No. 33-342
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JOHN SANDERS,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert H. Wilson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Allen Beck argued, Billings, Montana
Eiselein & Thompson; Michael Eiselein argued,
Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Joe Roberts, Asst. Atty. General, argued, Helena
Harold F. Hanser, County Attorney, Billings, Montana
Dave IJoefer, Deputy County Atty., Billings, Montana
Submitted: Jecember 2, 1983
Decided: February 29, 1984
Filed:
Clerk
r . Justice L.C. Gulbrandson delivered the Opinion of the
Court.
This case comes on appeal from a jury verdict rendered
in the Thirteenth Judicial District, Yellowstone County,
convicting the appellant of carrying a concealed weapon.
For the reasons stated below we affirm the conviction.
On February 9 , 1983, the appellant, John D. Sanders,
entered a department store in downtown Billings where a
store clerk noticed a pistol in a holster when the appellant
removed his vest to try on a jacket. On the same morning, a
security officer at First Bank of Billings also observed
that the appellant appeared to have a pistol under his vest.
As a result of these observations, phone calls were placed
to the Billings police describing the appellant and the fact
that he was carrying a weapon. Later that morning,
Detective Donald Glumbik first observed and then stopped the
appellant as he was about to leave the Northern Hotel in
downtown Billings. The appellant was frisked by Detective
Glumbik and the frisk revealed a .22 caliber semi-automatic
pistol in a holster underneath appellant's vest. The
appellant was arrested and charged with carrying a concealed
weapon.
On February 15, 1983, the State filed an "Information"
and an "Affidavit and Motion for Leave to File Information
Direct" charging the appellant with the offense of "carrying
a concealed weapon (felony)" as specified in Section
45-8-316, MCA, which provides:
"Carrying concealed weapons. (1) Every
person who carries or bears concealed
upon his person a dirk, dagger, pistol,
revolver, slingshot, sword cane, billy,
knuckles made of any metal or hard
substance, knife having a blade 4 inches
long or longer, razor, not including a
safety razor, or other deadly weapon
shall be punished by a fine not exceeding
$500 or imprisonment in the county jail
for a period not exceeding 6 months, or
both .
"(2) A person who has previously been
convicted of an offense, committed on a
different occasion than the offense under
this section, in the state of any other
jurisdiction for which a sentence to a
term of imprisonment in excess of 1 year
could have been imposed and who carries
or bears concealed upon his person any of
the weapons described in subsection (1)
shall be punished by a fine not exceeding
$1,000 or imprisoned in the state prison
for a period not exceeding 5 years, or
both."
The "Affidavit and Motion for Leave to File Information
Direct" also stated, "[dlefendant has been previously
convicted of a felony in the State of Montana (Issuing a bad
check, November 5, 1975.)"
Immediately prior to the State ' s presentation of
evidence at trial, a discussion took place in the judge's
chambers between the deputy county attorney, the appellant
and his attorney and the judge. The discussion concerned
the proof of the appellant's prior conviction and the
possible prejudicial effect of such evidence at trial. The
State indicated it was prepared to introduce a certified
copy of the appellant's previous conviction into the record
and would produce the appellant's probation officer for
positive identification. The appellant and his attorney
then agreed to stipulate that the appellant was the same
person as shown in the certified conviction record shown to
the judge. In accordance with this stipulation, the State
did not make a further record of the appellant's prior
felony conviction to the jury.
On May 4, 1983, the appellant was tried before a jury
and found guilty of the offense of carrying a concealed
weapon. He was sentenced to five years imprisonment from
which he now appeals.
Initially, appellant argues Section 45-8-316, MCA,
violates Article 11, section 28 of the Montana Constitution
which provides for a full restoration of an individual's
rights upon discharge of sentence. In particular, appellant
asserts that Section 45-8-316(2), MCA, defies the express
mandate of Montana's constitution because individuals not
previously convicted of a felony may only be charged with
and convicted of a misdemeanor while prior convicted felons,
who fully discharge their sentences, may be prosecuted and
convicted of a felony.
We have considered essentially the same constitutional
argument raised by the appellant here in three previous
cases: State v. Radi (1978), 176 Mont. 451, 578 P.2d 1169
(persistent felony offender statute); State v. Maldonado
(1978), 176 Mont. 322, 578 P.2d 296 (persistent felony
offender statute); and State v. Gafford (1977), 172 Mont.
380, 563 P.2d 1129 (impeachment of witness with prior felony
conviction).
