                                        No.    81-363

                  I N T E SUPREME C U T O THE STATE O MONTANA
                       H           O R   F           F

                                           1982



STATE O F M N A A
           O T N ,

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

       VS   .
JAMES VERNON WILSON,

                                  Defendant and A p p e l l a n t .



Appeal from:         D i s t r i c t Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
                     I n dnd f o r t h e County o f Lewis and C l a r k
                     Honorable P e t e r Meloy, J u d g e p r e s i d i n g .

C o u n s e l o f Record:

     For Appellant:

            G a r r i t y , Keegan and Brown, H e l e n a , Montana
            Thomas Keegan a r g u e d , Helena, Montana

     F o r 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
            C h a r l e s G r a v e l e y a r g u e d , County A t t o r n e y , H e l e n a , Montana



                                              Submitted:        February 2 2 ,        1982

                                                Decided:        J u n e 7 , 1982
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     Appeal by the defendant James Vernon Wilson from an
order denying his petition for post-conviction relief in
the District Court, First Judicial District, Lewis and Clark
County.
     Wilson was charged in District Court under an amended
information with five criminal counts:   Count 1, that on
September 6, 1977, he committed the offense of deliberate
homicide by purposely or knowingly causing the death of
Kenneth McLean, or that he was accountable for that death;
Count 2, that on the same date he committed the offense of
deliberate homicide by purposely or knowingly causing the
death of Marion McLean; Count 3, that on September 5, 1977,
he had committed the offense of felony theft; Count 4, that
on September 4, 1977, he had committed felony burglary; and
Count 5, that he had committed on September 6 , 1977, a further
offense of felony theft.
     The charges against Wilson stemmed from a journey of
criminal activities that began in Nebraska on or about September
1, 1977, extended into Texas, back to Nebraska; thence north
to a lonely mountain setting near Lincoln, Montana, where
Kenneth and Marion McLean were killed; and thence in flight
to Portland, Oregon, where, on September 10, 1977, Wilson
with his companions Andrew Sunday and Donna Mitchel was
arrested.
     Following his arrest, an information against Wilson
including five felony counts was filed, and at his arraignment,
Wilson pleaded not guilty.   The information was amended a
first time and Wilson's not guilty plea continued.   Because
Wilson was indigent, the District Court appointed two members
of the Lewis and Clark County Bar, David N. Hull, and Thomas
Keegan, to defend him.      It was as a result of a motion by
these counsel for a more specific charge that the amended
information of January 24, 1978 was filed, which included in
Count I a felony murder charge, that involving the death of
Kenneth McLean.
      On January 19, 1978, however, James Wilson had written
to the presiding district judge, asking permission to talk
to the county attorney without his court-appointed counsel
being present.      Thereafter, at the time for his arraignment
on the second amended information, Wilson appeared before
the District Court on January 30, 1980, accompanied by both
of his appointed counsel.
      Wilson's first appearance before the court that day was
at 9 : 3 0 a.m.   The court advised Wilson in the presence of
his counsel that he did not have to make any statements or
answer any question which might incriminate him and that if
he did, his statements could be used against him in a trial.
He was told of the charges against him and the possible punish-
ments that were imposed by law on those charges.      The following
colloquy between court, the counsel and Wilson occurred.
      ". .
         . You should also be advised that on a finding
      of guilty or a plea of guilty it is possible that
      a jury could find you or a judge could find you
      guilty of a lesser included offense. Mr. Graveley,
      what would be the lesser included offenses?
      "MR. GRAVELEY: Your Honor, if the proper instructions
      were submitted to a jury or the judge if tried to
      the court, I believe a lesser included -- the only
      lesser included offense possible in the fact situation
      we have would be mitigated deliberate homicide.
      "THE COURT:    What about negligent homicide?
      "MR. GRAVELEY: I see no way negligent homicide
      could apply. I have conferred with defense counsel
      concerning this and as I recall they are in agreement
      with me that negligent homicide could not fit in
      the facts we have.
     "THE COURT:    Mr. Keegan?
     "MR. KEEGAN: That is correct, Your Honor. One
     further lesser included offense possible is
     aggravated assault.
     "THE COURT: Very well. Understand then, Mr.
     Wilson, that although you are charged with these
     deliberate homicides, it is possible that you
     could be convicted of a lesser included offense,
     mitigated homicide or aggravated assault.
     "A.    Yes, sir."
     The District Court then proceeded to instruct him as
to his rights if he decided to go through with a trial by
jury, attended by counsel.   The court ascertained from his
court-appointed counsel that Wilson was fully advised of
all of his constitutional and statutory rights.   Wilson
further told the court that he was satisfied with the advice
his counsel had given to him as to his rights.    Wilson further
stated that he was in a mental and physical condition to enter
a plea and both his counsel told the court that they saw no
mental or physical reason why Wilson was not capable of entering
his plea.   On that basis, the court asked Wilson what his
plea would be, taking the separate counts, and to each Wilson
stated he was guilty, except as to Count IV, the burglary charge.
    At this point, in the presence of Wilson, the court-
appointed counsel spoke up to express their objections.    The
following colloquy occurred :
     "MR. HULL: No, Your Honor. Also at this time on
     behalf of my co-counsel we wish to advise the
     Court that this plea is entered against the advice
     of counsel. We have discussed it thoroughly with
     our client and just want it on the record that both
     co-counsel believe that this is not a proper plea
     and this plea is made against our advice.
     "MR. KEEGAN: Further we would urge the Court at
     this time, Your Honor, not to accept the plea, but
     to take it under advisement at this time.
     "THE COURT: Well, Mr. Wilson, your attorneys have
     advised you not to plead guilty to these offenses
     and I want to know whether or not it is your feeling
     at this time that you want to plead guilty to these
     offenses despite the advice given by your counsel?
     "A.   Yes, Your Honor.   I'



