                            No.    95-473
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1996


STATE OF MONTANA,
         Plaintiff and Respondent,




APPEAL FROM:   District Court of the Second Judicial District,
               In and for the County of Silver Bow,
               The Honorable John W. Whelan, Judge presiding.


COUNSEL OF RECORD:
         For Appellant:
               Edmund F. Sheehy, Jr., Cannon    &   Sheehy
               Helena, Montana
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Micheal S. Wellenstein, Assistant Attorney
               General, Helena, Montana
               Robert M. McCarthy, Silver Bow County Attorney,
               Brad Newrnan, Deputy County Attorney,
               Butte, Montana


                                  Submitted on Briefs:   June 27, 1996
                                             Decided:    July 11, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
     Defendant Jade Dee Anderson appeals from the findings of fact,
conclusions of law, and order issued by the Second Judicial
District Court, Silver Bow County, denying his petition for
post-conviction relief. We affirm.
     The sole issue on appeal is whether the District Court erred
in denying Anderson's petition for post-conviction relief.
                               BACKGROUND
     This case was previously before this Court in State v.
Anderson, No.   94-609, which      resulted    in   the   issuance of   a
noncitable opinion on July 18, 1995.        The underlying facts of the
original case which give rise to the present appeal are as follows:
     On October 12, 1993, Anderson was charged by information in
the Second Judicial District Court, Silver Bow County, with felony
assault pursuant to   §   45-5-202(2)
                                    (a), MCA (1991). At his initial
arraignment, Anderson pled not guilty.          Following arraignment,
Anderson and the State arrived at a plea agreement in which the
State recommended that Anderson be          sentenced to the Montana
Department of Corrections and Human Services for five years for the
assault charge and a consecutive two years for use of a dangerous
weapon. The plea agreement specifically provided that the District
Court was not bound by the terms of the agreement. On December 23,
1993, the court accepted the guilty plea and ordered a presentence
investigation before it imposed a sentence.
     On   February    10,    1994, the   District      Court    conducted   a
sentencing hearing.        At the sentencing hearing, the court asked
Anderson if his guilty plea was entered voluntarily and Anderson
responded that it was. After hearing testimony, the District Court
stated it would not accept the pretrial agreement. The court noted
that Anderson had a prior record of two assaults, that he had used
a weapon in both of them, and that he had not been required to
serve time in prison on the sentences for those crimes.             Anderson
was informed that in the past the court had been very lenient in
sentencing him and that he had failed to take advantage of that
leniency.    The District Court sentenced Anderson to ten years in
the Montana State Prison for felony assault, six consecutive years
for use of a dangerous weapon, and designated Anderson a dangerous
offender pursuant to   §   46-18-404,MCA. Anderson did not request to
withdraw his guilty plea and he did not appeal his sentence.
     On     August   15,    1994,   Anderson   filed     a     petition   for
post-conviction relief in the District Court claiming that the
District Court lacked authority to accept his guilty plea because
his plea was involuntary. Anderson alleged that he did not fully
understand the consequences of entering the plea and that the court
erred by failing to permit him to withdraw his guilty plea at the
sentencing hearing after it had rejected the plea agreement.

