Adams v. State

No. 05-610

IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 35

LARRY DEWAYNE ADAMS,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Respondent.

APPEAL FROM: The District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC-98-144,
Honorable Jeffrey H. Langton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Sasha K. Brownlee, Brownlee Law Office PLLC, Hamilton, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; Pamela P. Collins,
Assistant Attorney General, Helena, Montana

George Corn, County Attorney, Hamilton, Montana

Submitted on Briefs: November 22, 2006

Decided: February 13, 2007

Filed:

__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Larry DeWayne Adams appeals from the Twenty-First Judicial District Court’s

denial of his amended petition for postconviction relief. We affirm.

¶2 Adams raises the following issues on appeal:

¶3 1. Did the District Court err in denying Adams’ amended petition for

postconviction relief alleging Adams received ineffective assistance of counsel when his

attorneys failed to file a motion to dismiss for lack of speedy trial?

¶4 2. Did the District Court err in denying Adams’ amended petition for

postconviction relief alleging Adams received ineffective assistance of counsel when his

attorney failed to object to a jury instruction on aggravated assault as a lesser included

offense of the attempted deliberate homicide charge?

¶5 3. Did the District Court err in denying Adams’ amended petition for

postconviction relief alleging Adams received ineffective assistance of counsel when his

attorney failed to move for a directed verdict regarding aggravated assault?

¶6 4. Did the District Court legally sentence Adams when it imposed a ten-year

weapon enhancement?

BACKGROUND

¶7 On October 2, 1998, the State charged Adams by information with attempted

deliberate homicide, obscuring the identity of a machine, possession of a switchblade

knife, criminal possession of dangerous drugs, and criminal possession of drug

paraphernalia. The information included a notice that, pursuant to § 46-18-221, MCA

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(1997), Adams could receive an enhanced sentence for the attempted deliberate homicide

offense because he used a weapon in the commission of the offense.

¶8 Adams was tried by a jury on September 20 and 21, 1999. The jury found Adams

guilty of aggravated assault, a lesser included offense of attempted deliberate homicide,

not guilty of obscuring the identity of a machine, guilty of possession of a switchblade

knife, guilty of criminal possession of dangerous drugs, and guilty of criminal possession

of drug paraphernalia.

¶9 Adams’ charges arose out of an altercation between Adams and his girlfriend,

Jackie Wright, on September 14, 1998. Early that morning, Adams returned to the home

he and Wright shared in Victor, Montana, after several hours of drinking at a nearby bar.

Adams and Wright started to argue. Adams began throwing things, including loose

change, boots, lamps, and a coffee table. He picked up a .9 millimeter pistol and started

waving it around, then fired it into the wall a couple feet to Wright’s left and a few inches

above her head. He then knelt down in front of Wright, yelled at her, and put the gun to

her chest. Wright looked Adams in the face, thinking he was going to kill her. She heard

the gun click, then saw a look of surprise on Adams’ face, as if he was shocked the gun

did not fire.

¶10 After the gun failed to fire, Adams went down a hallway then came back without

the gun. According to Wright, he then threw another lamp toward her. She picked up the

lamp and tried to defend herself with it as Adams came at her. Adams grabbed Wright

and started hitting her on the head and chest with his fists. They fell to the floor and

Adams straddled her, grabbing her hair and hitting her head on the floor. Wright looked

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up and saw Adams with the coffee table over his head as he brought it down on her. She

put up her left arm to protect herself, but was hit on the head with the table. She felt

herself losing consciousness and realized that she had wet herself. She came around

when she felt warmth on her neck. Adams was walking down the hall again and Wright

thought he was going to retrieve the gun. She got up and ran out of the house toward the

neighbor’s house. She got to the neighbor’s door and saw Adams following her. She

started slamming the screen door to try to wake up the neighbors. She then tried the door

knob, found it was unlocked, and entered the house and locked the door behind her.

¶11 The neighbors in the house testified they woke up to the sound of Wright

slamming the screen door. They found Wright in their living room. She was telling

them to help her, her boyfriend was trying to kill her. The neighbors called the police

and tried to calm Wright down. She refused to sit on their furniture because she had lost

control of her bladder. The neighbors said she appeared to have been beaten and her ear

was bleeding.

¶12 After law enforcement arrived and secured the area, Wright was transported to the

hospital by ambulance. The emergency room doctor stitched up a tear in her ear and

admitted her to the hospital overnight to observe her because of her head injury. The

doctor diagnosed Wright as having a concussion, which meant that Wright had either

been knocked unconscious or hit hard enough on the head to be dazed. Wright also had a

laceration of her ear and multiple contusions and abrasions. The doctor testified Wright’s

injuries were consistent with being beaten by a fist and hit by the edge of a table. Wright

testified that as a result of the incident, she had pain in her ribs that lasted for about six

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months, and still bothered her when driving long distances. She also testified that the

pain in her head from the concussion lasted for a month or two.

