                                           No. 02-350

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 299N


CORY ALAN SPRINKLE,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.



APPEAL FROM:         District Court of the First Judicial District,
                     In and for the County of Lewis and Clark,
                     The Honorable Dorothy McCarter, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Cory Alan Sprinkle, Shelby, Montana (Pro Se)

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Cregg W. Coughlin,
                     Assistant Attorney General, Helena, Montana

                     Leo Gallagher, Lewis and Clark County Attorney; Lisa Leckie,
                     Deputy County Attorney, Helena, Montana


                                                        Submitted on Briefs: November 21, 2002

                                                                Decided: December 12, 2002
Filed:


                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray 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. It 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     Cory Alan Sprinkle filed a pro se petition for postconviction

relief in the First Judicial District Court, Lewis and Clark

County.      The court denied the petition and Sprinkle appeals.                            We

affirm.

¶3     The issue is whether the District Court erred in denying

Sprinkle's petition for postconviction relief.

¶4     In February of 1999, the District Court entered a consolidated

judgment against Sprinkle, revoking his prior suspended sentences

and sentencing him on his guilty pleas to sale of dangerous drugs

and possession of dangerous drugs and drug paraphernalia.                          Sprinkle
appealed the 1999 judgment and this Court remanded for entry of

findings to support the determination that none of the exceptions

to the mandatory minimum sentence applied.                    State v. Sprinkle, 2000

MT 188, 300 Mont. 405, 4 P.3d 1204.

¶5     In July of 2001, Sprinkle filed a petition for postconviction

relief in the District Court, complaining that the court did not

hold a new hearing on remand of his criminal conviction. He also

claimed he did not receive effective assistance of counsel when he


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entered his plea in 1999, and that his guilty pleas in prior

convictions on which the court relied in sentencing him were not

intelligent and voluntary.

¶6   The District Court denied the petition for postconviction

relief on the grounds that no hearing on remand was required, the

claim regarding the prior convictions was procedurally barred by

Sprinkle's   failure     to   raise   it   on    direct    appeal,    and   the

ineffective assistance claims were procedurally barred, waived when

Sprinkle pled guilty, or unproven to the standards required under

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674, and adopted in Montana in State v. Boyer (1985), 215

Mont. 143, 147, 695 P.2d 829, 831.         Sprinkle appeals.
¶7   Sprinkle    first    asserts     error     in   the   District   Court's

determination no hearing on remand was required.            His assertion is

without merit.

¶8   We remanded for entry of findings to support the District

Court's conclusion that Sprinkle was not entitled to an exception

to the mandatory minimum sentence.         Sprinkle, ¶ 12.      The District

Court already had held the hearing required by § 46-18-223, MCA, on

the applicability of exceptions to the mandatory minimum prior to

sentencing Sprinkle.     Sprinkle did not request another hearing on

remand and, in any event, our remand clearly contemplated the entry

of findings based on the evidence of record.               Nor did Sprinkle

appeal from the findings on remand or challenge the absence of an

additional hearing at that time.           Sprinkle has not established

error in this regard.



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¶9     Sprinkle also argues the District Court erred in that he was

not procedurally barred from raising "off-the-record" claims of

ineffective assistance of counsel.                 He claims his counsel did not

properly advise him of the mandatory minimum penalty or of his

possible defenses.

¶10    Sprinkle's claim that his attorney did not advise him he could

be subject to a mandatory minimum sentence is inconsistent with

another claim he made to the District Court:                         that his attorney

left him with the impression he would be granted an exception to

the mandatory minimum.             The claim is also rebutted by the trial

attorney's affidavit filed in the District Court in response to

Sprinkle's petition for postconviction relief.                       In his affidavit,

counsel points out that he filed a sentencing memorandum in the

criminal matter in which he argued Sprinkle was eligible for an

exception to the mandatory minimum sentence.                        Counsel stated he

"would never have told Mr. Sprinkle he would qualify for the

exceptions in Section 46-18-222, MCA. . . .[t]he most I would have

said is that I would argue for the exceptions as I did in a

sentencing memorandum."             Sprinkle did not refute his attorney's affidavit. We

conclude the District Court did not err in denying this claim.

¶11    Finally, Sprinkle asserts he was not properly advised of his

possible defenses to the crime charged, namely entrapment and

outrageous government conduct.                 This claim is supported by only

conclusory allegations.            In any event, the record establishes that Sprinkle's counsel

gave pretrial notice of an entrapment defense, but later abandoned it. Counsel's affidavit


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states entrapment "was not found to be a viable defense," which he concluded was supported

by Sprinkle's willingness to plead guilty under an "open" plea agreement with no guarantee

he would receive any particular sentence. Again, Sprinkle has not refuted his counsel's

affidavit. We conclude the District Court did not err in denying this claim.

¶12    Affirmed.



                                                 /S/ KARLA M. GRAY

We concur:


/S/   PATRICIA COTTER
/S/   TERRY N. TRIEWEILER
/S/   JIM RICE
/S/   W. WILLIAM LEAPHART




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