State v. Docken

NO. 85-264

I N THE SUPREME COURT O THE STATE O MONTANA
F F

1986

STATE O MONTANA,
F

P l a i n t i f f and R e s p o n d e n t ,

-VS-

LELAND F. DOCKEN,

D e f e n d a n t and A p p e l l a n t .

APPEAL FROM: D i s t r i c t Court of t h e F i f 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 J e f f e r s o n ,
The H o n o r a b l e F r a n k Davis, J u d g e p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

G r e g o r y A. J a c k s o n , H e l e n a , 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
Barbara Claassen, A s s t . Attorney General, Helena
J o h n P. Connor, County A t t o r n e y , B o u l d e r , Montana

S u b m i t t e d on B r i e f s : A p r i l 1 7 , 1 9 8 6

Decided: J u n e 1 2 , 1986

Filed: .i 12 r986
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Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

Leland Docken appeals from a guilty plea on a charge of
deliberate homicide and sentence by the District Court of the
Fifth Judicial District, Jefferson County, to 100 years in
the Montana State Prison. We affirm.
Docken raises two issues on appeal. Was he denied
effective assistance of counsel? Was his guilty plea entered
intelligently and voluntarily?
The victim, Terrance McGlynn was an associate professor
at the Butte School of Mines, and the defendant's
father-in-law. He was last seen on April 14, 1984 in Butte
in the company of the defendant. When he failed to return
home, an investigation into his disappearance began. On
April 21, 1984, Docken was arrested by Butte-Silver Bow
authorities, and given his Miranda warning. Within minutes
he gave a 110-page transcribed statement which indicated he
argued with the victim who had advised his daughter to
divorce Docken. A struggle ensued and Docken shot and killed
McGlynn. Docken led authorities to the grave site where the
body of the victim was found. Autopsy reports indicated the
victim died as a result of a single .22 caliber gunshot wound
to the chest. The evidence indicated that the gun used was
borrowed by defendant from his brother-in-law two days prior
to the shooting. It was fully loaded when borrowed and when
returned one day after the shooting, there had been one shot
fired. The bullet that killed the victim was forensically
shown to have come from that gun. The pick and shovel used
to dig the grave were in Docken's possession prior to the
incident. Witnesses placed Docken at or near the scene of
the grave, on the day of the incident. Two days after the
killing, Docken went to Billings and made purchases on the
victim's credit card. Docken at all times denied
recollection of the events up to and including the statement.
Docken was arraigned on June 4, 1984. He entered a plea
of not guilty. His court-appointed lawyers filed notices of
intent to rely on the defenses of mental disease or defect
and justifiable use of force. He also requested
psychological evaluation and treatment. The court granted
the request for psychological evaluation and counseling. On
July 27, 1984, the defendant's counsel filed a notice of
withdrawal of defenses of mental disease and justifiable use
of force.
On August 3, 1984, the defendant signed two documents
entitled "Memorandum to File" which outline the facts related
to the charge of deliberate homicide and the circumstances of
the appellant's decision to plead guilty. One memorandum
states, "[tlhe purpose of this memorandum is to demonstrate
that I made my decision independently and on my own, although
after consultation with both the prosecuting attorney and my
attorneys." The memoranda were prepared by his attorneys to
ensure that the appellant understood the charges, the nature
of the plea bargain, and the consequences of pleading guilty,
including the possible sentence.
The defendant signed an "Acknowledgment of Waiver of
Rights by Plea of Guilty" on August 6, 1984. Thereafter, he
pled guilty before the District Court to the charge of
deliberate homicide. He was sentenced, following a hearing,
to 100 years imprisonment as a dangerous offender.
The defendant did not file a motion to withdraw his
guilty plea. On October 23, 1984, he filed a pro se motion
for a new trial. The motion claimed, inter alia, that he was
denied effective assistance of counsel. On November 13,
1984, he filed a notice of appeal from the judgment and
sentence.
The District Court denied the defendant's motion for a
new trial and set a hearing on the defendant's other
post-conviction requests. At the hearing, the court released
the court-appointed attorneys from representation of the
defendant. Docken stated that his guilty plea was not
voluntarily entered, claiming that he ''didn't understand it
exactly at the time." Thereafter, the District Court
appointed the current counsel to represent him "for purposes
of his appeal and/or petition to withdraw his plea of
guilty. "
The first issue on appeal is whether Docken was denied
effective assistance of counsel. Recently this Court stated
that " [plersons accused of a crime are entitled to the
effective assistance of counsel acting within the range of
competence demanded of attorneys in criminal cases." State
v. Rose (1980), 187 Mont. 74, 86, 608 P.2d 1074, 1081. The
standards for effective assistance of counsel were set out by
the United States Supreme Court in Strickland v. Washington
,
(19841, - U.S. - 104 S.Ct. 2052, 80 L.Ed.2d 674, and
adopted by Montana in State v. Boyer (Mont. 1985), 695 P.2d
829, 831, 42 St.Rep. 247, 250:
First, the defendant must show that counsel's
performance was deficient. This requires showing
that counsel made errors so serious that counsel
was not functioning as the "counsel" guaranteed the
defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose results
are reliable.
Boyer, 695 P.2d at 831, 42 St.Rep. at 250.
To show prejudice:
The defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of a proceeding would have been
different. A reasonable probability is a
probability sufficient to undermine confidence in
the outcome.
State v. Robbins (Mont. 19851, 708 P.2d 227, 232, 4 2 St-Rep-

