          IN THE SUPREME COURT OF THE STATE OF MONTANA
                               1995


STATE OF MONTANA,
         Plaintiff and Respondent,
                                              >.
                                              '    ,   ,   .



RONALD TIMBLIN,
         Defendant and Appellant.                                   RP




APPEAL FROM:   District Court of the Eighth Judicial District,
               In and for the County of Cascade,
               The Honorable Thomas M. McKittrick, Judge presiding.


COUNSEL OF RECORD:
         For Appellant:
               Ronald Timblin, Pro Se,
               Deer Lodge, Montana
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Carol Schmidt, Assistant Attorney General,
               Helena, Montana
               Brant Light, Cascade County Attorney,
               Shawn M. Glen, Deputy County Attorney,
               Great Falls, Montana


                             Submitted on Briefs:              March 16, 1995
                                         Decided: April 25, 1995
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
     Appellant Ronald Timblin, appearing pro se, appeals from an
order of the Eighth Judicial District Court, Cascade County,
sentencing him to 40 years in the Montana State Prison for the
felony offense of sexual intercourse without consent; declaring
appellant a dangerous offender for the purposes of parole; and
declaring appellant ineligible for parole for the first 20 years of
his sentence and until he completes the sexual offender treatment
program at the prison.
     We affirm.
     The issues on appeal are:
     1.     Did the District Court err in designating appellant a
dangerous offender for purposes of parole under 5 46-18-404, MCA?
     2.     Did appellant enter a voluntary and knowing guilty plea?
     3.     Did the District Court violate appellant's due process
rights in sentencing him to a prison sentence of 40 years and
designating him a dangerous felony offender?
     4.     Was appellant denied effective assistance of counsel?
     During divorce proceedings, appellant moved from the family
home.     On August 22, 1987, he picked up his three minor daughters
for a scheduled visit. During this visit, appellant forcibly raped
P.T., his 14-year-old daughter.      In 1989, P.T. related to her
boyfriend the events of August 22, 1987, as well as the history of
abuse P.T. was subjected to by appellant.          P.T.'s boyfriend
              '
informed P .T. s mother of the abuse, who in turn contacted the
Great Falls Police Department.       On June 5, 1989, appellant was
charged by information under   §    45-5-503, MCA, with felony sexual
intercourse without consent, to which he pled not guilty.
      A bench trial was held on October 30 and 31, 1989.      Prior to
the trial, the State learned that P.T.'s account of the events of
August 22, 1987, differed from the account of her siblings, C.T.
and K.T. Appellant learned of the inconsistent accounts during the
trial. Appellant made a motion to compel the State to produce C.T.
and K.T., and a motion to continue the trial until the witnesses
could be     subpoenaed.   The district court denied appellant's
motions. The court found appellant guilty as charged and sentenced
him   to 35 years in the Montana State Prison, with 5 years
suspended.
      We   reversed appellant's conviction, concluding that        the
district court abused its discretion by not granting appellant's
motion for a continuance.   State v. Tirnblin (1992), 254 Mont. 48,
834 P.2d 927.
      After the District Court set a new trial date, appellant
entered a guilty plea, signed an acknowledgement of waiver of
rights and a plea      agreement.     The District Court     sentenced
appellant to 40 years in the Montana State Prison for the offense
of felony sexual intercourse without consent under   §   45-5-503,MCA.
The District Court declared appellant a dangerous offender for
parole purposes, and declared him ineligible for parole for the
first 20 years of his sentence and until he completes the sexual
offender treatment program at the prison.          Appellant appeals his
sentence.
                                   ISSUE 1
     Did    the   District   Court   err     in designating   appellant a
dangerous offender for parole purposes under 5 46-18-404, MCA?
     The    designation of    an     offender as    either dangerous or
nondangerous is governed by 5 46-18-404, MCA, which provides in
pertinent part:
     (1) . . . the sentencing court shall designate an
     offender a nondangerous offender for the purposes of
     eligibility for parole . . . if:
          ( a ) during the 5 years preceding the commission of
     the offense for which the offender is being sentenced,
     the offender was neither convicted of nor incarcerated
     for an offense committed in this state or any other
     jurisdiction for which a sentence to a term of
     imprisonment in excess of 1 year could have been imposed;
     and
          (b) the court has determined, based on any
     presentence report and the evidence presented at the
     trial and the sentencing hearing, that the offender does
     not represent a substantial danger to other persons or
     society.
Subsection (1) of the statute sets forth a two-part test under
which an offender can be designated nondangerous.             The district
court can designate the offender as nondangerous only if the
offender meets both criteria set forth in subsections (a) and (b).
If the offender satisfies only one prong of the two-part test, the
district court may, in its discretion, designate the offender as
                                                             ,
dangerous for the purposes of parole. State v. Buckman (1989) 236
Mont. 37, 40, 768 P.2d 1361, 1362; State v. Dahl (1980), 190 Mont.
       "When using its discretion to determine offender status, the
district court 'may consider persistence in criminal conduct, and
failure of earlier discipline to deter or reform the defendant.'"
Buckman, 768 P.2d at 1361, (quoting State v. Nichols (1986), 222
Mont. 71, 82, 720 P.2d 1157, 1163).            The sentencing court must
articulate its reasons for designating an offender as dangerous,
rather than merely recite the statutory language of 5                  46-18-
404(l) (a) and (b), MCA.       State v. Morrison (l993), 257 Mont. 282,
287, 848 P.2d 514, 516; Buckman, 768 P.2d at 1361.
      After considering the presentence reports, the District Court
articulated in detail its reasons for designating appellant a
dangerous offender. The District Court concluded that appellant is
