                            No. 96-008
           IN THE SUPREME COURL OF THE STATE OF WONTANA
                               1997




DARRELL W. SPARKS,
          Defendant and Appellant



APPEAL FROM:   District Court of the Sixteenth Judicial District,
               In and for the County of Custer,
               The Honorable Kenneth R. Wilson Judge presiding.


COUPTSEL OF RECORD:
          For Appellant:
               Darrell Wade Sparks, Pro Se,
               Spur, Texas
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Jennifer Aaders, Assistant Attorney General,
               Helena, Montana
               Garry P. Bunke, Custer County Attorney,
               Miles City, Montana



                            Submitted on Briefs: January 30, 1997
                                         Decided : March 3, 1997
Filed:
Justice Jim Regnier delivered the opinion of the Court.
     Pursuant to Section I, Paragraph 3!c), Montana Supreme Court
1995 Internal Operati~gRules, 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 in State Reporter Publishing Company and West Publishing
Company.
     Darrell W. Sparks was charged in the Sixteenth Judicial

District   Court, Custer County, with      one count    of   deliberate
homicide pursuant to    §   45-5-102(1)(a), MCA, and one count of
aggravated burglary pursuant to    §   45-6-204( 2 ) (a), MCA.   Sparks
entered a plea of guilty to the lesser included offense of
mitigated deliberate homicide pursuant to    §   45-5-103(l), MCA, and
to the aggravated burglary charge and was sentenced by the District
Court.    Sparks appeals from the judgement, conviction, and order.
We affirm.
     The following issues are presented on appeal:
     I.    Was   evidence pertaining to Sparks's guilt       illegally

suppressed?
     2.    Did the sentencing court rely on inadmissible evidence at
sentencing?
     3.    Did the sentencing court rely on inaccurate information

at sentencing?
     4.    Did the sentencing court violate B 46-18-101, MCA, when

sentencing Sparks?
     5.    Did Sparks receive ineffective assistance of coznsel?
     6.   Should this Court consider allegations of mental disease
as a basis for invalidating Sparks's conviction and sentence?
                        FACTUAL BACKGROUND

     On November 4, 1992, Darrell W. Sparks unlawfully entered the
apartment of Steve Allen in Miles City and fatally shot his
estranged wife, Marie Sparks.     Sparks turned himself in to the
Miles City Police Department and gave a statement in which he
confessed to the crimes.
     Sparks was appointed counsel, J. B. Wheatcroft, who gave
notice of intent to rely on a mental disease or defect to prove
that Sparks did not have the state of mind which was an element of
the offense charged.   Soon after, Sparks requested new counsel and
J. Dennis Corbin was substituted in place of Wheatcroft.

     On December 15, 1992, Sparks was admitted to Warm Springs
State Hospital where personnel conducted a psychiatric evaluation,
a social history report, and a psychological testing report.
Sparks was diagnosed with a personality trait identified as an
adjustment disorder with mixed disturbance of emotions and conduct
and avoidant personality disorder.
     On May 20, 1993, Sparks signed an acknowledgment of rights and
plea bargain agreement in which he pled guilty to mitigated
deliberate homicide and one count of aggravated burglary.       The
prosecution recommended a sentence of forty years on the homicide
charge, plus ten consecutive years for use of a weapon, and forty
years on the burglary charge to be served concurrently with the
other sentences.    Following a hearing on July 27, 1993, the
sentencing court adopted the recommendation in the plea agreement
and sentenced Spar:ks accordingly.
                        STANDARD OF REVIEW
     The standard of review of evidentiary rulings is whether the
district court abused its discretion.    State v. Crist (1992), 253

Mont. 442, 445, 833 P.2d 1052, 1054. The district court has broad
discretion to determine whether or not evidence is relevant and
admissible, and absent a showing of an abuse of discretion, the

trial court's determination will not be overturned.         Crist, 253

Mont. at 445, 833 P.2d at 1054.

