deficient representation under the
Strickland
test for ineffective assistance of counsel.
Having determined that counsel's representation was deficient in this area we
must
next inquire whether counsel's performance prejudiced Bone by applying the second
prong of the Strickland test. Bone asserts that the evidence relative to the
effects of the
medication Haldol demonstrates that he was prejudiced by his counsel's failure to
investigate. The State argues that the District Court's findings upon which it
concluded
the Haldol did not adversely affect Bone and, therefore, the failure to investigate,
resulted
in no prejudice to Bone and are not clearly erroneous, as they are supported by
substantial evidence in the record.

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The District Court considered the testimony of the psychiatrist, Dr. Rich, who
established that Haldol has been shown to interfere with the executive functions of
the
brain. The court found that there can be negative side effects from Haldol on a
person's
judgment. The court further determined, however, that the evidence did not
demonstrate
that the Haldol had a negative effect on Bone. The court based its findings on the
videotaped statements made by Bone, and on Bone's demeanor and appearance at the time
his pleas were entered. The District Court noted that it was factually clear that
Bone was
able to comprehend his situation and that the videotapes demonstrated that Bone was
lucid, responsive, and capable of making intelligent responses. The court also
noted that
Bone himself testified that the prescription medication did not affect him at all
mentally.
It is also noteworthy that Dr. Rich did not examine the videotape before giving
his
opinion. The District Court was not persuaded by Dr. Rich's testimony of the
potential
effects of the medication when the court was able to evaluate Bone's demeanor and
responses on the videotape. The court therefore concluded that there was no
objective
evidence that the medication negatively affected Bone's ability to make a rational
decision. The court concluded that the evidence in the record which demonstrates
that
Haldol can have an affect on a person's analytical capabilities did not necessarily
support
the contention that it affected Bone's capabilities. The court did not accept Dr.
Rich's
opinion as it applied to Bone.
Unlike the deficient performance test, "evaluation of prejudice is not limited
to a
contemporaneous assessment, i.e., viewing the facts as of the time of counsel's
conduct
without the use of hindsight." Whitmore v. Lockhart (8th Cir. 1993), 8 F.3d 614, 622
(citing Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S. Ct. 838, 122 L. Ed. 2d
180.)
This Court will not substitute its judgment for that of the trial court when the
issue
relates to the credibility of the witness or the weight given to certain evidence.
State v.
Blake (1995), 274 Mont. 349, 352, 908 P.2d 676, 678; State v. Flack (1993), 260 Mont.
181, 189, 860 P.2d 89, 94. There is substantial evidence in the record to support
the
District Court's findings as they relate to the effects of Haldol on Bone. Based
upon
these findings, Bone cannot demonstrate that there is a reasonable probability that,
but
for Suagee's error in failing to investigate the possible effects of Haldol, Bone
would not
have pled guilty and would have insisted on going to trial. Hill, 474 U.S. 52.

