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                                                                No. 99-367

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 353

                                                             303 Mont. 258

                                                               15 P. 3d 479

                                                      STATE OF MONTANA,

                                                      Plaintiff and Respondent,

                                                                      v.

                                                   DARRIN WILLIAM CADY,

                                                     Defendant and Appellant.

                       APPEAL FROM: District Court of the Twenty-First Judicial District,

                                                 In and for the County of Ravalli,

                                   The Honorable Jeffrey H. Langton, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                 Larry D. Mansch, Attorney at Law, Missoula, Montana

                                                            For Respondent:

                        Hon. Joseph P. Mazurek, Attorney General; Micheal S. Wellenstein,

                                        Assistant Attorney General, Helena, Montana

                            George H. Corn, Ravalli County Attorney, Hamilton, Montana



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                                                Submitted on Briefs: June 15, 2000
                                                  Decided: December 21, 2000

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk


Justice Karla M. Gray delivered the Opinion of the Court.

¶1 Darrin William Cady appeals from the dismissal of his petition for postconviction relief
by the Twenty-First Judicial District Court, Ravalli County. We affirm.

¶2 The sole issue on appeal is whether the District Court erred in rejecting Cady's claim
that he was denied effective assistance of counsel.

¶3 In March of 1996, Cady and another man were arrested in a Hamilton, Montana, motel
room. The State of Montana charged Cady with possession of dangerous drugs with intent
to sell and with use or possession of property subject to forfeiture. He pled not guilty to
the charges.

¶4 Five months later, Cady amended his plea, pleading guilty to the possession charge
under a plea agreement in which the State agreed to dismiss the other charge against him
and not to seek a persistent felony offender designation. At his change of plea hearing,
Cady suggested to the court that he might want a new attorney to investigate "some things
[which had] come to [his] attention," without elaborating further. The court declined to
appoint a new attorney without a showing that Cady's then-counsel was inadequately
representing him. Cady also asked that his sentencing hearing be postponed so he could
attend drug and alcohol counseling and undergo hernia surgery at the Fort Harrison
Veterans Hospital (Fort Harrison) in Helena. The court granted that request.

¶5 The District Court continued the sentencing hearing for an additional two weeks at the
request of Cady's counsel, to allow counsel time to obtain medical reports regarding
Cady's treatment at Fort Harrison. Cady's attorney conducted a telephone conversation
with Cady's drug and alcohol counselor at Fort Harrison before the sentencing hearing.



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¶6 Consistent with the written plea agreement, the District Court sentenced Cady to 20
years at the Montana State Prison, with 12 years suspended, and recommended that he be
placed at the Swan River Correctional Training Center.

¶7 In July of 1997, Cady filed a pro se petition for postconviction relief with this Court.
We dismissed that petition without prejudice in light of the § 46-21-101(2), MCA,
requirement that petitions for postconviction relief must be filed with the sentencing court.
Accordingly, Cady refiled his petition in the District Court.

¶8 The District Court dismissed seven of the eight issues raised in Cady's petition on the
basis that Cady could have raised them on appeal and, as a result, he had waived them for
purposes of postconviction relief. See § 46-21-105(2), MCA. The court determined,
however, that Cady was entitled to an evidentiary hearing on his allegations that he
received ineffective assistance of counsel, and appointed new counsel to represent him for
such a hearing. At the hearing, the court heard testimony from Cady, his trial counsel, and
his sister. Following the hearing, the court denied Cady's ineffective assistance claims, and
Cady appeals.

                                                                Discussion

      ¶9 Did the District Court err in rejecting Cady's claim that he was denied effective
                                      assistance of counsel?

¶10 In considering ineffective assistance of counsel claims in postconviction proceedings,
Montana courts apply the two-pronged test set forth in Strickland v. Washington (1984),
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See State v. Hagen (1995), 273 Mont. 432,
440, 903 P.2d 1381, 1386. Under the Strickland test, the petitioner must show that
counsel's performance was deficient and that the deficient performance prejudiced the
defense. Hagen, 273 Mont. at 440, 903 P.2d at 1386. In the context of a guilty plea,
prejudice is established if the petitioner demonstrates that, but for his counsel's deficient
performance, he would not have pled guilty and would have insisted on going to trial.
Bishop v. State (1992), 254 Mont. 100, 106, 835 P.2d 732, 736.

¶11 This Court's standard of review of a district court's denial of a petition for
postconviction relief is whether the district court's findings of fact are clearly erroneous
and whether its conclusions of law are correct. State v. D'Amico, 2000 MT 63, ¶ 7, 299
Mont. 57, ¶ 7, 997 P.2d 773, ¶ 7. The credibility of witnesses and the weight to be given


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their testimony are within the province of the trier of fact. State v. Boucher, 1999 MT 102,
¶ 19, 294 Mont. 296, ¶ 19, 980 P.2d 1058, ¶ 19.

¶12 Cady raises two claims of ineffective assistance. First, he argues that his attorney
should have moved to withdraw the guilty plea immediately after the plea hearing when,
according to Cady, he told his counsel he had been diagnosed as a schizophrenic and
asked counsel to move to withdraw the plea. Second, Cady argues his counsel's
performance was deficient because counsel allowed the District Court to sentence him
without presenting his medical records from Fort Harrison. Cady contends that, based on
the evidence at the hearing on his petition for postconviction relief, the District Court
should have allowed him to withdraw his guilty plea and ordered a full psychiatric
examination of him.

¶13 With regard to Cady's first argument, he testified at the postconviction hearing that he
told his counsel immediately after the sentencing hearing that he had been diagnosed as a
paranoid schizophrenic. His trial counsel testified, however, that the first time an issue of
schizophrenia or other mental illness arose was in Cady's petition for postconviction relief.
Counsel further testified that none of his pre-plea conversations with Cady, Cady's mother,
or Cady's counselor at Fort Harrison had indicated that psychiatric issues might be present
other than Cady's drug and alcohol addictions. He testified that, when Cady asked him
immediately after the change of plea hearing if the guilty plea could be withdrawn, he
advised Cady it would be extremely difficult to do so. According to Cady's counsel, Cady
was not then angry, bitter, or incommunicative, but merely maintained the attitude he
expressed at the plea hearing of wanting to "get this under the bridge."

¶14 The District Court found that Cady's counsel had a "tenured history of displaying
competent expertise in representing and defending criminal defendants" and the record
indicated counsel had thoroughly prepared this case for trial. In weighing the credibility of
the evidence, the District Court found that no one-not Cady, his mother, or his health care
providers-had informed his trial counsel of any psychiatric issues, much less that Cady had
been diagnosed as a paranoid schizophrenic. Because that finding is supported by
substantial evidence and is not otherwise clearly erroneous, we will not disturb it.

¶`15 With regard to Cady's second argument, his postconviction counsel characterizes the
Fort Harrison medical reports as "mak[ing] it clear over and over again that [Cady]
suffered from delusional thinking and other serious mental health problems." In arguing
that trial counsel rendered ineffective assistance by failing to act on the reports, he


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speculates trial counsel may have failed to read, or have misread, them.

¶16 Trial counsel testified at the postconviction hearing that the partial written reports he
had from Fort Harrison at the time of sentencing dealt only with Cady's substance abuse
issues and hernia problem, and did not set forth psychiatric issues. He also testified that,
while his efforts to obtain written medical reports from Fort Harrison prior to sentencing
were largely unsuccessful, he spoke by telephone with Cady's drug and alcohol counselor
at Fort Harrison, who reported that Cady had done well in the substance abuse program
there and that his hernia had been repaired. The counselor did not mention any psychiatric
problems.

¶17 Cady's trial counsel further testified at the postconviction hearing, however, that the
Fort Harrison records he received in the summer of 1998 would have caused him to ask
for a psychiatric examination of Cady had he received them earlier. As to that testimony,
the District Court found after reviewing the medical records that they did not contain
adequate persuasive documentation that an issue existed as to whether Cady lacked the
requisite mental capacity at the time he entered his plea. The court found that Cady's
medical records reflected that Cady exhibited delusional and paranoid thinking while he
was an inpatient at Fort Harrison, but that a complete psychiatric evaluation and diagnosis
was not done. Cady's medical care providers at Fort Harrison believed he was mentally
competent to defend himself in the legal proceedings against him and to make informed
voluntary decisions in that regard. The court further found that Cady had not, in fact, been
diagnosed a paranoid schizophrenic. These findings are supported by substantial evidence
in the record and are not otherwise clearly erroneous.

¶18 The District Court determined that Cady failed as a matter of law to establish reliable
facts to support his claim of lack of mental capacity. On that basis, it concluded, "the
record reflects that [Cady] is, and was, mentally competent to make informed voluntary
decisions on his own behalf throughout these legal proceedings." We hold the District
Court's conclusion is correct.

¶19 As a final matter, Cady asserts he should have been allowed to withdraw his guilty
plea after the postconviction hearing and the court should have ordered a psychiatric
examination of him at that time. The assertions however, are more in the nature of
requests for remedies than claims of ineffective assistance of counsel. Cady having failed
to establish that he was denied the effective assistance of counsel, we hold that the District
Court did not err in declining to provide these remedies.


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¶20 Affirmed.


                                                      /S/ KARLA M. GRAY

                                                               We concur:

                                                /S/ TERRY N. TRIEWEILER

                                                         /S/ JIM REGNIER

                                                /S/ WILLIAM E. HUNT, SR.

                                               /S/ W. WILLIAM LEAPHART




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