                                NO. 83-480
                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1984



STATE OF MONTANA,
                  Plaintiff and Respondent,

   -vs-
DAN P. PETERSON,

                  Defendant and Appellant.




APPEAL FROM:      District Court of the Twelfth Judicial District,
                  In and for the County of Hill,
                  The IIonorable M. James Sorte, Judge presiding.

COUNSEL OF RECORD:
         For Appellant:
                  Bosch, Kohr, Dugdale, Warner, Martin   &   Kaze; John
                  Warner, Havre, Montana
         For Respondent :
                  Hon. Mike Greely, Attorney General, Helena, Montana
                  Ronald W. Smith, County Attorney, Havre, Montana




                                 Submitted on Briefs:    April 12, 1984
                                              Decided:   July 10, 1984


Filed:
          $Uh. Id :9t14



                                         -.      ----
                                 Clerk
Mr. Justice            John        C.        Sheehy      delivered.       the     Opinion        of    the
Court.


        This c a s e a r o s e i n t h e D i s t r i c t Court, Twelfth J u d i c i a l

D i s t r i c t , H i l l County, where Dan P e t e r s o n e n t e r e d a p l e a of

guilty       on    September             25,      1981,      to     one    count     of    mitigated

d e l i b e r a t e homicide and one c o u n t of a g g r a v a t e d a s s a u l t .                   He

now a p p e a l s t h e a r d e r of              t h e D i s t r i c t C o u r t f i l e d J u n e 23,

1983, d e n y i n g t h e motion t o withdraw h i s g u i l t y p l e a .

        According t o t h e motion f o r l e a v e t o f i l e an i n f o r m a t i o n

filed      January           12,        1981,       in    H i l l    County,       the     following

occurred          on       January           9,   1981:           Carla    Peterson,        who        was

s e p a r a t e d from h e r husband,                 Dan,     f i n i s h e d work and l e f t t o

meet Roger McIntosh a t t h e Shanty Bar i n Havre.                                   A t the bar,

Dan     Peterson           spoke        to    Roger      and      C a r l a and    indicated. t h a t

t h e i r s e e i n g e a c h o t h e r was g o i n g t o c a u s e problems.                          Dan

then l e f t t h e bar.

        C a r l a and Roger l e f t t h e b a r a p p r o x i m a t e l y one-half                    hour

later.       They walked t o R o g e r ' s v e h i c l e and C a r l a g o t i n t h e

drivers side.               She t h e n h e a r d a s h o t and saw Roger f a l l t o

t h e sidewalk.             He had been s h o t i n t h e head.                      She screamed

and r a n toward t h e back d o o r of t h e b a r .                       But a s s h e r a n , s h e

was s h o t i n t h e l e g and f e l l down.                       Dan P e t e r s o n approached

h e r w i t h a r i f l e i n h i s hands, a.nd asked h e r i f s h e was r e a d y

to    come     home.          He        then       looked      at    her    leg     and     at    Roger

McIntosh and imrnecliately l e f t t h e s c e n e .

        P e t e r s o n was apprehended a t h i s m o t h e r ' s                    home s h o r t l y

thereafter.            His     brother            s a i d t h a t P e t e r s o n broke i n t o h i s

home,      took        a    30.06        rifle        and      then       returned        it.         When

P e t e r s o n ' s b r o t h e r found t h e gun,             i t showed s i g n s o f h a v i n g

