No. 03-675 IN THE SUPREME COURT OF THE STATE OF MONTANA 2004 MT 18N

STATE OF MONTANA, Plaintiff and Respondent, v. DARRELL WADE SPARKS, Defendant and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Custer, Cause No. DC 92-3559 The Honorable Gary L. Day, Judge presiding.

COUNSEL OF RECORD: For Appellant: Darrell W. Sparks, Pro Se, Shelby, Montana For Respondent: Hon. Mike McGrath, Montana Attorney General, Jennifer Anders, Assistant Attorney General, Helena, Montana; Paul Emerson, Acting Custer County Attorney, Miles City, Montana

Submitted on Briefs: January 13, 2004 Decided: January 28, 2004 Filed:

__________________________________________ Clerk Justice James C. Nelson delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as

a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court. ¶2 Darrell Wade Sparks, pro se, appeals from the District Court’s denial of his motion

to withdraw his guilty plea. We affirm. BACKGROUND

¶3 In July 1993, Sparks was sentenced to forty years for mitigated deliberate homicide, plus ten years for use of a weapon, and forty years for aggravated burglary on his plea of

guilty to those charges. The court ordered Sparks’ sentences to run concurrently. This Court

affirmed Sparks’ conviction and sentence in an unpublished decision dated March 3, 1997. State v. Sparks, No. 96-008.

¶4 While the direct appeal was pending, Sparks filed a pro se motion in the District Court

seeking to withdraw his guilty plea. As a result, this Court issued an order staying all

proceedings in the District Court until the direct appeal was resolved. Upon entry of our decision, the District Court ruled that Sparks’ pending motions, including the motion to

withdraw his guilty plea, was untimely and that this Court’s decision on appeal was

dispositive as it found that Sparks’ guilty plea was voluntary. ¶5 The District Court denied a subsequent petition for post-conviction relief which denial was affirmed by this Court on appeal in February of 2000. Three years later, and more than

ten years after his guilty plea, Sparks filed a second motion in District Court seeking to withdraw his guilty plea. This motion was, likewise, denied by the District Court.

2 DISCUSSION ¶6 This Court reviews a District Court’s ruling on a motion to withdraw a guilty plea for

abuse of discretion. State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177. ¶7 Sparks’ August 2003 second motion to withdraw his guilty plea, and his third collateral attack on his conviction and sentence, was filed more than ten years after entry of

the guilty plea. Sparks’ attempt to ground his motion in the parole board’s decision not to grant him an early release is unavailing. The parole board is an administrative body with broad discretion. See McDermott v. McDonald, 2001 MT 89, ¶ 20, 305 Mont. 166, ¶ 20, 24 P.3d 200, ¶ 20. That Sparks’ attorneys may have estimated that he would be released within

ten years is not binding upon the parole board and does not vitiate the voluntariness of

Sparks’ original plea. ¶8 Accordingly, we conclude, pursuant to Section I 3(d)(i), Montana Supreme Court

1996 Internal Operating Rules, that the legal issues raised in this appeal are clearly controlled

by settled Montana Law; that there are no factual issues in dispute; and that the trial court’s conclusions of law are correct. We hold that the District Court did not abuse its discretion

in denying Sparks’ motion to withdraw his guilty plea.

¶9 Therefore, the District Court’s decision is affirmed.

/S/ JAMES C. NELSON

We Concur: /S/ KARLA M. GRAY /S/ PATRICIA O. COTTER /S/ JIM REGNIER /S/ JIM RICE

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