                              ISSUE 1
     Was   evidence   pertaining   to   Sparks's    guilt    illegally
suppressed?
     Sparks argues that certain evidence was suppressed or withheld
from him by the court, his own counsel, law enforcement, and the
presentencing investigator in violation of his constitutional
rights.    First, a letter written by him to the District Court
asking it to consider the fact that he was under the influence of
a "hypnotic suggestion" at the time of the crime.    Second, another
letter written by him to the District Court corqlaining that the
Miles City Police Department failed to return a family video and
photographs to him.   Next, Sparks claims that he never received a
copy of an autopsy report of the victim and a transcript of his
admissions made to the police. He also claims the testimony of his
court-appointed psychologist, Dr. Trapel, was suppressed because he
was excused prior to the completion of the sentencing hearing.
Finally, Sparks believes that Dr. Tranel           suppressed evidence
favorable to him by not interviewing his children.

     In Brady v . Maryland (l963), 373 U.S. 83, 86-68, the United

States Supreme Court held that suppression by the prosecutor of
evidence that is favorable to the accused who has requested it
violates due process where the evidence is material to either guilt

or punishment.      However, any rights that Sparks has under Brady

with respect to each item of alleged suppressed evidence is waived
by   his   guilty   plea.    A   plea    of   guilty    voluntarily   and
understandingly made constitutes a waiver of nonjurisdictional
defects    and   defenses,   including    claims   of    violations   of

constitutional rights prior to the plea.       The reasoning is that a
person pleading guilty is convicted ar.d sentenced on his plea and

not on the evidence.    State v. Turcotte (1974), 164 Mont. 426, 428,

524 P.2d 787, 788.     See also Hagan v. State (1994), 265 Mont. 31,

873 P.2d 1385 (the law provides that, upon entry of a guilty plea,
a defendant waives all factual defenses, issues, and constitutional
claims which arose prior to the entry of the plea).
     Sparks asserts that the first letter was wrongly suppressed by
the District Court because the letter was sealed into the record
without his knowledge and its contents should have been considered
during sentencing.     The record shows that during sentencing the
District Court asked Sparks about the letter and confirmed that he
did not intend for it to be considered as evidence of a potential
defense that might invalidate his plea. We conclude that the claim
that this letter was suppressed lacks merit.
     With respect to the ietter claiming that he never saw the
family   videotape   a ~ d photographs,   the   autopsy   report,   the
transcript of admissions, the failure of the investigator to
interview his   children, and    the District Court's excusal of
Dr. Tranel prior to the completion of the sentencing hearing,
Sparks fails to show the relevance of how each would be exculpatory
evidence under Brady. The Court sees no basis in the aryJment that