The United States Supreme Court recently held the same
standards apply when the claim of ineffective assistance of
counsel is made with regard to a guilty plea. Hill v.
Lockhart (1985), - U.S. , 106 S.Ct. 366, 88 L.Ed.2d 203.
Docken contends he was denied effective assistance of
counsel because his attorneys did not move to suppress his
confession. He contends the confession wa.s not freely,
voluntarily, and intelligently given because Docken
repeatedly asserted he could not recall the statement and
that .his chronic alcohol and drug abuse had altered his
memory. However, there is no evidence in the record that he
was under the influence of alcohol or drugs when he made the
statement. As to his claim that he did not remember the
statement, he reiterated the sequence of events to the court
before entering a plea and signed a memorandum restating the
facts. Under the circumstances, Docken has not shown that
counsel's decision not to file a motion to suppress was
error. Thus he does not meet the first tier of the
ineffective assistance of counsel standard.
Docken next contends counsels' withdrawal of the
affirmative defenses of justifiable use of force and mental
disease or defect deprived him of a defense. He contends
that with all his defenses removed he had no hope of
prevailing at trial and had to plead guilty. He claims the
failure of his counsel to pursue these defenses constitutes
ineffective assistance.
The record shows that the defense of justifiable use of
force was unsupported by the facts. The defense of mental
disease or defect was withdrawn after Docken was evaluated by
doctors at Warm Springs State Hospital. They stated he did
not have a mental disease or defect and that he could have
acted with the requisite mental state.
In view of this evidence, Docken cannot meet the first
tier of the ineffective assistance of counsel test by showing
his counsel erred by withdrawing these defenses. In fact,
the record reflects a diligent effort made by counsel in
spite of the overwhelming evidence of their client's guilt.
Next Docken contends that he did not enter his guilty
plea with full understanding of the consequences, and that he
should have been informed of his right to appeal a jury
conviction.
The standards for entry of a guilty plea were set in
State v. Lewis (1978), 177 Mont. 474, 582 P.2d 346.
In Lewis, we stated:
We hold that when in the sentencing procedure, the
District Court carefully, as here, examines the
defendant, finds him to be competent, and
determines from him that his plea of guilty is
voluntary, he understands the charge and his
possible punishment, he is not acting under the
influence of drugs or alcohol, he admits his
counsel is competent and he has been well advised,
and he declares in open court the facts upon which
his guilt is based, then a plea of guilty accepted
by the District Court on the basis of that
examination will be upheld; and a motion later made
by the defendant, as here, to gainsay in effect
what the defendant earlier represented to the
District Court, apparently to receive a lighter
sentence, can not be given any degree of credence.
177 Mont. at 485, 582 P.2d at 352.
The record shows that the guilty plea accepted by the
District Court explained the charge, the minimum and maximum
punishment, his rights as a defendant and at trial, what
rights he waived by pleading guilty, the consequences of a
guilty plea, that the county attorney agreed not to seek the
death penalty, but could recommend any sentence, and set out
the factual basis for the guilty plea. It also states he is
competent, not under the influence of alcohol or drugs and
has been well advised. In addition, three days prior to the
entry of the guilty plea in open court, Docken signed two
memoranda to file. One memorandum describes the events
leading up to the murder and the murder of his father-in-law.
It discusses the conferences Docken had with his attorneys
during which the possibility of a guilty plea was discussed.
It states that after pondering this decision in many
conferences, Docken instructed his attorneys to make
arrangements for the entry of his plea. The memorandum
states that his attorneys repeatedly advised that the
decision to plead guilty was entirely in his control, and
that decision was made independently.
The other memorandum discusses the possible sentence for
deliberate homicide and that the county attorney agreed to
not recommend the death penalty in exchange for a guilty
plea, but reserved the right to recommend any sentence,
including imprisonment for 100 years. It states that his
attorneys made no recommendation for or against a guilty
plea, but that after consideration he decided to plead guilty
to avoid the trauma of trial for his parents, children,
family, and wife. Given the evidence in the record that the
defendant gave his guilty plea intelligently and voluntarily,
w e h o l d t h e D i s t r i c t C o u r t d i d n o t err i n r e f u s i n g t o s e t
aside h i s guilty plea. W e a f f i r m t h e c o n v i c t i o n and s e n t e n c e

of t h e defendant.
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Justice

W e Concur: