received the death penalty in 1992 for his involvement in the 1990
beating death of fellow inmate Gerald Pileggi. Mr. Turner was
already serving a life term for killing three Glendive residents
in 1987, when he was only 16. He and co-inmate William Gollehon
were also convicted of helping murder five other inmates during
the 1991 prison riot. Douglas Turner committed suicide in prison
on July 8, 2003.
Supreme Court of Montana
State v. Turner
STATE of Montana, Plaintiff/Respondent,
Doug TURNER, Defendant/Appellant.
October 26, 2000
William F. Hooks, Appellate
Defender Office, Helena, MT, For Appellant. Joseph P. Mazurek,
Montana Attorney General, Jennifer Anders, Assistant Attorney
General, Helena, MT; Gerald Navratil, Dawson County Attorney,
Glendive, MT, For Respondent.
¶ 1 In April 1988, Doug Turner
(Turner) pled guilty to three counts of deliberate homicide, two
counts of felony assault, and one count of aggravated burglary.
He was sentenced to three consecutive life sentences in prison.
In May 1993, Turner filed a postconviction relief petition seeking
to withdraw his guilty pleas because they were involuntarily given
based on alleged ineffective assistance of counsel. The Third
Judicial District Court Judge, Ted Mizner, denied Turner's
postconviction relief petition. We affirm.
¶ 2 The issues on appeal can be restated as
Should Turner be allowed to withdraw his guilty
pleas because they were involuntary based on his claim of
ineffective assistance of counsel?
¶ 3 On November 19, 1987, Turner shot three
people dead. Turner was drinking Southern Comfort, vodka, and
beer at a party in Glendive, Montana. Turner was 16 years old
and had just been released from an alcohol treatment program which
he was committed to as a result of several juvenile offenses.
After the party broke up, Turner was dropped off at his house
around midnight. He went into his house and retrieved his
.30-.30 rifle. Turner went next door and killed James Brooks,
Ora Brooks, and Sharon Brooks. Turner had never met his
¶ 4 Around midnight, a neighbor heard someone
yell, “God damn it, let me in.” Another neighbor heard James
Brooks saying, “Put the gun away.” Shortly thereafter, five
shots were fired. Ora Brooks was shot while running out of the
house screaming. Sean Brooks, age eight, and his friend, Scott
Miller, were in the Brooks' basement preparing to go to sleep when
Turner entered the house. Upon hearing the gunshots, Sean and
Scott ran upstairs. They saw Turner standing in the kitchen.
They immediately got down on the floor and covered their heads.
Turner's rifle misfired, so he beat them on the head with the butt
end of his rifle. When Turner left them to go downstairs, the
boys ran from the house. Police arrived several minutes later
and arrested Turner at the scene.
¶ 5 As a result of the foregoing incident,
Turner was charged in district court with three counts of
deliberate homicide, two counts of felony assault, and one count
of aggravated burglary. Dawson County Public Defender, Jerry
Cook (Cook), was appointed to represent Turner. At that time,
Cook had 17 years of criminal defense experience. He had handled
two homicide cases at the trial level and one negligent homicide
case on appeal.
¶ 6 Cook has no recorded notes of his meetings
with Turner. Cook did not keep time records because he was a
salaried public defender. Further, he does not recall exactly
when those meetings took place. Cook testified that the
seven-year passage of time between his representation of Turner
and the evidentiary hearing had much to do with his faulty memory.
Cook, however, testified that, in all likelihood, he would have
met with Turner prior to his initial appearance in district court
on December 16, 1987; at least once prior to arraignment on
February 12, 1988; prior to the omnibus hearing on March 1, 1988;
and at least once prior to the change of plea hearing on April
12, 1988. In addition, Cook recalled meeting with Turner in the
presence of Donald LaPlante several times before sentencing.
Based on this testimony, the district court found that Cook
maintained personal contact with Turner throughout the course of
¶ 7 Early on in the course of Cook's
representation, Turner told Cook that he did not want to put the
Brooks family or his own family through a trial. Although Turner
denied the truth of this statement at the postconviction hearing,
the underlying record in this case contains numerous references to
the fact that Turner wanted to avoid a trial for personal reasons.
The acknowledgment of waiver of rights and guilty plea form
signed by Turner states:
I am entering this plea of guilty voluntarily
as my own free act after conferring with my attorney and my
mother. It was my instructions to Mr. Cook after our initial
interview, that if at all possible, I did not want to put anyone
through a trial of this case, especially the Brooks family and my
¶ 8 Turner also acknowledged at the change of
plea hearing that this was a significant factor underlying his
guilty plea. Cook also represented to the court, at the guilty
plea hearing, that “after our initial conference, I believe at
almost every conference thereafter, [Turner] has requested that I
allow him to enter a guilty plea.” At the sentencing hearing,
Cook mentioned this fact again:
Doug has, from, I believe, the second meeting
with me, almost insisted on pleading guilty to the charges. And
I think I've told the Court that already. He does have, in his
present state of mind, some empathy for the Brooks family and his
family. It was never his intention to cause them to feel the
hurt a second or third time. He wanted it ended. And I think
his entry of a plea of guilty was an effort to do that, however
little it was, in view of what happened.
