A three-member panel of the 9th U.S. Circuit Court of Appeals has rejected a challenge by an Albertan on death row in Montana who sought to have his sentence changed due to ineffective counsel.

The panel agreed that Ronald A. Smith’s defence attorney should have done better, but in a 2-1 decision released Friday ruled that didn’t matter because Smith was determined to plead guilty and rejected a plea agreement.

Smith, from Red Deer, was 24 in 1982 when he and two buddies were hitchhiking through Montana. They robbed two men who offered them a ride, and Smith shot both men in the head along U.S. Highway 2 near Marias Pass.

Smith at first wanted to be executed and pleaded guilty to two counts of deliberate homicide, as well as two counts of aggravated kidnapping. He was sentenced to death in 1982. But he later changed his mind and has been fighting the sentence.

Circuit Judge Sidney Thomas and Judge M. Margaret McKeown agreed that the previous court rulings should be upheld.

“We hold that Smith’s defence attorney’s performance fell below an objective standard of reasonableness,” Thomas wrote.

But he also wrote that Smith didn’t suffer any prejudice from his lawyer’s performance because Smith was “determined and unequivocal” about his intent to plead guilty and rejected the plea agreement.

Greg Jackson, Smith’s current attorney, said he will ask for a rehearing before the entire Ninth Circuit Court.