In State v. Radi, supra, we said:
"In any event, we cannot construe Article
11, Section 28 in the manner that
defendant desires. In State v. Gafford
(1977), 172 Mont. 380, 563 P.2d 1129, the
defendant contended he could not be
impeached through proof of a prior
conviction of a felony because of Article
11, Section 28. To this assertion this
Court responded:
I n our view the constitutional
provisions refers to those rights
commonly considered political and civil
rights incident to citizenship such as
the right to vote, the right to hold
public office, the right to serve as a
juror in our courts and the panoply of
rights possessed by all citizens under
the laws of the land. It had no
reference to an individual ' s
characteristics, record, or previous
conduct demonstrated by a prior felony
conviction.' 563 P.2d 1134.
"Article 11, Section 28 grants an
offender who has served his sentence a
fair opportunity to enjoy the rights that
law-abiding citizens enjoy. It does not
grant him immunity from being treated as
a persistent felony offender." 176 Mont.
at 469.
Similarly, in State v. Maldonado, supra, 176 Mont. 330
we said:
"The 'full rights' language of Article
11, Section 28 does not include a 'right'
to be sentenced for a felony without
regard to prior felony convictions.
Having a prior felony conviction with the
potential for increasing punishment on a
subsequent felony conviction does not
hamper rehabilitation of the ex-convict
or diminish his civil or political
rights. If the ex-convict obeys the law,
as al.1 citizens are required to do, for
five years subsequent to his felony
conviction or release from prison, the
prior felony may not be used to increase
punishment under section 95-1507 for a
subsequent felony. Rather then involving
any civil or political 'right,'
increasing the sentence of a persistent
felony offender is entirely consistent
with the constitutional mandate that
'Laws for the punishment of crime shall
be founded on the principles of
prevention and reformation. * * * '
Article 11, Section 28, 1972 Montana
Constitution.
" * * * Persistence in crime and failure
of earlier discipline effectively to
deter or reform justify more drastic
treatment. * * * For the determination
of sentences, justice generally requires
consideration of more than the particular
acts by which the crime was committed and
that there be taken into account the
circumstances of the offense together
with the character and propensities of
the offender. His past may be taken to
indicate his present purposes and
tendencies and significantly to suggest
the period of restraint and the kind of
discipline that ought to be imposed upon
him. Pennsylvania ex rel. Sullivan Y.
Ashe (1937), 302 U.S. 51, 54-55, 58 S.Ct.
59, 61, 82 L.Ed 43."
In short, we have consistently rejected appellant's
argument in our previous decisions.
Appellant next asserts that Montana's concealed weapon
statute, Section 45-8-316, MCA, is violative of equal
protection concepts as set forth in the United States
Constitution and the Montana Constitution because it
provides for a greater punishment for a prior felon than for
a non-felon.
The standard for analyzing an equal protection
challenge to a particular classification within a state
statute was set forth by the United States Supreme Court in
Lindsley v. Natural Carbonic Gas Co. (1911), 220 U.S. 61,
"* * * 1. The equal-protection clause of
the 14th Amendment does not take from the
state the power to classify in the
adoption of police laws, but admits of
the exercise of a wide scope of
discretion in that regard, and avoids
what is done only when it is without any
reasonable basis, and therefore is purely
arbitrary. 2. A classification having
some reasonable basis does not offend
against that clause merely because it is
not made with mathematical nicety, or
because in practice it results in some
inequality. 3. When the classification
in such a law is called in question, if
any state of facts reasonably can be
conceived that would sustain it, the
existence of that state of facts at the
time the law was enacted must be assumed.
4. One who assails the classification in
such a law must carry the burden of
showing that it does not rest upon any
reasonable basis, but is essentially
arbitrary."
Natural Carbonic Gas Co., supra, 220 U.S. at 78.
This test was cited with approval by this Court in
State v. Craig (1976), 169 Mont. 150, 545 P.2d 649. Thus,
the equal protection clause forbids only those legislative
classifications which represent some form of invidious
discrimination. Levy v. Louisiana (1967), 391 U.S. 68, 88
S.Ct. 1509, 20 L.Ed.2d 436 reh. den. (1968), 398 U.S. 898,
89 S.Ct. 65, 21 L.Ed.2d 185. Generally, a c1a.ssification
will not be held to be invidious if some rational basis can
be found to support it. Rinaldi v. Yeager (1966), 384 U.S.
305, 86 S.Ct. 1497, 16 L.Ed.2d 577.