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Bone's next interrelated contentions are: first, there is no support in the
record for
the court's determination that "[c]ounsel's investigation, and his performance in
assessing
whether petitioner, although medicated, was competent to enter a plea agreement, was
sufficient"; and second, that the court erred in concluding that counsel's
performance was
not deficient when he failed to obtain a mental health evaluation for his client.
Bone claims that there was simply no investigation by his attorney into his
medical
status. His attorney did not request a mental evaluation, even though he was aware
of
the decision in Ake, 470 U.S. 68, which provides that a criminal defendant is
entitled
to an appointment of a psychiatrist to assist in the evaluation, preparation, and
presentation of a defense. Bone further points to the testimony of Dr. Rich, who
testified
that he would have advised an attorney representing an individual who presented such
as
Bone to undertake a comprehensive investigation into his mental status. Bone urges
that
his counsel's failure to investigate his mental and emotional status, where the
record was
replete with evidence of mental dysfunction, constituted deficient performance which
seriously prejudiced him.
The District Court acknowledged the negative effects of the drug Haldol which
were described by Dr. Rich. The court noted, however, that the negative effects of
Haldol on a person's judgment, although medically possible, are not always present.
There was no testimony or other evidence presented in this case that Haldol, in fact,
negatively impaired Bone's judgment at the time he entered into his guilty plea.
Bone
responds, however, that such proof is very difficult to produce under the
circumstances
and imposes an unfair burden upon a defendant. However, we note that neither Dr.
Rich
nor Mr. Donovan interviewed Bone or examined the five-hour-long video tape which
represented three separate statements which Bone gave to authorities in the presence
of
his attorney. In contrast, the District Court relied heavily on the video tape in
reaching
its conclusion and evaluated the expert testimony in light of Bone's recorded
visual and
verbal presentation.
It is also important to note that Suagee realized that Bone was under the care
of
a personal psychiatrist during the time period that he made these critical
decisions. In
fact, Suagee obtained Bone's psychiatric records. Suagee was also aware of the
procedure for obtaining a mental evaluation and to the entitlement that one be
provided
for him under the guidelines of Ake. Suagee gleaned nothing from Bone's appearance,
demeanor, and ability to communicate that would indicate that he was not competent to

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enter a plea or that an evaluation was necessary. More importantly, Dr. Earle did
not
suggest that Bone was incompetent or that a further evaluation was indicated. The
record
supports the District Court's conclusion that Bone decided to plead guilty in order
to
unburden his conscience. His attorney testified that he was very remorseful about
his
actions and wanted to plead guilty almost from the beginning. It was apparent to the
District Court that Bone had taken a firm stance on the entry of his plea of guilty
and
there was no reasonable probability that, even had his attorney obtained an
evaluation,
he would have rejected the plea agreement and insisted on going to trial. Bone made
an
agreement with the State which avoided the death penalty, as well as a recommendation
on any restrictions on his eligibility for parole, apart from a dangerous offender
designation. The court found that the preserved video tape was excellent evidence
of the
petitioner's understanding of the proceedings and the benefits of the plea
agreement, as
well as an indication of Bone's ability to assist his attorney in his desire to go
forward
with the guilty pleas. We conclude that the District Court's findings on this issue
are
supported by substantial evidence and are not otherwise clearly erroneous.
Bone next argues that counsel used an inaccurate definition or standard to
advise
his client on the available lesser offense of mitigated deliberate homicide. Bone
asserts
that Suagee advised him according to an outdated and incorrect theory regarding the
availability of the lesser offense of mitigated deliberate homicide. Bone alleges
that
counsel misconstrued this defense as being limited to a "crime of passion."
At the time the offenses occurred, 45-5-103(1), MCA (1985), provided that
mitigated deliberate homicide was a homicide committed "under the influence of
extreme
mental or emotional stress for which there is reasonable explanation or excuse."
Mitigated deliberate homicide at the time was a lesser-included offense of deliberate
homicide. State v. Gratzer (1984), 209 Mont. 308, 315, 682 P.2d 141, 145.
The record indicates that a reference to mitigated deliberate homicide as a
"crime
of passion" was made by Ranstrom, the county attorney, and discussed with counsel in
that context.
Q: [BY HOOKS] And you felt a crime of passion was a requisite for
mitigated deliberate homicide?

A: [BY RANSTROM] Not necessarily, but that was one of the things that
I was using to show that you have some kind of an emotional state there,
and I don't recall the exact wording of the offense, but that operating in a
reasonable person's mind that would allow you to be found guilty of the
lesser included offense of mitigating, of which I think has been changed

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now, I don't think it's any longer a lesser included.

Evidentiary Hearing Transcript, p. 108.
Q: [BY PAULSON] Now, your recollection is that the defendant, Mr.
Bone, indicated an interest in pleading guilty fairly early on in the
proceedings against him. Do you have any recollection now of early
conversations with Mr. Suagee about possible plea dispositions in the case?