any of the above-mentioned items of evidence were suppressed and
prejudiced Sparks in the sentencing.
                              ISSUE 2
     Did the sentencing court rely on inadmissible evidence at
sentencing?
     Sparks claims that the District Court relied upon inadmissible
evidence when sentencing him.    He claims both the plea agreement
and the Warm Springs report should not have been considered by the
court.
     First, Sparks contends that the District Court should not have
considered the plea agreement at sentencing because his version of
the crime set forth in the agreement was not in his words but pure
"legaleseN written upon advice from his attorney.     He argues that
the piea agreement should have taken into consideration that he
committed the crime while under hypnotic suggestion.         Also, he
contends that the court should not have considered the plea
agreement because it contains a statement limiting appeals upon
eztry of a guilty piea.
     There is no indication that the version of the crime, as set
forth in the plea agreement, played any part in the sentencing
process. The District Court found no evidence to support his claim
that he is mentally ill.   There is also no reason to believe that
the statement in the plea agreement limiting appeals had any effect
during sentencing.
      Sparks also claims that the Warm Springs report was used
against him at sentencing in violation of a motion to exclude which
defense counsel filed prior to sentencing. Section 46-14-212, MCA
(1991;,provided:
          A statement made for the purpose of psychiatric or
     psychological examination or treatment provided for in
     this section by a person subjected to examination or
     treatment is not admissible in evidence against the
     person at trial on any issue other than that of the
     person's mental condition.
Defense counsel claimed that any statements inadmissible at trial
would be inadmissible at sentencing, therefore the court should
exclude any portions of the Warm Springs report attached to the
presentencing investigator's report.
     The record provides that rhe District Court and the prosecutor
did not improperly refer to the Warm Springs report during the
hearing.   Also, Sparks does not show and the record does not
provide how the sentencing court improperly relied on information
from Warm Springs. The Court concludes that the District Court did
not rely upon the Warm Springs Report when sentencing Sparks.
                                  ISSUE 3
      Did tne sentencing court rely on inaccurate information at
sentencing?
      First, Sparks objects to the Warm Springs report that stated
he was suffering from a personality disorder.      Sparks believes that
he is suffering from a "schizotypal disorder." Sparks claims that
the   District   Court   relied   on    this   inaccurate    evidence   at
sentencing.
      Sparks clearly had the opportunity to bring this information
to the attention of the District Court at the time of sentencing.
Neither Sparks nor his attorney mentioned that the Warm Springs
report was inaccurate at the time of sentencing.            In any event,
this C o u r ~concludes that the District Court did not rely upon any
information in the Warm Springs report when sentencing Sparks.
Thus, any inaccurate information contained in the report had no
effect upon Sparks's sentencing.
      Next, Sparks contends that the presentencing investigation
report was incomplete because the investigator failed to interview
his children.    Sparks fails to show, however, that any prejudice
resulted from the lack of this information.         This Court sees no
prejudice that resulted from the investigator failing to interview
his children.
      Finally, Sparks contends that he was sentenced on incomplete
information because Dr. TraneL, the court-appointed psychologist,
was excused as a witness before sentencing was completed. The
reccrd shows that Dr. Tranel had the opportanity to testify fully

                                    8
and that his presence was not required for the full hearing.
Again, Sparks fails to show how he was prejudiced by Dr. Tranei
leaving the hearing before sentencing was complete.

                                  ISSUE 4
      Did the sentencing court violate               §    46-18-101, MCA, when
sentencing Sparks?

      Sparks claims the District Court did not sentence him in
accordance with the crime committed or the circumstances of the
offense     because   of   its   failure    to       consider        the   "hypnotic
suggestion" defense. Subsection (3) of           §   46-18-101,MCA, specifies
the factors to be considered by a district court when sentences are
imposed. These factors are: t-ype of crime committed, the prospects
of rehabilitation of the offender, the circumstances of the crime,
the   criminal   history    of   the   offender, and             consideration of
alternatives to imprisonment of the offender in the state prison.
      The   record    clearly provides      that         both    parties   had   the

opportunity to argue the factors set forth in                   §   46-18-101, MCA,
during the sentencing hearing. Sparks voluntarily agreed to the
plea bargain agreement that set his sentence, and he got what he

bargained for.    State v. Turcotte (l9?4), 164 Mont. 426, 428, 524

P.2d 787, 788.        This Court concludes that the District Court
properly sentenced Sparks in accordance with               §    46-18-101(3),MCA.

                                  ISSUE 5
      Did Sparks receive ineffective assistance of counsel?
      Sparks argues that both his attorneys, Wheatcroft and Corbin,
were ineffective.      This Court reviews ineffective assistance of

                                       9
counsel   claims utilizing the         two-part test      in   Strickland v.

Washington    4         466 U.S. 5 6 8 .      Under this test,       is the

defendant's obligation to demonstrate that his counsel did not
provide assistance within the range of competence demanded of

attorneys     in    criminal   cases    and    that    counsel's   deficient
performance resulted in prejudice. Specifically, in the context of
the type of issue presented here, the defendant must establish that
but for his counsel's deficient performance he would not have pled
guilty and would have insisted upon going to trial. Hill v.