¶ 9 In light of this record, the District Court
found Turner's testimony not creditable at the postconviction
hearing, that he never told Cook he wanted to plead guilty.
Rather, it found Cook's testimony creditable that Turner wanted to
¶ 10 Despite Turner's desire to resolve the
charges without a trial, the District Court found that Cook
conducted a factual investigation of the case. Cook did not
immediately acquiesce in his course of action. Instead, Cook
began to investigate any possible defense which might be used at
trial. Cook conducted a factual investigation of the case by
reviewing police reports and witness statements, viewing the
physical evidence, talking to police officers, and going to the
scene of the crime. As a result of his investigation, Cook
concluded that the State had a strong factual case against Turner.
Cook believed that the evidence would support a conviction of
¶ 11 Cook considered the possibility of
offering a mitigated homicide defense. He identified Turner's
age, personal history, and alcohol consumption as mitigating
factors to present to the jury, even though intoxication was not a
defense under Montana law.
¶ 12 Cook testified that he showed Turner the
statutes on mitigated deliberate homicide and discussed with him
the possibility of pursuing that defense at trial. Cook
testified that “we went through all of that on more than one
occasion,” and that he explained to Turner the elements of
mitigated deliberate homicide, “line item by line item.” “We
talked about using his whole history at trial, and trying to use
that as an explanation for what happened, which might get a lesser
charge.” Cook also explained to Turner that they could use
information contained in the mental health evaluation preformed at
Warm Springs as evidence in mitigation. Turner told Cook that he
was reluctant to have his personal history discussed during a jury
¶ 13 Cook testified that he did not file a
motion for change of venue, because Turner wanted to plead guilty.
Had trial become a possibility, Cook indicated he would have
considered such a motion, but acknowledged that it would not have
meant Judge Cox was off the case. Contrary to Turner's
allegation that Cook failed to interview witnesses he asked him to
interview, Cook testified that he did not recall Turner asking him
to talk to anyone in preparation for sentencing.
¶ 14 On December 16, 1987, Cook filed a motion
for a psychiatric evaluation of Turner pursuant to § 46-14-202,
MCA (1987), to determine whether, as a result of mental disease or
defect, Turner was fit to stand trial. At the March 1, 1988,
omnibus hearing, Cook indicated that he was still considering the
possibility of relying upon the insanity defense or diminished
mental capacity if the case proceeded to trial.
¶ 15 Cook recognized the risk of proceeding to
trial in hopes of obtaining a conviction on the lesser offense of
mitigated deliberate homicide. Cook advised Turner of these
risks. Cook told Turner he feared that if the jury convicted him
of deliberate homicide, it would send a message to the judge to
impose a harsh sentence, even the death penalty.
¶ 16 As a result of Cook's motion for a
psychiatric evaluation, Turner was sent to Warm Springs State
Hospital for 36 days. Following various interviews and testing
procedures, Warm Springs personnel compiled a report which was
sent to defense counsel, the prosecutor, and the presiding judge.
In this report, it was documented that Turner suffered from
conduct disorder, solitary aggressive type, alcohol dependence,
cannabis abuse, and psychoactive substance abuse. The report
Mr. Turner does not suffer from a mental
disease or defect that would interfere with his competence to
stand trial. He does suffer from Conduct Disorder which is
essentially an abnormality manifested by repeated antisocial
At the time of the alleged crime it is clear
that Mr. Turner was under the effects of alcohol intoxication.
As with anyone who consumes enough alcohol his impulse control and
judgment were severely impaired. Due to the effects of the
alcohol and only due to the effects of the alcohol he was not
capable of acting with knowledge and purpose at the time of the
criminal conduct charged. However, his state was not due to an
idiosyncratic response to alcohol. Also, he had foreknowledge of
the effects of alcohol, and in spite of two inpatient courses for
substance abuse he chose to consume the alcohol with clear
knowledge and purpose.
The evaluation also documents that Turner was
physically abused as a child, he did not have a good relationship
with his adoptive father, and he had been sexually assaulted on
¶ 17 Cook was informed early on that the
prosecutor intended to seek the death penalty if the case went to
trial. The prosecutor told Cook that if Turner would plead
guilty to the charged offenses, the State would not pursue the
death penalty at sentencing. Cook tried to dissuade the
prosecutor from treating this as a capital case. He also tried
to negotiate a plea upon lesser charges, but to no avail. The
prosecutor was firm in his position that Turner would remain
charged with three counts of deliberate homicide, two counts of
felony assault, and one count of aggravated burglary, and that if
the case went to trial, the prosecutor would ask for the death
¶ 18 Cook did not rule out the possibility that
the death penalty could be imposed in this case, and he advised
Turner of this fact. Judge Cox was a former prosecutor who had
recently been elected to the bench, and Cook suspected that he
would be a tough sentencing judge. Cook also considered that the
death sentence might not be upheld on appeal, and he advised
Turner that even if he received the death penalty, it was unlikely
that it would ever be carried out.