manipulative, without remorse, and represents a danger to his
victim, his family, society in general, and in particular, female
juveniles.       The District Court further concluded that appellant
will re-offend if given the opportunity, and that appellant is not
amenable to rehabilitation.
      We hold that the District Court did not err in designating
appellant    a     dangerous   offender      for   parole   purposes   under
§   46-18-404, MCA.
                                   ISSUE 2
      Did appellant enter a knowing and voluntary guilty plea?
      Appellant argues that the District Court did not inform him
that it could place parole restrictions on his sentence, therefore,
his guilty plea was not given voluntarily or knowingly. The record
does not support appellant's argument.
      To ensure voluntary pleas,   §   46-12-204(2),MCA, provides that
the district court may not accept a guilty plea without first
determining that the plea is voluntary and not the result of force
or threats or promises apart from the plea agreement.            A trial
court's interrogation of a defendant seeking to enter a guilty plea
is sufficient if the judge
      examines the defendant, finds him to be competent, and
      determines from him that his plea of guilty is voluntary,
      he understands the charge and his possible punishment, he
      is not acting under the influence of drugs or alcohol, he
      admits his counsel is competent and he has been well
      advised, and he declares in open court the fact upon
      which his guilt is based.
State v. Mahoney (1994), 264 Mont. 89, 97, 870 P.2d 65, 69 (quoting
State v. Walter (1986), 220 Mont. 70, 74, 712 P.2d 1348, 1350).
Specifically, the trial court should interrogate the defendant
pursuant to the criteria set forth in      §   46-12-210, MCA.
      The record demonstrates that before accepting defendant's
guilty plea, the District Court interrogated appellant pursuant to
§   46-12-210, MCA, as to his competence, his understanding of the
implications of a guilty plea in terms of rights waived and rights
retained, whether appellant was acting under the influence of
alcohol or drugs, and whether appellant was satisfied with counsel.
The District Court advised appellant that a plea agreement was a
recommendation that the court was not bound to follow.               The
District Court explained the maximum punishment for the charged
offense.      The District Court established the factual basis for
appellant's guilt by having him recite with specificity the acts he
committed that resulted in the charged offense.            The record also
discloses that appellant executed an acknowledgement of waiver of
rights by plea of guilty and plea agreement which provides that
"[elach party understands that the presiding District Court Judge
can designate the defendant as a dangerous offender as well as
limit   his   eligibility for parole     and       work   release   furlough
programs."      The District Court accepted appellant's guilty plea
after   interrogating him    pursuant    to    5    46-12-210, MCA,     and
concluding that appellant's plea was voluntary and knowing.
     We hold that appellant's plea of guilty to the charged offense
was knowing and voluntary.
                               ISSUE 3
     Did the District Court violate appellant's due process rights
in sentencing him to a prison sentence of 40 years and designating
him a dangerous felony offender?
     The District Court Judge presiding over appellant's first
trial sentenced him to a prison term of 35 years, with five years
suspended.      After pleading guilty in lieu of a second trial,
appellant was sentenced to a prison term of 40 years by a second
District Court Judge . Appellant argues that the 40-year sentence
imposed by the second District Court Judge was motivated by
judicial vindictiveness because appellant successfully attacked his
first conviction. Appellant contends that the increased sentence
violates his due process rights.
     "Due process guarantees resentencing free from vindictiveness
stemming from reversal." State v. Forsyth (19881, 233 Mont. 389,
421, 761 P.2d 363, 383. However, where a different judge sentences
on retrial, the presumption of vindictiveness that is created by a
sentence increase on remand no longer exists. Forsvth, 761 P.2d at
384; Texas v. McCullough (1986), 475 U.S. 134, 106 S.Ct. 976, 89
L.Ed.2d 104.   Because the first sentencing judge was replaced in
the present case, there is no presumption of vindictiveness.
Consequently, appellant must show actual vindictiveness. Forsvth,
761 P.2d at    384.   Appellant has made no showing of actual
vindictiveness.
     We hold that the District Court did not violate appellant's
due process rights by sentencing him to a prison term of 40 years.
     In Issue 1 we held that the District Court did not err in
designating appellant a dangerous offender.   For the reasons set
forth in Issue 1, we hold that the District Court did not violate
appellant's due process rights by designating him a dangerous
offender .
                             ISSUE 4
     Was appellant denied effective assistance of counsel?
     We have adopted the two-prong test set forth in Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,
when determining whether counsel was effective. Mahonev, 870 P.2d
at 72-73. A defendant must first show that counsel's performance
was deficient by demonstrating that counsel was not functioning as
guaranteed   by   the   Sixth   Amendment   to   the   United   States
Constitution. A defendant must next show that counsel's deficient
performance so prejudiced him that he was deprived of the right to
a fair trial. Mahonev, 870 P.2d at 72-73. However, when a guilty
plea is involved, the defendant must show that but for counsel's
deficient performance, the defendant would not have pled guilty and
would have insisted on going to trial.      State v. Langford (1991),
248 Mont. 420, 432, 813 P.2d 936, 946.
     In Issue 2, we concluded that appellant ' s plea was knowing and
voluntary.   In addition, there is nothing in appellant's brief or
the record to show that counsel's performance was deficient or
that, but for counsel's performance, appellant would not have pled
guilty and would have insisted on going to trial.
     We hold that appellant received effective assistance of
counsel.
     We affirm.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.



                                            Justice
We concur:




     Chief Justice
prepaid, to the




COURT


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