¶13 Adams testified on his own behalf at trial, asserting that the gun was sitting on the

kitchen counter, already cocked. When he picked it up to unload it, Wright started to

grab for it, and it went off and hit the wall. He said he then ejected the magazine and

threw the gun and the magazine against the wall. He said Wright then started to swing at

him, so he laid her on the floor and she pulled her earring out of her own ear. When he

went to get her a washcloth from the bathroom down the hall, Wright ran out the door

and down the driveway toward the neighbors’ house. He ran after her because he did not

want her to make a fool of herself in the little red and black, lacy, waist-length nighty he

said she was wearing that night. He testified that when he saw her banging the

neighbors’ screen door against her own head, he gave up and went home and went to bed.

¶14 Law enforcement officers testified that when they searched the home later, they

found the gun laying against a wall with the magazine still in it. They also testified that

Wright was wearing a white nightshirt when they found her at the neighbors’ house, and

it was stained yellow on the bottom. At Adams’ house, the officers found the coffee table

upright in the middle of the living room with Adams’ wallet lying on it. They saw

several lamps had been broken. They also saw a bullet hole in the wall. They recovered

a bullet casing in the living room and a fired .9 millimeter bullet in a hall closet.

¶15 Adams’ defense counsel hired a ballistics expert that testified that the gun did not

fire every time the trigger was pulled, and that it was not predictable when it would or

would not fire. The expert testified that in order for Wright to hear a clicking sound

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coming from the gun, one of two things would have happened: either the trigger was

pulled and the hammer fell, causing a round to fire, or the trigger was pulled and the

hammer fell, and the gun did not fire, but in that case, the round in the chamber would be

marked. He said the round found in the chamber that night was not marked. He also

stated, however, that when the trigger of that particular gun is pulled quickly, the hammer

does not fall, and thus the round is not marked, but it can make a mechanical noise that

might sound like a click.

¶16 On December 1, 1999, the District Court sentenced Adams to twenty years in the

Montana State Prison for the aggravated assault conviction, five years for the criminal

possession of dangerous drugs conviction, six months for the possession of a switchblade

knife conviction, and six months for the possession of drug paraphernalia conviction, all

to run consecutively. Pursuant to § 46-18-221, MCA (1997), the court sentenced Adams

to an additional ten years in prison for using a dangerous weapon during the commission

of the aggravated assault. Following sentencing, Adams’ attorney withdrew as counsel

and told Adams he needed to contact the public appellate defenders’ office if he wanted

to pursue an appeal.

¶17 On October 16, 2000, Adams, acting pro se, filed a petition for postconviction

relief in the District Court. His petition alleged ineffective assistance of his original

attorney to file a motion to dismiss for lack of a speedy trial. He also alleged ineffective

assistance of his subsequently appointed trial attorney for offering a lesser included

offense instruction on aggravated assault, and for failing to file an appeal to this Court

following Adams’ convictions. Finally, Adams’ petition alleged that the District Court

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imposed the sentence enhancement for use of a dangerous weapon in violation of his

constitutional rights. The District Court denied Adams’ petition for postconviction relief

and Adams appealed to this Court. On September 5, 2002, in State v. Adams, 2002 MT

202, 311 Mont. 202, 54 P.3d 50, this Court reversed the District Court, finding that

Adams was denied effective assistance of counsel when his trial attorney withdrew

following trial and failed to file an appeal to this Court. We stated that Adams could file

an amended petition for postconviction relief and raise: (1) those issues that could have

been raised in direct appeal but for counsel’s abandonment of his appeal; and (2) those

issues properly raised in a petition for postconviction relief that have not already been

raised. Adams, ¶ 22. Adams now raises the above issues on appeal.

STANDARD OF REVIEW

¶18 The standard of review of a trial court’s denial of a petition for postconviction

relief is whether the court’s findings of fact are clearly erroneous and whether its

conclusions of law are correct. Hope v. State, 2003 MT 191, ¶ 13, 316 Mont. 497, ¶ 13,

74 P.3d 1039, ¶ 13. A claim of ineffective assistance of counsel is reviewed de novo.

Hope, ¶ 13.

¶19 It is a question of law whether a defendant has been denied the right to a speedy

trial, and we review a district court’s determination of a question of law for correctness.

State v. Keyes, 2000 MT 337, ¶ 7, 303 Mont. 147, ¶ 7, 15 P.3d 443, ¶ 7.

¶20 This Court reviews jury instructions to determine whether the instructions as a

whole fully and fairly instruct the jury on the law applicable to the case. State v. Martin,

2001 MT 83, ¶ 23, 305 Mont. 123, ¶ 23, 23 P.3d 216, ¶ 23. We give broad discretion to a

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district court in formulating jury instructions. State v. Beavers, 1999 MT 260, ¶ 20, 296

Mont. 340, ¶ 20, 987 P.2d 371, ¶ 20.