¶ 19 Ultimately, after discussing the
alternatives with Cook, Turner made the decision to plead guilty
to the charged offenses in exchange for the prosecutor's agreement
not to ask for the death penalty. Turner was also motivated to
plead guilty by his empathy for the Brooks family and not wanting
to further hurt them with a trial. The understanding between the
parties was that the prosecutor would ask for something less than
the death penalty, and Cook could argue for anything he wanted at
¶ 20 On April 12, 1988, Turner signed a
document entitled “Acknowledgment of Waiver of Rights and Plea of
Guilty” in which he acknowledged: (1) the offenses with which he
was charged; (2) his right to a trial; (3) the rights he was
waiving by pleading guilty; and (4) his satisfaction with the
services of his attorney. Turner further acknowledged that he
fully understood what he was doing. He also understood that the
prosecutor would recommend a sentence totaling 370 years in
prison, along with a dangerous offender designation. In support
of his guilty plea, Turner acknowledged the following statement of
I am pleading guilty because in fact I know I
am guilty. I have had the opportunity to review toxicology
reports, reports from the Division of Forensic Science, Affidavit
and Motion for Leave to File Information Direct, as well as having
been advised of the facts to be testified to by police officers
and eye witnesses. In view of the testimony, as well as all the
reports, there is no doubt in my mind that I caused the deaths of
James Brooks, Jr., Sharon Brooks, and Ora Brooks, and that I
committed the assaults on Sean Brooks and Scott Miller, and that I
entered the premises to do so. I have no direct recollection of
being in the premises and actually pulling the trigger or striking
anyone, but I do have a vague recollection of the arrest, and I
recall making a statement to the effect that I killed someone,
although I do not recall exactly when that statement was made or
why I made it.
I have been advised by Mr. Cook and have
received copies of the statutes under which I am charged, as well
as the statutes defining mitigated deliberate homicide, and copies
of the sentencing statutes. I am entering this plea of guilt
voluntarily as my own free act after conferring with my attorney
and my mother. It was my instructions to Mr. Cook after our
initial interview, that if at all possible, I did not want to put
anyone through a trial of this case, especially the Brooks family
and my family.
I know and have no doubt that I committed the
crimes alleged, even though I cannot understand why, and it is
difficult to accept the facts, as I know I have caused a great
many people pain and suffering, for which I am truly sorry,
knowing that this expression is not enough.
This document was also signed by Turner's
mother, Beverly Turner.
¶ 21 On April 12, 1988, a change of plea
hearing was held. At this hearing, the District Court advised
Turner of his constitutional rights and the fact that many of
these rights would be waived upon entry of a guilty plea. Turner
indicated that he understood. Turner further indicated that he
had ample time to discuss the case with his attorney and that he
was satisfied with his attorney's services.
¶ 22 The sentencing court then placed Turner
under oath and questioned him about the voluntariness of his plea.
Turner indicated that his plea was entirely voluntary and no
threats or promises had been made by the court, the prosecutor,
defense counsel, or the sheriff's department. Turner's mother
also represented, to the court, that she thought her son's guilty
plea was a voluntary choice.
¶ 23 Turner acknowledged at the guilty plea
hearing that he had discussed possible defenses with Cook. He
further acknowledged that he had read the document entitled
“Acknowledgment of Waiver of Rights and Plea of Guilty” and that
he understood “every word of it.” The court questioned Turner
about the facts underlying the offenses and confirmed that,
although Turner could not remember certain details about the
crimes, Turner himself believed he was responsible for the deaths
and the assaults which occurred that night.
¶ 24 At the time the decision to plead guilty
was made, April 12, 1988, trial was tentatively scheduled for
April 20, 1988. Cook acknowledged he was not prepared to go to
trial on that date and would have sought to continue the trial had
Turner opted to pursue that course of action instead. Cook
testified at the evidentiary hearing: “I rarely let anyone enter
a guilty plea until I'm satisfied, number one, that that's what
they want to do, number two, there is very little defense, or the
defense is such that I don't think we can overcome the
Prosecution's case, and they are more than likely going to get a
¶ 25 Cook testified that had Turner ever
changed his mind about pleading guilty and wanted to go to trial,
Cook would have pursued the case to trial. If Turner had not
appeared to understand what was involved in a guilty plea, Cook
testified he would not have allowed his client to plead guilty.
Even Turner acknowledged that Cook never refused to take the case
to trial, if that was what Turner wanted to do. The District
Court found that Turner's claim that his plea was involuntary came
“years after the sentencing hearing” and was “not creditable.”
¶ 26 On April 19 and 20, 1988, Judge Cox held
Turner's sentencing hearing. The State called 14 witnesses,
including Turner. The Warm Springs Report was admitted as an
exhibit, as well as a social history report prepared by Craig
¶ 27 Cook's strategy at the sentencing hearing
was to ask the court to give Turner some hope for the future.
Cook called as a witness LaPlante, who testified extensively about
Turner's background. He described how that background
contributed to Turner's emotional state on the night of the
murders. He opined that Turner was experiencing significant
“anniversary dates” which triggered numerous emotional responses.
According to LaPlante, Turner knew he was “on the brink” and if
he made one error he would be committed to Pine Hills. LaPlante
testified that Turner harbored a great deal of anger toward the
people who had abused him and had previously entertained thoughts
of killing someone. According to LaPlante, Turner rationalized:
“I may as well have the best last party that we're gonna have”
before going to Pine Hills. LaPlante testified as follows:
That because of the anniversary date syndrome
coupled with the disassociation process, all of this triggered
within his mind the rehearsal that he engaged in, the thoughts of
killing someone; and that he then went about doing it.