A: [BY RANSTROM]: Well, I think, as is reflected in one of the, on of
those exhibit letters, Mr. Suagee had very persistently argued with me and
approached me about the possibility of his client being considered for a
mitigated deliberate homicide charge rather than the straight deliberate
homicide, and in the numerous discussions we had on that point, I kept
coming back to the fact that, first of all, I felt that we could prove, if we
went to a jury, that this was an extremely premeditated type of crime. . .
. [M]itigated deliberate homicide required the kind of mental state where
you would be acting under a sort of duress, a mental duress that would
keep you from making rational decisions, and it would be something,
something akin to a crime of passion, and I told him, I said I just don't see
that kind of thing in this case.

Evidentiary Hearing Transcript, pp. 88-90.
There is also evidence in the record that counsel believed that factors of
premeditation heavily affected the determination of whether mitigated deliberate
homicide
was a viable defense:
Q: In your opinion, did the presence of indicia of premeditation rule out
mitigated deliberate homicide as a viable or possible defense?

A: [BY SUAGEE] That is probably a good description of it.

Q: So if there is premeditation, you can't have mitigated deliberate
homicide?

A: You have mitigated deliberate homicide if you have your other things.
I know, one, I am not the lawyer I think I am now, then, and it was
always a combination of what he was going to do, wanted to do, telling me
to do. On the other hand, my assessment of how the mitigation fit with
what the evidence of mitigation was. I think what I said in response to a
question a while ago, probably the best description, my best memory of this
is I told him, and I felt like I am not going to try to talk you out of this,
and they aren't going to come down. So it is go to trial, or take more
time, which wasn't going anywhere.

Q: Maybe I wasn't clear. I am not concerned for purposes of this
question, with what Mr. Bone wanted to do, but, in your opinion, at the
time did the evidence that you believed existed of premeditation rule out
mitigated deliberate homicide as a viable defense?

A: That is really the way I remember looking at it.

Suagee Deposition, pp. 74-75.

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Section 45-5-103, MCA (1985), was adapted from the Model Penal Code
210.3. This statutory version of the Model Penal Code provision eliminated
traditional
notions of manslaughter. The notes for the revised 45-5-103, MCA (1985), commented
that the section "seeks . . . to avoid many of the definitional problems which
pervaded
the traditional approach to manslaughter by eliminating the terms 'malice,' 'heat of
passion,' 'sudden provocation,' and by changing the title of the offense."
Annotator's
Notes. The commentary to the Model Penal Code version also sets forth that:
[the] difficulty with the premeditation-and-deliberation formula as the
distinguishing criterion of capital murder is that, taken seriously, it would
rest decision on the fact of disturbance, without attention to its cause. That
probably is why the premeditation-deliberation formula has been so
generally nullified in practice.

Commentary, p. 50.
The record demonstrates that the prosecutor and Suagee may have referred to
mitigated deliberate homicide as being akin to a crime of passion. The record,
however,
does not establish that counsel was misinformed or that he misinformed Bone as to the
lesser included offense. The use of the phrase "crime of passion" to explain
mitigated
deliberate homicide may not encompass all the subtleties contemplated by the Model
Penal Code and other states' interpretations of the Model Penal Code, nevertheless it
conveys the substance of the offense. See Hans, 54 St. Rep. at 661. The record does
not conclusively establish that the only factor and evidence which Suagee relied
upon for
ruling out the lesser included offense of mitigated deliberate homicide was the
evidence
of premeditation. The weight of the evidence of premeditation would be a
consideration
of counsel in determining whether or not a jury could be convinced that Bone did not
have the necessary mental state to commit deliberate homicide and instead was under
the
influence of extreme mental or emotional stress for which there was a reasonable
explanation. The advice given by Suagee to Bone regarding mitigated deliberate
homicide was not a strategic decision by counsel to be accorded great deference, but
the
advice did not stem from neglect or ignorance and thus is accorded the slight
presumption
of falling within the wide range of reasonable professional assistance. Although the
record does demonstrate that counsel may have used the comparison of a crime of
passion
to describe the lesser included offense of mitigated deliberate homicide, it does not
establish that counsel and his client did not understand the substance of the
offense and
its requirements under Montana law at the time the offenses were committed. We hold
that counsel did not base his advice to Bone regarding the lesser offense of
mitigated
deliberate homicide on an incorrect definition or a misunderstanding of this
offense. We