                                     3
Anderson also claimed he was               denied effective assistance of
counsel.
      On November 10, 1994, the District Court issued its findings
of fact, conclusions of law, and order denying Anderson's petition
for post-conviction relief.              Anderson appealed to this Court
arguing the following three issues:
           1.   Did the District Court have authority to accept
      Anderson's guilty plea?
           2.   Was Anderson entitled to withdraw his guilty
      plea pursuant to § 46-12-211, MCA?
             3.       Was Anderson denied effective assistance of
      counsel?
We denied Anderson's first two claims and held that the District
Court had authority to accept the guilty plea and did not err when
it refused to allow Anderson to withdraw his plea.                 However, we
remanded the case back to the District Court on Issue 3.
      Anderson had argued that he was entitled to withdraw his
guilty   plea         after   the   District   Court   rejected    the   State's
sentencing recommendation because his plea agreement was made
pursuant to       §    4 6 - 1 2 - 2 1b , MCA.      We held that there was
substantial evidence in the record to support a finding that the
parties had instead entered into a plea agreement pursuant to
§   46-12-211(1)(c), MCA, which does not require the District Court
to   allow   the       defendant    to   withdraw   his   guilty   plea.    See
§   46-12-211(4), MCA.
      We also noted, however, that under a plea agreement made
pursuant to       §    4 6 - 1 2 - 2 1 1 1 c , MCA, the court was required to
advise    Anderson   "that, if   the   court   does   not   accept   the
recommendation or request, the defendant nevertheless has no right
to withdraw the plea."           5 46-12-211(2), MCA.        Since the
District Court did not so advise Anderson, we held that if
Anderson's substantial rights were affected by that omission, it
could serve as the basis for setting aside the plea and sentence on
appeal.   Anderson, slip op. at 10.
     The difficulty for this Court was that there was no evidence
contained in the record regarding the nature of the advice given by
Anderson's attorney, Dan Sweeney, prior to his change of plea.       If
his attorney had informed him of the effect of the guilty plea,
then Anderson was not prejudiced by the court's failure to do the
same and the District Court's omission would not have been a basis
for setting aside the plea and sentence and Sweeney would have had
no duty to advise Anderson of his right to appeal that omission.
The record lacked any evidence on this issue and we were therefore
unable to determine whether the District Court's error of omission
was harmless.
     On remand we instructed the District Court to conduct an
evidentiary hearing to determine whether Sweeney had fully informed
Anderson of the effect of his guilty plea.      If Anderson was fully
advised, then the District Court's failure to advise Anderson he
had no right to withdraw his guilty plea was harmless error.
However, if Sweeney did not advise Anderson that he would not be
able to withdraw his plea, the District Court's omission was an
error which affected Anderson's substantial rights and could have
been a basis for setting aside his plea and sentence. Under those
circumstances, Sweeney's failure to advise Anderson of that error
could constitute ineffective assistance of counsel.
     On August 29, 1995, the District Court conducted a hearing on
the matter and on August 31, 1995, the court issued its findings of
fact, conclusions of law, and order denying Anderson's petition.
The District Court found that Sweeney had met with Anderson on
several occasions and had advised him of the consequences of his
guilty plea, including the fact that the court was not required to
allow him to withdraw his plea if it rejected the recommended
sentence. The District Court concluded that Anderson had failed to
demonstrate that Sweeney's performance fell below the standard of
competence demanded of    attorneys in criminal cases and that
Anderson failed to demonstrate that he was prejudiced by Sweeney's
alleged deficient performance.       The court concluded that the
court's failure to warn Anderson that he would not be allowed to
withdraw his guilty plea did not affect his substantial rights.
This appeal followed.
                            DISCUSSION
     Did the District Court err in denying Anderson's petition for
post-conviction relief?
     The standard of review for a denial of a petition for
post-conviction relief is whether substantial evidence supports the
district court's findings and conclusions.      State v. Sheppard
(l995), 270 Mont. 122, 127, 890 P.2d 754, 757 (citing State v.
Barrack (1994), 267 Mont. 154, 159, 882 P.2d 1028, 1031).   In the

                                 6
present case, our inquiry is narrowly focused to determine if
substantial evidence exists to support the District Court's finding
and conclusion that Sweeney advised Anderson that he would not be
able to withdraw his guilty plea if the court rejected the sentence
recommended in the plea agreement.
     Anderson argues that the District Court's findings of fact are
clearly erroneous and that its conclusions of law should therefore
be vacated. Anderson claims that even though Sweeney testified he
had discussed the consequences of the guilty plea with Anderson, he
did not advise the court at the change of plea hearing that
Anderson was aware of such consequences.     Anderson claims that
Sweeney's advice to Anderson was sporadically given in bits and
pieces and cites to State v. Enoch (1994), 269 Mont. 8, 887 P.2d
175, to argue that such sporadic advice does not satisfy the
requirements of 5 46-12-210,MCA.
     Anderson also argues that the acknowledgement of waiver of
rights form executed during the change of plea hearing did not
indicate that he could not withdraw his guilty plea if the court
rejected the plea agreement.   He claims that such a deficiency in
the acknowledgment form was contrary to the requirements of
5 46-12-210, MCA, and its mandate that the defendant understand

