                                               NO.    91-455
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                     1992



STATE OF MONTANA,
                  Plaintiff and Respondent,
     -vs-
DIANE BULL COMING,
                  Defendant and Appellant.




APPEAL FROM:      District Court of the Sixteenth Judicial District,
                  In and for the County of Custer,
                  The Honorable Richard G. Phillips, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                  Diane Bul                        ling, Pro Se, Warm Springs, Montana
            For Respondent:
                  Hon. Marc Racicot, Attorney General; Clay R. Smith,
                  Solicitor, Helena, Montana
                  Keith D. Haker, Custer County Attorney, Miles City,
                  Montana


                                                     Submitted on Briefs:   April
                                                                Decided:    April
Filed: APR   3 0 1992,                .   ..
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      STATE OF MOiWAMA
Justice Karla M. Gray delivered the Opinion of the Court

     The defendant, Diane Bull Coming, appeals from an order of the
District Court of the Sixteenth Judicial District, Custer County,
which denied her petition for postconviction relief. We affirm.
     The issues on appeal are:
      1.   Did the District Court err in dismissing the defendant's
petition to modify her sentence?
      2.   Did the District Court abuse its discretion in dismissing
the defendant's petition if the petition is viewed as requesting
withdrawal of her guilty plea?
      The defendant entered a guilty plea to robbery in violation of
55   45-5-401(l)(a)   and   45-2-302(3),   MCA, pursuant to a plea
agreement.     She was sentenced on July 15, 1988, to 40-years'
imprisonment at the Montana State Women's Prison with the following
conditions: (1) nondangerous offender status for parole eligibility
purposes: (2) waiver of the right to seek sentence review under 5
46-18-903, MCA; and      (3) evaluation for alcohol and chemical
dependency and, if found dependent, participation in an appropriate
treatment program prior to release from prison.            The plea
agreement, guilty plea and sentence arose from the defendant's
involvement in the kidnapping, robbery and homicide of John
Etchemendy, Jr. on October 17, 1987.       See State v. Kills on Top
(1990), 243 Mont. 56, 793 P.2d 1273, cert. denied, - U.S.      -,
111 S.Ct 2910, 115 L.Ed.2d 1073 (1991); State v. Kills on Top
(1990), 241 Mont. 378, 787 P.2d 336.
      The defendant filed a document pro se entitled "Petition for
                                   2
Amendment of Sentence" on May 22, 1991.        The petition requested
that her sentence be reconsidered and that the remaining period of
incarceration be suspended.        As grounds for her request, she
alleged that the sister of her court-appointed attorney employed
her at one time; that her attorney's family had social and business
ties with the victim's family; and that she had never "been
involved with criminal court procedures" and "did not understand
most of the proceedings held."     She also alleged that her attorney
failed to explain adequately "the meaning and importance of any and
all procedures" and that he became the deputy county attorney
approximately one month after her incarceration at the State
Prison.    The defendant further alleged various facts which she
claimed would have resulted in a more favorable sentence.           The
District   Court   treated   the    document    as   a   petition   for
postconviction relief and ordered a response from the State.
     In its response, the State presented the transcript of the
defendant's May 13, 1988 change-of-plea hearing.         The transcript
established that the defendant and the State had agreed that the
defendant would testify in several other state court proceedings
arising from the victim's kidnapping, robbery and homicide, plead
guilty to robbery and waive any right to sentence review.            In
return, the State would dismiss two aggravated kidnapping counts,
secure commitments from federal and Wyoming officials not to
prosecute her for crimes allegedly committed in their jurisdictions
during the criminal episode and recommend 40-years1 imprisonment
with nondangerous offender status for parole eligibility purposes.
The State also presented the affidavit of the defendant's attorney
which stated that he represented her between the fall of 1987 and
her sentencing date in July 1988, had not known the victim and had
no business relationship with the victim's family prior to or
during his representation of the defendant. He also stated that he