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therefore do not find counsel's performance to be deficient in this regard and do
not need
to address the second prong of the Strickland test.
Bone's final argument under his claim of ineffective assistance of counsel is
that
Suagee failed to undertake an adequate investigation into death penalty law and that
he
failed to properly advise Bone with regard to the likelihood that the death sentence
would
be imposed on conviction of the offenses as charged. The State claims that the
District
Court's findings and conclusions holding that Suagee had adequately advised his
client
on this issue are not clearly erroneous, as they are supported by substantial
evidence in
the record.
The court found that the record demonstrated that counsel did discuss the death
penalty and its application to Bone's case with other attorneys who had experience
with
capital cases. This finding is supported by substantial evidence in the record.
Suagee
testified that he discussed the death penalty with other attorneys and that he
researched
the death penalty law. Although counsel did not speak with anyone who was an expert
on the death penalty, the record provides that he was familiar with the death
penalty law
and was aware that it could be imposed.
Bone argues that there was a wealth of mitigating evidence and if counsel had
properly investigated the death penalty law he would have developed this mitigating
evidence and presented it to the State. He asserts that it would have precluded the
State's pursuit of the death penalty. This contention, however, is not supported by
substantial evidence in the record.
We conclude that the District Court's findings relative to counsel's
investigation
of the death penalty are supported by substantial evidence in the record and are not
otherwise clearly erroneous. The District Court was correct in its conclusion that
Suagee's performance in this area did not constitute ineffective assistance of
counsel.
ISSUE 2
Did the District Court err in concluding that the court's guilty plea colloquy
was
adequate?
Bone asserts the District Court erred when it did not specifically inform him
of the
possibility that he could be found guilty of the lesser offense of mitigated
deliberate
homicide at the time the court accepted his plea. He claims this error, along with
the
court's failure to discuss the mental states of purposely and knowingly, invalidated
his
guilty pleas. The District Court has acknowledged, and the transcript confirms,
that the

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court did not affirmatively inquire as to whether Bone was aware that if he went to
trial
on deliberate homicide he would have the right to present evidence of mitigation,
and if
the jury accepted his version of the offense he could be convicted of the lesser-
included
offense.
At the time of entry of pleas by Bone, the controlling precedent was State v.
Azure
(1977), 175 Mont. 189, 573 P.2d 179. In Azure, we held that the applicable statute
imposed upon the court the "duty to determine that the accused understands the charge
to which he is pleading guilty, before that plea may be accepted." Azure, 175 Mont.
at
193, 573 P.2d at 182. We noted that in the handling of the motion to withdraw the
plea,
the defendant and the State limited their discussion to the record of the
arraignment and
to whether the record disclosed that the defendant had a clear understanding of the
charge. We determined that this was insufficient, as the court must consider the
record
itself.
The District Court did not affirmatively inquire whether Bone understood that by
purposely or knowingly causing the death of Richard and Bernadette Cowan he may have
committed either deliberate homicide or mitigated deliberate homicide. It is
indisputable,
however, from the entire record that Bone was informed of the possibility of the
lesser-included offense of mitigated deliberate homicide. The record demonstrates
that
Bone had a full understanding of the precise kind of homicide to which he pled. The
District Court's conclusion of law that the guilty plea colloquy was adequate is
supported
by the evidence and is a correct interpretation of the law.
ISSUE 3
Did the District Court err in concluding that Bone was not denied his rights to
due
process and access to the courts?
Bone argues that the lengthy delay by the court in resolving his petition for
post-conviction relief constitutes a due process violation because it resulted in
prejudice
to his case. Bone asserts that he was prejudiced as his memory and Suagee's were
dimmed by the passage of years. Furthermore, he contends that the memories of every
nonexpert witness who testified at the evidentiary hearing have faded over the past
eight
years and that at least two potential witnesses were unavailable for the long-delayed
evidentiary hearing.
The District Court acknowledged that the trial court failed to rule upon Bone's
petition for post-conviction relief in a timely fashion. The District Court
concluded,
however, that there was no indication in the record that even if Dr. Earle had been
available to testify, he would have testified that Bone was incapable of
understanding the
proceedings and assisting in his defense at the time he entered his guilty pleas.

