October 26 2010
DA 10-0067
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 226
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DANIEL FITZGERALD BROOKS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 07-377
Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Hillary Prugh Carls, Angel, Coil, & Bartlett, Bozeman, Montana
Christopher J. Daly, Office of the Public Defender, Missoula,
Montana
For Appellee:
Steve Bullock, Montana Attorney General; Tammy K Plubell,
Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney; Shawn Patrick
Thomas, Betty Wing, Deputy County Attorneys, Missoula, Montana
Submitted on Briefs: July 28, 2010
Decided: October 26, 2010
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Daniel Brooks appeals the judgment of the Fourth Judicial District Court,
Missoula County, sentencing him to ten years in prison with five years suspended under
the State’s persistent felony offender (PFO) sentencing statute, § 46-18-502, MCA. We
affirm.
¶2 We address the following issues on appeal:
¶3 I. Whether Brooks’s sentence violates the prohibition on double jeopardy under
the Montana Constitution (Article II, section 25); and
¶4 II. Whether the District Court erred by not holding a hearing (pursuant to § 46-
13-108(3), MCA) to determine the truth of allegations on which Brooks’s PFO status was
predicated.
FACTUAL AND PROCEDURAL BACKGROUND
¶5 The issues on appeal center on sentencing, but some additional background is
necessary. In September 2007 Brooks was pulled over and arrested for driving under the
influence of alcohol (DUI). The State charged Brooks, inter alia, for DUI. 1 This was a
felony charge because Brooks had more than three prior DUI convictions. Before trial
the State filed notice of its intent to seek enhanced punishment against Brooks as a PFO
on account of a 2004 conviction for assault with a weapon (a felony). The case went to
trial, and Brooks was convicted.
1
The State also charged Brooks for two misdemeanors, operating a motor vehicle the
wrong way on a one-way street and failure to carry proof of liability insurance. These
charges are irrelevant to the present appeal and will not be addressed further.
2
¶6 For the felony DUI conviction, the District Court sentenced Brooks to five years
of incarceration (all suspended) and a thirteen-month commitment to the Department of
Corrections (DOC) for placement in a specific alcohol-treatment program, WATCh
(Warm Springs Addictions Treatment and Change). Under the PFO statute, the court
sentenced Brooks to ten additional years of incarceration, with five suspended.
¶7 Brooks appealed his conviction. This Court dismissed the appeal as wholly
frivolous. Brooks subsequently moved the District Court to clarify his sentence because
he believed that the personnel at the Montana State Prison and DOC were attempting to
illegally extend his sentence. Over opposition from the State, the District Court amended
the sentence, replacing the specific reference to WATCh with a general thirteen-month
commitment to DOC. Also, tracking the language of § 61-8-731(1)(a), MCA, the court
added that upon completion of an approved treatment program, Brooks would serve the
remainder of the commitment on probation.
¶8 Brooks then filed a petition for a writ of habeas corpus (or in the alternative,
mandamus) with this Court to challenge the amended sentence. In an order, we
concluded that the sentence, as amended, was ambiguous and remanded the case to the
District Court to clarify the sentence to comply with the law. On remand the State argued
that the District Court should sentence Brooks under the PFO statute only. Brooks,
representing himself, countered that the District Court should dismiss the PFO sentence,
modify his sentence for felony DUI to a thirteen-month commitment to DOC with two
years suspended, and credit him with time served. Brooks advanced that a PFO sentence
would violate the constitutional bar on double jeopardy. He also challenged the
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constitutionality of the prior assault conviction that served as the predicate for the PFO
designation.
¶9 Adopting the State’s position, the District Court sentenced Brooks exclusively
under the PFO statute to ten years at MSP with five suspended and recommended that the
DOC place Brooks in an alcohol treatment program prior to releasing him on parole.
¶10 On appeal, Brooks once more challenges his sentence.
