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,
-vs-
ALVIN 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
Mr. J u s t i c e Nil-liam E. Hunt, Sr., d e l i v e r e d t h e O p i n i o n of
t h e Court.
Defendant, Alvin J,a Tray, was o r i g i n a l l y c h a r g e d w i t h
attempted. deliberate homicide on November 23, 1983.
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. He
was sentenced January 16, 1984, to twenty years in the
Montana State Prison, with two years added for use of a
dangerous weapon. Over the next year, defendant filed
s e v e r a l motions seeking t o withdraw h i s g u i l t y p l e a . The
trial judge treated them a s m o t i o n s t o withdraw and as a
p e t i t i o n f o r post-conviction relief. A h e a r i n g was h e l d on
t h o s e m o t i o n s May 2 5 , 1985. They w e r e d e n i e d from t h e bench.
Defendant appeals. We affirm the decision of the trial
judge .
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, defendant admitted shooting h i s
roommate, H . D. L u l o f f on O c t o b e r 1 0 , 1983. Defendant s t a t e d
t h a t Tami Huehner had o f f e r e d t o 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. Defendant apparently was angry with Luloff, so
agreed. Tami allegedly smoked a cigarette, al-lowing
defendant to find them in the dark. Next, 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, 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
t h e shooting. Later, a t a deposition, she admitted t o a t
l e a s t being a t t h e scene. (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
the record.) 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 to the river and "fooling around." Lulof f
agreed. A t the river, 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 .
An information was filed and served on defendant
November 23, 1983, c h a r g i n g him w i t h attempted deliberate
homicide. The information was served while he was
incarcerated in the Rosebud County Jail on an unrelated
charge. A t h i s i n i t i a l appearance, defendant requested t h a t
c o u n s e l be a p p o i n t e d . John Houtz was a p p o i n t e d November 29,
1983. Prior to this 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 a fourteen page
confession a s a r e s u l t of those "talks." 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:
1) December 4 - 30 minute conference with defenda~t
2) December 1 0 - 15 minute talk with defendant and
County A t t o r n e y
3) December 1 2 - 1 0 minute c a l l from d e f e n d a n t
4) December 1 2 - 2 - 15 minute c o n f e r e n . c e s w i t h Tom
Lofland, defendant's probation o f f i c e r
5 ) December 1 3 - Conference w i t h defendant regarding
S t a t e ' s o f f e r t o plea bargain
6) December 1 6 - 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 to County
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 change of plea - g u i l t y of
aggravated a s s a u l t
At the hearing on defendant's petition for
post-conviction relief, Houtz testified that he had not
attempted to suppress defendant's confession, 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. Houtz f u r t h e r s t a t e d t h a t because of defendant ' s
confession, he 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. 688, 104
S.Ct. 2052, 80 L.Ed.2d 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
would have been different. " Strickland, 466 U.S.
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 tha.t counsel's efforts in
representing defendant could have been more 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 guaranteed before Houtz was
appointed as his attorney. Houtz, after reviewing the case
against his client, determined the plea bargain to be
reasonable and fair. He therefore pursued and 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. Defendant does not
dispute this conclusion. Furthermore, defendant's efforts to
withdraw his plea were not timely. He requested. a transcript
a year after pleading guilty. His first motion was filed in
January of 1985. Finally, defendant's plea was clearly the
result of a plea bargain.
Defendant's reasons for wanting to withdraw his guilty
plea center around his ineffective assistance of counsel
claim. For example, defendant contends that his lawyer's
failure to accurately and fully advise him of the case
against him resulted in his decision to plead guilty.
However, our holding that defendant received effect-ive
assistance of counsel significantly und.ermines this
contention.
Therefore, we affirm the trial judge's refusal to permit
defendant to withdraw his guilty plea.
Affirmed.
We Concur:
/