     The court thereupon took the matter of accepting the
pleas of guilty under advisement.
     Then, on the same morning, at 10:15 a.m., Wilson, both
of his appointed counsel, and the county attorney appeared
again before the district judge.      The district judge began
the discussion by stating "[ilt is my understanding, Mr.
Wilson, that you requested to talk to the Court in chambers.
Is that correct?" Mr. Wilson replied, "Yes, Your Honor."
His counsel were asked for their objection and they stated
their same objections, that they opposed his entry of pleas
of guilty to the four counts, and that they had advised him
of his rights to remain silent.     The court again told Mr.
Wilson that anything that he might say that incriminated
him could be used against him in a trial if the court refused
to accept the plea of guilty.      On that basis, the District
Court said, "All right, Mr. Wilson, go ahead and tell me
what you want to say."   Upon being sworn, Wilson then told
in full his version of the events leading up to the deaths
of the two McLeans.
     Omitting all of the detail of the odyssey of the trio
(and Donna Mitchel's small child) from Nebraska to Montana,
we come to the point in Wilson's statement to the court
where the McLeans, riding in a pickup, arrived at the
place in the mountains where Sunday, Wilson, Donna Mitchel and
the small child were riding on horses.     On the approach of
the McLeans, Wilson told the court the following occurred:
     ". . . And     I told Sunday then to get -- not
     right then, because the pickup was nearly there
     when this happened, because I told him to get off
     his horse and talk to the people. And he had the
     3 0 . 3 0 across his saddle, you know, laying across
     his lap. And he got off his horse and he was standing
     there, you know, and as the truck started to pull
     up, he tries to hand me the 3 0 . 3 0 and said, 'Do you
     want the privilege?' And I told him then to just
     talk to the people, you know, see what they wanted.
     We pretty well know they were after the horses,
     but -- Mr. McLean got out of the truck. Mrs. McLean
     got out. I didn't see Mrs. McLean with a gun at the
     time, but I seen Mr. McLean's gun. Mr. McLean got
     out of the truck, cocked his gun. About the same
     time he was cocking his gun, he said, 'What is this
     bullshit? What kind of a prank do you think you
     are pulling?' Something like that. As he did that,
     he started walking forward and Sunday shot him and
     Mr. McLean fell on the ground and I had the baby
     in the saddle with me. I whipped the horse and
     started riding away. I didn't even see Donna.
     I didn't even know where she was at. I started riding
     away, I don't know, 2 0 - 3 0 feet out. I don't know
     how far it was, but I stopped -- I got the baby -- on
     the way out I heard a bullet go by my head. I figured
     it was a bullet. You know, I can't swear to it, but
     I heard something that sounded to me like a bullet,
     to me. But, I got Sissy out and grabbed her by the
     arm and pulled her off the horse and layed her down
     on the ground and I couldn't get off the horse by
     throwing my leg behind the horse. I had to throw it
     over the horse and the baby was screaming for her
     mother, saying, 'Mommy, the woman shot at me.' And
     when I got off my horse I just -- I had the 2 2 . 2 5 0
     tied to the side of the saddle with pigging string
     and I just jerked it. And as I started running, I
     just ran. I run past the woman and I just seen a
     movement and turned and fired and I walked on over
     where Sunday was.  . ."
The person at whom Wilson had fired his rifle was Marion
McLean.   Five months later, Wilson testified at the trial
of Andrew Sunday.   His testimony (of which we take judicial
notice) included the following statements:
     "A. I seen the first shot.       I seen Mr. XcLean
     fall.
     "Q. Where did it go?      A.   Hit Mr. McLean in
     the leg.
     "Q. Then what happened? A. Mr. McLean fell
     and I turned my horse and ran.
     "Q. Did you hear him say anything? A.        I heard
     Mr. McLean say, 'You son of a bitch.'
"Q.    And you t u r n e d your h o r s e ? A.    And I
ran.    Had t h e baby on t h e r e w i t h m e .