¶ 28 LaPlante described this as a “psychogenic
fugue state,” and testified that this diagnosis is not made in the
presence of an organic mental disorder. When asked if Turner
consciously recognized that he was killing the Brooks family, as
opposed to someone else, LaPlante responded:
I do believe that at times during that process
Doug did know exactly what he was doing, at a conscious awareness
level; that at a subconscious level he was aware of it, his
memories of it exist at all times.
But no, I do not believe that he was
consciously aware that he was murdering the Brooks.
¶ 29 At the close of the evidence, the
prosecutor argued that Turner was not capable of rehabilitation as
evidenced by his numerous failures despite the services offered to
him. He recommended that Turner receive the maximum sentence and
be declared parole ineligible, thus guaranteeing that he be
permanently removed from society.
¶ 30 Cook argued that although Turner received
alcohol treatment, he had never received the kind of treatment
needed for his underlying problem and, until the underlying
problem was addressed, Turner would continue drinking. Cook told
the court that he did not offer LaPlante's testimony as an
“excuse,” but as an insight into Turner's mental processes. Cook
acknowledged that the judge had the obligation to protect society,
but asked that he give Turner a ray of hope for rehabilitation by
not making the “no parole” designation. He also emphasized
Turner's age and his willingness to take responsibility for his
actions by pleading guilty.
¶ 31 Judge Cox imposed a greater sentence than
that proposed by the prosecution. Turner was sentenced to a
total of 390 years in prison and was designated ineligible for
parole. Judge Cox gave the following reasons for his sentence:
1. The Defendant is alone responsible for his
behavior even though his background has been less than stable and
he may have been a victim of physical and sexual abuse.
2. The Defendant resisted many efforts to help
him control his behavior and chemical and alcohol dependency. He
was expelled from Hilltop Treatment Center at Havre, Montana,
prior to completion of treatment. On the day of his discharge
from the Chemical Dependency Center in Glasgow, Montana, he chose
to drink again.
3. The Defendant is in relatively good health
and is approximately six feet, one inch in height, and weighs 180
pounds. Intellectually he is in the average range, if not
slightly above. His MMPI Profile is remarkably normal. He is
4. The Defendant has a considerable record of
juvenile criminal activity beginning in May 1985. There are
approximately 12 contacts involving offenses ranging from
misdemeanors to felony in nature.
5. The crimes committed by the Defendant
November 20, 1987, and for which the above Sentences were imposed,
were brutal, savage and utterly senseless. There was not motive
nor reason for the commission of the crimes. In a matter of
minutes, the Defendant killed and destroyed a vivacious,
energetic, well respected couple married 22 years, leaving four
(4) children to grieve for the rest of their lives. He killed a
grandparent of those four (4) children and he brutally assaulted
two youngsters age eight and nine who will never forget the
nightmare and will probably need counseling for the rest of their
lives. The crimes were committed without any provocation by the
victims who were unarmed and the crimes were without warning.
6. The Defendant has displayed little remorse
and this Court recognizes that may be consistent with [Donald
LaPlante's] diagnosis of dissociation.
7. As an aggravating factor, the offenses were
committed as a part of a scheme or operation which, if completed,
would result in the death of more than one person and in fact
resulted in three (3) deaths. The evidence is not clear but for
the fact that the rifle had not malfunctioned, the two youths who
were victims of the felonious assaults might have also been
8. The only statutory mitigating circumstance
is that the Defendant was less than 18 years of age when he
committed the crimes. The Court does not believe that the
voluntary intoxication of the Defendant under the circumstances of
this case is a mitigating factor. The evidence clearly disclosed
that the Defendant was aware of the effects of alcohol since at
least age 12; that he had twice received in-patient treatment for
alcoholism; but instead of using his will, the Defendant actually
fostered it seeming to actually enjoy being an alcoholic as well
as using other drugs because it was “fun to drink.” On the night
of the crimes the Defendant deliberately partied and drank
excessively and made the determination and calculated decision to
become intoxicated. The crimes were committed approximately one
(1) week after the Defendant's discharge from in-patient treatment
and the Defendant himself admitted that during the last week of
his treatment he in fact planned to continue drinking upon his
9. Because of the nature of the crimes
committed, the manner in which they were committed and the
Defendant's history of criminal activity, with continued
repetition of crimes, continued use of alcohol, and continued
rejection of helpful intervention, any chance of rehabilitating
the Defendant is poor, if not impossible.
10. When crimes such as the above have been
committed in such a brutal, savage and senseless manner, then the
only response that a civilized society can make is to remove the
perpetrator of those crimes from society, not out of society's
revenge or retribution, but out of the real fear that if this is
not done then the perpetrator will continue to commit additional
violent crimes and the general public is at risk.
¶ 32 In May 1993, Turner filed a postconviction
relief petition requesting to withdraw his guilty pleas. Turner
alleged 13 claims in his petition, the majority of which were
allegations of ineffective assistance by Cook. A hearing was held
on these claims in January 1995, before District Judge Ted Mizner.
Several witnesses testified at this hearing.
