Opinion
No. 94-599.
Decided April 25, 1995.
Petition for Postconviction Relief.
ORDER
Richard D. Hinman pled guilty to sexual assault on June 2, 1994, and on July 2, 1994, was sentenced to serve 12 years in the Montana State Prison.
Hinman has filed a petition for post-conviction relief with this Court. He claims that his guilty plea was not voluntarily made and was unlawfully induced. Hinman adds that his conviction was obtained based on: a coerced confession, evidence from an unconstitutional search and seizure, an unlawful arrest, a violation of his privilege against self-incrimination, and the prosecution's failure to disclose evidence that was favorable to him in violation of the Constitution. He further claims that the judge was biased and that he was denied effective assistance of counsel.
The State responds that Hinman waived his claims regarding constitutional violations and judicial bias because he pled guilty to the charged offense. The State adds that Hinman's ineffective assistance of counsel claim is not supported by the record.
[1] In Hagen v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387, we stated that "a plea of guilty which is voluntarily and understandingly made constitutes a waiver of nonjurisdictional defects and defenses, including claims of constitutional violations which occurred prior to the plea." We added that the defendant thereafter "`may only attack the voluntary and intelligent character of his plea.'" Hagen, 873 P.2d at 1387 (quoting State v. Hilton (1979), 183 Mont. 13, 18, 597 P.2d 1171, 1174 (citing Tollett v. Henderson (1973), 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235).
The transcript indicates that Hinman knowingly and intelligently pled guilty. The court asked Hinman several questions. Hinman's responses indicate that he understood what he was doing, understood the consequences, was adequately advised by counsel, and was treated fairly. Hinman failed to provide evidence that his guilty plea was not voluntarily and intelligently made.
[2] Hinman's claim that the State failed to disclose evidence lacks merit because the evidence he refers to is mentioned in the affidavit in support of the State's application for leave to file an amended information.
[3, 4] Hinman also claims he was denied effective assistance of counsel because his counsel failed to ask pertinent questions or subpoena witnesses on his behalf, and spoke to him for only ten minutes before trial. Hinman fails to allege that he was prejudiced under Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, which requires a showing that the outcome of a case would have been different had it not been for counsel's errors. Nor has he shown that were it not for his counsel's alleged deficient performance, he would have insisted on going to trial. State v. Mahoney (1994), 264 Mont. 89, 101, 870 P.2d 65, 73 (citing State v. Senn (1990), 244 Mont. 56, 59, 795 P.2d 973, 975).
Hinman admitted facts that establish the elements of felony sexual assault. The court asked Hinman several times if he was satisfied with his counsel's performance. His responses were affirmative. He also stated that his attorney contacted him and conferred with him when he was asked to. Hinman has not offered evidence of his counsel's deficient performance, nor has he shown that but for counsel's performance, he would not have pled guilty.
We conclude that Hinman is not entitled to post-conviction relief based on alleged constitutional violations, judicial bias, or ineffective assistance of counsel. Therefore,
IT IS HEREBY ORDERED that Hinman's petition for post-conviction relief is DENIED.
The Clerk is directed to mail a true copy hereof to petitioner personally and to counsel for respondent State of Montana.
DATED this 25TH day of April, 1995.
/S/ J.A. TURNAGE, Chief Justice /S/ KARLA M. GRAY, Justice /S/ TERRY N. TRIEWEILER, Justice /S/ WILLIAM E. HUNT, SR., Justice /S/ W. WILLIAM LEAPHART, Justice /S/ JAMES C. NELSON, Justice /S/ FRED J. WEBER, Justice