Nos. 94-517 and 95-212
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
THE STATE OF MONTANA,
Plaintiff and Respondent,
-v-
DAVID E. NELSON,
Defendant and Appellant,
J/V! 3Li '1@i
THE STATE OF MONTANA,
Plaintiff and Respondent,
-v-
CHARLES LAFLEY, RON WORDEN and
JESSE EDWARDS,
Defendants and Appellants.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
No. 94-517 The Honorable Ted L. Mizner, Judge presiding.
District Court of the Third Judicial District,
In and for the County of Powell,
No. 95-212 The Honorable James E. Purcell, Judge presiding
COUNSEL OF RECORD:
For Appellants:
William F. Hooks, State Appellant Defender, Helena,
Montana (argued)
For Respondent:
Joseph P. Mazurek, Attorney General, Brenda Nordlund
Assistant Attorney General, Helena, Montana
(argued); Christopher G. Miller, Powell County
Attorney, Deer Lodge, Montana; Brant Light, Cascade
County Attorney, Great Falls, Montana
Heard: January 9, 1996
Submitted: January 11, 1996
January 30, 1996
Filed:
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
Claiming violation of the Double Jeopardy Clauses of the
Montana and United States Constitutions, David Nelson (Nelson) and
Charles Lafley, Ronald Worden and Jesse Edwards (Lafley, Worden and
Edwards) appeal the denial by the Third Judicial District Court,
Powell county, of their respective motions to dismiss the
informations filed against them and from their convictions for
escape. Lafley, Worden and Edwards also appeal from their
convictions of the added charge of unauthorized use of a motor
vehicle. We affirm their respective convictions.
Additionally, Lafley, Worden and Edwards appeal the District
Court's sentences for felony escape under the provisions of s 4~-7-
306(3) (b) (i), MCA (1993). We reverse and remand for resentencing
for misdemeanor escape under 5 45-7-306(3) (c), MCA (1993).
Nelson's case and the case involving Lafley, Worden and
Edwards have been consolidated for purposes of this appeal. Where
appropriate, we refer to Nelson, Lafley, Worden and Edwards,
collectively, as Appellants.
We address the following issues on appeal:
1. Does the Double Jeopardy Clause of the federal or state
constitution bar criminal prosecution for escape when an inmate
defendant has already been subjected to forfeiture of good time
credits in a prison disciplinary proceeding arising from the same
incident?
2. Did the District Court properly sentence Lafley, Worden
and Edwards pursuant to the felony escape provisions of § 45-7-
306(3) (b) (i), MCA (1993), under the facts of this case?
BACKGROUND
Nelson, an inmate subject to official detention at the
2
Montana state Prison (MSP) walked away from his temporary
assignment at the Great Falls Pre-Release Center in October 1992.
Following his apprehension in Billings in March 1994, Nelson was
returned to MSP and, following prison disciplinary proceedings,
suffered the forfeiture of 4 years, 11 months and 6 days
accumulated good time and was placed in maximum security.
Additionally, for that same incident, Nelson was charged with the
offense of escape in violation of § 45-7-306, MCA (1991).
Following his conviction of that charge by entry of an Alford
plea, Nelson was sentenced to three years imprisonment to run
consecutively with his existing sentence. Prior to entry of his
plea, Nelson moved to dismiss the criminal information filed
against him on the basis that he had already been punished by the
State for his escape through the MSP disciplinary proceedings and
that subjecting him to additional punishment for the criminal
charge of escape for the same incident violated the Double Jeopardy
Clauses of the Montana and United States Constitutions. Nelson's
motion to dismiss was denied by the District Court.
Lafley, Worden and Edwards were also inmates subject to
official detention at the MSP. On April 11, 1994, the three were
on daily work assignment at the Deer Lodge golf course and were
directed to perform routine maintenance and groundskeeping.
Because of their classification status as "trustees," they were
subject to "minimal, non-direct supervision" by a civilian employee
of the golf course independent of the prison staff. They were at
no time physically restrained with shackles, chains, etc.
Shortly after being given their work assignments, the three
began drinking and became intoxicated. Around noon, they ran out
of liquor, took the golf course-owned Ford Rancher0 and departed
for Helena to purchase more alcohol. They were observed by their
civilian supervisor as he was returning to the golf course. He
gave pursuit and reported their unauthorized departure to law
enforcement authorities. The three were subsequently apprehended
outside of Helena later that same afternoon.