that he may not be entitled to withdraw his guilty plea if the
court does not accept the plea agreement.
     The State argues that the record clearly reveals that Sweeney
advised Anderson prior to his pleading guilty that he could not
withdraw his guilty plea if the District Court rejected the plea
agreement.   Contrary to Anderson's suggestions, the State argues
that Sweeney's advice concerning the guilty plea was not provided
in a sporadic fashion over a long period of time, nor was it
provided only at the sentencing hearing after the guilty plea had
already been accepted.
     The State agrees with Anderson that the acknowledgement of
waiver of rights form did not inform him that he could not withdraw
his guilty plea.   However, the State maintains that the lack of
this language in the waiver form does not mean that Anderson was
unaware that he could not withdraw his plea if the court rejected
the plea agreement.
     Sweeney testified at the evidentiary hearing as follows:
     Q:   Did you negotiate this plea agreement with Mr.
     Anderson's approval, or was this on your own initiative?
     A:   I did it with Mr. Anderson's approval. In fact, the
     difficult part of that was that Jade did not want to go
     to trial from day one, and he told me that. While I
     recommended to him on a few occasions that he should
     prepare for trial, he told me that he had no interest,
     did not want to go to trial. He wanted me to try to
     obtain for him the best plea bargain agreement that I
     could.


     Q:   And you participated in the change of plea hearing
     in December of 1993?
     A:   Idid.


     Q:   Did you have reservations about the plea agreement
     in light of your experience or knowledge of the prior
     judge, the judge in this case, Judge Sullivan?
     A:   Yes, sir, I did.
     Q:   Dan, at any time during the representation of Mr.
     Anderson through that December 1993 change of plea
     hearing, did you ever advise him that if the judge did
     not go along with the plea agreement he would be allowed
     to withdraw his guilty plea?
     A:   No, sir.


     Q:   Dan, what did you tell Mr. Anderson, if you recall,
     was the consequence of a guilty plea in December of 1993?
     A:   I explained to him the potential as the Court had
     talked to him about it that if he entered a plea of
     guilty, I went over with him the potential sentence, and
     also the fact that because he was charged with a crime
     that involved the use of a weapon he could have extra
     years tacked on to him.
     I also told him and warned him the problem here again is
     because he had two prior felony convictions that this
     was, you know, a very serious situation as far as he may
     be looking at going to prison. The judge may not go
     along with the plea bargain agreement and, therefore, I
     advised him that he better be very, very certain before
     he enters a plea of guilty and that once he did that, he
     would not be able to withdraw that guilty plea.
The foregoing testimony indicates Sweeney informed Anderson that he
would not be able to withdraw his guilty plea if the court refused
to accept the plea agreement.
     While it is conceded that the acknowledgment of waiver of
rights form did not contain language informing Anderson that he
could not withdraw his guilty plea, 5 46-12-210(2), MCA, states
that :
     The requirements of subsection (1) [the requirement that
     the defendant understand that he may not be entitled to
     withdraw the guilty plea if the plea agreement is not
     accepted] may be accomplished by the defendant filing a
     written acknowledgment of the information contained in
     subsection (1).
The clear language of the statute indicates that the requirements
of   §   46-12-210(1), MCA,          be     satisfied    by   a   written
acknowledgment form.    However, such a procedure is not the only
mechanism to ensure the defendant understands his rights concerning
the entry of a guilty plea.    In the present case, Sweeney's advice
was sufficient to meet the requirements of       §   46-12-210(1), MCA.
     Furthermore, the facts and circumstances presented in Enoch
are distinguishable from those involved in the present case.           In
Enoch we reversed the district court's denial of the defendant's
motion to withdraw his guilty plea.       We based our decision on the
equivocal nature of the plea, noting that the defendant's attorney,
rather than the defendant himself, entered the plea.              We also
expressed concern over the defendant's medical condition as he was
taking medication which may have affected his decision to enter the
plea.    We stated that the statutory requirements of 5 46-12-210,
MCA, apply to the proceeding at which a guilty plea is to be
accepted, and emphasized that the defendant was presented with the
required information six months prior to the plea hearing when he
was arraigned and entered his original not guilty plea. Enoch, 887
P.2d at 180.      In the present case, Anderson voluntarily and
understandingly entered his guilty plea          and    Sweeney   advised
Anderson of the consequences of entering the guilty plea in a
timely manner.
     Finally, in response      to Anderson's contention that          the
District Court erred by       finding that his testimony was          not
credible, we note that it is not the function of this Court to
determine which witnesses are more credible than others. We have
stated that the weight of the evidence and the credibility of the
witnesses are exclusively the province of the trier of fact and,
when conflicting evidence exists, it is within the province of the
trier of fact to determine which will prevail.      State v. Flack
(1993), 260 Mont. 181, 189, 860 P.2d 89, 94.