"Q.   Where d i d you go? A.    About, maybe,
50 o r 60 f e e t from where it s t a r t e d .

"Q.      Where was Donna a t t h i s t i m e ? A .    Donna
was on t h e ground. A t t h e t i m e I s t o p p e d t h e
h o r s e , I d i d n ' t know where s h e was a t u n t i l
I stopped t h e horse.

"Q.  How f a r d i d you go w i t h t h e h o r s e ? A.
Maybe 5 0 o r 6 0 f e e t from where it s t a r t e d .

"Q.   What d i d you do t h e r e ? A.      I took t h e
baby by t h e arm and l e a n e d o v e r t h e s a d d l e
and l a i d h e r on t h e ground.

"Q.    Then what d i d you do?            A.    I got off
t h e horse?

"Q.    How d i d you g e t o f f t h e h o r s e ?     A. Swung
m l e g o v e r t h e f r o n t of t h e h o r s e .
 y                                                     Couldn't
g e t o f f any o t h e r way.

"Q.     You have a weapon i n your hands?                   A.   At
t h a t t i m e , no, s i r .

"Q.     You s a i d you s t a r t e d t o y e l l and Donna--
what d i d you s a y ? A.         I t o l d Donna t o g e t t h e
h e l l o v e r h e r e and g e t t h e baby and g e t o u t of
here.

"Q.   Then what? A .            I g o t o f f t h e h o r s e and I
was t r y i n g t o u n t i e t h e gun o f f t h e s a d d l e . I
had i t t i e d on t h e s i d e .

"Q. Did you h e a r a n y t h i n g i n t h e t i m e p e r i o d
t h a t you t u r n e d your h o r s e and dropped t h e
baby o f f ? A.        Shooting.

"Q.    How much s h o o t i n g ?    A.    Quite a bit.

"Q. Do you have any i d e a of t h e number of
s h o t s ? A. Ten o r f i f t e e n s h o t s a t l e a s t .

"Q.    Okay.     A.     Hard t o judge.

"Q.  And a s you were u n t y i n g t h e gun--what
gun d i d you have? A .  A 22.250.

"Q.  Did you g e t it u n t i e d ?        A.    No, s i r .     I
jerked it loose.
"Q.       Then what d i d you do? A.    I t u r n e d and
s t a r t e d back towards where t h e McLeans w e r e .

"Q.    Where was Sunday a t t h i s t i m e ? A. He
w a s walking towards M r . McLean. M r . McLean
was on t h e ground.
        "Q. Did the defendant fire any shots after
        you had your gun in your hands? A. NO, he didn't.
        "Q.  What did you do as you were approaching? A.
        I was walking by and I didn't know where Mrs.
        McLean was and as I went by I seen a movement and
        I just turned and fired.

     "Q. Do you know what happened with the bullet?
     A. Yes. It hit Mrs. McLean in the face."

     Wilson was sentenced to 100 years on Count I (Kenneth
McLean), 100 years on Count I1 (Marion ~ c ~ e a n ) , years on
                                                    10
Count 111 (theft), and 10 years on the remaining Count
(theft). The sentences are to run concurrently.
     Following his judgment of conviction and sentence,

Wilson sought review of his sentence through the Sentence
Review Division.    Sentence review was denied on May 12,
1978.
     On July 28, 1980, he filed his petition for post-
conviction relief before the District Court seeking to withdraw

his guilty pleas.    After a hearing, and having received

briefs from counsel, the District Court entered its findings
of fact, conclusions of law and order denying the petition
for post-conviction relief on January 26, 1981.     It is from

this order of denial that Wilson here appeals.
     We affirm the decision of the District Court.
     Counsel for Wilson contend on appeal (1) that plaintiff's

