No
No. 97-617
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 31
STATE OF MONTANA,
Plaintiff and Respondent,
v.
WAYNE J. BROWN,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
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COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender Office, Helena, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Tammy Plubell, Assistant Attorney General, Helena, Montana; Deborah
Kim Christopher, Lake County Attorney, Polson, Montana
Submitted on Briefs: November 14, 1998
Decided: February 19, 1999
Filed:
__________________________________________
Clerk
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Justice William E. Hunt, Sr. delivered the Opinion of the Court.
¶1. Following a jury trial in the Twentieth Judicial District Court, Lake County,
Wayne J. Brown (Brown) was found guilty of felony assault. The District Court
sentenced Brown to a term of ten years in prison for the offense of felony assault, and
imposed an additional term of ten years in prison for use of a weapon. Brown appeals
the court's order of judgment and commitment on the basis of double jeopardy. We
reverse and remand for resentencing.
¶2. The following issues are presented for review:
¶3. 1. Is Brown's double jeopardy challenge properly before this Court when it was
not raised in the District Court?
¶4. 2. Does application of the weapon enhancement statute, § 46-18-221, MCA, to a
conviction for felony assault, a violation of § 45-5-202(2)(b), MCA, violate the double
jeopardy provision of Article II, Section 25 of the Montana Constitution?
BACKGROUND
¶5. On October 13, 1996, Flathead Tribal Police Officer Vernon Fisher (Officer
Fisher) and three other officers executed an arrest warrant on Brown at the
residence of Jim Fyant (Fyant) located in Arlee, Montana. When the officers arrived
at Fyant's residence, they observed Brown climb over a fence and run through a
field. Officer Fisher immediately pursued Brown on foot and repeatedly commanded
Brown to stop. Brown was carrying a loaded handgun in the waistband of his
trousers. During the chase, Brown twice turned around and pointed his gun at
Officer Fisher. Both times, Officer Fisher responded by dropping to the ground and
pointing his gun at Brown. Officer Fisher testified that he was afraid Brown was
going to shoot him. After a short while, the officers managed to surround Brown.
Brown stopped running, uncocked his gun, and tossed it aside. Brown was thereafter
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arrested.
¶6. Brown was charged by information with felony assault, a violation of § 45-5-202
(2)(b), MCA. A jury trial was held on July 17, 1997, and Brown was found guilty of
the charged offense. On August 13, 1997, the District Court held a sentencing
hearing. The court sentenced Brown to a term of ten years in prison for felony
assault, and imposed an additional ten years in prison for use of a weapon pursuant
to § 46-18-221, MCA (hereinafter the weapon enhancement statute). The court stated
that the reasons for the sentence were Brown's prior criminal history and the nature
of the offense, which the court described as "an assault involving the use of a weapon
against a law enforcement official." At the time of sentencing, Brown did not object
to the court's application of the weapon enhancement statute to his conviction for
felony assault. The court issued its final order of judgment and commitment on
August 27, 1997. Brown filed a notice of appeal on October 21, 1997.
DISCUSSION
Issue One
¶7. Is Brown's double jeopardy challenge properly before this Court when it was not
raised in the District Court?
¶8. The State of Montana (State) contends that Brown's double jeopardy challenge is
not reviewable. The State cites State v. Lafley, 1998 MT 21, ¶ 26, 55 St.Rep. 76, ¶ 26,
954 P.2d 1112, ¶ 26, for the rule that "[i]n a direct appeal, the defendant is limited to
those issues that were properly preserved in the district court and to allegations that
the sentence is illegal or exceeds statutory mandates." See also Sections 46-20-104(2)
and -701(2), MCA and State v. Lenihan (1979), 184 Mont. 338, 343, 602 P.2d 997,
1000 (holding that if a criminal defendant alleges that his sentence is illegal or
exceeds statutory mandates, this Court will review the sentence even if the defendant
failed to make a timely objection in the district court). A sentence is not illegal if it is
within the parameters provided by statute. Lafley, ¶ 26 (citations omitted). The State
points out that Brown failed to object to the sentence imposed on him at sentencing.
The State further points out that Brown's sentence is legal because it is within the
statutory parameters. See Section 45-5-202(3)(a), MCA (authorizing imprisonment
for a term not to exceed 10 years for the offense of felony assault) and Section 46-18-
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221, MCA (requiring imposition of an additional term of imprisonment of 2 to 10
years for use of a weapon). Based on these facts, the State argues that Brown's
double jeopardy challenge fails to meet the test of reviewability outlined in Lafley.
¶9. Brown concedes that his double jeopardy challenge fails to meet the Lafley
standard. However, Brown urges this Court to invoke its discretionary power of
common law plain error review. We first articulated the doctrine of common law plain error
review in State v. Finley (1996), 276 Mont. 126, 915 P.2d 208. We held:
[T]his Court may discretionarily review claimed errors that implicate a criminal defendant's fundamental
constitutional rights, even if no contemporaneous objection is made and notwithstanding the inapplicability of the
§ 46-20-701(2), MCA, criteria, where failing to review the claimed error at issue may result in a manifest
miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or
may compromise the integrity of the judicial process.
Finley, 276 Mont. at 137, 915 P.2d at 215. Brown argues that the issue presented in this case meets the Finley
standard for common law plain error review. Brown claims that application of the weapon
enhancement statute to his felony assault conviction denied him the fundamental right to
be free from double jeopardy guaranteed by Article II, Section 25 of the Montana
Constitution. Brown further claims that failure to review his double jeopardy challenge would result in a
manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial or
proceedings, and compromise the integrity of the judicial process.
¶10. To support his claims, Brown first cites Wadsworth v. State (1996), 275 Mont.
287, 299, 911 P.2d 1165, 1172, for the proposition that a right may be "fundamental"
under the Montana Constitution if the right is either found in the Declaration of Rights listed
in Article II, or is a right "without which other constitutionally guaranteed rights would have little
meaning." Brown notes that the protection against double jeopardy is explicit in the Declaration of Rights
and, therefore, is a fundamental right.
¶11. Next, Brown argues that his fundamental right to be from double jeopardy was violated because he
received double punishment for use of a weapon: once when he was sentenced for felony assault, a material
element of which requires use of a weapon, and again when his sentence was enhanced for use of a weapon
by application of the weapon enhancement statute. Brown acknowledges that application of the weapon
enhancement statute to a felony assault conviction does not violate double jeopardy under the federal
constitution. See State v. Zabawa (1996), 279 Mont. 307, 316, 928 P.2d 151, 156-57. However, Brown
contends that the Montana Constitution affords greater protection against double jeopardy than the
federal constitution. The following arguments summarize Brown's support for this contention: (1) the
plain language of Montana's double jeopardy clause expresses broader protection than its federal
counterpart; (2) the legislative history of Montana's double jeopardy clause demonstrates that the clause
was enacted with the express purpose of providing greater protection than the federal provision, see
Comments, Bill of Rights Committee Proposal, II Transcript, p. 641; and (3) the Montana Legislature has
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indicated its intent to afford Montana citizens greater protection from double jeopardy in the context of
multiple prosecutions. See State v. Tadewalt (1996), 277 Mont. 261, 922 P.2d 463 (interpreting § 46-11-504
(1), MCA, the statute which addresses when prosecution based on the same transaction as a former
prosecution is barred by that former prosecution, to provide broader protection against double jeopardy
than is provided under the federal Blockburger test).
¶12. In determining the applicability of the common law plain error doctrine, we consider the totality of
circumstances of each case. Finley, 276 Mont. at 134, 915 P.2d at 213. We also note that common law plain
error review is reserved for "exceptional cases" and is to be used sparingly. State v. Sullivan (1996), 280
Mont. 25, 31, 927 P.2d 1033, 1036. See also State v. Arlington (1994), 265 Mont. 127, 152, 875 P.2d 307,
322. We determine that the instant case most certainly is the type of exceptional case envisioned to invoke
the doctrine of common law plain error review. Whether multiple punishments have been
imposed in violation of a defendant's fundamental right to be free from double
jeopardy brings into question the fundamental fairness of the proceedings and the
integrity of the judicial process. In our recent decision in State v. Guillaume, 1999
MT 29, decided February 19, 1999, we held that the double jeopardy clause of the
Montana Constitution affords greater protection against multiple punishments for
the same offense than does the double jeopardy clause of the United States
Constitution. Guillaume, ¶ 16. We further held that application of the weapon
enhancement statute to a conviction where the underlying offense requires proof of
use of a weapon as an element of the offense violates the double jeopardy clause of
the Montana Constitution. Guillaume, ¶ 16. In light of this precedent, failure to
review Brown's double jeopardy challenge would result in a manifest miscarriage of
justice because Brown would be subjected to a ten-year prison term in contravention
of the law. For the reasons stated above, we review Brown's double jeopardy
challenge even though it was not properly raised in the District Court.
Issue Two
¶13. Does application of the weapon enhancement statute, § 46-18-221, MCA, to a
conviction for felony assault, a violation of § 45-5-202(2)(b), MCA, violate the double
jeopardy provision of Article II, Section 25 of the Montana Constitution?
¶14. As previously stated, this issue is identical to that raised in Guillaume.
Therefore, the discussion and analysis in Guillaume directly applies to the instant
case. In accordance with Guillaume, we hold that application of the weapon
enhancement statute to Brown's felony assault conviction violated the double
jeopardy provision of Article II, Section 25 of the Montana Constitution.
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¶15. We reverse the District Court's order of judgment and commitment and remand
for rehearing and resentencing consistent with this opinion.
/S/ WILLIAM E. HUNT, SR.
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
Justice James C. Nelson concurs and dissents.
¶16 I concur with the Court's discussion and decision as to Issue one, plain error. I dissent
from the Court's discussion and decision as to Issue two, double jeopardy, for the same
reasons as set forth in my dissent in State v. Guillaume, 1999 MT 29, ___ Mont. ___, ___
P.2d ___.
/S/ JAMES C. NELSON
Chief Justice J. A. Turnage concurs in the foregoing special concurrence and dissent.
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/S/ J. A. TURNAGE
Justice Karla M. Gray, dissenting.
¶17 I dissent from the Court's discussion and decision as to Issue one, plain error, for the
reasons set forth at some length in my special concurring opinion in Finley. It continues to
be my view that, absent a successful constitutional challenge to § 46-20-701(2), MCA--a
statute duly enacted by the Montana Legislature--this Court is obligated to apply the
statute rather than simply ignoring it.
¶18 With regard to the Court's discussion and decision as to Issue two, double jeopardy, I
dissent for the reasons set forth in Justice Nelson's dissent in Guillame, which I joined.
¶19 I would affirm the District Court.
/S/ KARLA M. GRAY
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