¶ 33 LaPlante's testimony at the postconviction
hearing did not vary much from his testimony at the sentencing
hearing. He described how Turner was in and out of a
dissociative state the night of the murders, and what might have
caused that state. LaPlante testified that a person in a
dissociative state nonetheless has the capacity to act purposely
or knowingly, which is the mental state requirement for deliberate
¶ 34 LaPlante testified that he was present
during several meetings between Turner and Cook where Cook
explained to Turner the charges against him and the evidence in
the State's possession. LaPlante heard Cook talk about the legal
options available to Turner. During those conversations,
LaPlante testified that Turner was oriented to time and place and
appeared to understand what was going on. LaPlante stated: “He
appeared, a number of times, not to care.” LaPlante further
testified that Turner was often unwilling to provide information.
He recalled asking Turner: “[H]ow can you help us, how can we
help you if you won't give us the information?”
¶ 35 In support of his claim that Cook did not
adequately investigate or present mitigating evidence at
sentencing, Turner called his mother, Beverly, and his
grandmother, Effie Wehren. Mrs. Wehren adopted Turner when he
was three and one-half years old. She testified that when Turner
first came to live with her, he had frequent nightmares. While
in the care of his mother, Mrs. Wehren recalled seeing black and
blue marks on his head. He was often left with a babysitter who
placed him in an ice bath when he messed his pants. Turner's
little brother had running sores on his bottom.
¶ 36 Mrs. Wehren also testified that Turner and
his brother hated their mother's boyfriend, Jim Sparks. Mrs.
Wehren was not aware of any physical abuse, but believed that
Sparks was unfair because he made the boys work all the time and
he belittled them.
¶ 37 Mrs. Turner testified that she recalled
Cook discussing with her and Turner the nature of the charges, the
possibility of a mitigated deliberate homicide defense, and the
death penalty as a possible punishment. Mrs. Turner testified
that she had concerns about Cook's representation of her son,
although she was unable to articulate any specifics.
¶ 38 Turner also called Michael Donahoe as an
expert witness. Donahoe testified that Cook's representation was
substandard because (1) he did not follow the procedure outlined
in Ake v. Oklahoma for obtaining a mental health evaluation and
review of that evaluation; (2) he did not challenge the transfer
of the case to district court; (3) he did not do enough to “get
the death penalty off the table;” (4) he failed to anticipate or
object to the prosecution's evidence at sentencing; and (5) he
did not advise Turner of his right to remain silent prior to the
Warm Springs evaluation. Donahoe did not offer any testimony
about how Turner was prejudiced by these alleged errors. On
cross-examination, Donahoe admitted that, although he may have
tried the case differently, he was not proposing that he could
have achieved a different result.
¶ 39 Affidavit testimony was also offered from
three out-of-state attorneys. The District Court gave these
affidavits and the testimony of Donahoe little weight, concluding
that the evidence did nothing more than demonstrate how different
attorneys might handle a case in different ways.
¶ 40 Turner disputed Cook's testimony that he
wanted to plead guilty “from the start.” In light of the entire
record, however, the District Court found this testimony
incredible. Turner described how Cook explained his options
prior to entry of his guilty pleas as follows:
It was his position that there was one way we
could approach it, by going to trial and trying to get a mitigated
deliberate homicide verdict, but he didn't think the chances of
that were very good, and if the Jury came back with the guilty
verdict on deliberate homicide, it would send a message to Judge
Cox, who is, you know, a member of the Glendive community, that
this is what's expected of him, is to give me the death penalty.
¶ 41 Turner indicated that his general
dissatisfaction with Cook's representation arose after he was
sentenced, upon arriving at Montana State Prison. Turner
testified that after he had a chance to “look back and think about
some things,” he came to the conclusion that Cook had “sent [him]
up the river.”
¶ 42 Following the postconviction evidentiary
hearing, Turner moved to expand the record to include notes made
by a social worker for the Department of Family Services to the
effect that “Jerry [Cook] said he'll have Doug [Turner] plead
guilty so as to avoid the death penalty.” Turner proposed that
this evidence was newly discovered and was important to resolve a
conflict in testimony between Turner and Cook. Turner also
requested the opportunity to conduct further discovery in this
¶ 43 The District Court granted Turner's
request to take the deposition testimony of the social worker,
Robert Nasheim. Thereafter, Turner moved to supplement the
record with the Nasheim deposition and other documents. The
State did not oppose this request, but argued that the
supplemental material did not sufficiently tip the evidentiary
scale in Turner's favor to warrant the granting of postconviction
relief. The District Court did not rule on the motion before
issuing its findings of fact, conclusion of law and order on July
28, 1998, denying postconviction relief. Thereafter, Turner
moved the District Court to reconsider its ruling pursuant to Rule
60(b), M.R.Civ.P. The District Court declined to do so.
STANDARD OF REVIEW
¶ 44 Turner argues that we should utilize
plenary review for ineffective assistance of counsel cases. He
argues that under the appropriate standard, this Court should
apply a more deferential standard of review with respect to the
District Court's determination of the underlying “historical
facts.” The ultimate question of whether those facts satisfy the
relevant ineffective assistance standard is a mixed question of
fact and law, which is subject to independent appellate review.