¶21 We review a sentence for legality only. State v. Garrymore, 2006 MT 245, ¶ 9,

334 Mont. 1, ¶ 9, 145 P.3d 946, ¶ 9.

DISCUSSION

¶22 Adams argues that he received ineffective assistance of counsel when his first and

subsequent attorneys failed to file a motion to dismiss for lack of speedy trial, when his

trial attorney failed to object to a jury instruction on aggravated assault as a lesser

included offense of the attempted deliberate homicide charge, and when his trial attorney

failed to move for a directed verdict regarding aggravated assault. To prove an

ineffective assistance of counsel claim, the defendant must meet both prongs of the two-

part test this Court adopted from Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052

(1984). Under the Strickland test, the defendant must show his counsel’s performance

was deficient and the deficient performance prejudiced him. Hans v. State, 283 Mont.

379, 391-92, 942 P.2d 674, 681-82 (1997). A defendant must satisfy both prongs of the

test; if an insufficient showing is made regarding one prong, there is no need to address

the other. Dawson v. State, 2000 MT 219, ¶ 21, 301 Mont. 135, ¶ 21, 10 P.3d 49, ¶ 21

(citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

¶23 The defendant must overcome the “strong presumption that counsel’s conduct falls

within the wide range of reasonable professional conduct,” and that, “under the

circumstances, the challenged action ‘might be considered sound trial strategy.’” State v.

Jefferson, 2003 MT 90, ¶ 48, 315 Mont. 146, ¶ 48, 69 P.3d 641, ¶ 48 (citing Strickland,

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466 U.S. at 688-89, 104 S. Ct. at 2064-65). This Court will review the acts or omissions

that the defendant alleges were outside the range of reasonable professional judgment,

taking into consideration all the circumstances of the case. Jefferson, ¶ 48 (citing

Strickland, 466 U.S. at 688, 690, 104 S. Ct. at 2065-66).

¶24 ISSUE 1: Did the District Court err in denying Adams’ amended petition for

postconviction relief alleging Adams received ineffective assistance of counsel when

his attorneys failed to file a motion to dismiss for lack of speedy trial?

¶25 Adams was arrested on September 14, 1998. He was appointed an attorney,

Donald Spadone, who filed a motion to continue the initial appearance set for October 14,

1998, to October 28, 1998, because Spadone planned to be out of town. Spadone hired a

ballistics expert in November 1998. The parties were ordered to have a face-to-face

settlement conference on January 7, 1999. The parties did not resolve the case at the

face-to-face conference and requested another conference be set in thirty days. Another

conference was scheduled for February 4, 1999. Spadone requested that this conference

be moved back another month to March 4, 1999, because he was waiting for the report

from the ballistics expert. The court granted this motion. Spadone again requested that

the conference be moved to April 8, 1999, because the gun had been sent to the wrong

address so the ballistics expert had not yet had a chance to examine it and write his

report. The conference was held on this date, but the parties did not resolve the case.

The court then set the trial to start on June 7, 1999.

¶26 On May 20, 1999, just days before trial was to start, Spadone filed a motion to

withdraw as Adams’ attorney. Spadone based his motion on the fact that Adams had

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written a letter to the Ravalli County commissioners which accused Spadone of “wild and

unsubstantiated charges as to [Spadone’s] contact with the victim of the crime.” The

letter further alleged Adams had a case against Spadone for ineffective assistance of

counsel and that Spadone had violated Adams’ constitutional rights. Spadone stated that

the defendant did not have confidence in Spadone’s representation of him. The court

held a hearing on the motion and subsequently ordered that Spadone be allowed to

withdraw as Adams’ counsel. The court advised Adams that a change in attorney would

delay his trial. Adams agreed to waive his speedy trial rights in order to be appointed a

new attorney. He objected to the court’s appointment of another public defender.

Nonetheless, the court appointed a public defender, David Stenerson, over Adams’

objections. The trial was reset to start September 20, 1999, in order to give new counsel

time to prepare. On August 5, 1999, Stenerson was relieved as Adams’ counsel and

Mark McLaverty was appointed instead because the county changed public defender

contracts. McLaverty represented Adams at his trial starting on September 20, 1999.

¶27 Adams argues that his constitutional right to a speedy trial was violated by the

delay between his arrest and his trial. He asserts that he asked Spadone to file a motion

to dismiss based on lack of speedy trial, but no such motion was filed. He also argues

that McLaverty should have filed a motion to dismiss on this basis as well. He argues

that had a motion been filed, the outcome would have been different because his charges

would have been dismissed. Adams must show that his counsel’s failure to file such a

motion fell below reasonable professional judgment, and that the failure prejudiced him.

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¶28 A criminal defendant’s right to a speedy trial is guaranteed by both the Sixth

Amendment of the United States Constitution and Article II, Section 24 of the Montana

Constitution. State v. Price, 2001 MT 212, ¶ 11, 306 Mont. 381, ¶ 11, 34 P.3d 112, ¶ 11.