     We conclude that substantial evidence exists to support the
District Court's findings and conclusions that Sweeney advised
Anderson that the court was not required to allow him to withdraw
his guilty plea if it rejected the recommended sentence. Thus, the
District Court's failure to similarly advise Anderson did not
affect his substantial rights.    The District Court's omission was
harmless error which does not provide a basis for setting aside
Anderson's guilty plea.   Sweeney therefore had no duty to advise
Anderson of his right to appeal and Sweeney's actions cannot be
considered as a basis for a claim of ineffective assistance of
counsel.
     Af firmed .


                                   d2z@- Justice



We concur:




                             .,
Justice James C. Nelson specially concurs

      I concur in our opinion in this case primarily because g 46-
 >-



12-213, MCA, provides that:
      [alny variance from the procedure required by 46-12-211
      that does not affect the substantial rights of the
      defendant must be disregarded.
      Given this specific statutory mandate and defense counsel's
testimony that he advised Anderson that he could not withdraw his
guilty plea and his further testimony that he never advised
Anderson that he would be able to withdraw his guilty plea if the
trial court refused to go along with the plea agreement, I am able,
albeit reluctantly, to conclude that Anderson's substantial rights
were not prejudiced. Accordingly, by reason of   §   46-12-213, MCA,
we must disregard the obvious error of the trial court in failing
to advise Anderson that under the    §   46-12-211   c   , MCA, plea
agreement he would not have the right to withdraw his guilty plea
if the court did not accept the recommendation in the agreement.
      Notwithstanding, Justice Leaphart's dissent raises valid and
important concerns. Title 46, MCA, which contains Montana's code
of criminal procedure, imposes upon the trial court specific
obligations to ensure compliance with various procedures and to
advise the defendant of various matters at different stages of the
criminal proceedings. That is most certainly true at the entry of
plea and sentencing stages. See Title 46, Chapters 12 and 18, MCA.
      I believe that implicit in Justice Leaphart's dissent is the
admonition that we set a dangerous precedent, indeed, if, in
contravention of the clear requirements of the statutes at issue,
we allow the obligations which are statutorily imposed upon the
trial court to be shifted to defense counsel, to the prosecution or
to some other person or process. In that I agree whole-heartedly.
Wh-ile the defendant's substantial rights may not, in fact, be
substantially prejudiced by the court's failure to follow the
procedures   and    to   give   the   advice   mandated    by   the     code,
nevertheless, that should not be a license for the trial court to
disregard what the legislature has clearly required, nor should
this Court routinely condone such practice.
     In some respects, the code of criminal procedure                   is a
cookbook; and, in my view at least, it should be utilized as such.
At each stage of the criminal proceedings and in every case, the
court must methodically go through the procedures and, step by
step, give the advice to the defendant required by the applicable
statutes.    It is neither defense counsel's nor the prosecutor's
obligation to give the advice and ensure the trial court's
compliance   with    the    procedures    that   the      legislature     has
specifically required.
     Under the facts of this case and 5 46-12-213, MCA, I concur.
I do so, however, in recognition that this is a slippery slope
which I, for one, am reluctant