STANDARD OF REVIEW
¶11 A double jeopardy claim presents a question of constitutional law over which we
exercise plenary review. State v. Dodson, 2009 MT 419, ¶ 31, 354 Mont. 28, 221 P.3d
687. The question of whether a district court followed the proper procedure in
designating a criminal defendant as a PFO is a question of statutory interpretation, which
we review de novo. State v. Gallagher, 2005 MT 336, ¶ 16, 330 Mont. 65, 125 P.3d
1141.
DISCUSSION
¶12 I. Whether Brooks’s sentence violates the prohibition on double jeopardy under
the Montana Constitution.
¶13 Brooks contends that his sentence violates the Montana Constitution’s bar against
double jeopardy. Relying on State v. Guillaume, 1999 MT 29, 293 Mont. 224, 975 P.2d
312, Brooks advances that the District Court unconstitutionally enhanced his sentence
twice on account of prior convictions. This argument does not withstand analysis.
¶14 The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution reads: “[N]or shall any person be subject for the same offence to be twice
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put in jeopardy of life or limb.” This bar against double jeopardy “was designed to
protect an individual from being subjected to the hazards of trial and possible conviction
more than once for an alleged offense.” Green v. United States, 355 U.S. 184, 187, 78 S.
Ct. 221, 223 (1957). Among other things, this bar protects against multiple criminal
punishments for the same offense. United States v. DiFrancesco, 449 U.S. 117, 129, 101
S. Ct. 426, 433 (1980). Nevertheless, the U.S. Supreme Court has rejected double
jeopardy challenges to recidivism statutes and recognized recidivism as a generally
legitimate basis for enhanced punishment—“a stiffened penalty for the latest crime,
which is considered to be an aggravated offense because a repetitive one.” Witte v.
United States, 515 U.S. 389, 400, 115 S. Ct. 2199, 2206 (1995) (quoting Gryger v. Burke,
334 U.S. 728, 732, 68 S. Ct. 1256, 1258 (1948)).
¶15 Article II, section 25 of the Montana Constitution (on which Brooks’s challenge
rests) reads: “No person shall be again put in jeopardy for the same offense previously
tried in any jurisdiction.” We have construed this provision to provide greater protection
to criminal defendants than does the analogous clause in the federal constitution. State v.
Guillaume, 1999 MT 29, ¶ 13, 293 Mont. 224, 975 P.2d 312. Specifically, we have
interpreted this provision to exemplify “the legal and moral concept that no person should
suffer twice for a single act.” Id. at ¶ 17. Nevertheless, like our federal counterpart, we
recognize the general legitimacy of enhanced punishment for recidivism. State v. Shults,
2006 MT 100, 332 Mont. 130, 136 P.3d 507. The resolution of the present case lies in its
crucial dissimilarity with Guillaume.
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¶16 In Guillaume the defendant (Guillaume) threatened the victim with a raised
hammer. Guillaume, ¶ 3. The State charged Guillaume with felony assault (§ 45-5-
202(b), MCA, (1995)) because he used a weapon (the hammer). Id. at ¶ 4. The jury
convicted Guillaume. Id. The district court then sentenced him to ten years in prison for
the felony assault. Id. It then sentenced him to an additional five years under the weapon
enhancement statute (§ 46-18-221(1), MCA (1995)) because Guillaume used a dangerous
weapon (the hammer). Id. The issue on appeal was whether this violated double
jeopardy. Id. at ¶ 2. We held that it did: “[A]pplication of the weapon enhancement
statute to felony convictions where the underlying offense requires proof of the use of a
weapon violates the double jeopardy provision . . . .” Id. at ¶ 16. Applying the general
principle that “no person should suffer twice for a single act,” the Court explained that
Guillaume’s use of the hammer was the predicate for both the enhancement of his charge
from misdemeanor to felony assault and the additional sentence under the weapon
enhancement statute. Id. at ¶ 18. This was an impermissible double punishment. Id.
¶17 Unlike Guillaume, the two sentence “enhancements” of which Brooks complains
(felony DUI, and PFO) were not predicated on the same act. The State charged Brooks
with felony DUI because Brooks had more than three prior DUI convictions. The State
then sought an enhanced sentence for Brooks as a PFO on account of his prior felony
conviction for assault with a weapon. While the enhanced charge of felony DUI and the
enhanced PFO sentence were both based on Brooks’s recidivism, they were not based on
the same prior conviction. Therefore the double jeopardy rule from Guillaume does not
apply.
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¶18 Brooks’s sentence does not violate the Montana Constitution’s bar on double
jeopardy. An enhanced sentence under § 46-18-502, MCA, does not supplement, but
supplants the sentence for the underlying felony. State v. Gunderson, 2010 MT 166, ¶
54, 357 Mont. 142, ___ P.3d ___ (Aug. 16, 2010). As such, it does not constitute a
double punishment subject to the double jeopardy bar. See Shults, ¶ 26 (explaining that
“PFO statutes . . . do not constitute double jeopardy because ‘[a] sentence as an habitual
offender criminal is not to be viewed as a new jeopardy.’” (quoting State v. Wardell,
2005 MT 252, ¶ 19, 329 Mont. 9, 122 P.3d 443)). This Court has also held that a felony
DUI conviction under § 61-8-731, MCA, is a legitimate trigger for a PFO designation.
State v. Damon, 2005 MT 218, ¶ 40, 328 Mont. 276, 119 P.3d 1194. Here, however, the
District Court only sentenced Brooks as a PFO pursuant § 46-18-502, MCA. This
enhanced sentence was predicated on Brooks’s conviction for felony DUI and his prior
felony conviction for assault with a weapon. While the sentence was certainly harsher
than it would have been if Brooks had had no prior felony conviction, the legislature at
present has determined that such punishment is the proper means of dealing with repeat
offenders. Brooks’s sentence as a PFO here does not violate the double jeopardy bar of
the Montana Constitution.
¶19 II. Whether the District Court erred by not holding a hearing to determine the
truth of allegations on which Brooks’s PFO status was predicated.
¶20 Brooks next argues that he should have received a hearing to dispute the validity
of the assault with a weapon conviction that was the basis of his PFO designation. This
argument merits only brief discussion.
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¶21 To seek PFO treatment of a criminal defendant, a prosecutor must file notice to do
so “at or before the omnibus hearing.” Section 46-13-108(1), MCA. The notice must
state the prior felony convictions on which the request for PFO treatment is premised. Id.
at § 46-13-108(1). If a defendant objects to the allegations in the notice (i.e., challenges
the alleged prior felonies), “the judge shall conduct a hearing to determine if the
allegations in the notice are true.” Id. at § 46-13-108. While this statute expressly states
a deadline by which the prosecutor must file the notice to seek PFO treatment, it provides
no pre-sentencing deadline by which the defendant must object to the designation of prior
felonies. Nevertheless, we have held that when a defendant, subsequent to sentencing,
makes his request for a hearing for the first time on appeal, it is too late. State v.
Gallagher, 2005 MT 336, ¶¶ 30-33, 330 Mont. 65, 125 P.3d 1141.
¶22 Here, Brooks did not even challenge the prior assault with a weapon conviction
until after his post-conviction habeas corpus petition—well after his initial sentence and
appeal. It matters not that Brooks raised the issue on remand after we concluded that the
sentence initially imposed by the District Court was not legal. When, in response to
Brooks’s petition for habeas relief, we remanded to the District Court, we did not remand
for resentencing. Instead we remanded the case with the specific instruction that the
District Court clarify or modify Brooks’s sentence (which had improperly blended § 46-
13-502, MCA, and § 61-8-731, MCA). The District Court properly clarified the matter
by sentencing Brooks solely under § 46-13-502, MCA. The District Court was not
required to hold a hearing on Brooks’s challenge to his prior felony conviction at this late
date.
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¶23 Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ JIM RICE
/S/ BRIAN MORRIS
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