11/09/2022
DA 21-0092
Case Number: DA 21-0092
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 226
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MICHAEL DUNNE,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Jefferson, Cause No. DC 2020-7
Honorable Luke Berger, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, James Reavis, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Christine Hutchison,
Assistant Attorney General, Helena, Montana
Steve Haddon, Jefferson County Attorney, Andrew Paul, Chief Deputy
County Attorney, Boulder, Montana
Submitted on Briefs: August 17, 2022
Decided: November 9, 2022
Filed:
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Defendant Michael Jacob Dunne appeals the November 13, 2020 Order denying his
motion to allow withdrawal of his guilty plea and dismiss the matter on double jeopardy
grounds pursuant to § 45-11-504, MCA, by the Fifth Judicial District Court, Jefferson
County. We address:
1. Whether the District Court erred by holding that Dunne’s conviction of criminal
endangerment in Gallatin County did not bar a prosecution for criminal
endangerment and criminal mischief in Jefferson County.
2. Whether the District Court erred by denying Dunne’s motion to withdraw his
guilty plea.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 On January 23, 2020, a Bozeman police officer attempted to pull Dunne over for
expired registration tags on his car. Dunne refused to pull over and fled onto Interstate 90,
leading law enforcement officers on an over two-hour, high-speed pursuit through Gallatin,
Broadwater, and Jefferson Counties. During the high-speed chase, Dunne called the
Gallatin County Dispatch Center, telling dispatchers he would not stop until he had driven
his girlfriend to Butte. While driving through Gallatin County, Dunne crossed the interstate
median into oncoming traffic on two separate occasions, passing at least twelve oncoming
vehicles at highway speeds. Several of these vehicles were forced into the ditch to avoid
crashing into him.
¶3 Dunne continued to flee law enforcement officers through Broadwater County and
into Jefferson County. While in Jefferson County, Dunne once again crossed the interstate
into oncoming traffic. This time, Dunne passed thirty-three vehicles at highway speeds,
2
drove through state-owned fences at three different points, and drove through a privately
owned fence once. Two and a half hours later, Dunne drove into a snowbank and was
arrested.
¶4 On February 3, 2020, Jefferson County charged Dunne with one count of criminal
endangerment, one count of fleeing from or eluding a peace officer, and two counts of
criminal mischief. On March 24, 2020, Gallatin County charged Dunne with one count of
criminal endangerment and one count of fleeing from or eluding a peace officer. On May
20, 2020, Dunne pled guilty to the Jefferson County charges. On August 27, 2020, before
the District Court sentenced Dunne in Jefferson County, Dunne pled guilty and was
sentenced on the Gallatin County charges.
¶5 On September 11, 2020, Dunne moved to withdraw his guilty plea and to dismiss
the Jefferson County charges, contending they violated his right to be free from double
jeopardy pursuant to § 45-11-504, MCA. The State responded that the charges did not
violate the prohibition on double jeopardy, and good cause did not exist to allow Dunne to
withdraw his guilty plea.
¶6 The District Court held the fleeing from or eluding a peace officer charge violated
§ 45-11-504, MCA, in part because “the charges were based upon the same conduct by
Dunne.” The District Court held the criminal endangerment and criminal mischief charges
did not violate § 45-11-504, MCA, because they were not equivalent offenses and did not
arise from the same transaction as they involved “separate victims who were victimized at
different times in different places.” (Emphasis in original.) The District Court allowed
Dunne to withdraw his guilty plea as to the fleeing from or eluding a peace officer charge
3
and dismissed that count. The District Court denied Dunne’s motion as it pertained to the
criminal endangerment and criminal mischief charges.
STANDARDS OF REVIEW
¶7 This Court reviews a trial court’s decision to grant or deny a motion to dismiss based
on statutory double jeopardy grounds de novo. State v. Burton, 2017 MT 306, ¶ 10, 389
Mont. 499, 407 P.3d 280. For the denial of a motion to withdraw a guilty plea, we review
a district court’s findings of facts to determine if they are clearly erroneous and conclusions
of law for correctness. State v. Warclub, 2005 MT 149, ¶ 24, 327 Mont. 352, 114 P.3d
254.
DISCUSSION
1. Whether the District Court erred by holding that Dunne’s conviction of criminal
endangerment in Gallatin County did not bar a prosecution for criminal
endangerment and criminal mischief in Jefferson County.
¶8 Sections 46-11-503 through 505, MCA, protect against multiple prosecutions in
certain instances. “Although the statutes do not employ terminology associated with
constitutional double jeopardy jurisprudence, they are commonly referred to as ‘statutory
double jeopardy’ provisions.” Burton, ¶ 20 (internal citation omitted). One double
jeopardy statute bars a state prosecution if that prosecution is based on an offense arising
out of the same transaction as a conviction or acquittal from another jurisdiction. Section
46-11-504(1), MCA. We apply a three-part test derived from § 45-11-504(1), MCA, to
determine whether a prosecution is barred.