had first discussed employment as a deputy county attorney in
December 1988 and began employment in that position the following
month.
     The District Court dismissed the petition on July 22, 1991.
Based on its review of the record, the court concluded that the
defendant did not establish ineffective assistance of counsel and
that Ig[t]he transcript of the hearing at which the guilty plea was
entered   clearly   showed that the    Defendant acknowledged her
knowledge of the plea agreement and that it was voluntary."      The
defendant appealed.
                                I.
     Did the District Court err in dismissing the defendant's
petition to modify her sentence?
     The defendant admits on appeal that her sole objective in
filing the petition was to secure suspension of the remaining
portion of her 40-year sentence.     Section 46-21-101(1), MCA, sets
forth the circumstances under which postconviction relief can be
granted. Under this statute, the court may "vacate, set aside, or
correcttt sentence which is found to be invalid in some respect.
        a
     The defendant does not dispute that her 40-year sentence falls
within the statutory maximum for robbery as provided by     §   45-5-
401(2), MCA.    In addition, the defendant does not allege that the
District Court abused its discretion in imposing a 40-year sentence
with no suspended period.    The defendant's only allegations are a
conflict of interest and ineffective assistance of counsel on the
part of her attorney.    Because the defendant seeks to suspend her
sentence but not to challenge its validity, the allegations do not
provide a basis for postconviction relief under 5 46-21-101, MCA.
Accordingly, we hold that the District Court did not err in
dismissing the defendant's petition to modify her sentence.
                                 11.
       Did the District Court abuse its discretion in dismissing the
defendant's petition if the petition is viewed as requesting
withdrawal of her guilty plea?
       Section 46-16-105(2), MCA, provides that "[alt any time before
or after judgment the court may, for good cause shown, permit the
plea    of guilty to be withdrawn and       a plea   of not guilty
substituted."     The determination of good cause is within the
district court's discretion; absent an abuse of that discretion,
this Court will uphold the district court's refusal to permit the
withdrawal of a guilty plea.      State v. Miller (1991), 248 Mont.
194, 197, 810 P.2d 308, 310.     The existence of good cause for the
withdrawal of a guilty plea is determined by reference to (1) the
adequacy of the court's interrogation as to the defendant's
understanding of the plea; (2) the promptness of the defendant's
attempt to withdraw the plea; and (3) the fact that the defendant's
plea was the result of a plea bargain. State v. Walker (1986), 220
Mont. 70, 72, 712 P.2d 1348, 1350.     Applying these factors, no
abuse of discretion has been established.
     The transcript of the change-of-plea hearing reveals an
extensive examination by defense counsel, the prosecution and the
District Court concerning the defendant's understanding of the plea
agreement's terms and consequences. In response to every inquiry,
the defendant stated that she understood the substantive rights
being waived and that, in exchange for the State's promises, she
would assist in the remaining state prosecutions and plead guilty
to the robbery count.   She was fully aware that the court was not
bound by the State's sentencing recommendations and that no
promises could be made with respect to when she would be paroled.
The defendant specifically concurred in the recommended 40-year
sentence and expressly waived the right to sentence review.     She
also testified that she had reviewed the plea agreement, had no
questions concerning it and was satisfied with the services of her
attorney.   Nothing in the record before us establishes that the
defendant was ill-advised as to the guilty plea or that she evinced
any confusion over the plea's attendant benefits and detriments.
Nor does the record indicate that she was ignorant of her rights or
the consequences of her act.
     Finally, the defendant waited almostthree years before filing
her petition for postconviction relief and offered no explanation
for the delay. This suggests that the petition was not the result
of a bona fide claim that the defendant misapprehended the plea
agreement but   rather that she merely      desired to alter the
agreement.   We hold that the District Court did not abuse its
discretion in dismissing the defendant's petition if the petition

is viewed as requesting withdrawal of her guilty plea.
     Affirmed.




We concur:       - -
                  0



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