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No. 00-157
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 130
STATE OF MONTANA,
Plaintiff and Respondent,
v.
RICHARD D. SCHAFF,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard D. Schaff (pro se), Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney, Billings, Montana
Submitted on Briefs: September 21, 2000
Decided: July 25, 2001
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Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Richard D. Schaff appeals from an order denying his petition for postconviction relief
issued by the Thirteenth Judicial District Court, Yellowstone County. We affirm in part,
reverse in part and remand for proceedings consistent with this opinion.
BACKGROUND
¶2 On July 29, 1996, Richard D. Schaff was charged by amended information with
attempted deliberate homicide, aggravated kidnaping, two counts of sexual intercourse
without consent, one count of sexual assault, and witness tampering. Pursuant to a plea
bargain he pled guilty to two of the charges, attempted deliberate homicide and witness
tampering.
¶3 On November 12, 1996, Schaff moved to withdraw his guilty plea. After a hearing, the
District Court denied the motion and sentenced Schaff to forty (40) years for attempted
deliberate homicide, ten (10) years consecutive for the use of a weapon, and ten (10) years
concurrent for witness tampering. Schaff appealed the order denying his motion to
withdraw the guilty plea, and we affirmed the District Court's denial in State v. Schaff,
1998 MT 104, 288 Mont. 421, 958 P.2d 682.
¶4 Schaff next filed a petition for postconviction relief contending ineffective assistance of
counsel, which is the subject of this appeal. Schaff argues that he paid his trial counsel a
substantial amount of cash and provided him liens on his property as additional
compensation. When he could no longer pay his attorney, he relates that arrangements
were made for his attorney's continued representation through the Yellowstone County
Public Defender's office. Schaff contends that his lawyer provided ineffective assistance of
counsel when he required him to decide whether to accept the offered plea agreement after
considering the matter for less than two hours. Schaff further alleges that his trial counsel
forced him to enter the plea, misled him, and denied him the opportunity to secure other
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counsel. He claims that with the assistance of different counsel at the hearing to withdraw
the guilty plea, he could have established that his plea was not voluntary. After a response
from the State and without a hearing, the District Court denied the petition on January 7,
2000. Schaff appeals and the only question is whether the District Court erred in
summarily denying his petition.
STANDARD OF REVIEW
¶5 The standard of review of a district court's denial of a petition for postconviction relief
is whether substantial evidence supports the findings and conclusions of the district court.
In reviewing a district court's denial of postconviction relief, we review a district court's
findings of fact to determine if they are clearly erroneous, and the district court's
conclusions of law to determine if the court correctly interpreted the law. State v.
D'Amico, 2000 MT 63, ¶ 7, 299 Mont. 57, ¶ 7, 997 P.2d 773, ¶ 7.
DISCUSSION
¶6 Although Schaff is represented by counsel in this appeal, he filed his petition for
postconviction relief without the assistance of counsel. The petition alleges that he paid his
counsel $18,000 in cash and then provided him $22,000 worth of liens on his property.
When he could no longer pay his attorney, an agreement was reached wherein his counsel
could continue representing him and receive payment through the Yellowstone County
Public Defender's Office. Schaff alleges he was denied effective representation by his
attorney who received such payments to "then only given [sic] petitioner one and a half
hours to agree to a plea bargain and to then mislead petitioner by forcing petitioner to
agree to his continued representation at the hearing to withdraw his guilty plea, when
petitioner, with assistance of other counsel, would have established that his plea was not
voluntary." On appeal Schaff argues that he could not have raised the precise issue of
ineffective assistance of counsel because discussions between him and his attorney are not
record based and thus can only be presented through postconviction proceedings. See
Hagen v. State, 1999 MT 8, ¶ 12, 293 Mont. 60, ¶ 12, 973 P.2d 233, ¶ 12.
¶7 Relying on our decisions in Eiler v. State (1992), 254 Mont. 39, 833 P.2d 1124, and
State v. McColley (1991), 247 Mont. 524, 807 P.2d 1358, the State argued in the District
Court, as they do on appeal, that Schaff's petition is defective because he does not
sufficiently specify his claim of ineffective assistance of counsel. The State argues that
Schaff offered no supporting information nor did he identify precisely why he believes his
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counsel was ineffective and thus his claim was properly and summarily dismissed by the
District Court. Should we reach the merits of Schaff's petition, the State argues that it is
without merit. The State points out that Schaff raised the issue of voluntariness in his
direct appeal which has already been affirmed, thus the doctrine of res judicata prevents
him from again raising this issue in postconviction relief. To the extent that Schaff raises
something other than a voluntariness claim, the State argues that the District Court
correctly determined that Schaff is procedurally barred because he could have raised the
issue in his direct appeal pursuant to § 46-21-105(2), MCA.
¶8 We disagree with the State that the voluntariness of Schaff's plea is not a proper subject
of this postconviction proceeding. Although it is true that Schaff raised voluntariness
issues in the District Court, he did not raise the question of whether he received competent
advice from counsel prior to entering his plea. Schaff testified at his change of plea
hearing that he was not dissatisfied with counsel, but that he simply made a wrong
decision. This testimony was based on the information he had at the time. The District
Court also determined in the change of plea proceeding that Schaff had ample time to
make his decision on whether or not to accept the plea. These record based issues cannot
be revisited. Section 46-21-105(2), MCA. See also Rudolf v. Day (1995), 273 Mont. 309,
312, 902 P.2d 1007, 1008.
¶9 Schaff raises another aspect of voluntariness in this petition that was not raised in the
District Court. He contends that he was misled to think that he was required to proceed in
his change of plea hearing with his trial counsel when he was legally entitled to be
represented by another attorney. The question of whether he was properly advised by trial
counsel necessarily touches on the voluntariness of his decision. The discussions relating
to any facts to support these contentions are not part of the record in the direct appeal.
Furthermore, this is not the type of evidence Schaff would likely present at a change of
plea hearing. Schaff was trying to withdraw his plea and proceed to trial, not discharge his
lawyer. Schaff may not have questioned the competency of his legal advice at the time.
¶10 Although this is a close question, we believe upon reflection that the better course
would have been for the District Court to appoint Schaff counsel and provide him with the
opportunity for a hearing to present his ineffective assistance of counsel claims. It may
very well be that Schaff will be unable to do anything more than rehash what he has
already argued on direct appeal. In that event, the District Court may reaffirm its previous
decision. We believe, however, that Schaff should be permitted a hearing to present any
nonrecord based ineffective assistance of counsel claims.
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¶11 We affirm part of the District Court's order inasmuch as any record based
voluntariness issues of Schaff's plea that have already been addressed in his direct appeal
cannot be again raised in this proceeding. However, we reverse that part of the District
Court's order which provides that Schaff is procedurally barred from raising ineffective
assistance of counsel in this postconviction proceeding. This matter is remanded to the
District Court for purposes of appointing counsel and conducting a hearing on the petition
for postconviction relief.
/S/ JIM REGNIER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
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