Justices Karla M. Gray and
foregoing special concurrence.
Justice W. William Leaphart, dissenting.

        In our unpublished opinion, issued July 18, 1995, I dissented
from our holding on issue number two and our remand for a further
hearing.      I would have reversed and remended for a hearing solely
on the question of whether Anderson received ineffective assistance
of counsel with regard to his appeal rights.         I would not have
reopened the question of whether counsel, independently of the
court, advised Anderson of the binding nature of a plea agreement
under    §   46-12-211(1)(c), MCA.   The record is clear that the plea
agreement, the Acknowledgment of Waiver of Rights by Plea of Guilty
Form and the District Court all failed to advise Anderson, as
required by      §   46-11-210 , MCA, that he could not withdraw his
                              (2)
(1)( c ) agreement.      This omission af fected his substantial rights
and was not harmless error.          Consequently, I dissent from the
Court's present holding that the District Court's failure to advise
Anderson of the binding nature of a (1)(c) agreement did not affect
Anderson's substantial rights and was rendered harmless in light of
his counsel's advice to him.
        Section 46-12-211(2),MCA, clearly requires that in a (1)(c)
type plea agreement, "the court shall advise the defendant that, if
the court does not accept the recommendation or request, the
defendant nevertheless has no right to withdraw the plea."       It is
conceded that the court did not advise Anderson that he would not
be allowed to withdraw his plea. This Court, however, circumvents
this clear statutory mandate by holding that Anderson's counsel
picked up the slack by explaining to Anderson the implications of
a (l)(c) agreement and informed him of the consequences of changing
his plea to guilty.     The Court holds that Anderson's counsel's
advice was sufficient to meet the requirements of   §   46-12-210(1),
MCA. However, the record of the change of plea hearing contradicts
this holding.
     The transcript of the change of plea proceeding reads as
follows :
     THE COURT: Would you advise the court if this is a 1B or
     1C plea agreement.
     MR. NEWMAN: Your Honor, this is not a binding plea
     agreement. The agreement does advise Mr. Anderson and
     his counsel that the court is free to impose any
     statutory sentence. The State will recommend that a
     sentence be given, a particular sentence. We are going
     to recommend that the defendant be committed to the
     Montana Department of Corrections and Human Services for
     a definite period of time; five years on the underlying
     offense and two years consecutive for the use of a
     weapon.   So we are recommending a commitment to the
     custody of the department for a definite period of time.
     THE COURT: SO then is that a lC?
     MR. NEWMAN:   I believe it would fit under 1C, Your Honor
     THE COURT: Do you understand that, Mr. Sweeney?
     MR. SWEENEY: Yes, Your Honor.
     THE COURT: All right.        Stand up, Anderson.       (The
     defendant complies.)
     THE COURT:    Is there a motion?
     MR. SWEENEY: Your Honor, thank you. If it please the
     Court, as the prosecuting attorney told you, we've
     notified the prosecuting attorney that we wish to move to
     withdraw our former plea of not guilty, and my client,
     Jade Anderson, would instead enter a plea of guilty to
     the charge.
     THE COURT:    Is that what you want to do today, Mr.
     Anderson?
     THE DEFENDANT: Yes.
     THE COURT: Mr. Sweeney, have you fully advised your
     client of the consequences of a change of plea to guilty?
    MR. SWEENEY: I have, Your Honor, and as Counsel stated
    for the State that we have entered into that plea bargain
    agreement, but I've explained to Mr. Anderson that that's
    not binding on Your Honor, and that you have the right to
    sentence him in accordance with the state law or to
    follow that plea bargain agreement, depending on what you
    want to do.
    Although Anderson's counsel advised him, at the change of plea