The United States Supreme Court established four factors to consider when analyzing a

claimed denial of speedy trial: length of delay, the reason for the delay, the defendant’s

timely assertion of his right to a speedy trial, and the prejudice to the defense caused by

the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972). This Court

adopted these factors for analyzing such claims. See City of Billings v. Bruce, 1998 MT

186, ¶ 19, 290 Mont. 148, ¶ 19, 965 P.2d 866, ¶ 19.

a. Length of Delay

¶29 The time between Adams’ arrest and the beginning of the first trial date amounts

to 267 days, and from his arrest to actual trial amounts to 372 days. A delay of 200 or

more days triggers further speedy trial analysis. Bruce, ¶ 55. Both the 267-day delay and

the 372-day delay render further speedy trial analysis necessary.

b. Reason for Delay

¶30 This factor requires us to determine which party is responsible for specific periods

of delay and allocate the total time of delay between the parties. Price, ¶ 14. If 275 or

more days of delay are attributable to the State, the initial burden is on the State to show

that the defendant suffered no prejudice from the delay. Bruce, ¶ 56. If fewer than 275

days are attributable to the State, the defendant retains the burden to demonstrate

prejudice. Bruce, ¶ 56.

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¶31 Adams requested continuances from February 4 to April 8, 1999, to move back the

face-to-face conference so that he could have the benefit of the ballistics expert’s report,

causing a delay of 64 days. Institutional delays are those that are caused by overcrowded

court dockets and other similar events, and are attributable to the State. State v. Small,

279 Mont. 113, 118-19, 926 P.2d 1376, 1379 (1996). In this case, there is no evidence

the delay was caused by any conduct on the part of the State, nor was it institutional

delay; therefore, the delay is attributable to the defendant. State v. Mooney, 248 Mont.

115, 119, 809 P.2d 591, 594 (1991) (overruled in part on other grounds by Bruce, 1998

MT 186, 290 Mont. 148, 965 P.2d 866).

¶32 The additional 105-day delay between the first trial setting and the second trial

setting resulted from Spadone’s motion to withdraw as counsel, which was prompted by

Adams’ accusations of ineffective assistance of counsel. This delay is attributable to

Adams. State v. Dess, 184 Mont. 116, 119, 123-24, 602 P.2d 142, 144, 146 (1979) (delay

caused by defendant’s motion for continuance when public defender retired and asked for

time for defendant’s new attorney to get caught up on case attributed to defendant).

¶33 In total, of the 372 days of delay, at most, 203 days are attributable to the State,

and 169 days are attributable to Adams. Since fewer than 275 days of the delay are

attributable to the State, the burden is on Adams to demonstrate prejudice from the delay.

c. Assertion of Right

¶34 To satisfy this factor, the defendant must either demand a speedy trial or file a

motion to dismiss for lack of a speedy trial prior to the commencement of trial. Bruce,

¶ 57. Adams asserts that he requested Spadone to file a motion to dismiss for denial of a

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speedy trial in the spring of 1999, before the first trial setting. Although he states he

made note of this in daily logs he kept in jail, he failed to produce such logs in any court

proceedings. Adams also asserts that he requested McLaverty to file a motion to dismiss

on the same basis. McLaverty testified that he and Adams had discussed speedy trial

rights, but that Adams had already made a limited waiver of those rights so that

McLaverty could prepare for trial. McLaverty testified that Adams did not ask him to file

a motion to dismiss for lack of speedy trial. However, because this is an ineffective

assistance of counsel claim, we will give Adams the benefit of the doubt and assume,

arguendo, that he asked McLaverty to file a motion to dismiss for denial of speedy trial.

d. Prejudice

¶35 The speedy trial guarantee is designed to minimize delay and the prejudice

resulting from pretrial incarceration, anxiety and concern, and impairment of defense.

Bruce, ¶ 68. As we previously explained, the burden is on Adams to demonstrate

prejudice from the delay.

¶36 In this case, Adams does not allege prejudice from pretrial incarceration except to

the extent it impaired his ability to help defend himself. He states that he was prejudiced

by the delay “because he was incarcerated for approximately nine months and was unable

to effectively assist in his defense.” At the hearing on this issue, Adams claimed had he

not been in jail, he would have inspected the premises, reviewed the evidence, made

phone calls, and interviewed witnesses. Adams does not demonstrate how his inability to

do these things (all of which his attorneys did in preparation for trial) impaired his ability

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to defend himself. Adams does not allege that the delay caused him anxiety or concern.

Thus, Adams has not carried the burden of demonstrating prejudice.

¶37 Since Adams has failed to demonstrate any prejudice from the delay in his trial, he

has failed to establish that the outcome of the proceedings would have been different had

his attorneys filed a motion to dismiss as he requested. We affirm the District Court’s

conclusion that Adams was not denied effective assistance of counsel for his attorneys’

failure to file a motion to dismiss for lack of speedy trial.

¶38 ISSUE 2: Did the District Court err in denying Adams’ amended petition for

postconviction relief alleging Adams received ineffective assistance of counsel when

his attorney failed to object to a jury instruction on aggravated assault as a lesser

included offense of the attempted deliberate homicide charge?