been r e c e n t l y f i r e d .
      Peterson gave notice of his intention to rely on the
defense of a mental disease or defect which precluded his
having the particular state of mind which is an element of
the crime charged.         He was eventually exa.mined by      three
d-octors and each gave a report that wa.s reviewed by defense
counsel.
      Negotiations were conducted between Peterson and the
State, culminating in a written "Offer to Plead Guilty and
Pre-trial Agreement."       The agreement stated that the county
attorney was to amend the information to charge Peterson with
one count of mitigated. deliberate homicide and one count of
aggravated assault rather than the original one count of
deliberate homicide and one count of attempted deliberate
homicide.      It was upon this condition that Peterson was to
plead guilty to the amended charges.           The agreement a.lso
contained the following statement:
      "It is further understood by me that by entering a
      plea of Guilty to the charges set forth in the
      amended information I have waived my right to a
      speedy trial by jury, and have admitted each of the
      material- elements co~tained in the charges filed
      against me.   I also understand that the Court may
      lawfully impose up to forty (40) years in the
      Montana State Prison on the charge of mitigated
      deliberate homicide and twenty (20) years in the
      Montana State Prison on the charge of aggravated
      assault."
The   agreement was    given     to Peterson shortly before his
arraignment on September 25, 1981, and he signed it in the
hallway before entering the courtroom.        It was also signed by
the   county    attorney   and   Peterson's   two   lawyers,   Brian
Lilletvedt and Robert Morrison.
      Prior to accepting the guilty plea from Peterson, the
District Court examined Peterson's two attorneys regarding
their impression of Peterson's understanding of the pretrial
agreement.      They were questioned as to his competence and
volition     in     signing    the   agreement.         The    court    then
extensively examined Peterson regarding his knowledge of the
agreement and his basis for signing the agreement and for
pleading guilty.       Peterson was informed of his constitutional
rights and the fact that by pleading guilty he was waiving
those rights a.s they regard this case.                 Peterson answered
that he knew the maximum potential penalties for the crimes
to which he was pleading guilty.
     After    thorough        questioning    by   the    court,     Peterson
pleaded    guilty    to   the mitigated. deliberate homicide and
aggravated assault charges.             On January 15, 1.982, judgment
was filed sentencing Peterson to 40 years imprisonment on the
mitigated     deliberate        homicide     charge,     to    be      served
consecutively with 10 years imprisonment on the aggravated
assault charge.
    Acting pro se, Peterson filed a notice of appeal of the
judgment on March 3, 1982.              Thereafter, the District Court
granted Peterson's counsel leave to withdraw and appointed
substitute counsel.       A motion to withdraw his guilty plea was
filed on April 18, 1983 and the appeal filed by Peterson was
remanded by this Court for a hearing on the motion.
     On June 10, 1983, the District Court held a hearing on
Peterson's motion to withdraw his guilty plea.                  peterson's
sister-in-law, Peterson's mother, and Peterson testified on
his behalf.         Peterson's previous counsel and the county
attorney     testified    for     the    State.     An     order    denying
Peterson's motion was filed June 23, 1983.                    The District
Court found that:
     ". . . the defendant freely, voluntaril-y and on his
     own made the decision to plead guilty to the
     reduced charges and that the reduced charges were
     offered in exchange for his plea.     All of these
     actions were done knowingly, freely, voluntarily
     and without any threats, duress, pressures                or
     coercion of any kind from any source..        . ."
     On appeal, Peterson raises only the issue of whether the
District Court was correct in denying his motion to withdraw
the guilty plea.      Upon review of the record, we affirm the
District Court's action.
     Peterson makes essentially five claims to support his
contention tha.t his     guilty plea was made by mistake or
involuntarily.      First, Peterson claims tha.t he had trouble
communicating with his attorneys.        Second, he claims that an
article printed in the local newspaper which declared that he
had pleaded guilty (before he had done so) pressured. h.im to
plead guilty.    Third, he claims that he was denied a copy of
the report by one of the examining doctors and. was thus
unable to make an informed choice.        Fourth, Peterson claims
that the possibility that the county attorney involved              the
present case was to testify regarding Peterson's state of
mind exhibited in regard to his divorce case pressured him to
plead guilty.      Fifth, he claims that he signed the pretrial
agreement while in a state of shock and that he did not fully
understand   the    effect    of   pleading    guilty   to   mitigated
deliberate homicide.         Peterson contends that, taken as a
whole, these circumstances induced him to plead guilty.
     The District Court ' s discretion          deciding     mot ion
withdraw a guilty plea is to be relied upon unless an abuse
of that discretion has been shown.            State v. Lewis (1978),
177 Mont. 474, 582 P.2d 346; State v. Doty (1-977), 173 Mont.
     566 P.2d 1388.     In Lewis, this Court stated that:
     "Where a District Court has done all that it can to
     determine, from the defendant or otherwise, that
     the proposed plea of guilty is voluntarily ma.de,
     the defendant understands what he is doing and is
     advised of the consequences of his plea, including
     the nature and extent of his punishment, has been
        adequately advised by counsel, and has been treated
        fairly at all stages of the prosecution against
        him, and that in fact the defendant states he is
        guilty of the charges made, then this Court has a
        duty to support the District Court when it allows a
        plea of guilty to be entered in place of a plea of
        not guilty."   177 Mont. at 484, 582 P.2d at 352.
Tha.t duty requires us here to uphold the District Court's
action.     The court found, through questioning of Peterson and
his counsel, that he was competent, acting voluntarily and
that he     understood     the    charges and possible punishment.
Peterson was not acting under the influence of drugs or
alcohol, admitted that his counsel were competent and kept
him well-advised, and admitted in open court the facts upon
which    his     guilt   is based.        We    hold    that because these
conditions were fulfilled, the guilty plea should be upheld.
Lewis, 177 Mont. at 485, 582 P.2d at 352.
        Peterson's claims were not substantiated by the record
of the hearing at which the District Court accepted his plea
or by the record of the hearing on his motion to withdraw his
plea.     There was sufficient communication with his attorneys,
including discussions regarding the doctors' reports and the
potential uses of them in Peterson's defense.                      As to the
newspaper report and the possibilj-ty of the county attorney
testifying, Peterson made no mention or gave no indication
that     these      influenced    his     guilty       plea   w h e ~ he   was
interrogated by the District Court.                    Finally, there is no
evidence to support Peterson's claim that he was not aware of
the possible penalty for mitigated deliberate homicide.                    The
record     shows that     he     was    fully   interrogated as       to his
understanding of         his plea      and that he entered the plea
voluntarily and without mistake.
        Affirmed.
                                 J'   ', r
                          pin-        sX/,&.c-,
                            Justice-

We Concur:



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      Chief Justice   &
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