guilty plea does not represent a voluntary and intelligent
choice among alternative courses of action open to him as
affirmatively disclosed by the record, and further, (2) that
the District Court erred in accepting Wilson's guilty plea
without first determining his competence to plead.
        The basis of the first issue raised by counsel for
Wilson is that the District Court did not explain to Wilson,
or determine from him whether he understood the differing
elements and effects of homicide and mitigated deliberate
homicide; that Wilson was never apprised of the difference
between those two crimes, nor was accountability or felony
murder ever explained to him.    They further contend he was
coerced into pleading guilty by his girlfriend, Donna
Mitchel, who played upon his blind love for her so that he
would enter a guilty plea; that he was forced to look at
gruesome pictures of the decedents by members of the sheriff's
office, and that he was terrified of hanging.
    We have said that each case involving a motion to
withdraw a plea of guilty must be examined on its own record
inasmuch as no set rule or standard can be relied on in any
given case. State v. Huttinger (1979), - Mont     .-      595
P.2d 363, 366, 36 St.Rep. 945.   It is the policy of the
law, if justice will be subserved, to permit withdrawals of
guilty pleas even after judgment.   State v. District Court
(1928), 81 Mont. 495, 502, 263 P. 979, 981.     Further, all
doubts should be resolved in favor of a trial on the merits
and the trial court's discretion should be liberally exercised
in favor of life and liberty.    State v. McAllister (19341,
96 Mont. 348, 353, 30 P.2d 821, 823.
     On the other hand, when at the hearing to enter a plea,
the District Court carefully examines the defendant, finds
him to be competent, and determines from him that his plea
of guilty is voluntary, that he understands the charges and
his possible punishment, that he is not acting under the
influence of drugs or alcohol, that he admits his counsel is
competent and he has been well advised, and he declares in
open court facts upon which his guilt is based, then a plea

of guilty accepted by the District Court on the basis of
that examination will be upheld.    State v. ~ e w i s(19781, 177
Mont. 474, 484-85, 582 P.2d 346, 352.

       In any event, the grant or denial of a motion to
withdraw a plea of guilty is within the sound discretion of
the trial court.     Matter of Hardy (1980), - Mont .         I



614 P.2d 528, 531, 37 St.Rep. 1358.    A denial of a request to
withdraw a guilty plea is subject to review only when there
has been an abuse of discretion by the trial court.        State
v. Hilton (1979), - Mont     . -,   597 P.2d 1171, 1173, 36
St.Rep. 1314.
       In this case, there is no showing that his plea of
guilty is caused by ignorance or lack of understanding.           It
is certain that no duress was used or fraud perpetrated upon
him.     There was no evidence of any influence overreaching
his free will or judgment.     In fact this case has a novel
twist.    We held in State v. McAllister, supra, where the
defendant's guilty plea was based on reliance on his counsel's

representation as to what his sentence would be, that refusal
to permit withdrawal of his guilty plea was an abuse of

discretion.     Here we have the other side of the coin:
Wilson persisted in pleading guilty in spite of his counsel,
present in court, who insisted that he should not plead

guilty.
       It is true that in State v. Azure (1977), 175 pfont.

189, 573 P.2d 179, this Court invalidated a guilty plea

where the District Court did not determine whether defendant
understood the differing elements and effects of a deliberate
homicide and mitigated deliberate homicide.     In Azure, the
defendant, after entering his guilty plea, sought to withdraw
the plea because he felt he was not fully responsible for
his actions on the night of the shooting due to intoxication

and emotional depression.    Azure entered his plea of guilty

on September 14, 1976, and sought to revoke it sometime
before September 28, 1976.

     Here Wilson substantially delayed his motion to withdraw
his guilty pleas, which was part of a plea bargain he initiated
himself.   The failure of the court to explain the differences
between deliberate homicide, mitigated homicide and aggravated
assault resulted in no prejudice to Wilson.    His voluntary
statement to the court clearly showed he was an accomplice in
Kenneth's deliberate homicide, and he was the perpetrator of
Marion's deliberate homicide.    Counsel for Wiison rely upon
an answer made by Wilson to a question by his counsel as to
whether "in your mind, Jim, were you in any way involved in
the death of Mr. McLean?"    Wilson's answer was "No, sir."
Yet, it is clear that Wilson's statement to the court at the time
of his entry of plea belies any contention he might make
that he was not "involved" in the death of Kenneth McLean.
He was directly and fully involved in the course of many
criminal acts, a11 surrounding, leading up to or involving
McLeanls death, even though Wilson didn't actually pull the
trigger to fire the shot that killed McLean.
    With respect to the death of Mrs. McLean, he fired a
shot which hit her in the face, though she had been shot
earlier by Sunday.     (See other facts surrounding this incident
                                    ,
in State v. Sunday (1980), - Mont. - 609 P.2d 1188, 37
St.Rep. 561.)   In accepting Wilson's plea of guilty to
deliberate homicide with respect to Marion McLean, the court