Turner bases this argument on Strickland v. Washington (1984), 466
U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674, and numerous other
¶ 45 The State concedes that we apply a plenary
standard when reviewing questions of constitutional law. It,
however, argues that ineffective assistance of counsel claims are
not subject to plenary review. Rather, the inquiry is whether
the District Court's findings are supported by substantial
evidence and whether the court correctly applied the appropriate
legal standard to the claim. This inquiry accords deference to a
district court's prior review of the claim and does not mandate
full-blown plenary review. The State relies on Bone v. State
(1997), 284 Mont. 293, 302, 944 P.2d 734, 740, to support this
¶ 46 We have yet to squarely address this
issue. This issue was raised, however, in Hans v. State (1997),
283 Mont. 379, 391, 942 P.2d 674, 681. That case did not arise
out of a denial of a postconviction relief petition. Rather, we
had ordered the district court to conduct an evidentiary hearing
and issue findings of fact and conclusions of law. Therefore, we
concluded that we were not reviewing a petition for postconviction
relief. We did state that “[t]he general standards for the
establishment of a claim of ineffective assistance of counsel were
established in the United States Supreme Court case of
Strickland.” Hans, 283 Mont. at 391, 942 P.2d at 681. We have
continued to look to Strickland for the appropriate standard of
review. Bone, 284 Mont. at 303, 944 P.2d at 740 (“We review
claims of ineffective assistance of counsel under the standards
set forth in Strickland ”); Hagen v. State, 1999 MT 8, ¶ 10, 293
Mont. 60, ¶ 10, 973 P.2d 233, ¶ 10 (“Montana courts apply the
two-pronged test set forth by the United States Supreme Court in
Strickland ”); State v. Berg, 1999 MT 282, ¶ 28, 296 Mont. 546,
¶ 28, 991 P.2d 428, ¶ 28, (“We review claims of ineffective
assistant of counsel pursuant to the two-prong test set forth in
¶ 47 We review a district court's denial of a
postconviction relief petition to determine whether the district
court's findings of fact are clearly erroneous and whether its
conclusions of law are correct. Bone, 284 Mont. at 302, 944 P.2d
at 739-40. Claims of ineffective assistance of counsel, however,
are mixed questions of law and fact. Strickland, 466 U.S. at 698,
104 S.Ct. 2052 (“both the performance and prejudice components of
the ineffectiveness inquiry are mixed questions of law and fact”).
Therefore, our review is de novo. Iaea v. Sunn (9th Cir.1986)
800 F.2d 861, 864 (“The effectiveness of counsel is a mixed
question of law and fact, reviewed de novo.”); Langford v. Day
(9th Cir.1996), 110 F.3d 1380, 1386 (“Langford's challenge to his
guilty plea is based on his claim of ineffective assistance of
counsel. We review that issue de novo.”); see also,
Strickland, 466 U.S. at 698, 104 S.Ct. 2052.
¶ 48 Should Turner be allowed to withdraw his
guilty pleas because they were involuntary based on ineffective
assistance of counsel?
¶ 49 Turner argues that Cook failed to conduct
an adequate and appropriate investigation of the facts and
Turner's mental state. This inadequate investigation, in turn,
led to Cook providing misleading, incomplete and inaccurate advice
to Turner regarding his plea and potential sentences. Turner's
guilty pleas were not knowingly, intelligently and voluntarily
entered. He did not waive his claims, and his request to
withdraw his pleas was timely.
¶ 50 The State counters that the object of an
ineffectiveness claim is not to grade counsel's performance. The
object is to determine whether counsel's conduct so undermined the
proper functioning of the adversarial process that the result of
the proceeding is unreliable. Despite Turner's insistence that
Cook's performance fell short in nearly all respects, Turner has
not demonstrated how any other result would have accrued had
counsel not committed the “errors” he allegedly committed, or why
this case should now be tried before a jury, more than ten years
after Turner voluntarily admitted his guilt.
¶ 51 The State argues that Turner's decision to
plead guilty was based on competent advice from counsel, as well
as Turner's personal desire to avoid a trial. The record is
replete with evidence of Turner's motivations, and Cook displayed
his competence by honoring his client's wishes after fully
discussing the risks and possible outcomes of proceeding to trial.
In light of the evidence, no competent lawyer could assure
Turner that a jury would not convict him of the charged offenses,
or that the judge would not impose the death penalty had those
convictions been obtained. Turner has merely shown a myriad of
ways that the case could have been handled differently, a showing
which does not equate with ineffectiveness.
¶ 52 A voluntary plea is one that is made with
knowledge of fundamental constitutional rights and an
understanding of the nature of the crimes charged. North Carolina
v. Alford (1970), 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162;
see also, § 46-12-210, MCA (1987). “[A] plea is not involuntary
simply because it was entered to avoid a greater punishment.”
State v. Milinovich (1994), 269 Mont. 68, 71, 887 P.2d 214, 216.
“The fundamental purpose of allowing a defendant to withdraw a
guilty plea is to prevent the possibility of convicting an
innocent man.” State v. Miller (1991), 248 Mont. 194, 197, 810
P.2d 308, 310. A defendant is authorized to withdraw his guilty
plea for good cause shown. Section 46-16-105(2), MCA (1987).
The “good cause” requirement is satisfied if a petitioner can show
that counsel was ineffective. State v. Senn (1990), 244 Mont. 56,
59, 795 P.2d 973, 975.
¶ 53 In evaluating challenges to a guilty plea
based on ineffective assistance of counsel, we look to the
Strickland two-part test. State v. Boyer (1985), 215 Mont. 143,
147, 695 P.2d 829, 831 (adopting the Strickland test in Montana);
Hill v. Lockhart (1985), 474 U.S. 52, 58, 106 S.Ct. 366, 88
L.Ed.2d 203 (Strickland test applies to challenges to guilty
pleas). Unless a defendant makes both showings, it cannot be
said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result
unreliable. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
¶ 54 First, the defendant must show that
counsel's performance was deficient in that counsel failed to act
within the range of competence demanded of attorneys in criminal
cases. State v. Gonzales (1996), 278 Mont. 525, 532, 926 P.2d
705, 710. When applying the Strickland standards, we will not
second-guess trial tactics and strategy. Gonzales, 278 Mont. at
533, 926 P.2d at 710. We indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct.
2052. Strickland recognizes that “there are countless ways to
provide effective assistance in any given case,” and “even the
best criminal defense attorneys would not defend a particular
client in the same way.” Strickland, 466 U.S. at 689, 104 S.Ct.
2052. The purpose of the effective assistance of counsel
guarantee is to simply ensure that the criminal defendant receives
a fair trial. It is not to improve the quality of legal
representation. Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
¶ 55 Turner makes several claims that Cook's
representation was deficient. First Turner argues that Cook
failed to adequately investigate various defense options. Turner
takes issue with the amount of research Cook did. Turner asserts
that had Cook better researched the death penalty he would have
concluded that even if Turner received the death penalty it would
have been over turned on appeal. Turner cites Kennedy v. Maggio
(5th Cir.1984), 725 F.2d 269, for the proposition that this
constitutes ineffective assistance of counsel.
¶ 56 This case is not analogous to Kennedy.
Kennedy was indicted in 1972 for aggravated rape, which was a
capital offense under Louisiana law. As a result of the Supreme
Court's decision in Furman v. Georgia (1972), 408 U.S. 238, 92
S.Ct. 2726, 33 L.Ed.2d 346, Louisiana's entire capital punishment
scheme was rendered invalid and the death penalty was
“non-existent” for Kennedy. The Fifth Circuit concluded that
counsel had given “patently erroneous advice” to Kennedy when he
advised otherwise, despite the intervening Furman decision.
Kennedy, 725 F.2d at 272. Because Kennedy “testified
repeatedly” that he pleaded guilty “to avoid the possible
imposition of the death penalty,” the court concluded that his
resulting plea was involuntary. Kennedy, 725 F.2d at 270.
¶ 57 The case presently before this Court is
distinct. As Judge Mizner correctly found, the death penalty was
legally available to the prosecution. Whether it would have been
upheld on appeal is inconsequential. The fact that it was
available and the prosecution intended to seek it obligated Cook
to advise his client of these facts. Further, the defendant in
Kennedy had a credible argument that he plead guilty based solely
on his unfounded fear of the death penalty. Here, the record is
replete with statements by Turner that he was pleading guilty to
avoid a trial for personal reasons, not because he feared the
death penalty. “The reasonableness of counsel's actions may be
determined or substantially influenced by the defendant's own
statements or actions.” Strickland, 466 U.S. at 691, 104 S.Ct.
2052. Cook's representation was not ineffective on this point.
¶ 58 Second, Turner claims Cook's
representation was deficient because of the way he handled
Turner's mental evaluation. Turner claims that Cook should have
utilized the established ex parte procedure for obtaining a
defense evaluation. Cook erred in failing to object to the scope
of the court's order. Cook rendered ineffective assistance in
stipulating to the appointment of a psychologist to interview
Turner and to work for each of the adversaries as well as the
court. Cook instead chose a course of conduct that greatly
limited his future options and which foreshadowed a result in
which the accused plead to the most serious possible crime with an
¶ 59 The District Court rejected this argument.
The District Court noted that Cook followed the statutory
procedure outlined in § 46-14-202, MCA (1987), which meant that
the result of the evaluation would be distributed to the
prosecutor and the court. The District Court determined that
prior to the Ninth Circuit's decision in Smith v. McCormick (9th
Cir.1990), 914 F.2d 1153, it was standard practice in Montana for
defense attorneys to employ the statutory procedure, as opposed to
the procedure outlined in Ake v. Oklahoma (1985), 470 U.S. 68, 105
S.Ct. 1087, 84 L.Ed.2d 53. This is in direct contrast to
Turner's assertion that Cook should have utilized the established
ex parte procedure (from Ake ) for obtaining a defense evaluation.
Turner cites no factual or legal basis for this proposition.
Indeed, there is none.
¶ 60 Turner overlooks that we have already
resolved this issue in Hans, 283 Mont. at 379, 942 P.2d at 674.
In Hans, we rejected any notion that counsel is ineffective for
following Montana's statutory procedure, as opposed to the Ake
procedure, to obtain a mental health evaluation prior to the Ninth
Circuit's decision in Smith v. McCormick, supra:
Hans' counsel ․ did not have the benefit of
Smith when acquiescing in the dissemination of the mental health
report. As the United States Supreme Court warns of the danger
in applying hindsight to assess attorney performance in Strickland
․ it follows that subsequently decided case law cannot be used to
judge an attorney's conduct at the time of representation.