¶39 Adams was charged with attempted deliberate homicide. At the close of trial, the

court instructed the jury on attempted deliberate homicide, as well as aggravated assault

and felony assault as lesser included offenses. Adams alleges that McLaverty should

have objected to the jury instruction that allowed the jury to consider aggravated assault

as a lesser included offense. He states there was no basis for the jury to convict him for

aggravated assault because he did not cause Wright serious bodily injury.

¶40 As provided in § 45-5-202, MCA, a person commits the offense of aggravated

assault if the person purposely or knowingly causes serious bodily injury to another.

Serious bodily injury is defined as bodily injury that:

(i) creates a substantial risk of death;
(ii) causes serious permanent disfigurement or protracted loss or
impairment of the function or process of a bodily member or organ; or

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 (iii) at the time of injury, can reasonably be expected to result in serious
permanent disfigurement or protracted loss or impairment of the function or
process of a bodily member or organ.

Section 45-2-101, MCA.

¶41 Contrary to his assertions, the record contains evidence from which the jury could

conclude that Adams inflicted serious bodily injury on Wright. The doctor, the

neighbors, and law enforcement officers testified that Wright was injured, and that the

tear in her ear left a scar. The jury heard testimony that Adams caused a concussion

when he brought the table down on Wright’s head, and that the pain from that lasted for a

month or two. They also heard Wright testify that she continued to have occasional pain

in her ribs.

¶42 McLaverty testified at the hearing on the amended petition that in discussing trial

strategy with Adams, Adams’ biggest concern was that he did not want to be convicted of

attempted deliberate homicide. To that end, McLaverty did not object to any lesser

included offenses. Part of the defense strategy in closing was to argue that, if anything,

Adams’ conduct constituted felony assault with a weapon. The jury was instructed it

could consider either of these lesser included offenses.

¶43 A criminal defendant is entitled to jury instructions that cover an issue or theory if

there is evidence to support such an instruction. Beavers, ¶ 23. It is fundamental under

Montana law that “a defendant is entitled to a jury instruction on a lesser included offense

when one of the parties requests it and the record contains evidence from which the jury

could rationally find the defendant guilty of the lesser offense and acquit of the greater.”

Beavers, ¶ 23. An attorney’s failure to object does not constitute ineffective assistance of

15
counsel if the objection lacked merit and would have been properly overruled. State v.

Hildreth, 267 Mont. 423, 432-33, 884 P.2d 771, 777 (1994) (citing State v. Rodgers, 257

Mont. 413, 421, 849 P.2d 1028, 1033 (1993)). An objection to the introduction of the

jury instruction on aggravated assault would not have been properly sustained in this case

because the record contained evidence from which the jury could rationally find the

defendant guilty of aggravated assault and acquit of attempted deliberate homicide.

¶44 We affirm the District Court’s conclusion that Adams was not denied effective

assistance of counsel for his attorney’s failure to object to a jury instruction on

aggravated assault.

¶45 ISSUE 3: Did the District Court err in denying Adams’ amended petition for

postconviction relief alleging Adams received ineffective assistance of counsel when

his attorney failed to move for a directed verdict regarding aggravated assault?

¶46 Adams argues that he received ineffective assistance of counsel because

McLaverty failed to move for a directed verdict at the close of evidence on the

aggravated assault charge because there was no evidence to support a finding of serious

bodily injury. A district court will grant a motion for a directed verdict “only when there

is a complete absence of any evidence which would justify submitting an issue to a jury.”

State v. Smith, 2005 MT 325, ¶ 25, 329 Mont. 526, ¶ 25, 127 P.3d 353, ¶ 25. When the

evidence provided by the parties conflicts, “the court should not invade the province of

the jury by directing a verdict.” Smith, ¶ 25. Given that Adams and the State provided

conflicting evidence on the issue of serious bodily injury, a directed verdict would not

have been granted.

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¶47 We affirm the District Court’s conclusion that Adams was not denied effective

assistance of counsel for his attorney’s failure to move for a directed verdict.

¶48 ISSUE 4: Did the District Court legally sentence Adams when it imposed a

ten-year weapon enhancement?

¶49 Adams provides two arguments to support his contention that the court imposed an

illegal sentence when it sentenced him to an additional ten years in prison pursuant to

§ 46-18-221, MCA (1997). First, he asserts there was not enough evidence to support a

finding that a weapon was used in the commission of the aggravated assault, and

secondly, that the enhanced sentence violated his right to due process of law.

¶50 The weapons enhancement statute in effect at the time of the offense and Adams’

sentencing provided:

A person who has been found guilty of any offense and who, while engaged
in the commission of the offense, knowingly displayed, brandished, or
otherwise used a firearm, destructive device, as defined in 45-8-332(1), or
other dangerous weapon shall, in addition to the punishment provided for
the commission of such offense, be sentenced to a term of imprisonment in
the state prison of not less than 2 years or more than 10 years except as
provided in 46-18-222.

