                            No.    90-549
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1992



IN RE THE PETITION OF
KORI LANE LAKE.



APPEAL FROM:   District Court of the Fourth Judicial District,
               In and for the County of Mineral,
               The Honorable Ed P. McLean, Judge


COUNSEL OF RECORD:
          For Appellant:
               Kori Lane Lake, Pro Se
               Deer Lodge, Montana

          For Respondent:
               Hon. Marc Racicot, Attorney General, Helena, Montana
               Jennifer Anders, Assistant
               M. Shaun Donovan, Mineral County Attorney, Superior,
               Montana



                              Submitted on Briefs:     March 19, 1992
                                            Decided:   April 2 1 ,   1992


Filed:
~ustice'~red Weber delivered the opinion of the ~istrict
          J.                                            Court.

     After an evidentiary hearing, the District Court for the
Fourth Judicial District, Mineral County, denied defendant's (Kori
Lane Lake) petition for post-conviction relief.         We affirm.
     The sole issue for our review is whether the ~istrictCourt
erred in determining that defendant's plea of guilty was voluntary
and not the result of attorney incompetence.
     Defendant was charged by       information with one count of
attempted deliberate homicide and one count of robbery, arising
from an incident which took place on July 29, 1989. On that date,
defendant stabbed Joseph Shippentower in the throat, inflicting a
laceration several inches long.       After the stabbing incident,
defendant took the victim's car and its contents, later abandoning
them in a remote area away from the scene of the incident.
Margaret Borg of the Missoula County Public Defender's Office was
appointed to represent defendant.
      In the course of the hearing following the filing of his post-
conviction petition, defendant testified that he had admitted to
Ms. Borg that he was responsible for the stab wound.        However, he
maintained that it was an Naccidentll
                                    and that he had been acting in
self-defense against unwanted sexual advances by Mr. Shippentower.
In   addition   the   defendant   admitted   to   the   taking   of   the
Shippentower car and its contents and to the later abandonment.
     In his statements to the police, Mr. Shippentower denied
having made any sexual advances towards the defendant, and claimed
that he was asleep when the attack took place.           Because of the
striking differences between the defendant's version of the
incident and Mr. Shippentower's version, Ms. Borg testified that
the case essentially boiled down to a credibility match between Mr.
Shippentower and the defendant.
      Ms. Borg testified that as the date for trial approached, she
began to question the defendant's ability to assist in his own
defense.    She testified that his attitude had become extremely
hostile; that he had attempted suicide; and that he had burned off
his hair in order to frustrate the State's attempt to obtain a hair
sample.     Defendant was transferred to Warm Springs where he
underwent a psychological evaluation. Ms. Borg testified that the
evaluation did not raise a question as to his fitness to proceed,
nor did it demonstrate mental disease or defect.
     Ms. Borg discussed alternatives to a trial with defendant.
She testified that she recommended that defendant accept the plea
bargain which offered a reduction in the charges to one count of
aggravated assault and one count of theft.   She testified that in
her opinion there was a chance that defendant could have been
convicted on the attempted deliberate homicide charge if it went to
trial.     At a minimum, she felt that defendant would have been
convicted of aggravated assault, the crime to which he ultimately
pled guilty.
     Eventually defendant signed a waiver of rights agreement and
entered his pleas of guilty to one count of aggravated assault and
one count of theft.     By signing the agreement, the defendant
specifically acknowledged that he was satisfied with the services
of his attorney; had sufficie,nttime to consult with his attorney;
his attorney had done everything he asked her to do; and that he
discussed the merits of his case with her, noting specifically that
he did not have available to him the affirmative defense of
justifiable use of force or mental disease or defect.
     Subsequently, defendant was sentenced to fifteen years in the
Montana State Prison with five years suspended for aggravated
assault, and ten years for felony theft, the sentences to run
concurrently.    He was also designated a dangerous offender for
parole eligibility purposes.     Defendant now appeals from the
District Court's denial of post-conviction relief.
     Did the District Court err in determining that defendant's
plea of guilty was voluntary and not the result of attorney
incompetence?
     A petition for post-conviction relief is civil in nature
rather than criminal. The standard for review is set forth in Rule
52(a), M.R.Civ.P., which provides that findings of fact shall not
be set aside unless clearly erroneous, and due regard shall be
given   to   the opportunity of the trial court to      judge the
credibility of the witnesses.
     Defendant maintains he was denied effective assistance of
counsel because Ms. Borg recommended he plead guilty to the lesser
offense of aggravated assault, which he maintains denied him the
opportunity to assert a defense of justifiable use of force at
trial on the original charges.     He further maintains Ms. Borg
informed him that he was not entitled to the defense of justifiable
use of force because he did not intend to kill Mr. Shippentower.
The State maintains that defendant was not deprived of his Sixth
Amendment right to counsel nor was his plea involuntary because of
the acts or omissions of counsel or any other person.
     In evaluating ineffective assistance of counsel claims, this
Court employs a two-part test from Strickland v. Washington (1984),
466 U.S.   668, which requires the Court to evaluate whether
counsel's performance was deficient and whether the deficient
performance prejudiced the defense.     When evaluating counsel's
performance with respect to a guilty plea, the defendant must show
that but for counsel's deficient performance, he would not have
pled guilty and would have insisted upon going to trial. State v.
Langford (1991), 248 Mont. 420, 432, 813 P.2d 936, 947.
     Section 45-3-102, MCA, provides that a person is justified in
the use of force against another person when and to the extent that
he reasonably believes that such conduct is necessary to defend
himself or another against such other's imminent use of unlawful
force; and only if he reasonably believes that such force is
necessarv to prevent imminent death or serious bodilv harm to
himself or another. Ms. Borg testified that she advised defendant
that the defense of justifiable use of force probably would not
work in his case. She further testified that '1 don't believe that
                                              '