As a result of their escapade, Lafley, Worden and Edwards each
suffered disciplinary sanctions through the Department of
Corrections institutional disciplinary committee for major rules
violations including escape, theft and substance abuse. Lafley
forfeited 7 years, 10 months, 3 days accumulated good time credits;
Worden lost 7 years, 1 month, 29 days good time credits; and
Edwards forfeited 1 year, 8 months, 7 days good time credits. Each
man's security classification was increased and each was referred
to the Powell County Attorney for criminal prosecution.
The hearings officer justified the administrative sanctions on
the basis that the conduct of the three inmates posed a serious
threat to the institution and to society and violated state law.
The warden, on denial of their administrative appeal, referred to
the whole incident as being a serious violation of prison rules and
the escape as being a very serious rule violation.
On April 14, 1994, the same date as the disciplinary
proceedings, criminal informations were filed against Lafley,
Worden and Edwards charging each with escape and felony theft (the
4
latter charge being subsequently amended to unauthorized use of a
motor vehicle, a misdemeanor, in violation of 5 45-6-308, MCA.)
Pretrial, each man moved to dismiss the criminal charges with
prejudice on double jeopardy grounds, and after hearing and
argument, the District Court denied these motions. The cases were
consolidated for trial; the motions to dismiss were renewed and
denied after the jury was sworn; and on November 1, 1994, each
defendant was convicted by the jury of escape and unauthorized use
of a motor vehicle.
In December 1994, Lafley, Worden and Edwards were each
sentenced to three years in MSP for felony escape and six months in
the Powell County jail for the unauthorized use of a motor vehicle.
Those sentences were ordered to run concurrently but consecutively
with each man's existing sentence.
DISCUSSION
1.
Does the Double Jeopardy Clause of the federal or state
constitution bar criminal prosecution for escape when an
inmate defendant has already been subjected to forfeiture
of good time credits in a prison disciplinary proceeding
arising from the same incident?
This issue, while one of first impression in Montana, has been
addressed in numerous other jurisdictions. The Double Jeopardy
Clause of the Fifth Amendment of the United States Constitution
protects against three distinct abuses: a second prosecution for
the same offense after acquittal; a second prosecution for the same
offense after conviction; and multiple punishments for the same
offense. United States v. Halper (1989), 490 U.S. 435, 440, 109
5
S.Ct. 1892, 1897, 104 L.Ed.Zd 487, 496 (citing North Carolina v.
Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d
656, 664-65); see also, State v. Lindseth (1983), 203 Mont. 115,
659 P.2d 844. This clause has been made applicable to the states
through the Four,teenth Amendment. Benton v. Maryland (1969), 395
U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; State v. Cole (1987), 226
Mont. 377, 744 P.2d 526.
For purposes of this case, Appellants claim no greater
protection from double jeopardy under the Montana Constitution,
Article II, Section 25, than under the Fifth Amendment of the
United States Constitution. Accordingly, we treat the protections
from double jeopardy afforded under both our state and the federal
constitutions as co-extensive and will simply refer to both clauses
collectively in the singular.
Here, it is the multiple punishments prohibition of the Double
Jeopardy Clause which is implicated. Neither party disputes that
Appellants' loss of good time and increase in security
classification arose from the same incident and conduct which
resulted in their criminal convictions and sentences for escape,
and, in the case of Lafley, Worden and Edwards, for the additional
conviction of unauthorized use of a motor vehicle. While the focus
of Appellants' argument is not on the increase in their security
classifications, they do nevertheless contend that, having suffered
the administrative forfeiture of their accumulated good time
credits, their criminal convictions and sentences constitute
multiple punishments for the same offense in violation of the
6
Double Jeopardy Clause. We disagree.