Section 46-18-221, MCA (1997). A weapon is defined as “an instrument, article, or

substance that, regardless of its primary function, is readily capable of being used to

produce death or serious bodily injury.” Section 45-2-101, MCA.

¶51 In his first argument, Adams contends that the evidence does not support a

conclusion that he used the table as a weapon since he demonstrated that he could not lift

the table over his head as alleged by Wright. Adams overlooks the fact that the weapons

enhancement can be based on the display, brandishment, or use of a firearm or weapon.

17
He also overlooks the fact that, in addition to the testimony that he used a coffee table to

hit Wright in the head, there was testimony that he brandished and pointed a .9 millimeter

pistol at Wright’s chest. The record clearly supports the conclusion that Adams used or

displayed a weapon in the commission of the offense.

¶52 In his second argument, Adams relies on Apprendi v. New Jersey, 530 U.S. 466,

120 S. Ct. 2348 (2000), to support his contention that he was denied his right to due

process, as provided by the United States and Montana Constitutions, when the court

enhanced his sentence without a finding by the jury that he had used a weapon. The

United States Supreme Court, in Apprendi, held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63.

¶53 In 2001, in accordance with the Apprendi decision, the Montana Legislature

amended § 46-18-221, MCA, so that in order to enhance a sentence for an offense

committed with a dangerous weapon, the provisions of § 46-1-401, MCA, must be

complied with. With regard to jury trials, § 46-1-401, MCA, now requires that the jury

unanimously make a separate finding that the enhancing act (i.e., the use of a weapon)

occurred beyond a reasonable doubt.

¶54 Adams argues that the 1997 version of § 46-1-401, MCA, which applied to him

and did not require a separate finding, was unconstitutional. He contends that the fact the

legislature amended the statute in 2001 “show[s] an acknowledgement that there was a

18
significant issue with the previous Statute.” In essence, Adams argues that Apprendi be

applied retroactively.

¶55 In response, the State argues that Adams failed to preserve this issue on appeal and

it should be dismissed pursuant to State v. Courville, 2002 MT 330, 313 Mont. 218, 61

P.3d 749 (citations omitted). In Courville, we relied on the general rule that “issues not

raised before the trial court and new legal theories are not considered by this Court on

appeal because it is unfair to fault the trial court on an issue it was never given an

opportunity to consider.” Courville, ¶ 5. However, the issue presented here is similar to

the issue in our recent Garrymore decision. Garrymore, ¶ 3. In Garrymore, the

defendant did not object at sentencing when the court imposed a parole eligibility

restriction pursuant to statute, but then later relied on Apprendi and argued on appeal that

this parole restriction violated his statutory and constitutional due process rights.

Garrymore, ¶¶ 7-8. The State asserted that Garrymore’s failure to object at sentencing

precluded him from raising the issue on direct appeal. Garrymore, ¶ 10. We determined

that this was the type of illegal sentence issue that falls under the Lenihan exception.

Garrymore, ¶ 5. In Lenihan, we stated: “It appears to be the better rule to allow an

appellate court to review any sentence imposed in a criminal case, if it is alleged that

such sentence is illegal or exceeds statutory mandates, even if no objection is made at the

time of sentencing.” Garrymore, ¶ 11 (quoting State v. Lenihan, 184 Mont. 338, 343,

602 P.2d 997, 1000 (1979)). Since Adams could have raised this issue on direct appeal,

and since we remanded allowing him to address any issues he could have raised on direct

appeal, we will undertake appellate review of the sentencing issue raised herein.

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¶56 Because the events giving rise to the charges and Adams’ conviction occurred

before the Apprendi decision was made, we must determine if Apprendi applies

retroactively. In Gratzer v. Mahoney, 2006 MT 282, ¶ 11, 334 Mont. 297, ¶ 11, __ P.3d

__, ¶ 11, this Court held that Apprendi does not apply retroactively to cases on collateral

review. However, we have never determined whether Apprendi applies retroactively to

cases on direct appeal. This Court has adopted the United States Supreme Court’s

conclusion that “a new rule for the conduct of criminal prosecutions is to be applied

retroactively to all cases, state or federal, pending on direct review or not yet final.” State

v. Egelhoff, 272 Mont. 114, 125, 900 P.2d 260, 267 (1995) (overruled on other grounds

by Montana v. Egelhoff, 518 U.S. 37, 116 S. Ct. 2013 (1996)) (quoting Griffith v.

Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716 (1987)); see also State v. Waters, 1999

MT 229, ¶ 21, 296 Mont. 101, ¶ 21, 987 P.2d 1142, ¶ 21. A new rule is one which

“breaks new ground or imposes a new obligation on the States or the Federal

Government.” Egelhoff, 272 Mont. at 126, 900 P.2d at 267 (citing Teague v. Lane, 489

U.S. 288, 301, 109 S. Ct. 1060, 1070 (1989)). The rule stated in Apprendi is one which

imposed a new obligation on the State, and therefore is a new rule which applies

retroactively to cases pending on direct review or not final at the time the new decision

was issued.

¶57 As stated, Adams argues his sentence was unconstitutional because the statute he

was sentenced under does not follow the procedures required under Apprendi. Although

the State gave notice in the information that his sentence could be enhanced for use of a

weapon, that issue was not submitted to the jury, and thus, the jury did not make a

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unanimous finding of use of a weapon beyond a reasonable doubt. This, Adams

contends, constitutes error under Apprendi.

¶58 The State argues that any error here was harmless because the finding that Adams

displayed, brandished, or used a firearm or other dangerous weapon was implicit in the

jury’s verdict finding Adams guilty of aggravated assault. We agree with the State that

Apprendi error is subject to harmless error review, and although we find the error here

harmless, we reject the State’s contention that Adams’ use of a weapon was implicit in

the jury’s verdict of aggravated assault. Our conclusion is based on the following

analysis.

¶59 A defendant’s right to a jury trial is guaranteed by the Sixth Amendment of the

United States Constitution. The Due Process Clause of the Constitution “protects the

accused against conviction except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358,

364, 90 S. Ct. 1068, 1073 (1970). In the case of Neder v. United States, 527 U.S. 1, 8,

119 S. Ct. 1827, 1833 (1999), the trial court failed to instruct the jury to make a finding

of materiality, an element of the fraud crimes with which the defendant was charged.

The United States Supreme Court determined that the failure to submit an element of a

crime to a jury as required by the Constitution does not rise to the level of structural error

which would require automatic reversal. Neder, 527 U.S. at 8-9, 119 S. Ct. at 1833-34.

Thus, failure to submit an element of a crime to a jury is subject to the harmless error test.

Neder, 527 U.S. at 15, 119 S. Ct. at 1837. The test for determining whether such a

constitutional error is harmless is “whether it appears ‘beyond a reasonable doubt that the

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error complained of did not contribute to the verdict obtained.’” Neder, 527 U.S. at 15,

119 S. Ct. at 1837 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828

(1967)). After applying the harmless error test, the Court stated:

In this situation, where a reviewing court concludes beyond a reasonable
doubt that the omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have been the
same absent the error, the erroneous instruction is properly found to be
harmless.

Neder, 527 U.S. at 17, 119 S. Ct. at 1837. Since Neder did not and could not bring forth

facts contesting the omitted element, the result would have been the same had the court

instructed the jury to make a finding of materiality. Neder, 527 U.S. at 19, 119 S. Ct. at

1838. The United States Supreme Court instructed reviewing courts that in cases such as

this one, the reviewing court must examine the record to determine if the result would

have been the same absent the error; if the reviewing court cannot conclude beyond a

reasonable doubt that the jury verdict would have been the same, it cannot conclude that

harmless error occurred. Neder, 527 U.S. at 19, 119 S. Ct. at 1838. The error will not be

harmless if the record shows that the defendant contested the omitted element and raised

sufficient evidence to support a contrary finding. Neder, 527 U.S. at 19, 119 S. Ct. at

1838.

¶60 After Neder was decided, the United States Supreme Court decided Apprendi.

The issue in Apprendi was whether a defendant’s sentence could be enhanced beyond the

statutory maximum based on a fact found by the sentencing judge, rather than the jury

which determined the verdict. Apprendi, 530 U.S. at 469, 120 S. Ct. at 2351. The Court

stated that sentencing factors, like elements to a crime, implicate a defendant’s due

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process rights because liberty is at stake. Apprendi, 530 U.S. at 476-78, 120 S. Ct. at

2355-56. Thus, the Court held that “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490,

120 S. Ct. at 2362-63.

¶61 The standard of review applicable to Apprendi error was not addressed until the

recent decision of Washington v. Recuenco, __ U.S. __, 126 S. Ct. 2546 (2006). The

alleged error in Recuenco was that the trial court subjected the defendant to a firearm

enhancement at sentencing based only on the jury’s finding that he was armed with a

“deadly weapon,” which the State of Washington conceded was an error under Blakely v.

Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Recuenco, ___ U.S. at ___, 126

S. Ct. at 2549. Blakely error, like Apprendi error, occurs when the judge enhances a

sentence beyond the statutory maximum based on aggravating facts not found by a jury

or admitted by the defendant. Blakely, 542 U.S. at 303-04, 124 S. Ct. at 2537-38;

Cunningham v. California, 2007 WL 135687, *11 (U.S. Jan. 22, 2007). The State of

Washington argued Blakely error was harmless error, but the Washington Supreme Court

determined that this type of error was structural error which will always invalidate the

conviction. Recuenco, ___ U.S. at ___, 126 S. Ct. at 2550. The United States Supreme

