No. 92-403
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
-v-
JEFF WAYNE BROWN,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Robert J. Boyd, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Wendy Holton, H ontana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Micheal
Wellenstein, Assistant Attorney General, Helena,
Montana; Richard J. Llewellyn, Jefferson County
Attorney, Boulder, Montana
Submitted on Briefs: November 18, 1993
Decided: December 22, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court
Defendant Jeff Wayne Brown appeals the judgment by the
District Court of the Fifth Judicial District, Jefferson County,
which sentenced him to forty years of imprisonment. We affirm in
part, vacate in part and remand.
The issues for review are restated as follows:
1. Did the District Court err in imposing two ten-year
sentences under the weapon enhancement statute when the underlying
charges of felony assault arose from the same incident?
2. Did the District Court err in imposing a forty-year
sentence under the circumstances of this case?
On July 25, 1991, after a day spent fishing and drinking
together, Jeff Wayne Brown (Brown), his brother Darren Brown and
Gerald Mullaney stopped at the Two Bit Saloon in Whitehall,
Montana, while a tire on Darren Brown's truck was being repaired;
When the trio started to bother other bar patrons, the bartender
asked them to leave the bar.
Brown left momentarily and then reentered the bar brandishing
a pistol. He pointed it in the direction of the bartender, cocked
it and made threatening statements. The bartender's back was
turned so he was unaware of this, but one of the bar patrons told
Brown to put the pistol away. ~rown
did so and then left the bar.
After Brown left the bar, the three men got into Darren
Brown's truck. Darren Brown drove slowly past the bar while the
defendant hung out the window of the truck and fired shots at the
bar entrance. Although the shots frightened bar patrons and
2
employees, no one was injured. Darren Brown then accelerated his
truck and as he sped out of town, lost control of his truck and
struck two pedestrians who were standing on the shoulder of the
road. The impact killed one of the pedestrians and seriously
injured the other.
The State charged Jeff Wayne Brown with felony assault,
attempted aggravated assault and deliberate homicide by
accountability. Brown later entered into a plea agreement,
pursuant to which the State agreed to amend the information to
charge Brown with two counts of felony assault and Brown agreed to
plead guilty to the two counts of felony assault. The parties
further agreed that the State would recommend a sentence of thirty
years of imprisonment. The thirty years recommended by the State
included the maximum sentence of ten years imprisonment for each of
the two felony assault charges and a sentence enhancement of an
additional five years imprisonment for each offense for using a
firearm in the commission of the offenses.
Judge Frank Davis was the original presiding judge in this
case. When Judge Davis accepted Brown's change of plea after the
parties had entered the plea agreement, he advised Brown, among
other things, that the maximum sentence he could receive was thirty
years. After a remarkable community response generated by a
newspaper advertisement which encouraged people to write letters to
the District Court, Judge Davis recused himself from the case and
Judge Robert J. Boyd assumed jurisdiction. Judge Boyd sentenced
Brown to forty years with sixteen years suspended.
Did the District Court err in imposing two ten-year sentences
under 46-18-221, MCA, when the underlying charges of felony
assault arose from the same incident?
Section 46-18-221, MCA, provides for additional sentences for
offenses committed with a dangerous weapon. In his first brief in
this appeal, Brown argued that 5 46-19-221, MCA, did not permit an
additional ten-year sentence for each of his felony assault
offenses. After Brown submitted his initial brief, this Court
ruled on that issue in State v. Byers (Mont. 1993), - P.2d -r
50 St.Rep. 1163, 1175, holding that the sentence enhancement for
use of a dangerous weapon applies to each offense. Brown's reply
brief concedes that Bvers controls; thus, we will not further
address this issue.
11.
Did the District Court err in sentencing Brown to forty years
when Brown had been advised by the original juc?ge in the groceeding
that the maximum term of imprisonment was thirty years?
On appeal, Brown has asked this Court to vacate ten years of
his forty-year sentence. He contends that Montana law specifically
requires the sentencing court to ensure that a defendant is
informed of the maximum possible punishment that may be imposed.
Brown further contends that because Judge Davis advised him that
the maximum sentence of imprisonment was thirty years, Judge Boyd
could not impose a term of imprisonment in excess of thirty years.
The State argues that Brown in fact knew that he could be
sentenced to a maximum of forty years imprisonment and that the
State did not misinform him as to the maximum sentence. The State
further asserts that Brown was also aware that the prosecutor's
recommendation for two five-year sentences under 5 46-18-221, MCA,
did not bind the sentencing court, that the sentence was within the
discretion of the District Court and that Brown knew that the court
was not required to permit him to withdraw his guilty pleas. It
further asserts that Brown cannot credibly maintain that he did not
know the maximum sentence the court could impose because he
acknowledged that he had discussed the sentencing laws and was
informed by his attorney of the maximum sentence he could receive
for the offenses. Finally, the State contends that the District
Court's misstatement does not constitute reversible error because
Brown was well aware of the maximum sentence that could be imposed
for the offenses to which he pled guilty.