(1) The defendant’s conduct must constitute an equivalent offense within the
jurisdiction of the court where the first prosecution occurred and within
the jurisdiction of the court where the subsequent prosecution is pursued;
4
(2) The first prosecution must result in an acquittal or a conviction; and
(3) The subsequent prosecution must be based on an offense arising out of
the same transaction.
Burton, ¶ 25.
¶9 There is no dispute in this case that the first two factors are satisfied.1 The
dispositive issue is whether the Jefferson County charges of criminal endangerment and
criminal mischief arise from the same transaction as the Gallatin County charges. The term
“same transaction” means “a series of acts or omissions that are motivated by a purpose to
accomplish a criminal objective and that are necessary or incidental to the accomplishment
of that objective.” Section 46-1-202(23)(a), MCA. “Whether two offenses arise from the
same transaction or involve the same criminal objective does not depend on the elements
of the charged offenses, but rather on the defendant’s underlying conduct and purpose in
engaging in that conduct.” State v. Glass, 2017 MT 128, ¶ 12, 387 Mont. 471, 395 P.3d
469.
¶10 Dunne argues that the District Court erroneously considered the victims in Jefferson
and Gallatin Counties because this Court does not consider any victim element when
determining whether charges arise out of the same transaction, and this analysis is
particularly inappropriate when analyzing criminal endangerment charges because
criminal endangerment is a victimless crime. Dunne further asserts his underlying conduct
in each county, with or without victims, is hardly material because all his conduct was
1
While the State argues that Dunne waived his argument that the charges constitute an “equivalent
offense,” it does not disagree with the merits of Dunne’s argument.
5
motivated by the same criminal objective—to drive his girlfriend to Butte—so his conduct
arose from the same transaction.
¶11 We have never construed a defendant’s criminal objective to cover all types of
conduct, no matter its disparity. See Heddings v. State, 2011 MT 288, ¶¶ 24-28, 362 Mont.
90, 265 P.3d 600; see also Burton, ¶ 34 (recognizing that separate crimes that occur near
each other do not necessarily have a common purpose or objective, “[o]therwise, all crimes
committed around the same time would constitute the same transaction”). Rather, we
review the defendant’s conduct along with his criminal objective, stated or not, to
determine whether charges stem from the same transaction. Glass, ¶ 12; State v. Gazda,
2003 MT 350, ¶ 21, 318 Mont. 516, 82 P.3d 20 (stating the same transaction factor is “not
met when conduct charged in a subsequent prosecution is distinct from conduct charged in
the initial prosecution”).
¶12 This Court has repeatedly held that when a defendant’s conduct involves different
people, in different locations, at different times, the conduct is distinct from each other and
does not arise out of the same transaction. See, e.g., Heddings, ¶¶ 27-28 (holding the
charges did not arise out of the same transaction because the charges involved different
victims at different time periods); State v. Fox, 2012 MT 172, ¶¶ 24-26, 366 Mont. 10, 285
P.3d 454 (holding the charges did not arise out of the same transaction because the charges
involved different victims); Burton, ¶¶ 33-35 (same).
¶13 In this case, as in Fox, Heddings, and Burton, Dunne’s conduct in each county
involved different victims, in different locations, at different time periods. See Heddings,
¶¶ 27-28; Fox, ¶¶ 24-26; Burton, ¶¶ 33-35. While driving in Gallatin County, Dunne
6
endangered twelve drivers. Then two counties away in Jefferson County, Dunne
endangered thirty-three different drivers and destroyed property in multiple places.
Gallatin and Jefferson Counties based their respective charges on Dunne’s separate conduct
in each county. The Jefferson County charges were based on distinct and separate conduct
that did not arise from the same transaction as the Gallatin County charges. Dunne’s right
to be free from double jeopardy pursuant to § 45-11-504, MCA, was not violated.
2. Whether the District Court erred by denying Dunne’s motion to withdraw his guilty
plea.
¶14 Dunne argues there was good cause to withdraw his guilty plea as to all three
charges because the District Court withdrew his guilty plea and dismissed the charge of
fleeing from or eluding a peace officer on the basis that it violated the prohibition against
double jeopardy. Dunne argues: “If the violation of [his] right to be free from double
jeopardy provided good cause for that [fleeing from or eluding a peace officer] charge, it
follows that good cause exists to allow withdrawal of a guilty plea for the others, if [his]
rights were violated there as well.” The operative word in Dunne’s argument is “if.” We
have held that Dunne’s right to be free from double jeopardy was not violated as it pertains
to the criminal endangerment and criminal mischief charges. It therefore does not follow
that good cause exists to allow withdrawal of Dunne’s guilty plea as to those charges. The
District Court did not err when it denied Dunne’s motion to withdraw his guilty plea as to
the criminal endangerment and criminal mischief charges.
7
CONCLUSION
¶15 The District Court did not err by denying Dunne’s motion to withdraw his guilty
plea and dismiss the criminal endangerment and criminal mischief charges in Jefferson
County. We affirm.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
8