Court reversed the Washington Supreme Court, relying on the Neder holding that

harmless error analysis applies to errors where the trial court failed to submit an element

of an offense to a jury. Recuenco, __ U.S. at __, 126 S. Ct. at 2552. The Supreme Court

stated that “an instruction that omits an element of an offense does not necessarily render

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a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or

innocence.” Recuenco, __ U.S. at __, 126 S. Ct. at 2551 (quoting Neder, 527 U.S. at 9,

119 S. Ct. at 1833). Taking the analysis one step further, the United States Supreme

Court noted its recognition in Apprendi “that elements and sentencing factors must be

treated the same for Sixth Amendment purposes,” and thus, it held that “[f]ailure to

submit a sentencing factor to the jury, like failure to submit an element to the jury, is not

structural error.” Recuenco, __ U.S. at __, 126 S. Ct. at 2552-53. The case was

remanded for a harmless error analysis. Recuenco, __ U.S. at __, 126 S. Ct. at 2553.

¶62 Following Recuenco, the Ninth Circuit Court of Appeals applied the harmless

error test formulated in Neder in a case alleging Apprendi error. United States v. Zepeda-

Martinez, 470 F.3d 909, 910 (9th Cir. 2006). The appropriate harmless error test is

whether the “court finds beyond a reasonable doubt that the result ‘would have been the

same absent the error.’” Zepeda-Martinez, 470 F.3d at 913 (quoting Neder, 527 U.S. at

19, 119 S. Ct. at 1838). The error is harmless if the record contains overwhelming and

uncontroverted evidence supporting the sentencing factor. Zepeda-Martinez, 470 F.3d at

913. The error is not harmless if “the defendant contested the omitted element and raised

evidence sufficient to support a contrary finding.” Zepeda-Martinez, 470 F.3d at 913

(quoting Neder, 527 U.S. at 19, 119 S. Ct. at 1838).

¶63 Thus, the inquiry in this case is whether, beyond a reasonable doubt, Adams would

have received an enhanced sentence based on the display or use of a weapon had the

question been presented to the jury. The evidence presented at trial was that Adams used

a coffee table and a gun as weapons. The doctor presented evidence that Wright’s

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injuries were consistent with being hit by a coffee table. She had bruising on her arm

consistent with trying to protect herself from a blow, and a tear in her ear that could have

been caused by the edge of a coffee table. Adams contested his alleged use of the coffee

table by demonstrating that he could not pick it up. However, in his appeal brief on the

“weapon” issue, he does not contest that a gun was used. He fails to mention the gun at

all. Further, during closing argument, Adams actually argued that this assault, if

anything, amounted to felony assault with a weapon, thus acknowledging the use of a

weapon. The evidence that Adams used a gun while committing aggravated assault is

uncontroverted. Having reviewed the record, we conclude that the result would have

been the same. That is, Adams would have received an enhanced sentence based on use

of a weapon had the jury been asked to make a finding on that issue. Thus, the error in

this case is harmless.

¶64 A defendant’s right to a jury trial is also guaranteed by Article II, Section 26 of the

Montana Constitution. This Court has adopted its own two-step analysis to determine

whether an alleged error prejudiced a defendant’s right to a fair trial and is therefore

reversible. State v. Van Kirk, 2001 MT 184, ¶ 37, 306 Mont. 215, ¶ 37, 32 P.3d 735,

¶ 37. We must first determine whether the claimed error is structural error or trial error.

Van Kirk, ¶ 37. “‘Structural’ error is that type of error that ‘[a]ffects the framework

within which the trial proceeds, rather than simply an error in the trial process itself.’”

Van Kirk, ¶ 38 (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 1265,

(1991)). Following the United States Supreme Court’s ruling in Recuenco, __ U.S. at __,

126 S. Ct. at 2552-53, failure to submit a sentencing factor to the jury is not structural

25
error. Thus, in this case, the trial court’s failure to submit the sentencing factor (Adams’

use of a weapon) to the jury was trial error. Van Kirk, ¶ 40 (trial error is “that type of

error that typically occurs during the presentation of a case to the jury”). Trial error is

subject to review under our harmless error statute, § 46-20-701, MCA. Van Kirk, ¶ 40.

A cause may not be reversed unless the record shows the error is prejudicial. Section 46-

20-701, MCA.

¶65 Because the error is trial error, we proceed to our second step—determining

whether the error was harmless under the circumstances. Van Kirk, ¶ 41. In determining

whether it was harmless error for a court to enhance a defendant’s sentence on facts not

specifically found by a jury, we adopt the United States Supreme Court’s analysis set

forth above. We must determine whether Adams would have received an enhanced

sentence based on the display or use of a weapon had the question been presented to the

jury. Because the evidence that Adams used a gun while committing aggravated assault

is uncontroverted, we conclude that the result would be the same; that Adams would have

received an enhanced sentence based on use of a weapon had the jury been asked to make

a finding on that issue. The error in this case is harmless.

¶66 We affirm the District Court.

/S/ W. WILLIAM LEAPHART

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We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ BRIAN MORRIS

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