State v


                                                 State v. MacPheat
                                              Decided March 10, 1998
                                        (NOT TO BE CITED AS AUTHORITY)

                                                               No. 97-527

                       IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             1998 MT 49N

                                                    STATE OF MONTANA,

                                                    Plaintiff and Respondent,

                                                                      v.

                                                  WILLIAM R. MacPHEAT,

                                                    Defendant and Appellant.

                     APPEAL FROM: District Court of the Eleventh Judicial District,

                                              In and for the County of Flathead,

                                   The Honorable Ted O. Lympus, Judge presiding.

                                                   COUNSEL OF RECORD:

                                                            For Appellant:

                               William R. MacPheat, Deer Lodge, Montana (pro se)

                                                           For Respondent:

                               Thomas J. Esch, Flathead County Attorney, Kalispell,

                            Montana; Joseph P. Mazurek, Attorney General, Tammy

                                    K. Plubell, Assistant Attorney General, Helena,



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                                                                  Montana

                                           Submitted on Briefs: January 15, 1998

                                                     Decided: March 10, 1998

                                    Justice Hunt 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 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 This is an appeal by William R. MacPheat (MacPheat), pro se,
from three orders the Eleventh Judicial District Court, Flathead
County, issued in cause number DC-96-020(A). On April 4, 1996,
MacPheat pleaded guilty to the crime of deceptive practices for
using his parents' credit card without their permission.
Subsequently, on April 2, 1997, MacPheat filed a motion to withdraw
his guilty plea. In connection with that motion, he filed various
other motions, including a discovery motion and a motion requesting
the District Court to issue a subpoena compelling his attorney's
wife to testify. On June 23, 1997, the District Court issued three
orders denying MacPheat's motions. Those orders are: (1) an "order
denying defendant's motion for discovery," (2) an "order denying
defendant's motions for evidentiary hearing, declaration of hostile
witnesses and issuance of subpoena," and (3) the "findings,
conclusions and order denying defendant's motion to withdraw guilty
plea. We affirm.

¶3 MacPheat appeals claiming error for three reasons. We address
each individually.

                           I.

¶4 In his motion to withdraw his guilty plea, MacPheat claimed
that he was denied effective assistance of counsel because his
attorney "may have represented [him] while in a state of diminished

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mental capacity due to the influence of illegal drugs." On April
24, 1997, MacPheat filed a discovery motion to obtain evidence in
support of that claim. He sought discovery of the following items:
(1) all deferred prosecution agreements between his attorney and
the State of Montana, (2) all police reports prepared in regard to
any investigations or complaints made involving his attorney, (3)
a copy of the NCIC report on his attorney, (4) a copy of all his
attorney's public defender contracts, and (5) a copy of all
material in the possession of the State of Montana, the Flathead
County Attorney's Office, the Flathead County Sheriff's Department
and the Kalispell Police Department regarding any investigation
into any potential criminal activity by his attorney, whether
charges were actually filed or not. The District Court considered
the record and the affidavit of defense counsel in considering his
claim of ineffective assistance of counsel, and found that
MacPheat's claim had no merit. It accordingly denied the discovery
motion. MacPheat cites Rule 26(b)(1), M.R.Civ.P., and contends
that the District Court erred in denying his motion, because such
evidence is relevant to his claim which "center[s] on [his
attorney's] participation in various illegal activities."

¶5 The determination of good cause for withdrawal of a guilty
plea is within the District Court's discretion. State v. Cameron
(1992), 253 Mont. 95, 100, 830 P.2d 1284, 1288. In determining
whether MacPheat may withdraw a guilty plea based upon ineffective
assistance of counsel, this Court applies the two-part test set
forth in Strickland v. Washington (1984), 466 U.S. 668, 687, 104
S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693; State v. Senn (1990), 244
Mont. 56, 58-59, 795 P.2d 973, 975. Pursuant to this standard,
the defendant must demonstrate that his attorney's performance fell
below the range of competence required by the Sixth Amendment to
the United States Constitution, and that but for the deficient
performance, he would not have pleaded guilty. Senn, 795 P.2d at
975. In reaching its decision, the District Court may properly
consider the record and the defense counsel's affidavit. Cameron,
830 P.2d at 1288; Petition of Gillham (1985), 216 Mont. 279,
280-81, 704 P.2d 1019, 1020.