Historically, the protection from double jeopardy was thought
to arise only in the context of criminal cases. See, e.g.,
Helvering v. Mitchell (1938), 303 U.S. 391, 58 S.Ct.630, 82 L.Ed
917; United States ex rel. Marcus v. Hess (1943), 317 U.S. 537, 63
s.ct. 379, 87 L.Ed. 443; Rex Trailer Co. v. United States (1956),
350 U.S. 148, 76 S.Ct. 219, 100 L.Ed 149. The U.S. Supreme Court
disabused this notion, however, in Halper, wherein the Court held
that a civil penalty is "punishment" for double jeopardy purposes
if it "cannot fairly be said solely to serve a remedial purpose,
but rather can only be explained as also serving either retributive
or deterrent purposes." Halter, 490 U.S. at 448. See also, Austin
v. United States (1993), _ U.S. _, 113 S.Ct. 2801, 2806, 2810,
n. 12, 125 L.Ed.2d 488, 503, 505, an Eighth Amendment, Excessive
Fines Clause case and Department of Revenue of Montana v. Kurth
Ranch (1994), __ U.S. _I 114 S.Ct. 1937, 1944-45, 128 L.Ed.2d
767, 778, a Fifth Amendment case, both of which cited HalDer with
approval for this same proposition. As the Court stated in Kurth,
citing Halser, "[a] defendant convicted and punished for an offense
may not have a nonremedial civil penalty imposed against him for
the same offense in a separate proceeding." Kurth, 114 S.Ct. at
1945.
Notwithstanding Halper and its progeny, however, courts in
both state and federal jurisdictions have uniformly rejected its
application and rationale in the context of prison disciplinary
proceedings. Typically, both state and federal jurisdictions have
7
held that prison disciplinary proceedings are remedial in nature
and present no impediment to subsequent criminal proceedings
involving the same conduct. See, e.g., United States v. Brown (9th
Cir. 19951, 59 F.3d 102, 104-05 (loss of good time; transfer to a
higher security institution); United States v. Hernandez-Fundora
(2d Cir. 1995), 58 F.3d 802, 807 (disciplinary segregation); State
v. Lynch (Neb. 1995), 533 N.W.2d 805, 911 (loss of good time and
disciplinary segregation); Garrity v. Fiedler (7th Cir. 1994), 41
F.3d 1150, 1153, cert. denied (19951, 115 S.Ct. 1420, 131 L.Ed.2d
383 (segregation and extension of mandatory release date); People
v. Watson (Colo.Ct.App. 1994), 892 P.2d 388, 390 (loss of good
time, transfer and segregation); Wild v. Commonwealth. (Va.Ct.App.
1994), 446 S.E.2d 626, 627 (isolation and loss of good time); State
v. Walker (Conn.App.Ct. 1994), 646 A.2d 209, 212 (punitive
segregation and confinement to quarters); United States v. Newby
(3d Cir. 1993), 11 F.3d 1143, 1145-46, cert. denied (1994), 114
S.Ct. 1841, 128 L.Ed.2d 468 (loss of good time, transfer and
segregation); State v. Fonder (Wis.Ct.App. 19911, 469 N.W.2d 922,
925 (segregation and extension of mandatory release date). As the
court in Hernandez-Fundora stated:
[T]he mere fact that a sanction imposed by prison
officials has a punitive component does not mean that the
sanction constitutes "punishment" for double jeopardy
purposes.
Hernandez-Fundora, 58 F.3d at 806.
While candidly acknowledging this line of decisional
authority, Appellants nevertheless contend that in Montana a
different rule obtains. Appellants cite § 53-30-105, MCA (1993),
8
and argue, on the basis of the language of this statute, that in
this State the forfeiture of an escapee's accumulated good time
credits is expressly declared to be "punishment" and that prison
disciplinary sanctions are punitive in nature and purpose. Further
supporting this interpretation, Lafley, Worden and Edwards refer to
the remarks of the hearings officer and warden in justification of
the administrative sanctions imposed in their cases.
Section, 53-30-105, MCA (1993), in pertinent part, provides:
(2) In the event of an attempted escape by an inmate or
a violation of the rules prescribed by the department or
warden, the inmate may be punished by the forfeiture of
part or all good time allowances. . . . Any punishment
by forfeiture of good time allowance must be approved by
the department. [Emphasis added.1
Appellants contend that this statute sets Montana prison
disciplinary cases apart from the majority position; that because
of the language of this statute, such proceedings constitute
"punishment;" and that, as a result, the protections of the Double
Jeopardy Clause are implicated.
We agree that if, in the prison setting, the state's remedial
interest in maintaining order and security, preventing violent
altercations among the criminal population, encouraging compliance
with prison rules and regulations and providing a prompt mechanism
for carrying out those goals, was to be the focus of § 53-30-
105(2), MCA (1993), then the existing statutory language ill serves
the expression of that purpose and intent. We note that the
existing language chosen by the legislature pre-dates Haluer.
