                                          No. 05-720

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 6N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

ALAN FRANK COMBS,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the Eleventh Judicial District,
                     In and For the County of Flathead, Cause No. DC 2004-244C,
                     Honorable Stewart E. Stadler, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Lane K. Bennett, Attorney at Law, Kalispell, Montana

              For Respondent:

                     Hon. Mike McGrath, Montana Attorney General, Joslyn M. Hunt,
                     Assistant Attorney General, Helena, Montana

                     Ed Corrigan, Flathead County Attorney, Daniel M. Guzynski,
                     Deputy County Attorney, Kalispell, Montana


                                                       Submitted on Briefs: October 25, 2006

                                                                  Decided: January 10, 2007

Filed:

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

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

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2     In June 2004, Alan Frank Combs (Combs) was charged by Information with

felony attempted deliberate homicide and felony aggravated burglary. Both charges

stemmed from his 2:30 a.m. unlawful entry into the home of his estranged wife, Libby, at

which time he cut her wrist with a razor blade in an attempt to kill her. The ensuing

struggle awakened Combs’ ten-year old daughter, E.W., who was living with Libby.

E.W. entered Libby’s bedroom to try to stop Combs. Combs instructed her to leave the

room but she returned when Libby called to her. At that time Combs fled the residence.

¶3     At his arraignment, Combs pleaded not guilty to both charges. Prior to trial, the

State amended its Information to include a third felony count: assault with a weapon.

Combs pleaded not guilty to the third charge as well. At a subsequent change of plea

hearing in June 2005, Combs withdrew his former not guilty pleas, and entered a plea of

no contest to Count II, Aggravated Burglary, and Count III, Assault with a Weapon. In

return, the court dismissed Count I, Attempted Deliberate Homicide. Combs signed an

Acknowledgement of Rights and Pretrial Agreement at this hearing. As part of his plea

agreement, the State agreed to recommend that Combs receive a sentence of fifty (50)


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years at Montana State Prison (MSP) with twenty-five (25) suspended. A pre-sentence

investigation (PSI) and report was ordered.

¶4     In August 2005, Combs moved to withdraw his no contest pleas on the ground that

he had discovered new and exculpatory evidence. This evidence consisted of a single

statement in the victim’s impact statement in the PSI report, in which Libby stated:

“[E.W.] and I went threw [sic] the entire case again because of the [upcoming] trial date

 . . . .” Combs maintained that this statement was contrary to earlier statements in which

both Libby and E.W. asserted that they had not spoken with one another about the

incident. He also argued that the statement was evidence that Libby and E.W. had

colluded on their proposed testimony and that Libby had tampered with E.W.’s witness

testimony in violation of § 45-7-206, MCA.

¶5     Libby responded by filing an affidavit in which she acknowledged that she and

E.W. were forbidden by court order from discussing the case, and swore that they had

not. She explained in the affidavit that the misinterpreted statement was meant to convey

that both she and E.W. had discussed the details of the attack individually and separately

with the county attorney in preparation for trial. She testified by affidavit that “I did not

intend to relay through this statement that [E.W.] and I discussed with one another the

details of the attack at any time prior to trial.” She denied any attempt to manipulate

E.W.’s testimony.

¶6     On September 7, 2005, the District Court denied Combs’ motion to withdraw his

pleas, and on September 15 the court sentenced Combs to MSP for thirty (30) years for

aggravated burglary and twenty (20) years, consecutive, for assault with a weapon.


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Combs appeals the District Court’s denial of his motion to withdraw his pleas. He also

claims the District Court erred by sentencing him to twice the sentence recommended in

the plea agreement based on allegations underlying the dismissed felony homicide

charge.

¶7    We review a denial of a motion to withdraw a plea to determine if the district

court’s findings of fact are clearly erroneous and the court’s conclusions of law are

correct. A defendant’s guilty plea must be voluntary, knowing, and intelligent. The

question of a plea’s voluntariness is a mixed question of law and fact, and we review

such questions de novo, determining whether the district court’s holding was correct.

State v. Chase, 2006 MT 13, ¶ 13, 331 Mont. 1, ¶ 13, 127 P.3d 1038, ¶ 13 (citations

omitted). Additionally, we review a criminal sentence for legality. State v. Mason, 2003

MT 371, ¶ 19, 319 Mont. 117, ¶ 19, 82 P.3d 903, ¶ 19.

¶8    We note that Combs did not argue in the District Court nor in this Court that his

pleas of no contest were not knowingly or voluntarily made; rather, his motion was based

on his contention that Libby had engaged in collusion, witness tampering and lying. The

District Court, however, concluded otherwise. The court held that the PSI statement was

not “newly discovered exculpatory evidence,” and that Combs’ challenge regarding the

statement was “nothing more than [Combs’] unsupported conclusion as to the meaning of

the . . . statement.” The District Court concluded that Combs presented no claim or

evidence that his plea was entered contrary to the statutory requirements of §§ 46-12-210

or 46-16-105(1), MCA.      We agree.    The record supports both the District Court’s

findings and legal conclusion.


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¶9     As to Combs’ challenge to his sentence, the record shows that the charge of

aggravated burglary to which Combs pleaded no contest incorporated the intent to

commit deliberate homicide. 1 Moreover, the record indicates that Combs testified at his

change of plea hearing that he understood that the aggravated burglary charge included

the intent to commit deliberate homicide and that he believed that if he went to trial, there

was a high probability that he would be convicted on that charge.

¶10    The District Court is allowed to consider any relevant evidence relating to the

nature and circumstances of the crime. Mason, ¶ 23. In order to sentence Combs under

the aggravated burglary charge, which included the intent to commit deliberate homicide,

the District Court considered the evidence Combs presented during his change of plea

hearing. This was not error.

¶11    It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section 1.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the appeal is without merit because the findings of fact are supported by substantial

evidence and the legal issues presented are clearly controlled by settled Montana law

which the District Court correctly interpreted.




1
  The Defendant, ALAN FRANK COMBS, on or about June 24, 2004, in Flathead County,
Montana, knowingly and unlawfully entered and remained in an occupied structure, the Libby
Combs residence, with the purpose to commit the offense of Deliberate Homicide therein and in
the course of committing the offense, purposely or knowingly inflicted bodily injury upon
another, Libby Combs, with a weapon (a razor blade) . . . .


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¶12   We affirm the judgment of the District Court.


                                                      /S/ PATRICIA COTTER



We Concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JOHN WARNER




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