It cannot be said that the classification at issue in
the case at bar is unreasonable or unrelated to a legitimate
legislative purpose. The assumption that a previous felon
presents a greater danger of committing a criminal offense
is not unreasonable. Moreover, in State v. Maldonado, 176
Mont. at 333, we said that where the power to classify a
crime a felony or a misdemeanor is given to the judge,
through the sentence he imposes, rather than to the
prosecutor, there is no equal protection violation. See
also Gibson v. Dell (9th Cir. 1971), 443 F.2d 75 and Daloia
v. Rhay (9th Cir. 1958), 252 F.2d 768. That is the
situation in this case. The judge used a prior felony
conviction in sentencing the appellant as provided in
Section 45-8-316(2), MCA.
Other juriscictions have rejected constitutional
challenges in similar circumstances. In State v. Chiles
(Kan. 1979), 595 P.2d 1130, 1134, the court said "[i]t is
not unreasonable to restrict convicted felons from
possessing hand-guns because the repetition of a crime by a
previous offender who has armed himself with a pistol might
well bring serious harm to the victim." In Pridgeon v.
State (Ark. 1979), 587 S.W.2d 225, the court held that a
statute permitting the doubling of the normal penalty
imposed for a drug violation upon a second conviction, did
not deprive defendants convicted a second time of equal
protection on the theory that it authorized more severe
punishment than that provided in the habitual offender
statute. In addition, statutes authorizing the imposition
of heavier penalties on recidivists than on first offenders,
have been held not to deny the accused to due process.
Spencer v. Texas (1967), 385 U.S. 554, 17 L.Ed.2d 606, 87
S.Ct. 1015. See also 39 Am.Jur.2d sections 1-5, p. 308-313.
The appellant correctly points out that Section
45-8-316, MCA, does not differentiate between nonviolent and
violent felons for enhanced sentencing. However, he fails
to meet his burden of showing that the statute, without such
a differentiation, lacks a rational relationship to a
legitimate legislative purpose. Indeed, a previous
non-violent felony does afford a reasonable basis for
classification and cannot be construed as violating
constitutional standards of equal. protection.
Finally, appellant contends that the District Court
was without jurisdiction to sentence the appellant to any
term in excess of the six-month period set forth in Section
45-8-316(1), MCA. Specifically, appellant points out that
the issue of a previous conviction was not plead or proven
to the jury so the appellant was convicted only of a
misdemeanor. The appellant's proposition is based upon the
following premises: (1) the factual issue of a appellant's
prior conviction is an element of the offense under Section
45-8-316(2), MCA; and (2) every element of an offense must
be pled and proven beyond a reasonable doubt to the
satisfaction of the jury before an individual may be
sentenced for a particular crime, in this case, the
felonious carrying of a concealed weapon.
Prior to trial, the appellant stipulated to the
authenticity of appellant's prior conviction record and the
State did not present evidence of a prior conviction to the
jury. Thus, the appellant voluntarily waived the production
of evidence of a prior felony conviction but now argues on
appeal that the State erred by failing to prove to the jury
the existence of a prior felony conviction beyond a
reasonable doubt.
We considered a similar issue in State v. Nelson
(1978), 178 Mont. 280, 583 P.2d 435. In Nelson, the
defendant was charged by information with "Driving Under the
Influence of Intoxicating Liquor (3rd offense)." The State
did not present any evidence of the defendant's prior
convictions at trial. On appeal, the defendant argued that
since no evidence was presented at trial of his prior
convictions for driving while intoxicated, the State failed
to establish the juridiction of the court. We rejected that
argument.
There were two statutes involved in Nelson. One
defined the substantive offense (formerly Section 32-2142,
R.C.M. 1947, now Section 61-8-401, MCA), the other statute
provided the penalty based upon whether the conviction was
the first, second or third subsequent offense (formerly
Section 32-2142 R.C.M. 1947, now Section 61-8-714, MCA). We
held:
"In section 32-2142 R.C.M. 1947, the
statute defendant is accused of
violating, the element of prior
convictions is not contained in the
statutory definition of the crime but is
contained only in the separate penalty
provisions. For a prior conviction to be
a necessary element of crime, the fact of
prior convictions must be contained in
the statutory definition of the crime
rather than in the separate penalty
provisions. State v. Loudermilk (1976)r
221 Kan. 157, 557 P.2d 1229, 1232. The
State, upon trial, had only to prove the
present offense. If they succeed, then
the matter of the prior convictions is
considered in setting the sentence.
Loudermilk, 557 P.2d at 1233. As
sentencing is to be imposed solely by the
judge, section 95-2212, R.C.M. 1947, only
he need be informed as to the prior
convictions."