¶6 In this case, there is no evidence to support MacPheat's claim
that he was denied effective assistance of counsel because his

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attorney was under the influence of drugs. MacPheat himself
submitted no documentation to support this claim and did not
testify as to any personal observations he made that would suggest
his attorney was under the influence of drugs while representing
him. His attorney testified by affidavit that at no time while
representing MacPheat or conducting business on MacPheat's behalf
was he ever in a state of diminished mental capacity due to the
influence of illegal drugs. His attorney admitted that on August
26, 1996, he pled guilty to possession of marijuana and that
approximately twelve years ago he received a DUI. To the best of
his knowledge, he has never been investigated for any other
criminal offense. Additionally, he has never entered into any
deferred prosecution agreement or any other agreement that relates
to any charges or potential charges affecting him personally.
Daniel Wilson, a Deputy Flathead County Attorney, also testified by
affidavit that there has never been a deferred prosecution
agreement between the State of Montana and MacPheat's attorney.

¶7 There is no evidence that suggests that his attorney's prior
guilty plea or DUI conviction impacted his ability to represent
MacPheat, and MacPheat himself has not established any connection
between those convictions and his attorney's representation of him.
Furthermore, MacPheat fails to establish that any of the documents
he seeks through his discovery request would support his claim that
his attorney was under the influence of drugs while representing
him. In any event, any suggestion that his attorney had other drug
charges that were resolved through deferred prosecution agreements
has been dispelled by his attorney's affidavit and Wilson's
affidavit.

¶8 Not only is there no factual basis to support MacPheat's claim
of ineffective representation, but MacPheat presents no evidence to
suggest that but for his counsel's performance, he would have
insisted upon going to trial rather than pleading guilty. To the
contrary, the record indicates that MacPheat himself directed the
course of plea negotiations and obtained the sentence he requested.

¶9 The District Court did not abuse its discretion by refusing
to allow MacPheat to withdraw his guilty plea based upon this claim
of ineffective assistance of counsel. The District Court properly

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denied MacPheat's discovery motion.

                           II.

¶10 In connection with his motion to withdraw his guilty plea
based upon ineffective assistance of counsel, MacPheat also filed
a motion requesting the court to issue a subpoena directing his
attorney's wife to testify at an evidentiary hearing. MacPheat
claimed she would testify that she lodged domestic abuse claims
against his attorney and that the Kalispell Police Department
refused to arrest his attorney for this alleged domestic abuse.
The District Court refused to issue this subpoena, and MacPheat
appeals.

¶11 MacPheat has failed to establish any connection between the
testimony sought and his claim of ineffective assistance of
counsel. Such testimony is irrelevant to any claim that his
attorney's representation was deficient or that but for this
representation MacPheat would have demanded a trial.

                           III.

¶12 On May 7, 1997, MacPheat filed a "motion for change of venue."
 In support of this motion, he argued that Justice of the Peace
Stadler and Judge Curtis were prejudiced against him because he had
filed a complaint against them with the Judicial Standards
Commission. He also contended that Judge Lympus, the judge
presiding over this case, was a party to a deferred prosecution
agreement between the State and his attorney. Finally, MacPheat
contended that a change of venue to a court outside of Flathead
County would be convenient for the State, because he was currently
an inmate at the Montana State Prison in Powell County.

 ¶13 On June 23, 1997, the District Court denied MacPheat's "motion
for change of venue" because (1) neither Justice of the Peace
Stadler nor Judge Curtis were presiding over MacPheat's case; and
(2) the court was not a party to any deferred prosecution agreement
with his attorney.

¶14 On appeal, MacPheat specifically notes that he is not

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appealing the District Court's order denying his motion for a
change of venue. Rather, he argues that the motion actually
constitutes a motion to disqualify the judge. He contends that on
June 16, 1997, he filed an "affidavit for disqualification of judge
for cause" and that pursuant to Sec. 3-1-805, MCA, the District
Court had no authority to enter any of the three orders on June 23,
1997. That statute provides in part:

           1. Whenever a party to any proceeding in any court

    shall file an affidavit alleging facts showing personal

    bias or prejudice of the presiding judge, such judge

    shall proceed no further in the cause. If the affidavit

    is filed against a district judge, the matter shall be

    referred to the Montana Supreme Court, whereupon the

    Chief Justice shall assign a district judge to hear the

    matter.

           ....

           (b) The affidavit shall be accompanied by a

    certificate of counsel of record that the affidavit has

    been made in good faith.

           (c) Any affidavit which is not in proper form and

    which does not allege facts showing personal bias or

    prejudice may be set aside as void.

Section 3-1-805, MCA.



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¶15 In In re Marriage of Eklund (1989), 236 Mont. 77, 768 P.2d
340, we explained the procedure a party must follow pursuant to
this statute to remove a judge for cause:

           To remove a judge for cause, counsel must follow the

    procedure outlined in Sec. 3-1-805, MCA, which provides

    generally that an affidavit alleging facts showing the

    judge's personal bias or prejudice must be filed thirty

    days in advance of trial. Once this affidavit and its

    accompanying certificate of good faith made by the

    counsel of record are filed, the judge shall have no more

    power to preside over the case, and the matter is

    referred to this Court. Upon that referral, the Chief

    Justice assigns another district judge to hear the

    disqualification proceeding.

In re Marriage of Eklund, 768 P.2d at 341. In that case, this
Court held that the district court properly denied the motion for
disqualification because the party did not timely file an affidavit
and did not file the counsel's certificate of good faith. In re
Marriage of Eklund, 768 P.2d at 341-42.

¶16 In this case, even if this Court treats MacPheat's "motion for
change of venue" as a motion to disqualify the presiding judge for
cause, MacPheat did not follow the procedure outlined in Sec.
3-1-805, MCA. Although he claims to have filed an affidavit for
disqualification on June 16, 1997, the record does not reveal that
any such affidavit was ever filed. Even his "motion for change of
venue" fails to allege facts showing personal bias or prejudice of
the presiding judge.

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¶17 On August 12, 1997, after the District Court had entered the
three orders at issue here, MacPheat filed an "affidavit for
disqualification of judge for cause," with this Court. Although
the affidavit was filed on August 12, it was dated June 16, 1997.
Among various allegations made against the Flathead County Justice
of the Peace, the Flathead County public defenders, and the
"Eleventh District Court," MacPheat testified that on that same
date he was filing a complaint with the Judicial Standards
Commission against the presiding judge in this case. However, that
affidavit is insufficient to meet the requirements of Sec. 3-1-805,
MCA. First, it was filed with this Court and not with the District
Court in connection with a motion to disqualify the judge. Second,
it was filed after the District Court entered the three orders at
issue in this case and thus would not strip the District Court of
authority to enter those orders. Third, the affidavit again
alleges no facts showing personal bias or prejudice of the
presiding judge.

¶18 MacPheat's motion for change of venue was properly denied. We
affirm the orders of the District Court entered after MacPheat
filed his "motion for change of venue."

¶19 Finally, this Court wants to clarify a portion of the record
in this case. We note that in the statement of facts contained
within the State's brief, the State recites various facts on pages
5, 6, and 8 that did not occur in this case. The State apparently
gathered those facts from two orders this Court issued in Supreme
Court cause number 96-615 on December 10, 1996, and May 13, 1997.
Those orders appear in the District Court's record in this case
(cause number DC-96-020(A)) and are attached as Appendices B and C
to the State's brief. However, this Court entered those orders in
another Supreme Court case involving MacPheat, which relate to
cause number DC-95-022(B) in the District Court. That case
involves MacPheat's conviction for arson. Apparently, after this
Court entered those orders, they were mistakenly placed in the file
for cause number DC-96-020(A), instead of DC-95-022(B). This
mistake is understandable given the numerous cases, appeals, and
other papers MacPheat has filed in this Court and in the District
Court. In considering MacPheat's appeal in this case, this Court

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disregarded the inaccurate facts contained within the State's
brief.

¶20 Affirmed.

                           /S/ WILLIAM E. HUNT, SR.
We Concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER




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