Furthermore, we have held that counsel is not ineffective for
following a statute in effect at the time. (citation omitted)
Therefore, we hold that defense counsel's acquiescence in
dissemination of the mental health reports pursuant to
§ 46-14-202, MCA, is not grounds for a finding of ineffective
assistance of counsel.
Hans, 283 Mont. at 402, 942 P.2d at 688. Cook
was not ineffective for failing to follow the Ake procedure when
requesting a mental health evaluation.
¶ 61 Third, Turner claims that Cook failed to
adequately inform him of his constitutional right against
self-incrimination before Turner received his mental health
evaluation. Turner argues that Cook's statement to “tell all”
without first ascertaining either what “all” would be, or that
Turner absolutely did not know anything, was not the product of a
tactical decision. Cook was ineffective in advising Turner to
cooperate with the state psychologist examining him.
¶ 62 The District Judge, however, found that
this was a tactical decision which the court would not
second-guess. Further, the District Court concluded that Turner
suffered no prejudice as a result of Cook's tactics. The Warm
Springs report was used by Turner at sentencing. There is no
evidence that the State utilized any information in the report for
any purpose. It was Turner who used this information to his
advantage during sentencing. Even if we assume that this was not
a tactical decision, Turner has failed to show how this prejudiced
his defense. Even if Turner had been advised on his right to
remain silent, there is no indication that he would have refused
to plead guilty. We agree with the District Court that this does
not establish that Cook's representation was ineffective.
¶ 63 Lastly, Turner alleges an array of reasons
why Cook's representation was ineffective. Turner utilizes
several expert witnesses in an attempt to lend credit to his
argument. The District Court rejected this line of argument as
merely an example of how different attorneys will try the same
case differently. We agree.
¶ 64 We have repeatedly observed that
“[c]laimed inadequacy of counsel must not be tested by a greater
sophistication of appellate counsel, nor by that counsel's
unrivaled opportunity to study the record at leisure and cite
different tactics of perhaps doubtful efficacy.” State v.
Langford (1991), 248 Mont. 420, 433, 813 P.2d 936, 946 (citations
omitted); see also, State v. Hall (1983), 203 Mont. 528, 539, 662
P.2d 1306, 1311. In State v. Lopez (1980), 185 Mont. 187, 191,
605 P.2d 178, 180-81, we cautioned: “the fact that some other
lawyer ․ would have done differently ․ is not ground for branding
the appointed attorney with the opprobrium of ineffectiveness, or
infidelity, or incompetency” (citation omitted). Judicial
scrutiny of counsel's performance must be “highly deferential,”
and “every effort be made to eliminate the distorting effects of
hindsight to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at
the time.” Langford, 248 Mont. at 433, 813 P.2d at 946 (quoting
Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Affidavits of
Turner's experts constitute nothing more than mere second-guessing
of Cook's strategy.
¶ 65 Under the second prong of the Strickland
standard, the defendant must show that the deficient performance
prejudiced the defense. The defendant must show a reasonable
probability exists that, but for counsel's errors, he would not
have pleaded guilty but insisted on going to trial. Hill, 474
U.S. at 59, 106 S.Ct. 366. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Both prongs must
be met to establish an ineffective assistance of counsel claim.
Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
¶ 66 Turner fails to directly address this
prong of the Strickland standard. Instead, Turner argues he
should be allowed to withdraw his guilty pleas because the errors
under prong one render them involuntary. That if Turner's case
had been handled differently, he would have insisted on trial.
This is contradictory to the record.
¶ 67 From early on in the course of Cook's
representation, Turner informed Cook of his desire not to go to
trial. Turner did not want to put his family nor the remaining
Brooks family through a trial. Although Turner now denies this,
the underlying record supports its truth. Turner signed an
acknowledgment of waiver of rights and guilty plea containing
language that he did not want to put his family or the remaining
Brooks family through a trial. Further, both Turner's testimony
and Cook's representations at the sentencing hearing support that
Turner was pleading guilty to avoid further hurting the parties
involved. This was the primary motivation behind Turner's guilty
¶ 68 Furthermore, at the change of plea
hearing, Turner was thoroughly advised of his rights and he
appears to have understood what rights would be waived if he chose
to plead guilty. The people who had close contact with Turner
during this process, including Cook, Turner's mother, and Donald
LaPlante, similarly observed that Turner knew exactly what he was
doing and understood the consequences of his actions. The
District Court concluded that Turner's guilty plea was the product
of a voluntary and intelligent choice among the alternative
courses of action open to the defendant. We agree.
¶ 69 Nothing Turner alleges Cook should have
done would have altered the outcome of this case. Turner
voluntarily pled guilty after being fully advised of his options.
The District Court properly rejected Turner's claim that Cook
was ineffective and that he should be allowed to withdraw his
¶ 70 The order denying postconviction relief is
Justice WILLIAM E. HUNT, SR., delivered the
Opinion of the Court.
TURNAGE, C.J., GRAY, NELSON and TRIEWEILER,