State v. Nelson, supra, 178 Mont at 284.
Appellant tries to distinguish Nelson from the instant
case by pointing out there is no separate penalty provisions
for the felony of carrying a concealed weapon. However, it
should be pointed out that the elements of the offense are
set forth in Section 45-8-316(1), MCA, while subsection (2)
provides only for an enhanced penalty for an offender with a
previous felony conviction. Thus, the matter of a previous
conviction arises only at the time of sentencing and it is
not an essential element of the crime which the respondent
was required to prove at trial.
We find no reversible error and therefore affirm the
decision of the District Court.
,yY
W concur:
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Justices
Mr. Justice Daniel J. Shea dissenting:
I would vacate the sentence and remand for the
sentencing court to sentence defendant only for a misdemeanor
conviction -- his conviction was for the misdemeanor of
carrying a concealed weapon in violation of section
45-8-316 (1), MCA.
The information charged defendant only with a
misdemeanor and the resulting conviction can result in a
sentence only for the misdemeanor. The fact that defendant
had a previous felony record cannot be used to transform his
conviction from that of a misdemeanor to that of a felony in
terms of the sentence that he received.
I view section 45-8-316, MCA, as creating two offenses,
one a misdemeanor (subsection ( I ) ) , and the second a felony
!subsection (2)). Each of these subsections is
self-contained except that subsection (1) lists the weapons
that are proscribed or that fall within the definition of a
concealed weapon.
In charging defendant the State had the choice of
alleging a violation of subsection (1) or a violation of
subsection (2). The State chose to charge a vi-olation of
subsection (1) - the misdemeanor subsection. It is true that
in its application for leave to file an information the State
also alleged that defendant had been previously convicted of
a felony, but this statement in the application does not
transform the charge into something different than what was
actually charged. The charge was a misdemeanor, defendant
was convicted of a misdemeanor, and he should be sentenced
only for this conviction, which carries ". . . a fine not
exceeding $500 or imprisonment in the county jail for a
period not exceeding 6 months, or both." (45-8-316(1)).
The statute, as interpreted by the majority, strips
defendant of his right to jury trial on an essential element
of the offense under section 4 5 - 8 - 3 1 6 ( 2 ) . If the penalty can
be enhanced from misdemeanor proportions to felony
proportions because of a previous felony conviction,
defendant should have a right to jury trial on that issue.
He also had a right to he informed in the information that he
was charged not only with carrying a concealed weapon but
with the second element of the offense, having been convicted
of a previous felony.
Although defendant and his counsel stipulated to the
fact that defendant was the same person as shown jn the
certified conviction record shown to the judge, the
undeniable fact is that they stipulated to nothing that the
State was required to prove by the terms of the information.
The information charged defendant with a violation of section
45-8-316(l) only, and defendant was entitled to rely on that
charge in proceeding to trial and in entering into the
stipul-ation. The fact is that the State apparently was
proceeding to prove something that, by the terms of the
charges, it was not required to prove, and something that
could therefore be highly prejudicial to defendant.
Had defendant been charged in the Information with a
violation of 4 5 - 8 - 3 1 6 ( 2 ) it is doubtful that defendant wou1.d
have entered into the stipulation he d.id. Or, on the other
hand, defendant may have waived his right to a jury trial on
the issue of the previous record. But neither of these
situations were part of the reality of the proceedincjs at
trial. Defendant simply stipulated to something that was
never alleged in the Information in the first place.
However, after the jury convicted defendant of the
misdemeanor c h a r g e , couched i n t e r m s of s e c t i o n 45-8-316 (1)
only, the trial court stripped defendant of his
c o n s t i t u t i o n a l r i g h t t o a j u r y t r i a l when h e t r a n s f o r m e d t h e
misdemeanor conviction into a felony conviction for
s e n t e n c i n q p u r p o s e s by f i n d i n g t h a t d e f e n d a n t had a p r e v i o u s
felony conviction. T h a t q u e s t i o n was f o r t h e j u r y , and t h e
j u r y only, i n t h e a b s e n c e of a known w a i v e r s p r e a d upon t h e
record. That i s n o t t h e record i n t h i s case.
For t h e s e r e a s o n s I would v a c a t e t h e s e n t e n c e , uphold
t h e misdemeanor c o n v i c t i o n f o r c a r r y i n q a c o n c e a l e d weapon,
but remand with instructions that defendant cannot be
sentenced beyond the maximum limits set forth in section
45-8-316 (1), MCA.