was agreeing that the facts related by Wilson constituted
deliberate homicide.    Further, the District Court in denying
the petition for post-conviction relief, continued to rely on
the same line of reasoning as far as Marion McLean is concerned.
We are certainly not prepared to say the District Court is
i n e r r o r on t h i s p o i n t .     When t h e s h o o t i n g s t a r t e d , Wilson

took evasive a c t i o n , b u t stopped i n about 60 f e e t .                        H e got off

h i s h o r s e , j e r k e d t h e r i f l e from t h e s i d e o f t h e h o r s e , and

r e t u r n e d t o t h e s c e n e of a c t i o n .     H e f i r e d a shot i n t o

Marion McLean's f a c e merely upon s e e i n g h e r move.                          Clearly,

t h e D i s t r i c t C o u r t was n o t i n e r r o r i n d e c i d i n g t h a t Wilson

committed d e l i b e r a t e homicide w i t h r e s p e c t t o M r s . McLean.

        Counsel f o r Wilson b a s e t h e i r second i s s u e , whether t h e

c o u r t s h o u l d have d e t e r m i n e d W i l s o n ' s competency t o p l e a d ,

upon s u c h f a c t o r s a s h i s w i t h d r a w a l of a n o t i c e t h a t h e

i n t e n d e d t o r e l y on m e n t a l d i s e a s e o r d e f e c t a s a d e f e n s e ,

and t h a t h i s w i t h d r a w a l of n o t i c e was j u s t b e f o r e h e would be

t r a n s p o r t e d t o Warm S p r i n g s , Montana, f o r p s y c h i a t r i c t e s t i n g .

Another f a c t o r c l a i m e d i s t h a t Wilson w r o t e a l e t t e r t o t h e

D i s t r i c t Court asking t o confer with t h e county a t t o r n e y

o u t s i d e t h e presence of defense counsel.                      These f a c t o r s , and

t h e f a c t t h a t t h e p l a i n t i f f pleaded g u i l t y a g a i n s t t h e

a d v i c e o f h i s own c o u n s e l a r e , c o u n s e l c o n t e n d , s u f f i c i e n t

t o p u t t h e D i s t r i c t C o u r t on i n q u i r y a s t o h i s competency.

        S i n c e Wilson o u t l i n e d t h e f a c t s of t h e c r i m e s t o t h e

D i s t r i c t C o u r t a t t h e t i m e of e n t r y of h i s p l e a , and f i v e

months l a t e r gave s u b s t a n t i a l l y t h e same t e s t i m o n y a t t h e

t r i a l o f Andrew Sunday, it seems c l e a r t h a t he was f u l l y

p o s s e s s e d of h i s m e n t a l f a c u l t i e s a t a l l t i m e s w e a r e concerned

with here.          I t would have been s h e e r s p e c u l a t i o n on t h e

p a r t of t h e D i s t r i c t C o u r t , based on t h e f a c t o r s r e l i e d upon

by W i l s o n ' s c o u n s e l , t o c o n c l u d e t h a t Wilson was n o t competent

t o u n d e r s t a n d what he w a s d o i n g when he e n t e r e d h i s p l e a s

of g u i l t y .    There i s no s u b s t a n t i a l f o u n d a t i o n i n t h e r e c o r d

f o r a c o u r t t o suppose o t h e r t h a n t h a t Wilson f u l l y knew

what h e was doing when h e d e c i d e d t o p l a c e h i m s e l f a t t h e

c o u r t ' s mercy by t e l l i n g a l l .
     The record supports the District Court's finding that
the defendant was mentally and physically competent to plead
to the charges and that he remains mentally and physically
competent.

    We therefore affirm denial of post-conviction relief by
the District Court.



                                       \

                                   \
                                       t       / /   I<   /
                                       1,3/i   .-/        (f&,lF\u\


                                               Justice

We Concur:



       Chief Justice




u            Justices



-                  ./
                    ,{   /l
                          !%
 Honjpoel. G. Roth,
 ~is&&ict Judge, sitting
 for Mr. Justice Frank B.
 Morrison, deeming himself
 disqualified



 District Judge, sitting
 for Mr. Justice Fred J.
 Weber, deeming himself
 disqualified

Mr. Justice Daniel J. Shea dissents and will file a written
dissent later.
                             -13-