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The State
argues that this is a correct conclusion and that Bone was not prejudiced by Dr.
Earle's
absence at the evidentiary hearing.
Bone argues that this Court should apply the same rationale regarding a delay to
his post-conviction relief as it has to a direct appeal. In State v. Black (1990),
245 Mont.
39, 798 P.2d 530, we held that a delay in the processing of a direct appeal can rise
to the
level of a due process violation only upon a showing of prejudice to the defendant.
We
held that to prove a due process violation a defendant must show that: "1) he is
'unable
to present an adequate appeal because of the delay, or 2) that he will be unable to
defend
adequately in the event a retrial is ordered.'" Black, 245 Mont. at 47, 798 P.2d at
535
(citing State v. Hall (Vt. 1984), 487 A.2d 166, 171). We stated that delay alone is
not
adequate to raise a due process concern absent some proof of prejudice occasioned by
the
delay.
Bone argues that the four-year delay attributable to the District Court
resulted in
prejudice to him, therefore, denying his rights to due process and access to the
courts.
This Court also stated in Black, however, that petitions for post-conviction relief
are
collateral attacks which are civil in nature. Black, 245 Mont. at 43, 798 P.2d at
532.
We conclude that the District Court correctly decided that the petitioner has
not
been denied meaningful access to the courts under Article II, Section 16, of the
Montana
Constitution, or denied due process as guaranteed by the Fourteenth Amendment to the
U.S. Constitution, and Article II, Section 17, of the Montana Constitution. The
District
Court noted that the unavailability of witnesses Dr. Earle and Lisa Adams did not
compromise Bone's due process rights. Both of these witnesses testified at Bone's
sentencing hearing. The long time interval between the filing of Bone's petition
and
ultimate hearing is certainly unusual. However, the District Court noted that all
of the
necessary evidence was still available to make a fair and complete evaluation of
Bone's
claims.
ISSUE 4
Did the District Court err in concluding that Bone was not prejudiced by the
violation of the attorney-client privilege?
This Court reviews a district court's conclusions of law to determine whether
the
court's interpretation is correct. Carbon County v. Union Reserve Coal Co. (1995),

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271
Mont. 459, 469, 898 P.2d 680, 686.
Bone argues that the District Court failed to make any express determination
that
Bone's attorney-client privilege was violated and that it was incorrect in
concluding that
regardless of whether or not there was a violation, there was no prejudice. The
State
contends that the District Court reached a correct conclusion and properly considered
Suagee's affidavits in regard to the established procedure as set forth in this
Court's
holding in Petition of Gillham (1985), 216 Mont. 279, 704 P.2d 1019.
In Gillham, we noted that a post-conviction petitioner opens the door to those
portions of his revelations to his attorney that affect his claims and may no longer
object
on the ground of privilege. We held that the proper procedure for convicted persons
filing petitions based in whole or in part on the grounds of ineffective assistance
of
counsel was to apply to this Court for an order "preserving such responding attorney
from charges of discipline or malpractice for revealing necessary confidential
information
from such convicted person." Gillham, 216 Mont. at 282, 704 P.2d at 1021.
The trial court requested Suagee to respond to Bone's allegations. In spite of
the
procedure set forth in Gillham, Suagee responded to the allegations by filing his
affidavits. The trial court, however, did not rule on the petition and the District
Court
that did rule on the petition specifically stated that it also did not rely upon the
preliminary findings on this issue. The District Court concluded that Bone was not
prejudiced in any way by the failure to secure an order from this Court, as no
reliance
was placed on the earlier affidavits. Under the facts of this case we agree that
the failure
of the Attorney General in first obtaining an order from this Court does not
constitute
prejudicial error to Bone.
We hereby affirm the District Court's denial of Bone's amended petition for
post-conviction relief.

