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                                                                 No. 98-611



                               IN THE SUPREME COURT OF THE STATE OF MONTANA



                                                              1999 MT 164N




STATE OF MONTANA,

Plaintiff and Respondent,



v.

RICHARD EUGENE URAIN,



Defendant and Appellant.




APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John S. Henson, Judge presiding.




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COUNSEL OF RECORD:



For Appellant:



Richard Eugene Urain, Deer Lodge, Montana (pro se)



For Respondent:



Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena, Montana; Fred R.
Van Valkenburg, Missoula County Attorney, Betty Wing, Assistant Missoula County Attorney, Missoula,
Montana




                                                                                                    Submitted on Briefs: May 27, 1999



Decided: July 8, 1999

Filed:




__________________________________________

Clerk




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Justice William E. Hunt, Sr. delivered the Opinion of the Court.




¶1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
Operating Rules, the following decision shall not be cited as precedent but shall be
filed as a public document with the Clerk of the Supreme Court and shall be
reported by case title, Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of noncitable cases
issued by this Court.

¶2. Richard Eugene Urain (Appellant), pro se, appeals from the order of the Fourth
Judicial District Court, Missoula County, denying his petition for postconviction
relief. We affirm.

¶3. On June 5, 1996, Appellant was charged by Information with six criminal
offenses stemming from two separate occasions when he unlawfully entered the
premises of Missoula Electric Coop, damaged property therein, and stole property
therefrom. Counts I-IV of the Information detail the offenses committed by
Appellant during the first break-in. As to these offenses, which were originally
charged by complaint in Justice Court, Appellant signed a waiver of preliminary
hearing and agreed to have his case filed in the District Court without a
determination of probable cause. Counts V and VI of the Information detail the
offenses committed by Appellant during the second break-in. These charges, which
were originally filed in justice court by complaint and accompanied by an affidavit of
probable cause, were later filed in the District Court without an accompanying
affidavit of probable cause and with no waiver of preliminary hearing. Counts I-IV
and Counts V-VI were consolidated for purposes of convenience and judicial
economy. On July 23, 1996, the State of Montana (State) amended the Information to
add Count VII, a felony charge of bail jumping. Appellant pleaded not guilty to all
counts alleged in the Information.

¶4. On October 16, 1996, with the advice of his public defender, Margaret Borg (Ms.
Borg), Appellant voluntarily changed his plea pursuant to a plea agreement. The
State agreed to dismiss the charge of bail jumping and Appellant pleaded guilty to
the remaining counts. In executing his change of plea, Appellant signed a written
plea agreement and a written "plea of guilty and waiver of rights" form. In the

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waiver of rights form, Appellant specifically waived his right to challenge the way in
which the State proceeded against him. At sentencing, the District Court ordered
Appellant to pay restitution, and to serve 25 years in prison with 10 years suspended.

¶5. In March 1997, Appellant moved for appointment of counsel outside the public
defender's office to pursue an appeal or postconviction relief. The District Court
appointed William Boggs (Mr. Boggs) to review the record regarding possible claims
for appeal only. No appeal was filed. Appellant, appearing pro se, filed with the
District Court a petition for postconviction relief alleging that both Ms. Borg and
Mr. Boggs had rendered ineffective assistance of counsel. Regarding Ms. Borg,
Appellant alleged that counsel failed to object to the State's filing of an Information
on Counts V and VI without either an accompanying affidavit and determination of
probable cause or a waiver of preliminary hearing. Appellant further alleged that
Ms. Borg failed to consider abandonment as a defense to the charge of attempted
theft. Regarding Mr. Boggs, Appellant alleged that counsel failed to contact him
during his representation and failed to file an appeal or a petition for postconviction
relief.

¶6. Pursuant to a court order, Ms. Borg and Mr. Boggs each filed affidavits in
response to Appellant's allegations. After reviewing the evidence, the District Court
concluded that Appellant's allegations were without merit and that neither counsel's
performance was deficient. On this basis, the court denied the petition for
postconviction relief.

¶7. Having reviewed the record, we agree with the District Court that Appellant's
allegations of ineffective assistance of counsel are groundless. The record shows that
Ms. Borg considered the above-stated procedural claim and defense raised by
Appellant prior to his change of plea. Regarding the procedural claim that Appellant
had not waived his right to a preliminary hearing, Ms. Borg determined that
probable cause existed for Counts V and VI, and that, had she objected on this basis,
the State simply would have filed the affidavit of probable cause. Thus, Ms. Borg
determined this procedural claim to be of no practical effect. Regarding the defense
of abandonment to the charge of attempted theft, Ms. Borg noted that the evidence
did not support such a claim. She stated that she did not believe Appellant had
effected a "voluntary and complete renunciation of his criminal purpose," as
required by § 45-4-103(4), MCA, because he walked away from the truck only after
all available means to steal the truck had been exhausted.

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¶8. The record also shows that Mr. Boggs spoke with Appellant by telephone on
January 14, 1998, at which time Mr. Boggs explained to Appellant why he thought
Appellant's claims would not support an appeal. Like Ms. Borg, Mr. Boggs thought
that no error or prejudice could be argued concerning Appellant's failure to waive a
preliminary hearing for Counts V and VI because the county attorney undoubtedly
would have filed an affidavit setting forth sufficient probable cause. Mr. Boggs
further noted that Appellant's voluntary plea of guilty and waiver of rights
effectively waived any challenge concerning prior defects in the proceedings. Mr.
Boggs stated that he and Appellant decided that Appellant should pursue his petition
for postconviction relief pro se.

¶9. To prevail on a claim of ineffective assistance of counsel, Appellant must show
that counsel's performance was deficient, i.e. "that counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment." Strickland v. Washington (1984), 466 U.S. 668, 687; State v.
Boyer (1985), 215 Mont. 143, 147, 695 P.2d 829, 831. Second, Appellant must show
that he was prejudiced by his counsel's deficient performance and was denied a fair
trial. Strickland, 466 U.S. at 687; Boyer, 215 Mont. at 147, 695 P.2d at 831. Appellant
must overcome the presumption that the action which he challenges may be
considered sound trial strategy. Counsel's trial tactics and strategic decisions are
accorded great deference. State v. Gonzales (1996), 278 Mont. 525, 532-33, 926 P.2d
705, 710.

¶10. Applying these rules to the facts of this case, we determine that Appellant has
not overcome the presumption that Ms. Borg's and Mr. Boggs' actions were sound
trial strategy. Having pleaded guilty and having waived his rights, Appellant has no
basis on which to challenge the State's proceedings against him. The record indicates
that Appellant's plea of guilty and waiver of rights was entered knowingly and
voluntarily. We conclude that Appellant has not satisfied his burden of proof under
Strickland, and that the District Court did not err in denying his petition for
postconviction relief.

¶11. Affirmed.


/S/ WILLIAM E. HUNT, SR.


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We Concur:


/S/ JAMES C. NELSON

/S/ KARLA M. GRAY

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER




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