hearing, that the plea agreement was not binding upon the court,
the record does not reflect any advice from the court or from
counsel that, once Anderson changed his plea pursuant to the
agreement, he would not be allowed to withdraw the plea.        That
aspect is the most significant "implication" of a (l)(c) type plea
agreement. The fact that Anderson was advised that the agreement
was not binding upon the court does not resolve the issue because
a (1)(c) and a (1)(b) are both the same in that respect. That is,
neither type is binding upon the court. The distinction is that a
(1)(c),unlike a (1)(b) is binding upon the defendant. The statute
requires that the court advise the defendant of this distinction.
That is, if he enters a plea to a (1)(c) agreement and the court
rejects that agreement, he cannot withdraw his plea.      The record
does not support a finding that the court advised the defendant of
the special implications of a (1)(c) agreement.
     This Court concludes that, since this was purportedly a (1)(c)
agreement, the District Court was not required to allow Anderson to
withdraw his plea pursuant to   §   46-12-211(4),MCA.   That assumes,
however, that the defendant understands what a "1C" agreement is
after having been properly advised, by the court, of the nature of
his commitment.   In the absence of such advice from the court, we
have no basis for concluding that Anderson understood the nuances
of the term of art: "1C." Without the proper admonition from the
court, the agreement is, in effect, no different from a (1)(b)
agreement and Anderson should be allowed to withdraw his plea.    If
this issue were before us on a direct appeal, I would reverse and
allow him to do so. However, this matter is before us on an appeal
from a petition for post-conviction relief. Accordingly, Anderson
is procedurally barred from raising any issues which he could have
but failed to raise on direct appeal (1 46-21-105(2),MCA) unless
he can show that his failure to raise the issue on appeal was due
to ineffective assistance of counsel.
     Consequently, I concurred with our remanding this matter for
a hearing as to the nature of counsel's advice concerning appeal
rights.   However, I originally dissented from the remand for a
further hearing as to the substance of counsel's advice to Anderson
at the change of plea stage and his subsequent advice to Anderson
concerning his appeal rights to the extent that such a hearing
would open up the question of whether counsel, at the change of
plea stage, advised Anderson that a (1)(c) agreement was binding
upon him thus rendering the court's omission harmless error.
     In my judgment, the statutory requirement ( 5 46-12-211(2),
MCA) that the court advise the defendant of the consequences of a
(1)(c) agreement,   on the record, was designed to avoid this type of
'tis-t'aint argument between attorney and client.      When the plea
agreement itself, the Acknowledgment of Waiver of Rights by Plea of
Guilty Form, and the hearing record, all fail to disclose the
irrevocable nature of the plea, we must assume that Anderson was
not properly advised as required by law.     There was no basis for
giving the prosecution a fourth bite of the apple by remanding for
a further hearing in which we pitted counsel against client in
hopes of divining what Anderson really knew about (1)(c) agreements
independently of what he was informed by the plea agreement, the
waiver of rights form or the District Court.
     The record is clear that the plea agreement, the waiver form
and the court all failed to advise Anderson that he could not
withdraw his   (1)(c) agreement.       This   omission affected his
substantial rights and was not harmless error.        The only real
question, which remains unanswered, is what advice did counsel give
to Anderson concerning his right to appeal based on the District
Court's failure to comply with   §   46-12-211(2), MCA.   If counsel
failed to advise him of the omission and of his right to appeal
based on that omission, then Anderson is entitled to post-
conviction relief.




Justice William E. Hunt, Sr., joins in the foregoing dissent of
Justice W. William Leaphart.
