                                             No.     81-311

                  I N THE SUPREBE COURT O THE STATE O M N A E
                                         F           F O T N

                                                     1981




STATE OF MONTANA,

                    P l a i n t i f f and Respondent,

          -vs-

J O H N ALLEN BIGSMOKE,

                    Defendant and A p p e l l a n t .




Appeal from:       D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
                   I n and f o r t h e County o f Lake, The H o n o r a b l e
                   J a c k L. G r e e n , J u d g e p r e s i d i n g .


C o u n s e l o f Record:

       For Appellant:

                   R.   J. P i n s o n e a u l t ,   S t , I g n a t i u s , Montana

      For Respondent:

                   Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
                   R i c h a r d P. H e i n z , County A t t o r n e y , P o l s o n , Montana




                                             Submitted on B r i e f s :        December 1 7 , 1 9 8 1

                                                                Decided:       March 2 5 , 1982



Filed:
          MAR 2 5 1 8
                   98       '
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the
Court.

     On May 16, 1973, petitioner John Allen Bigsmoke appeared
with court-appointed counsel before the District Court of
the Fourth Judicial District, Lake County, Polson, Montana,
and entered a plea of guilty to the crime of lewd and lascivious
acts upon a child, in violation of section 94-4106, R.C.M.
(1947).    This plea was accepted as a compromise for petitioner's
previous plea of not guilty to a charge of rape.   Petitioner
was sentenced to twenty years in the state penitentiary.
After being denied relief by the Sentence Review Board and
having parole revoked twice, petitioner filed this post
conviction relief petition, requesting either reduction of
sentence or withdrawal of guilty plea.   This appeal results
because the District Court, after hearing, denied petitioner
relief.
     Two principal questions encompass the issues raised on
appeal :

     (1) Whether the District Court abused its discretion
in refusing to allow petitioner to withdraw his guilty plea?

     (2) Whether the District Court erred in concluding
petitioner was not deprived of effective assistance of
counsel at plea entry?
     The first issue is dispositive, however, because petitioner's
contention that he received ineffective assistance of counsel
is predicated solely upon a conclusion that his guilty plea
was entered without understanding or voluntariness.
     On July 23, 1980, at hearing on petition, Bigsmoke
testified that original defense counsel told him that if he
pleaded guilty to the lesser charge he would probably get
off with three years suspended.      He contends that because
his plea was entered with that understanding, he is entitled
to withdraw such plea since the sentence imposed did not
conform to his expectations.     Defense counsel from the
original proceeding died in 1974 so there was no way to
refute or verify petitioner's testimony regarding their pre-
plea entry discussions.     Petitioner also testified that he
did not understand what the crime of lewd and lascivious
acts with a child was as neither the court nor counsel
explained the elements of the lesser charge to him; accordingly,
he contends he could not enter a voluntary and understanding
plea.
        The District Court found otherwise.     Absent an abuse of
discretion the lower court's judgment in granting or denying
petitioner relief will not be disturbed.        State v. Nance
(1947), 120 Mont. 152, 184 P.2d 554; Accord, State v. Lewis
(1978), 177 Mont. 474, 582 P.2d 346.
        State v. Huttinger (1979),      Mont.        ,   595 P.2d
363, 36 St.Rep. 945, sets forth the factors a lower court
should consider in determining whether a guilty plea should
be withdrawn.    We find no abuse of discretion in the lower
court's application of those factors to the instant case.
The court's interrogation of defendant at entry of plea
adequately revealed his understanding of the charge and

consequences of his plea despite petitioner's testimony to
the contrary six and one-half years later.       At entry of
plea, the court specifically asked Bigsmoke if his plea
resulted from any promises of leniency; he replied "no."
Further the court informed the defendant that the maximum
penalty was twenty-five years for the charge to which he
pleaded and that the court alone had the power to impose
sentence within that parameter; the defendant indicated that
he understood.     The lower court is not compelled to accept
petitioner's unsupported, if not opportunistic, assertion
that his guilty plea was entered solely upon misrepresenta-
tions of now deceased counsel when the plea entry transcript
is devoid of any indication that, at that time, defendant
had concrete expectations as to the sentence he would
receive.     Moreover, the District Court was entitled under In
re McNair (1980),        Mont.      ,   615 P.2d 916, 37 St.Rep.
1487, to consider the long delay in filing the motion to
withdraw in assessing petitioner's credibility during the
1980 hearing.    Finally, noting that petitioner had received
the benefits of the 1973 plea bargain, the District Court
correctly considered the possible adverse impacts on the
prosecution were the court to presently set aside petitioner's
obligations under that bargain and reopen the case anew.
See State v. Haynie (1980),        Mont.        ,   607 P.2d 1128,


     The judgment of the lower court is hereby affirmed.




We Concur:
 -
..




     Chielf' Justice
