                            NO.    90-531

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1991



STATE OF MONTANA,
           Plaintiff and Respondent,
     v.
DEWEY E. COLEMAN,
           Defendant and Appellant.



APPEAL FROM:   District Court of the Sixteenth Judicial District,
               In and for the County of Rosebud,
               The Honorable Joe Hegel, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Charles F. Moses; Moses Law Firm, Billings, Montana
          For Respondent:
               Hon. Marc Racicot, Attorney General, Helena, Montana
               Patricia J. Jordan, ~ssistantAttorney General,
               Helena, Montana
               John Forsythe, Rosebud County Attorney, Forsyth,
               Montana




                                            Decided: June 25, 1991
Filed:



                              Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
       Dewey Eugene Coleman (Coleman) appeals the resentencing for
his aggravated kidnapping conviction by the District Court of the
Sixteenth Judicial District, Rosebud County.     The District Court
resentenced Coleman to 100 years imprisonment for this conviction
following remand by an opinion of the Ninth Circuit Court of
Appeals, which vacated Coleman's prior death penalty sentence on
due process grounds.     Coleman v. McCormick (9th Cir. 1989), 874
F.2d 1280, 1289-90, cert. denied, 110 S.Ct. 349 (1989). We affirm
the District Court's resentencing.
       Coleman presents the following issues:
       1.    Whether the consecutive sentence of 100 years for
kidnapping violates the double jeopardy provisions of the United
States and Montana Constitutions?
       2.   Whether Coleman was denied equal protection of the laws
upon the grounds that he was:     (a)   unequally treated during the
course of these proceedings; and (b) was unequally treated by
reason of the fact that he was discriminated against as a black
man?
       The facts in this case are set forth in State v. Coleman
(1978), 177 Mont. 1, 8-13, 579 P.2d 732, 738-40 (Coleman I). We
will therefore not repeat those facts here. We will, however, give
a procedural history of this case, which spans over sixteen years.
       On October 24, 1974, Coleman, along with his roommate Robert
Nank, was charged by information with the crimes of deliberate
                                  2
homicide, sexual intercourse without consent, and aggravated
kidnapping in connection with the death of Peggy Lee Harstad on or
about July 4, 1974.        Nank, a white man, entered a written plea
agreement with the State on May 7, 1975, wherein he pled guilty to
deliberate homicide and solicitation to commit sexual intercourse
without consent in exchange for the dismissal of the aggravated
kidnapping charge.       Nank also agreed to testify against Coleman.
Nank is currently imprisoned in an out-of-state prison.
     Coleman, a black man, presented to the District Court on May
23, 1975, a written offer of a conditional plea of guilty in
exchange for the dismissal of the aggravated kidnapping charge. In
his offer, Coleman insisted on maintaining his innocence.        The
State refused to accept his conditional plea of guilty.
     Coleman went to trial on October 23, 1975.      On November 14,
1975, a jury convicted Coleman of deliberate homicide under 1 94-
5-102, R.C.M.       (1947) (now 1 45-5-102, MCA); sexual intercourse
without consent under 1 94-5-503, R.C.M.      (1947) (now 5 45-5-503,
MCA); and aggravated kidnapping under 5 94-5-303, R.C.M.       (1947)
(now 1 45-5-303, MCA).      On November 21, 1975, the District Court
sentenced Coleman to 100 years imprisonment for the deliberate
homicide conviction and forty years imprisonment for the sexual
intercourse without consent conviction.          The District Court
sentenced Coleman to death for the aggravated kidnapping conviction
under a then-existing mandatory death penalty statute, 1 94-5-304,
R.C.M. (1947)   .
                                    3
     On appeal, this Court affirmed Coleman's convictions and his
sentence for deliberate homicide, but vacated and remanded to the
District Court his sentences for sexual intercourse without consent
and aggravated kidnapping.      Coleman L, 579 P.2d at 753.       In
vacating Coleman's sentence for aggravated kidnapping, this Court
heldthat 5 94-5-304, R.C.M. (1947), was unconstitutional. Coleman
I , 579 P.2d at 742.    The 1977 Montana Legislature later repealed
that statute.
     On remand in 1978, the District Court resentenced Coleman to
twenty years imprisonment for the conviction of sexual intercourse
without consent.    The District Court resentenced Coleman to death
for aggravated kidnapping under 5 5 95-2206.6 to 95-2206.15, R.C.M.
(1947) (now 5 5 46-18-301 to 46-18-310, MCA), new death penalty
statutes enacted by the 1977 Montana Legislature.      On automatic
review, this Court affirmed Coleman's convictions and sentences.
State v. Coleman (1979), 185 Mont. 299, 336, 605 P.2d 1000, 1022
(Coleman 11), cert. denied, 446 U.S. 970 (1980).
     In 1980, Coleman sought and was refused review of his sentence
by the Sentence Review Division of this Court.   Additionally, this
Court denied Coleman's petition for a writ of supervisory control
in an order dated March 21, 1980.     Coleman's petition for a writ
of supervisory control, before the United States Supreme Court, was
also denied.    Coleman v. Sentence Review Div. of the Supreme Court
of Montana, cert. denied, 449 U.S. 893 (1980).
        In 1980, Coleman filed a petition and later an amended
petition with the District Court for post-conviction relief.                The
District Court denied Coleman's amended petition on February 18,
1981.     On review, this Court once again affirmed his convictions
and sentences.     Coleman v. State (Mont. 1981), 633 P.2d 624, 633
(Coleman   u),
             cert.      denied, 455 U.S. 983 (1982).
     Thereafter, Coleman filed a petition for writ of habeas corpus
under 28 U.S.C. 5 2254 with the United States District Court for
the District of Montana, Billings Division (United States District
Court).     This proceeding was temporarily stayed to allow Coleman
the opportunity to exhaust his state remedies when Coleman's new
counsel discovered that Coleman's prior counsel told the trial
court judge, who had presided at the pretrial hearing and later
twice sentenced Coleman to death, that Coleman had admitted to the
crimes following the administration of sodium amytal, a truth-
inducing drug that on occasion produces questionable results.
Following    review,   this   Court       once   again    affirmed    Coleman's
convictions and sentences holding that there was no evidence in the
record    suggesting   that   prior       counsel's      statements   affected
sentencing. Colemanv. Risley (1983), 203 Mont. 237, 250, 663 P.2d
1154, 1161 (Coleman u ) .
     Thereafter, Coleman moved the United States District Court for
1) an evidentiary hearing on twelve of thirty-seven issues in his
habeas corpus petition, and 2) summary judgment on the remaining
issues.    The State also moved the court for summary judgment. The
                                      5
court denied Coleman's request for an evidentiary hearing, denied
Coleman summary judgment, and granted the State summary judgment
in a memorandum opinion and order dated August 8, 1985.
     On May 5, 1989, on review of the denial of the petition for
writ of habeas corpus, the Ninth Circuit Court of Appeals (Ninth
Circuit) vacated Coleman's death penalty sentence on due process
grounds.   Coleman v. McCormick (9th Cir. 1989), 874 F.2d 1280,
1289-90, cert. denied, 110 S.Ct. 349 (1989). The Ninth Circuit did
not overturn the aggravated kidnapping conviction but remanded this
case for the State to either pursue a new trial or resentence
Coleman on the aggravated kidnapping conviction.        Coleman v.
McCormick, 874 F. 2d at 1290, n. 9. The State opted for resentencing
Coleman on the aggravated kidnapping conviction.
     On August 13, 1990, following an oral argument on July 13,
1990, and a resentencing hearing on July 31, 1990, the District
Court resentenced Coleman to 100 years imprisonment for the
aggravated kidnapping conviction, this sentence to run consecutive-
ly to the sentences of 100 years imprisonment for his deliberate
homicide conviction and twenty years imprisonment for his sexual
intercourse without consent conviction.    From this resentencing,
Coleman appeals.
     We restate the first issue as follows:
     1.    Does the sentence of 100 years for the aggravated
kidnapping conviction, which was imposed consecutively to sentences
for convictions of deliberate homicide and sexual intercourse
                                 6
without consent, violate the double jeopardy provisions of the
United States and Montana Constitutions?
       Coleman argues that the double jeopardy clauses of the Montana
and United States Constitutions, as well as 5 5 46-11-501 to -505,
MCA,    statutes concerning     lesser    included   offenses, bar   his
resentencing on his aggravated kidnapping conviction.         The State
argues that the doctrine of     res judicata applies to   this issue as
this Court has already determined this issue in the State's favor
in Coleman 11, 605 P.2d at 1008-10 (citing, inter alia, Block-
burger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76
L.Ed. 306).    We agree with the State.
       The doctrine of   res judicata   bars reconsideration of an issue
if four elements are present:
            (1) the parties or their privies must be the
            same; (2) the subject-matter of the action
            must be the same; (3) the issues must be the
            same, and must relate to the same subject-
            matter; and (4) the capacities of the persons
            must be the same in reference to the subject-
            matter and to the issues between them.
Brannon v. Lewis and Clark County (1963), 143 Mont. 200, 207-08,
387 P.2d 706, 711 (cited in Coleman       u, P.2d
                                            633         at 630).   Here,
all four of these elements are indeed present.             Furthermore,
Coleman presents no new facts or applicable case law to substan-
tiate this argument.      We hold that based on       iudicata, we will
not reconsider this issue.
       Additionally, we wish to note that the United States District
Court also examined the issue of double jeopardy, along with
thirty-six other issues, in Coleman's habeas corpus petition.
After examining these issues, the court denied Coleman's petition
for habeas corpus, denied Coleman's motion for summary judgment,
and granted the State's motion for summary judgment in a memorandum
opinion and order dated August 8, 1985.


     We restate the second issue as follows:

     2.      Does the sentence of 100 years for the aggravated
kidnapping conviction deny Coleman his right to equal protection
of the laws?
     Coleman    argues that his       sentence   resulted    from   racial
discrimination and unequal treatment because over sixteen years
ago, the State and the District Court refused his conditional
guilty plea yet accepted Nank's pleas of guilty. The State and the
District Court, however, were not bound to accept Coleman's
conditional plea of guilty; the acceptance of a plea is within the
discretion of the trial court.         Coleman   I,   579 P.2d at 744-45

(citations omitted).    Coleman further argues that he has been
denied an evidentiary hearing on this issue.          The State, however,
correctly points out that Coleman has failed to produce any
witnesses to support his assertion in the many years of litigating
this case.     In particular this includes the present sentencing
hearing before a new district court judge who specifically invited
counsel for Coleman to submit all evidence and testimony which he
thought to be essential.    After review of such evidence as was
                                  8
submitted, which had little bearing on the present issue, and after
a detailed review of the record, only then did the new district
court judge enter his sentence.
       This Court has twice discussed and rejected Coleman's racial
discrimination and unequal treatment claim in Coleman I, 579 P.2d
at 744-45, and Coleman 11, 605 P.2d at 1018-19.     In Coleman   m,
633   P.2d at 631, this Court dismissed Coleman's racial discrimina-
tion claim, then labeled as "Claim B g 8 , based on   res judicata.
Coleman presents no new facts or applicable case law in this appeal
not already considered in the lengthy records relating to Coleman's
convictions and sentences. We hold that        judicata applies and
decline to reconsider this issue.
      We find it noteworthy that the United States District Court,
in its August 8, 1985 memorandum opinion and order, also found no
merit in Coleman's claim of racial discrimination and unequal
treatment, and rejected it as ''idle speculation unsubstantiated by
any facts."
      Although the Ninth Circuit did not reach this racial dis-
crimination and unequal treatment issue, Judge Trott recognized
that this claim lacks merit:
           It is useful to put this case in context to
           remember that Coleman at one point tried to
           plead guilty while simultaneously proclaiming
           he was the innocent victim of racial bias.
           Then, after the administration of "truth
           serum," a drug known on occasion to produce
           unreliable results, his attorney abruptly
           indicated Coleman was prepared to admit to his
           part in the kidnap, rape, and murder. With
this series of events in mind, it is not
appropriate to reject summarily a state prose-
cutor's explanation for his reluctance to
accept a plea of guilty from a man who first
said he was innocent, then in an abrupt,
about-face apparently said he was guilty
(after being given sodium amytal), and finally
went to trial on the theory that he was blame-
less. Many respected trial judges might well
have declined to accept such a plea because of
its obvious defects.
Had Montana accepted either of Coleman's
pleas, it is clear beyond cavil that Coleman
would have eventually mounted a collateral
attack against his conviction, claiming an
innocent black man under the influence of
drugs had been coerced into pleading guilty
and sent to jail for life for a crime he did
not commit. Had he been successful in in-
validating such a plea, Montana would have had
to try Coleman years later with evidence that
might have deteriorated beyond resurrection.
Had Nank died or escaped in the interim,
Montana's case might have been nonexistent,
and Coleman might have escaped trial alto-
gether. This would have been unacceptable.




              -
It is therefore not beyond understanding that
the State refused to plea bargain and opted
instead to go to trial.
Montana was under no obligation to plea bar-
gain at all.       Weatherford v. Bursey, 429
U.S. 545, 561, 97 S.Ct. 837, 846, 51 L.Ed.2d
30 (1977). Also a plea tendered pursuant to
North Carolina v. Alford, 400 U.S. 25, 91
S.Ct. 160, 27 L.Ed.2d 162 (1970) will not
stand--nor should it--without a strong factual
basis and a clear showing that it was the
product of a free will. Montana's Hobson's
choice under these difficult circumstances to
put its case before a jury, therefore, is
hardly conclusive grounds for castigation. As
the Supreme Court noted in Singer v. United
States, 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13
L.Ed.2d 630, 638 (1965), our Constitution
regards a trial by jury as the best way to
produce a fair result. The cruel and savage
facts in this case also make it evident that
             Montana's selection of capital punishment
             falls short of shocking a reasonable person's
             conscience. See Burger v. Kemp, 483 U.S. 776,
             107 S.Ct. 3114, 97 L.Ed.2d 638 (1987).
Coleman v. McCormick (9th Cir. 1989), 874 F.2d 1280, 1297-98
(Trott, J., joined by Thompson, J., concurring), cert. denied, 110
S.Ct. 349 (1989).
     Lastly, we note that Coleman invites us to discuss the
remaining issues left unresolved by the Ninth Circuit in Coleman
v. McCormick, supra.      We find it unnecessary to address these
issues and therefore decline his invitation.      In conclusion, we
affirm the District Court's findings of fact, conclusions of law
and order of sentence dated August 13, 1990.
                                                   /


We concur:                                                   \I