/S/ JIM REGNIER

We Concur:

/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER

Justice W. William Leaphart, dissenting.

I concur as to issues number two, three and four. I dissent as to issue number

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one.
The Court concludes that the failure of Bone's counsel to obtain a mental
evaluation did not amount to ineffective representation. I disagree. Under Ake v.
Oklahoma (1985), 470 U.S. 68, 83, 105 S.Ct. 1087, 1096, 84 L.Ed.2d 53, 66, Bone was
entitled to the appointment of a psychiatrist to assist in the "evaluation,
preparation, and
presentation of the defense." Although mental evaluations are not necessary in every
criminal proceeding, State v. Langford (1991), 248 Mont. 420, 813 P.2d 936, Bone's
medical history was such that, in my opinion, counsel was deficient in not obtaining
an
evaluation.
In State v. Long (1986), 223 Mont. 502, 726 P.2d 1364, we addressed a claim that
counsel had been ineffective for failing to request an examination of the defendant's
mental and physical health. We stated:
There is no evidence in the record that the issue of mental disease or defect
should have been pursued nor is there any indication in the trial transcript
that defendant was not capable of understanding the proceedings or unable
to assist counsel in his own defense.
Defendant argues that trial counsel erred by failing to require that
defendant undergo physical and mental examinations in preparing the
defense and prior to sentencing. This argument imposes an unacceptable
burden on defense attorneys by requiring them to exercise diagnostic skills
beyond their training. In this case the record suggests nothing that would
evidence that defendant was suffering from mental disease or defect.

Long, 726 P.2d at 1370. In contrast to the situation in Long, where there was no
suggestion that the defendant was suffering from a mental disease, in this case
counsel
for Bone, without exercising diagnostic skills beyond his ken, could and should have
seen
the need for a mental evaluation. The following facts, which were either known or
available to counsel, all pointed to the need for a mental evaluation:
1. Despite the potential for imposition of the death penalty, Bone was
expressing
remorse and indicating a desire to plead guilty.
2. Bone had previously undergone a mental evaluation.
3. Bone was under the treatment of a psychiatrist (Dr. Earle) during the period
in which plea negotiations were being conducted. Counsel conceded that he could not
recall any specific dialogue with Dr. Earle in which he asked if Bone were competent:
"I really can't remember a specific exchange where either he [Dr. Earle] asked me or
I
asked him if he thought he [Bone] was competent."
4. Both the earlier evaluation and Dr. Earle's evaluation indicated that Bone
was
suffering from mental problems.
5. Bone was taking antidepressant and antipsychotic medications at the time of
the
plea negotiations.
6. Bone had a history of prior mental health hospitalizations and treatment.
7. Bone had a history of post-traumatic stress disorder, a family history of
mental
illness, and a history of being abused.