Prior to accepting the plea agreement, the District Court
advised Brown as follows:
THE COURT: You understand that the State proposes to File an
amended information charging you with two counts of felony
assault and proposes to ask that if you're convicted of those
that your sentence by -- for the use of a gun. The ~ossible
pmishment for that under that amended information, if I
permit it to be filed, would be thirtv vears in the state
prison. . . . (Emphasis supplied.)
This statement is clearly incorrect as Brown could receive an
additional sentence of ten years for of the two felony assault
offenses according to this Court's recent decision in w.
Therefore, the correct maximum sentence included two additional
sentence enhancements of ten years each--a total of forty years.
-51
See 45-5-202 and 46-18-221, MCA.
A sentencing court must comply with 1 46-12-210, MCA, which
provides in pertinent part:
46-12-210. Advice to defendant. (1) Before accepting a plea
of guilty, the court shall determine that the defendant
understands the following:
. . (iii) the maximum penalty ~rovidedby
(a)
. law, includinq
the effect of anv penalty enhancement provision . . . .
(Emphasis supplied.)
The court also must comply with 5 46-16-105(1), MCA, which
provides :
46-16-105. Plea of guilty. (I) Before or during trial, a
plea of guilty may be accepted when:
(a) the defendant enters a plea of guilty in open court:
and
(b) the court has informed the defendant of the
conseauences of his plea and of the maximum penaltv provided
bv law which may be imposed upon acceptance of such plea.
(Emphasis supplied.)
In addition to the above-quoted sections, the clear language
of 46-16-105, MCA, mandates that courts advise defendants of
maximum punishment for offenses before the court may accept a plea
of guilty. Further, 5 46-12-204!2), MCA, recpires the court to
determine that a guilty plea is "voluntary" before accepting it.
-- Benjamin v.
See also McCormick (l990), 243 Mont. 252, 256, 792 P.2d
7, 10 (defendant must have an adequate understanding of the
consequences of his guilty plea).
Brown relies on Beniamin and In re the Matter of Orman (1986)'
224 Mont. 332, 336, 731 P.2d 893, 895, to support his argument that
where a defendant is incorrectly advised of the maximum penalty
allowed, the sentence must be modified to reflect his
understanding. In Benjamin, the defendant was advised by the court
and the prosecution that he would serve approximately one year in
prison. However, a further provision of his sentence required him
to complete the prison's program for sexual offenders which would
have resulted in at least two years imprisonment. The defendant's
guilty plea was based on a specific error; i.e., that he had been
misinformed as to the consequences of his plea. Benjamin, 792 P.2d
at 10.
Similarly, in w,the correct period of time of suspending
a driver's license for a second refusal to take a breathalizer test
was imprisonment for one year. The arresting officers incorrectly
advised the defendant several times that his license would be
suspended for ninety days. We concluded, under the circumstances
of that case, that even a person who was not under the influence of
alcohol would reasonably have concluded that his license would be
suspended for only ninety days. w, 731 P.2d at 895.
The State argues extensively that Brown's subjective knowledge
that he could be sentenced to a maximum of forty years is crucial.
We disagree. We conclude that the plain language of the code
sections quoted above provides that a defendant must be advised of
the maximum punishment. We further conclude that Benjamin and
Orman support Brown's argument that the sentence must be modified
to provide for a sentence no longer than the maximum sentence which
Judge Davis advised Brown he could receive for the charged
offenses .
We hold the District Court erred in imposing a forty-year
sentence under the circumstances of this case. The District Court
is instructed to modify the sentencing order by changing the term
of imprisonment to thirty years, thereby eliminating five years
from the enhancement to the sentence for each felony assault
offense. The District Court is further instructed to redetermine
the number of years, if any, which are to be suspended.
Affirmed in part, vacated in part and remanded.
We Concur:
December 22, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Wendy Holton
Attorney at Law
7 West 6th, Suite 4K
Helena, MT 59601
Hon. Joseph P. Mazurek, Attorney Generz!
Micheal Wellenstein, Assistant
Justice Bldg.
Helena, MT 59601
Richard J. Llewellyn
County Attorney
Jefferson County Cnurthnrrw.
Boulder, MT 59632
ED SMITH
CLERK OF THE SURREME COURT