State v. Schaff

• Decision Date: 25 July 2001
• Docket Number: No. 00-157.,00-157.
• Citation: 28 P.3d 1073,2001 MT 130
• Parties: STATE of Montana, Plaintiff and Respondent, v. Richard D. SCHAFF, Defendant and Appellant.
• Court: Montana Supreme Court

28 P.3d 1073

2001 MT 130

STATE of Montana, Plaintiff and Respondent, v. Richard D. SCHAFF, Defendant and Appellant.

No. 00-157.

Supreme Court of Montana.

Submitted on Briefs September 21, 2000.

Decided July 25, 2001.

For Appellant: Richard D. Schaff (pro se), Missoula, MT.

For Respondent: Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena, MT, Dennis Paxinos, Yellowstone County Attorney, Billings, MT.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 Richard D. Schaff appeals from an order denying his petition for postconviction relief issued by the Thirteenth Judicial District Court, Yellowstone County. We affirm in part, reverse in part and remand for proceedings consistent with this opinion.

BACKGROUND

¶ 2 On July 29, 1996, Richard D. Schaff was charged by amended information with attempted deliberate homicide, aggravated kidnaping, two counts of sexual intercourse without consent, one count of sexual assault, and witness tampering. Pursuant to a plea bargain he pled guilty to two of the charges, attempted deliberate homicide and witness tampering.

¶ 3 On November 12, 1996, Schaff moved to withdraw his guilty plea. After a hearing, the District Court denied the motion and sentenced Schaff to forty (40) years for attempted deliberate homicide, ten (10) years consecutive for the use of a weapon, and ten (10) years concurrent for witness tampering. Schaff appealed the order denying his motion to withdraw the guilty plea, and we affirmed the District Court's denial in State v. Schaff, 1998 MT 104, 288 Mont. 421, 958 P.2d 682.

¶ 4 Schaff next filed a petition for postconviction relief contending ineffective assistance of counsel, which is the subject of this appeal. Schaff argues that he paid his trial counsel a substantial amount of cash and provided him liens on his property as additional compensation. When he could no longer pay his attorney, he relates that arrangements were made for his attorney's continued representation through the Yellowstone County Public Defender's office. Schaff contends that his lawyer provided ineffective assistance of counsel when he required him to decide whether to accept the offered plea agreement after considering the matter for less than two hours. Schaff further alleges that his trial counsel forced him to enter the plea, misled him, and denied him the opportunity to secure other counsel. He claims that with the assistance of different counsel at the hearing to withdraw the guilty plea, he could have established that his plea was not voluntary. After a response from the State and without a hearing, the District Court denied the petition on January 7, 2000. Schaff appeals and the only question is whether the District Court erred in summarily denying his petition.

STANDARD OF REVIEW

¶ 5 The standard of review of a district court's denial of a petition for postconviction relief is whether substantial evidence supports the findings and conclusions of the district court. In reviewing a district court's denial of postconviction relief, we review a district court's findings of fact to determine if they are clearly erroneous, and the district court's conclusions of law to determine if the court correctly interpreted the law. State v. D'Amico, 2000 MT 63, ¶ 7, 299 Mont. 57, ¶ 7, 997 P.2d 773, ¶ 7.

DISCUSSION

¶ 6 Although Schaff is represented by counsel in this appeal, he filed his petition for postconviction relief without the assistance of counsel. The petition alleges that he paid his counsel $18,000 in cash and then provided him $22,000 worth of liens on his property. When he could no longer pay his attorney, an agreement was reached wherein his counsel could continue representing him and receive payment through the Yellowstone County Public Defender's Office. Schaff alleges he was denied effective representation by his attorney who received such payments to "then only given [sic] petitioner one and a half hours to agree to a plea bargain and to then mislead petitioner by forcing petitioner to agree to his continued representation at the hearing to withdraw his guilty plea, when petitioner, with assistance of other counsel, would have established that his plea was not voluntary." On appeal Schaff argues that he could not have raised the precise issue of ineffective assistance of counsel because discussions between him and his attorney are not record based and thus can only be presented through postconviction proceedings. See Hagen v. State, 1999 MT 8, ¶ 12, 293 Mont. 60,

¶ 12, 973 P.2d 233, ¶ 12.

¶ 7 Relying on our decisions in Eiler v. State (1992), 254 Mont. 39, 833 P.2d 1124, and State v. McColley (1991), 247 Mont. 524, 807 P.2d 1358, the State argued in the District Court, as they do on appeal, that Schaff's petition is defective because he does not sufficiently specify his claim of ineffective assistance of counsel. The State argues that Schaff offered no supporting information nor did he identify precisely why he believes his counsel was ineffective and thus his claim was properly and summarily dismissed by the District Court. Should we reach the merits of Schaff's petition, the State argues that it is without merit. The State points out that Schaff raised the issue of voluntariness in his direct appeal which has already been affirmed, thus the doctrine of res judicata prevents him from again raising this issue in postconviction relief. To the extent that Schaff raises something other than a voluntariness...