Lockhart (1985), 474 U.S. 52, 59; State v. Langford (19911, 248

Mont. 420, 432, 813 P.2d 936, 947.
       Sparks has failed to demonstrate any factual basis for his
ineffective       assistance   of   counsel    claim   against   Wheatcroft.
Wheatcroft's involvement in the case consisted of filing a notice
of the intent to rely upon mental disease or defect as a defense
with   the District Court.          He was not        involved in the plea
bargaining or sentencing process.             Sparks does not allege how
Wheatcroft's brief involvement affected the outcome of his case.
This Court concludes that Sparks has failed to meet the test in

Strickland by not establishing how any deficiencies of Wheatcroft's

performance would have led him to not pled guilty and, thus, would

have insisted upon going to trial.
       Sparks first claims that Corbin did not allow him to view a
family video and photographs which were held by the Miles City
Police Department.       Spirks alleges that the video contradicted

                                       10
potential witness statements against him. However, Sparks does not
allege how the failnre to let hiw. see these items prejudiced his
case.   This Court does not find any pre?udice in Corbin's failure
to let Sparks view these materials.
      Next, Sparks argues that Corbin should have obtained a copy of
the prescription drug Meclizine to prove that the drug existed and
influenced his actions.     Sparks claims that he had taken thirty
Meclizine pills in the month before the killing and that the drug

affected his actions.     The record shows that the District Court
took into account that Sparks was acting under extreme mental or
emotional distress on the night of the killing. Also, Sparks does
not show how a copy of a prescription for this medication would
have affected the outcome of his case. The claim fails to meet the
Strickland test.

      Third, Sparks claims that Corbin should have pursued a defense
of   hypnotic   suggestion because   it   may   have   resulted   in   an
acquittal. Also, Sparks claims that Corbin should have mentioned
during the sentencing hearing that he was acting under hypnotic
suggestion.
      For an acquittal, Sparks would have t o prove that he d i d not
                                           .
have the requisite mental state, either purposely or knowingly,
when the crime was committed.   Sparks fails to prove that Corbin's
disregard for this defense constituted ineffective assistance of
counsel.    The decision whether to go to trial to disprove the
requisite mental state or to plead guilty to mitigated deliberate
homicide is a tactical cne.   This Court has previousiy stated that
it will not second guess counsel's tactical decisions.                 State v.



to do so pow.
     At the sentencing hearing, Corbin stated that Sparks had acted
under extreme emotional and mental stress at the time of the

homicide.     Corbin successfully argued that, due to his mental
state, Sparks should be        found guilty of mitigated deliberate
homicide rather than deliberate homicide.              We do not see where
Corbinl failure to mention "hypnotic suggestion" prejudiced Sparks
       s

in any way.
     Third, Sparks ciaims that Corbin was incompetent because he
allowed him to sign a plea agreement which forbade him from
appealing     and   violated   his   Fifth      Amendment     right     against
self-incrimination.       However,     Sparks    voluntarily     signed     the
agreement, which provides that all factual and legal defenses which
arose prior to entry of the plea are waived upon its entry. Sparks
is not challenging the voluntariness of his plea.
     Fourth, Sparks claims that Corbin should have objected to
statements from a relative of the victim at sentencing. The person
stated that Sparks woald "kill againN and was a "parasite." Any

objection to victim impact evidence would have served no purpose
because Sparks had already agreed to the sentence through the plea
bargain   agreement. Sparks     also    fails     to   show   any     prejudice
resulting    from his   attorney's failure to           object   during     the
testimony.
     Next, Sparks claims that his attorney should nor have objected
to testimony regarding his statement of rem.orse in the plea bargain
agreement because it was favorable to his case.              However, the
record does not show that the objection prevented the District
Court from considering any statement of remorse or regret made by
him in the plea bargain agreement.
                              ISSUE 6
     Should this Court consider Sparks's allegations of mental
disease as a basis for invalidating his conviction and sentence?
     Sparks asks this Court to consider "the disease" as a new
issue upon appeal.   Sparks was evaluated by Warm Springs personnel
who concluded that he did not suffer from any mental disease or
defect.   Issues presented to this Court for the first time on
appeal will not be considered.   A k h t a r v. Van D e W e t e r i n g (1982),

197 Mont. 205, 209, 642 P.2d 149, 152.            This Court does not
function as a fact finder, that is the role of the District Court.
Any claim that Sparks suffers from a mental disease or defect which
somehow invalidates his conviction and sentence is rejected.
     We affirm.




We Concur:
