November 18 2008
DA 07-0136
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 379
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JAMES CURTIS MAKI,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-06-523
Honorable Ed McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; David Avery, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Hon. Mike McGrath, Montana Attorney General; Jonathan M. Krauss,
Assistant Attorney General, Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney, Missoula, Montana
Submitted on Briefs: March 26, 2008
Decided: November 18, 2008
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 James Curtis Maki appeals from the judgment entered by the Fourth Judicial District
Court, Missoula County, on his guilty pleas to the felony offenses of criminal possession of
dangerous drugs and criminal possession of precursors. We affirm.
¶2 The issue on appeal is whether the District Court erred by denying Maki’s motion to
dismiss the charges on double jeopardy grounds.
BACKGROUND
¶3 Due in part to the manner in which this case proceeded in the District Court, the
factual record before us is rather undeveloped. The parties do not dispute, however, that
Maki was convicted in 1991 of five offenses in federal court and sentenced to a term of
imprisonment, followed by a term of federal supervised release. In January of 2006, Maki
was serving the term of federal supervised release when federal probation officers, assisted
by a detective from the Missoula County Sheriff’s Office, located and seized a plastic baggie
of methamphetamine and various items identified as precursors to the manufacture of
methamphetamine at Maki’s residence.
¶4 In February of 2006, the United States District Court for the District of Montana
entered a judgment entitled “JUDGMENT IN A CRIMINAL CASE (For Revocation of
Probation or Supervised Release).” The federal revocation judgment indicates that Maki
admitted violating two conditions of his term of supervised release, described as “Standard
Condition #7 (possess/use of marijuana and meth.)” and “violation of state/fed laws
(mfg./distrib. marijuana/meth).” The federal court committed Maki to the custody of the
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United States Bureau of Prisons to be imprisoned for 50 months on each of the 5 charges in
the underlying case, to be served concurrently, followed by supervised release for 10 months
on each of the 5 charges, to be served concurrently.
¶5 In December of 2006, the State of Montana charged Maki by information with the
felony offenses of criminal possession of dangerous drugs and criminal possession of
precursors. The charges were based on the evidence seized during the search of Maki’s
residence in January of 2006. Maki pled not guilty.
¶6 In January of 2007, Maki moved to dismiss the charges on double jeopardy grounds,
pursuant to § 46-11-504, MCA, and Article II, Section 25 of the Montana Constitution.
Maki attached the federal revocation judgment from February of 2006. He asserted he would
face double punishment for the same conduct that formed the basis for the federal revocation
if the prosecution continued. The State responded.
¶7 The District Court denied Maki’s motion at a hearing. The court reasoned Maki had
not faced new charges in the federal court, and double jeopardy did not apply with respect to
the federal court’s earlier use of Maki’s possession of the items seized in January of 2006 as
a basis for revocation.
¶8 Maki and the State entered into a plea agreement under which Maki would plead
guilty to the two drug offenses in exchange for the State’s recommendation for, among other
things, sentences of 4 years commitment to the Department of Corrections and 15 years
commitment to the Department of Corrections with 10.5 years suspended, to run
concurrently to each other and to the sentence imposed upon his federal revocation. The
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District Court accepted Maki’s guilty pleas, and entered judgment and sentence in
accordance with the parties’ plea agreement. Maki appeals.
STANDARD OF REVIEW
¶9 A district court’s denial of a defendant’s motion to dismiss a criminal charge on
double jeopardy grounds presents a question of law that we review for correctness. State v.
Cech, 2007 MT 184, ¶ 7, 338 Mont. 330, ¶ 7, 167 P.3d 389, ¶ 7 (citation omitted).
DISCUSSION
¶10 Did the District Court err by denying Maki’s motion to dismiss the charges on
double jeopardy grounds?
¶11 In an ordinary criminal case, the entry of a voluntary guilty plea constitutes a waiver
of all nonjurisdictional defects and defenses, including claims of constitutional rights
violations which occurred prior to the plea. See State v. Kelsch, 2008 MT 339, ¶ 8, 346
Mont. 260, ¶ 8, ___ P.3d ___, ¶ 8 (citations omitted). With the consent of the prosecutor and
the approval of the court, however, a defendant may enter a plea of guilty or nolo contendere,
reserving the right to appeal the adverse determination of any specified pretrial motion. See
Kelsch, ¶ 9 (citing § 46-12-204(3), MCA). Here, Maki entered into a plea agreement that did
not reserve the right to appeal from the adverse determination of his motion to dismiss on
double jeopardy grounds, and nothing else of record reflects a reserved right to appeal any
matter.
¶12 Maki asserts as a threshold matter that, pursuant to Cech, he may raise this double
jeopardy issue on appeal despite his failure to reserve the right to appeal in the District
Court. In Cech, ¶¶ 9-10 (citations omitted), we applied a limited “jurisdictional grounds
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exception” utilized by the Court of Appeals for the Ninth Circuit in concluding the defendant
who had pled guilty did not waive his double jeopardy assertion—despite failing to reserve
the issue for appeal—because the record before the district court was sufficient for the court
to determine whether the State lacked power to bring the charges at issue in light of
constitutional prohibitions against double jeopardy.
¶13 In response, the State observes only that Maki did not reserve the right to appeal in the
District Court. It does not offer substantive argument regarding either Maki’s position that
he is entitled to raise this issue despite his failure to reserve the right to appeal in the District
Court, or his reliance on Cech. Thus, we conclude the State has conceded that this issue is
properly before us.
¶14 Maki asserts his state prosecution for felony charges is barred under § 46-11-504,
MCA, or Article II, Section 25 of the Montana Constitution. We address these assertions in
turn.
¶15 Section 46-11-504, MCA, provides in pertinent part that “[w]hen conduct constitutes
an offense within the jurisdiction of any state or federal court, a prosecution in any
jurisdiction is a bar to a subsequent prosecution in this state if: (1) the first prosecution
resulted in an acquittal or in a conviction and the subsequent prosecution is based on an
offense arising out of the same transaction[.]” This statutory “multiple prosecutions”
provision applies if
(1) a defendant’s conduct constitutes an offense within the jurisdiction of the
court where the first prosecution occurred and within the jurisdiction of the
court where the subsequent prosecution is pursued;
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(2) the first prosecution resulted in an acquittal or a conviction; and
(3) the subsequent prosecution is based on an offense arising out of the same
transaction.
Cech, ¶ 13 (citation omitted).
¶16 Maki makes brief assertions that the first and third prongs of the Cech analysis were
met, and the State does not directly address those assertions. Regarding the second prong,
Maki concedes the federal revocation for possessing the methamphetamine and precursors
was neither a “prosecution” nor a “conviction.” He asserts, however, that we must decide
whether the revocation of his federal supervised release and corresponding 50-month federal
imprisonment satisfy the second prong, and contends the second prong should be satisfied
whenever a defendant is merely subject to prosecution and imprisoned pursuant to any form
of proceeding.
¶17 In construing a statute, the office of the judge is simply to ascertain and declare what
is in terms or in substance contained therein, not to insert what has been omitted or to omit
what has been inserted. See § 1-2-101, MCA; State v. Mainwaring, 2007 MT 14, ¶ 15, 335
Mont. 322, ¶ 15, 151 P.3d 53, ¶ 15 (citation omitted). As noted above, § 46-11-504, MCA,
states in part that a “prosecution” in any jurisdiction bars a subsequent prosecution in
Montana if the “first prosecution resulted in an acquittal or in a conviction.” Nothing of
record suggests that Maki’s federal revocation proceeding constituted a “prosecution” and, as
noted above, Maki concedes it was not. We conclude that the revocation of Maki’s federal
supervised release was not a prosecution as contemplated in § 46-11-504, MCA, and,
therefore, the statute did not bar the State’s prosecution of Maki for felony drug charges.
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¶18 Purportedly as part of his statutory argument, Maki also asserts that double jeopardy
applies to “multiple punishments.” In support, he advances State v. Guillaume, 1999 MT 29,
¶ 19, 293 Mont. 224, ¶ 19, 975 P.2d 312, ¶ 19. Guillaume did not discuss multiple
punishments in relation to § 46-11-504, MCA, however; it discussed multiple punishments in
relation to the constitutional provision we address further below.
¶19 Maki’s constitutional argument is based on Article II, Section 25 of the Montana
Constitution, which states in pertinent part that “[n]o person shall be again put in jeopardy
for the same offense previously tried in any jurisdiction.” Maki observes our determination
in Guillaume that Article II, Section 25 provides greater protection against multiple
punishments for the same offense than does the Fifth Amendment to the United States
Constitution. See Guillaume, ¶ 16. He also points to our statement in Guillaume, ¶ 17, that
“[w]e are guided by the fundamental principle embodied in double jeopardy. Simply put,
double jeopardy exemplifies the legal and moral concept that no person should suffer twice
for a single act.” On these bases, he asserts Article II, Section 25 bars his state prosecution
because he was punished via h i s federal revocation for possessing the very
methamphetamine and precursors leading to the charges filed by the State.
¶20 The entire constitutional and above-referenced statutory “multiple punishments”
argument in Maki’s opening brief is under two pages long and based solely on Guillaume.
Our holding in Guillaume was that the double jeopardy provision of the Montana
Constitution prohibited a weapon enhancement when the use of a weapon was an element of
the underlying offense—a conclusion which does not relate in any way to revocation
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proceedings. See Guillaume, ¶ 16. Absent authorities other than Guillaume or developed
argument relating Guillaume to the issue presented here, we reject Maki’s unsupported
assumption that his federal revocation constituted a “punishment” for purposes of double
jeopardy analysis under Article II, Section 25 of the Montana Constitution.
¶21 Maki also advances a number of arguments in his reply brief. Having considered
them, we conclude that—with one exception—we need not address them.
¶22 We do address, briefly, one point raised in Maki’s reply brief. Maki advances certain
language from State v. Walker, 2001 MT 170, ¶ 12, 306 Mont. 159, ¶ 12, 30 P.3d 1099, ¶ 12,
and State v. Lange, 237 Mont. 486, 489, 775 P.2d 213, 215 (1989), which he asserts supports
his position that he was “punished” in the federal revocation proceeding. The original
version of this language—shortened in Walker and Lange—was our statement in Matter of
Ratzlaff, 172 Mont. 439, 446, 564 P.2d 1312, 1316 (1977), that “[t]he defendant’s
subsequent conduct, not his original offense, forms the basis of revocation and reinstates the
original sentence. Petitioner is not being punished twice for the same offense.” Contrary to
Maki’s assertion, the foregoing language does not characterize a sentence imposed in a
revocation proceeding as a “punishment.” The language clarifies that the basis of a
revocation is the violation of a sentencing condition and that a revoked sentence is not a
second punishment for the underlying offense.
¶23 We hold the District Court did not err in denying Maki’s motion to dismiss on double
jeopardy grounds.
¶24 Affirmed.
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/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
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