                                           No. 03-001

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2003 MT 196N



RICKY LYNN COATES

              Petitioner and Appellant,
         v.

STATE OF MONTANA,

              Respondent and Respondent.




APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and for the County of Yellowstone, Cause No. DC 2000-354
                     The Honorable Susan P. Watters, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Ricky Lynn Coates, Glendive, Montana, pro se

              For Respondent:

                     Mike McGrath, Montana Attorney General, Jennifer Anders, Assistant
                     Montana Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone
                     County Attorney, Billings, Montana



                                                         Submitted on Briefs: May 29, 2003

                                                                    Decided: August 4, 2003
Filed:



                     __________________________________________
                                       Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title,

Supreme Court cause number and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2      The Thirteenth Judicial District Court, Yellowstone County, denied Ricky Lynn

Coates' Petition for Post-Conviction Relief. Coates appeals. We affirm.

¶3     Coates was originally charged with Felony Aggravated Burglary and Felony Theft

by Accountability. He pled guilty to the felony theft charge and was committed to the

Department of Corrections for five years, with two years suspended. The aggravated

burglary charge was dismissed. Approximately one year later, Coates filed a pro se petition

for postconviction relief in the District Court. The District Court interpreted this petition to

argue that 1) Coates' guilty plea was not voluntarily entered; 2) he is entitled to a new trial

based on newly discovered evidence; and 3) his counsel was ineffective. The District Court

denied the petition. Coates filed a petition for writ of habeas corpus and a motion for

extension of time in which to challenge the District Court's order denying postconviction

relief. We declined to grant habeas relief but construed his motion for extension of time as

a notice of appeal from the District Court's order denying postconviction relief.

¶4     We decide this case pursuant to our Order dated February 11, 2003, amending Section



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1.3 of our 1996 Internal Operating Rules and providing for memorandum opinions. The

proper standard of review on appeal from an order denying postconviction relief is whether

the District Court's findings of fact are clearly erroneous and whether its conclusions of law

are correct.

¶5     In reviewing Coates' petition for postconviction relief, the District Court carefully

applied the three factors that have been used for at least two decades to determine whether

withdrawal of a guilty plea is permitted. See State v. Huttinger (1979), 182 Mont. 50, 54,

595 P.2d 363, 366. The District Court found that each factor weighed against Coates and

that the record did not substantiate a legal right to withdraw his guilty plea. The court also

determined that Coates had waived his right to a new trial by pleading guilty. It analyzed

his argument on the merits, nonetheless, and concluded that the "new evidence" was nothing

more than an attempt to impeach witnesses and therefore did not meet the well-established

requirements for a new trial as set forth in State v. Greeno (1959), 135 Mont. 580, 586, 342

P.2d 1052, 1055. Moreover, his claim of ineffective assistance of counsel failed because he

presented no credible evidence from which to conclude that counsel's performance was

deficient or that he did not know the nature of the crime for which he pled guilty. Lastly,

the District Court concluded that Coates was not entitled to appointed counsel based upon

the record.

¶6     On appeal, Coates argues that the State, in its response to Coates' previously-filed

Petition for Writ of Habeas Corpus, stated that "Coates was presumably charged with a

felony, and pled guilty to a felony. . . ." Coates maintains that his arrest, prosecution and

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plea agreement were all based on this "presumption" standard rather than "probable cause."

He claims that his defense counsel was ineffective for allowing him to plead guilty to a

felony when he, in fact, was guilty of a misdemeanor. In the alternative, Coates claims that

the District Court erred when it denied him the right to counsel.

¶7     Our review of the District Court record reveals that the District Court addressed and

correctly resolved Coates' "presumption v. probable cause" issue. Furthermore, in the

District Court's comprehensive and well-analyzed order, its findings were supported by the

evidence and it correctly interpreted Montana law applicable to Coates' Petition for Post-

Conviction Relief. Therefore, we affirm.

                                                               /S/ PATRICIA COTTER


We Concur:


/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART’




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