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8. Bone had a history of long-standing drug and alcohol abuse.
Finally, and most significantly, since counsel was aware that there was an
eyewitness to Bone's participation in the murders, Bone had no factual defense to the
charge. Thus, his only potential defense would be the possibility of a finding of
mental
disease or defect.
Bone's expert, Assistant Federal Defender Dan Donovan, testified that, in light
of
the above factors, counsel should have obtained an evaluation of Bone's fitness to
proceed
and his mental state at the time of the offense and that the failure to do so
constituted
deficient representation. I agree.
The Court does note that Donovan conceded on cross-examination that a mental
evaluation can be a double-edged sword which has the potential to hurt the defense.
Although the court no longer requires that mental evaluations requested by the
defense
be filed with the court, Smith v. McCormick (9th Cir. 1990), 914 F.2d 1153, prior to
the 1990 decision in Smith, Montana law required that evaluations be filed with the
court.
Hans v. State (Mont. 1997), ___ P.2d ___, 54 St.Rep. 654, 663-64. A defendant
requesting an evaluation prior to Smith ran the risk of having to disclose an
unfavorable
evaluation; hence, the "double-edge." However, even in the context of Bone's 1987
plea,
I do not see the "double-edged" aspect as defeating the ineffective assistance of
counsel
argument. Bone's counsel was confronted with a client who was expressing remorse and
a desire to enter a plea of guilty rather than proceed to trial. With that as a
point of
reference, counsel had nothing to lose by obtaining a mental evaluation. Even if the
evaluation were unfavorable, Bone would be none the worse off. He would have merely
eliminated mental disease as a possible defense, and he could proceed to enter a
plea as
previously planned. Thus, under the circumstances, the possibility that the
evaluation
may have been unfavorable and filed with the court did not relieve counsel of his
obligation to pursue an evaluation in the first instance.
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d. 674,
requires that not only must counsel's performance be deficient, but the performance
must
have prejudiced the defendant. Strickland, 466 U.S. at 668. In order to show
prejudice
in the context of a guilty plea, the petitioner must show that there is a reasonable
probability that, but for counsel's errors, he would not have pleaded guilty and
would
have insisted on going to trial. Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct.
366, 88
L.Ed.2d 203. "A reasonable probability is a probability sufficient to undermine
confidence in the outcome." Strickland, 466 U.S. at 687, 694.
In finding no prejudice, the District Court concluded that the videotape of
Bone's

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pre-plea statement was excellent evidence of his understanding of the proceedings as
well
as an indication of his ability to assist and his desire to go forward with the
guilty plea.
This Court affirms the District Court's conclusion. One's demeanor, however, is not
dispositive on the issue of competency. Pate v. Robinson (1966), 383 U.S. 375, 86 S.
Ct.
836, 15 L.Ed.2d 1815. Bone's history of mental problems, head injuries, medications
and drug problems are so numerous and pervasive that it was incumbent upon the court
and counsel to look beyond mere demeanor and examine Bone's true mental condition.
Prejudice in the present case is established by counsel's admission that, "I
think
that the question of what his mental state was, with the advantage of hindsight,
with the
advantage of all of these proceedings, there were clearly a lot of things going on
with
him, and if I was doing it again, yes, I might have done more along that line." This
admission pertains directly to the question of prejudice. This District Court erred
in
holding that the court cannot evaluate the issue through hindsight, thereby
attaching no
significance to counsel's admission. The rule is that courts should avoid hindsight
in
evaluating whether counsel's performance was deficient (i.e., the first prong of
Strickland). This admonition does not apply to the second prong of Strickland; that
is,
was the defendant prejudiced by the deficient representation? "[E]valuation of
prejudice
is not limited to a contemporaneous assessment, i.e., viewing the facts as of the
time of
counsel's conduct without the use of hindsight." Whitmore v. Lockhart (8th Cir.
1993),
8 F.3d 614, 622.
Defense counsel's admission, albeit in hindsight, that he would have done things
differently creates a reasonable probability "sufficient to undermine confidence in
the
outcome." Strickland, 466 U.S. at 687, 694. The factors enumerated above clearly
placed Bone's competency at issue, and the question of mental disease or defect
should
have been pursued. Given the eyewitness testimony of Lisa Adams, Bone had no factual
defense to the charge. Thus his only possible defense was mental disease or
defect. In
the absence of a mental examination, counsel had no basis for determining whether
such
a defense would be viable. Had counsel explored the viability of a defense of mental
disease or defect, there is a reasonable probability that Bone would have proceeded
to
trial rather than enter a guilty plea. That probability amounts to prejudice. I
would
reverse the conviction and remand for a new trial.
/S/ W. WILLIAM LEAPHART

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Justice James C. Nelson and Justice William E. Hunt, Sr., join in the foregoing
dissent.

/S/ JAMES C. NELSON
/S/ WILLIAM E. HUNT, SR.

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