the amount of force used in this case was appropriate under the
circumstances of the case as I understand it, and I discussed that
at length with Kori" .
     Defendant maintains that he was defending himself from Mr.
Shippentower's unwanted sexual advances.        However, the evidence
does    not   show   the   defendant   had   reason   to   believe   Mr.
Shippentower's alleged advances placed defendant in danger of
either imminent death or serious bodily injury.
       The record is void of any evidence that Ms. Borg's performance
was deficient or that her performance prejudiced the defense. The
District Court stated:
            After informed professional deliberation, review of
       all information in her possession and consultation with
       her investigator and other office staff members, former
       defense counsel, Margaret Borg concluded that if the case
       went to trial the complaining witness Shippentower,
       although "shakyw,would likely be believed by a jury with
       respect to the essential elements of the crimes charged
       and that, at a minimum, her client, Mr. Lake would be
       convicted of the lesser included offenses of Aggravated
       Assault and Theft, both felonies.        Defense counsel
       further concluded that because of the excessive force
       used by Mr. Lake, self defense would not be a successful
       defense; that there was no evidence to support Mr. Lake's
       claim that the complaining witness had made homosexual
       advances towards him triggering the incident and,
       finally, after consultations with Missoula Psychologist
       Dr. Robert Shea, that the Defendant was not suffering
       from any mental disease or defect which would either
       provide a defense or impair his competency. At the same
       time Ms. Borg, and her investigator Mr. Locke, had grave
       concerns over Mr. Lake's ability to control himself at
       trial,    particularly    with   respect    to    showing
       aggressiveness and hostility and concluded there was a
       significant risk that a jury would convict him of both
       Attempted Deliberate Homicide and Robbery leading to
       potential maximum punishment under applicable statutes in
       excess of 100 years.
       Defendant has failed to prove that but for Ms.            Borg's
allegedly deficient performance, he would not have pled guilty and
would have insisted upon going to trial.      State v. Leavens (1986),
222 Mont. 473, 475, 723 P.2d 236, 237; State v. Langford (1991),
248 Mont. 420, 432, 813 P.2d 936, 947.
     Defendant admitted that he stabbed Mr. Shippentower, although
he maintained it was in self-defense. However, he was aware that
Mr. Shippentower denied making any sexual advances; that Mr.
Shippentower was prepared to have his girlfriend testify as to his
heterosexual preferences; and, that he had trouble controlling his
temper and that fact would be visible to a jury.       The record
reveals that the defendant voluntarily signed the plea agreement
with a full understanding of the relevant facts and legal issues.
     Based upon our review of the record, we conclude that the
findings and conclusions of the District Court are not clearly
erroneous.   We therefore affirm the holding of the District Court
that the defendant's plea of guilty was voluntary and not the
result of attorney incompetence.




We Concur:         /


       Chief Justice