Additionally, we recognize that Halner emphasized that the labels
affixed to the proceeding or relief imposed are neither controlling
9
nor of paramount importance. Haluer, 490 U.S. at 447-48. See also,
Austin, 113 S.Ct. at 2806; Kurth
-r 114 S.Ct. at 1945, n. 15.
Nevertheless, we decline to read into § 53-30-105(2), MCA (1993),
some broad remedial purpose that its plain language does not
support. Section l-2-101, MCA. If remediation is the intent of
the legislature in forfeiting good time for escape, then the
statute should be amended accordingly.
That does not end our analysis, however. Even under 5 53-30-
105 (2), MCA (1993), as written, we conclude that the prohibition
against double jeopardy does not bar criminal prosecution for
conduct that has been the subject of prior administrative
disciplinary proceedings at the prison. Rather, we hold that even
if such administrative sanctions are deemed to be "punishment,"
they are integral parts of and indistinct from the inmate's single
punishment of incarceration for his prior conviction.
At the outset, we note that the granting of good time credits
is "conditioned upon the inmate's good behavior and compliance with
the rules made by the department or warden." Section 53-30-105(l),
MCA (1993). Moreover, while providing that forfeiture of good time
is a "punishment," § 50-30-105(4), MCA (1993), allows previously
forfeited good time to be restored as a result of subsequent good
behavior. In other words, good time is a reward for good behavior
and its accrual is conditioned upon the continuation of the
inmate's good behavior. If that condition precedent is not
fulfilled and the prisoner's good time is forfeited, his term of
imprisonment is no different than what was pronounced in his
10
original sentence. Thus, the withholding of the contingent reward
of good time cannot be "punishment" for double jeopardy purposes.
This rationale has been previously adopted in the Ninth
Circuit. In United States v. Soto-Olivas (9th Cir. 1995), 44 F.3d
788, cert. denied (1995), 115 S.Ct. 2289, 132 L.Ed.Zd 290, the
court held that since the revocation of parole or probation is part
of the original sentence, and since the continuation of parole or
probation is conditioned on compliance with stated conditions,
revocation of parole or probation is regarded as reinstatement of
the sentence for the underlying crime and not punishment for the
conduct leading to the revocation. See Soto-Olivas, 44 F.3d at
789, 791.
Similarly, in United States v. Brown (9th Cir. 1995), 59 F.3d
102, citing m-Olivas, the court reasoned that compliance with
the conditions for awarding good time credit is one of the terms of
the original sentence. "Withholding such credits, even if
'punitive,' does not alter the original sentence, it only means the
prisoner must serve a larger part of that sentence in prison."
Brown, 59 F.3d at 105.
The same result obtains here. Even if Appellants' good time
is forfeited for punitive reasons, their original sentences are not
extended. While they may be required to serve a larger portion of
their original sentences in prison (assuming that their forfeited
good time is not restored for subsequent good behavior), they are
not being "punished" for double jeopardy purposes because the
"punishment" to which they are subjected administratively is a
11
consequence of their underlying prior convictions that resulted in
their incarceration and not as a result of the rule violations or
escape attempt that led to the disciplinary action itself.
Accordingly, we hold that under § 53-30-105(2), MCA (19931,
the multiple punishments prohibition of the Double Jeopardy Clause
does not bar criminal prosecution for escape when an inmate
defendant already has been subjected to forfeiture of all good time
credits in prison disciplinary proceedings arising from the same
incident.
2.
Did the District Court properly sentence Lafley, Worden
and Edwards pursuant to the felony escape provisions of
§ 45-7-306(3) (b) (i), MCA (1993), under the facts of this
case?
Lafley, Worden and Edwards contend that, in light of the facts
established at trial, the District Court could only have sentenced
them for misdemeanor escape and that the imposition of a felony
sentence in each of their cases was error. We agree.
Section 45-7-306(3), MCA (1993), provides:
(3) A person convicted of the offense of escape
shall be:
(a) imprisoned in the state prison for a term not to
exceed 20 years if he escapes from or while in transit to
or from a state prison, county jail, city jail, community
corrections facility or program, or supervised release
program by the use or threat of force, physical violence,
weapon, or simulated weapon;
(b) imprisoned in the state prison for a term not to
exceed 10 years if he:
(i) has been charged with or convicted of a felony
and escapes from or while in transit to or from a state
prison, county jail, city jail, halfway house, life
skills center, community corrections facility or program,
or supervised release program; or
(ii) escapes from or while in transit to or from
another official detention by the use or threat of force,
12
physical violence, weapon, or simulated weapon; or
(c) fined not to exceed $500 or imprisoned in the
county jail for a term not to exceed 6 months, or both,
if he commits escape, including escape while in transit
to or from official detention, under circumstances other
than (a) and (b) of this subsection.
Here, the evidence precludes application of either 5 45-7-
306(3) (a) or (b) (ii), MCA (19931, since the use or threat of force,
physical violence, or weapons, real or simulated, was not involved
in the three inmates' escape. Since the District Court sentenced
each defendant for felony escape, necessarily the only other
subsection of 5 45-7-306(3), MCA (1993), available was (b) (i).
Sentencing under that provision, however, requires that the person
convicted escape "from or while in transit to or from" the various
institutions and facilities listed.
The facts established at trial clearly indicate that Lafley's,
Worden's and Edwards' escape occurred while they were on daily work
assignment at the Deer Lodge golf course. At the time of the
crime, they were not at any one of the institutions or facilities
listed in the statute, nor were they "in transit" to or from one of
those institutions or facilities.
Notwithstanding the clear and unambiguous language of the
statute, the State nevertheless argues that we should not apply the
statute literally, but should liberally construe the phrase "while
in transit to or from" to describe "both the actual conveyance of
inmates to and from the state prison at the beginning and end of
each work day and the degree of custody to which they are subject
while at work." To do otherwise, according to the State, will defy
common sense and necessitate the legislature once again amending
13
the statute as it did in response to our prior narrow and literal
interpretations of the statutory language at issue in State v.
Whiteshield (1980), 185 Mont. 208, 605 P.2d 189 (rejecting the
argument that escape from a furlough was the same as escape from
the state prison); State v. Savaria (1990), 245 Mont. 224, 800 P.2d
696 (rejecting the argument that escape from the "county jail"
encompassed defendant's escape from the courthouse following his
appearance at a sentencing proceeding). See also, State v. Kyle
(1980), 189 Mont. 38, 614 P.2d 1059, which prompted the legislature
to amend the statute to codify our decision and include supervised
release programs within the felony escape statute. We decline the
State's invitation to insert into the statute that which has been
omitted by the legislature. Section l-2-101, MCA.
In the first place, the language which the legislature chose
in defining felony escape under § 45-7-306(3) (b) (i), MCA (1993), is
clear and unambiguous. We are simply not going to torture the
phrase "in transit to or from" as the State suggests we should.
Lafley, Worden and Edwards were not "in transit" to or from any
state facility or institution when they escaped. They were at the
Deer Lodge golf course.
Secondly, we do not assume, as the State apparently does, that
the legislature would, in any event, consider an unrestrained
inmate's escape from a civilian-supervised work assignment outside
the walls of the institution to pose the same sort of serious risk
of harm and violence that is inherent in a prisoner's escape from
confinement and supervision by guards whose duty is to prevent
14
escapes. See Whiteshield, 605 P.2d at 190-91; Q&, 614 P.2d at
1060. Certainly, if the legislature deems the sorts of escapes at
issue here to pose a serious risk of harm, it can amend the statute
to accommodate that concern.
Accordingly, we hold that the District Court improperly
sentenced Lafley, Worden and Edwards pursuant to the felony escape
provisions of 5 45-7-306(3)(b) (i), MCA (1993), under the facts of
this case. We remand for resentencing under the misdemeanor escape
provisions of S 45-7-306(3) (cl, MCA (1993).
Affirmed in part; reversed in part; and remanded for further
proceedings consistent with this opinion.
We Concur:
Justices
15
January 30, 1996
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
William F. Hooks
State Appellate Defender
P.O. Box 200145
Helena, MT 59620
Hon. Joseph P. Mazurek, Attorney General
Brenda Nordlund, Assistant
Justice Bldg.
Helena, MT 59620
Christopher G. Miller
Powell County Attorney
409 Missouri Ave.
Deer Lodge, MT 59122
Brant Light
Cascade County Attorney
Cascade County Courthouse
Great Falls, MT 59401
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA