                                            No.     85-330

                I N THE SUPREME COURT O THE STATE O MONTANA
                                       F           F

                                                  1986




STATE O MONTANA,
       F

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

         -vs-
H R L E D W I N GLEED, J R . ,
 A OD

                  D e f e n d a n t and A p p e l l a n t .




APPEAL FROM:      District Court of t h e Fourth J u d i c i a l District,
                  I n and f o r t h e County o f M i s s o u l a ,
                  The H o n o r a b l e D o u g l a s H a r k i n , J u d g e p r e s i d . i n g .

COUNSEL O RECORD:
         F


         For Appellant:

                  Theodore P.          Cowan, M i s s o u l a , 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
                  J o e R o b e r t s , A s s t . A t t o r n e y G e n e r a l , Helena
                  R o b e r t L. Deschamps, 111, County A t t o r n e y , M i s s o u l a ,
                  Montana
                  Karen Townsend a n d R o b e r t S l o m s k i , Deputy County
                  A t t o r n e y s , M i s s o u l a , Montana



                                                  --
                                                  S u b m i t t e d on B r i e f s :     Nov.     6 , 1985

                                                     Decided:         January 28,          1986




                               ..
                                                  Clerk
Mr. Justice William E. Hunt, Sr. , deliverec?,the Opinion of
the Court.


      Appellant,     Gleed,    appeals     from    his    Missoula      County
District Court jury trial conviction for robbery, aggravated
kidnapping, sexual intercourse without consent, and theft,
and his sentence of 50 years in the Montana State Prison.
      We affirm appellant's conviction and sentence.
      Appellant raises two issues on appeal.              First, were the
statements     he    made      shortly     after     apprehension        made
voluntarily    and    with     knowledge     of    his    rights       against
self-incrimination?       Second, should the District Court judge
have disqualified himself from imposition of GI-eed's sentence
upon learning of Gleed's allegations of improper conduct of
his trial counsel?       In addition, appellant's current attorney
requests permission to withdraw from this case as he believes
the appeal is without merit.
      In the early morning hours on July 20, 1984, Gleed and
three other inmates escaped from the minimum security unit of
the Montana State Prison at the Swan River Youth Camp in a
state-owned vehicle.        They drove to Missoula where Cleed and
his   codefendant,     Allen,     separated       from    the    other     two
escapees.
      On Saturday, July 21, 1984, at approximately 7:30 a.m.,
Gleed and Allen entered Joe's Smoke Ring, a convenience store
located   on   Highway    93 north of Missoula.              Three      female
employees    were    working    at   the   time.         Gleed   and     Allen
assaulted the clerks and robbed the store.                They locked two
clerks in the store cooler.          Then they left the store in an
automobile owned by one of the clerks, forcing the clerlc to
accompany them.      Both men engaged in sexual intercourse with
the clerk without her consent.            They were arrested later that
day when the car was forced off Interstate 90 by a roadblock
near the Idaho border.
        Shortly after being apprehended, Gleed was interviewed
at the Mineral County Jail by Detective Tom Woods.                      This
interview became        the subject of a suppression hearing in
which Gleed alleged that he did not knowingly and voluntarily
waive his Fifth and Fourteenth Amendment privileges against
self-incrimination.
       The testimony elicited from Mineral County Deputy Tom
Brady     and    Missoula    County    Detective    Tom   Woods    at   the
suppression hearing established that immediately upon his
arrest, shortly before 2: 00 p.m.          , Gleed was advised of his
Miranda rights by Deputy Brady.              Gleed was then transported
to and booked in the Mineral County Jail.                 Detective Woods
took Gleed to a kitchen area in the jail and again advised
him of his Miranda rights.         This occurred shortly before 3 : 0 0
p.m.     Gleed said he understood his rights and was willing to
speak with Detective Woods but refused to sign anything to
that effect.        At no time did Gleed state or indicate that he
wanted an attorney or that he wished to remain silent.                  The
district judge denied Gleed's motion to suppress, and his
statements were allowed into evidence at tria.1.
       Following      Gleed's     trial    and    conviction,     he    was
interviewed for a presentence report.             During the interview,
Gleed alleged that the compulsion defense argued at trial was
his trial counsel's idea, and that trial counsel persuaded
him to testify to a story that would                fit the compulsion
defense.
       Upon     learning    of   Gleedts allegations, the         Missoula
deputy     county    attorney    and   the    presentence    investigator
approached the district judge and advised him of Gleed's
allegations, and expressed their concerns about a potential
conflict between Gleed and his trial counsel.        The district
judge allowed trial counsel to withdraw and appointed a new
attorney to represent Gleed at sentencing.
     Gleed's first argument on appeal is that he did not
knowingly and voluntarily waive his Miranda rights before
making    statements during questioning by      Detective Woods.
Therefore, his statements should not have been allowed into
evidence.
     The voluntariness of a waiver is largely a question of
fact left to the sound discretion of the trial. court, and the
trial court's determination will not be reversed unless it is
clearly     against   the   weight   of   the   evidence.     The
determination does not depend upon one fact but upon the
totality of the facts and circumstances of each case.       State
v. Grimestad (1979), 183 Mont. 29, 36, 598 P.2d 198, 202.
The factors to consider include the background, experience,
conduct, age, education, and intelligence of the accused, as
well as his capacity t.o understand the warnings given to him,
the nature of his rights, and the consequences of waiving
those rights.    State v. Blakney (1982), 1-97 Mont. 131, 138,
641 P.2d 1045, 1051.
     Applying the totality of the circumstances test to the
present case, it is clear that the District Court was within
its discretion in denying Gleed's motion to suppress.       Gleed
was 21 years old at the time of his arrest, and was already
familiar with the criminal justice system having several
previous district court felony convictions.        He earned his
general equivalency diploma in 1984.      Accord.ing to Detective
Woods' testimony, Gleed was of at l-east average intelligence
and gave no indication of being under the influence of drugs
or alcohol.      Although Gleed refused to sign a waiver card, he
stated that he understood his Miranda warning, and agreed to
speak with Detective Woods.                Gleed additionally agreed to a
body search for hair, saliva and blood samples.
        Considering Gleed"         intelligence, age and education, as
well as his statements and conduct, it is clear there is
sufficient       evidence         to    support       the     trial          court's
determination that he knowingly and voluntarily waived his
privileges against self-incrimination.                      We hold that the
District Court properly denied Gleed's motion to suppress.
      Gleed further alleges that the district judge should
have disqualified himself from sentencing upon learning of
Gleed's accusations against trial counsel.                    It is submitted
that because of the seriousness of the charges which Gleed
presented to the presentence investigator and ultimately to
the district judge concerning his own attorney, this could
cause    the   judge    to    take     a    negative      view   of      Gleed    in
sentencing.
      The   proper     procedure        for    disqualifying        a    judge    is
contained jn section 3-1-802, MCA.                  A judge must disqualify
himself from sitting in any action to which he is a party, or
in which he is interested; when he is related to either
party, or; when he has been the attorney in the action or the
judge    whose    order      is   being       appealed.       None      of    those
circumstances are present in this case.
      A judge may be disqualified by a criminal defendant when
the   defendant makes         and      files    a   timely    and       sufficient
affidavit that the judge has a personal bias or prejudice
either against him or in favor of an adverse party.                              The
affidavit shall state the facts and reasons for the belief
that prejudice or bias exists, and shall be filed not less
than twenty       days before trial, or good           cause shown for
failure to file it within such time, and the affidavit must
be accompanied by a certificate of good faith.              Gleed did not
follow     this    statutory    procedure      for     disqualification.
Instead, he       raises the issue on appeal in a conclusory
fashion, and does not show how he was prejudiced.
     Also, Gleed's        statements were made to a presentence
investigator during an interview for a presentence report to
be used by the judge in sentencing.                  The information is
contained in the presentence report, and would have come to
the judge's attention in any event.           Therefore, Gleed cannot
now claim that the information was privileged or made outside
of the legal process.
     Finally,      Montana     has    a    sentence    review     division
authorized at section 46-18-901, et seq., MCA.                A criminal
defendant may, within sixty days of imposition of sentence,
apply for review of his sentence with the sentence review
division.
     In this case, Gleed did not attempt to disqualify the
district judge or have his sentence reviewed.                Instead, he
raises the issue on appeal and argues in a conclusory fashion
that the district judge was biased against him.                 Gleed does
not show how the judge was biased.          The statements Gleed made
were made during an interview for a presentence report.               The
explicit purpose of the presentence report is to provide
information to the court for purposes of sentencing.                  The
sentence GI-eed received was far from the maximum sentence
allowed by law.      We hold that there is no merit in Gleed's
argument    that    the    judge     was   biased     and   should   have
disqualified himself.
     Therefore,     appellant's      present    counsel   is   granted

permission   to   withdraw   as      attorney   for   defendant,   and

appellant's conviction and sentence are affirmed.




We Concur:
                    J


                             /   4
                                 ?
    Chief Justice
