State v. Krantz

No. 88-129
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
THOMAS FREDERICK KRANTZ,
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William Boggs argued, Missoula, Montana
Wendy Holton argued, Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Patti Powell argued, Asst. Atty. General, Helena
Robert L. Deschamps, 111, County Attorney; Fred Van
Valkenburg, Deputy, Missoula, Montana

Submitted: December 12, 1989
Decided: March 1, 1990

Filed:

Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Thomas Krantz appeals his criminal conviction and sentence for
robbery and accountability for robbery following a jury trial in
the Fourth Judicial District Court, Missoula County. We affirm.
ISSUES
1. Did the District Court err in allowing repeated references
to a series of similar crimes in the Missoula area after the State
agreed at the omnibus hearing not to introduce other crimes
evidence?
2. Did the ~istrictCourt abuse its discretion by failing to
provide adequate reasons to justify the sentence and the dangerous
offender designation?
3. Did the District Court violate the appellant's due process
rights in applying the weapon enhancement statute and the dangerous
offender statute?
FACTS
Near midnight on May 24, 1987, a masked gunman using a rusted
chrome or stainless steel pistol held up the Missoula Domino's
Pizza. One week later at about 1:30 a.m. on June 2, an armed
robber held up the Missoula Orange Street Inn. Near the Inn,
responding sheriff's officers spotted a car matching the descrip-
tion of a vehicle seen at a prior robbery. The officers stopped
the car and detained the passenger, Greg Jellison, and the driver,
appellant Thomas Krantz. A search of the suspects and their car
produced rolls of coins taken from the Orange Street Inn and a
chrome-plated, .38 special handgun. Witnesses later identified the
appellant as the Domino's Pizza robber.
Between May 19 and June 2, 1987, five other robberies
following a common pattern had occurred in the Missoula area. In
addition to Domino's Pizza and the Orange Street Inn, Pickle-0-
Pete's, the Snow King Restaurant, the Village 11, the Campus Inn
Motel, and the Executive Motor Inn were also robbed. The State
charged Krantz with the Domino's Pizza, Pickle-0-Pete's, and the
Snow King robberies and with accountability in the Orange Street
Inn holdup.
At the pretrial omnibus hearing, the State agreed not to
introduce other crimes evidence. Prior to trial, the State
informed the District Court that it would elicit testimony
concerning the series of robberies to help explain the actions of

police officers and victims. The court held that the testimony did
not fall within the definition of other-crimes evidence and,
therefore, did not trigger the procedures set out in State v. Just

(1979), 184 Mont. 262, 269, 602 P.2d 957, 961. During trial,
witnesses and state prosecutors referred repeatedly to the series

of robberies without defense objection. The court admonished the
jury on several occasions about the limited purposes of such
evidence.
 The jury found the appellant guilty of accountability in the
Orange Street Inn holdup and guilty of robbery in the Domino's
Pizza holdup, but not guilty of the robbery of Pickle-0-Pete's and
the Snow King Restaurant. The District Court sentenced the
appellant to thirty years on each conviction and added ten years
to each for use of a weapon. The court ordered the forty-year
sentences to run concurrently and designated the appellant a
dangerous offender. The defendant now appeals the conviction,
sentence enhancement, and dangerous offender designation.
OTHER CRIMES EVIDENCE
The appellant contends that the State's references during
trial to the series of Missoula robberies violated both the
substantive and procedural requirementd of Just. We decline to
reach this issue because the appellant failed to object to the
controverted evidence at any time before or during trial. Failure
to object to alleged other crimes evidence precludes consideration
of the issue on appeal. State v. Warnick (1982), 202 Mont. 120,
125, 656 P.2d 190, 193.

The appellant cites State v. Brown (1984), 209 Mont. 502,
680 P.2d 582, for the proposition that the appellant's failure to
object is not a defense when the omnibus order prohibited the
introduction of other crimes evidence. Brown is distinguishable.
In Brown, we held that the defendant's motion in limine to exclude

evidence of prior acts and the trial court's order requiring ten
days notice of such evidence were sufficient to preserve the issue
for appeal. Brown, 209 Mont. at 506-07, 680 P.2d at 584-85. Here,

the appellant at no time disapproved of the evidence or disagreed
with the District Court's finding that it was not other crimes
evidence. The record shows that the appellant declined the trial
court's offer to instruct the jury on other crimes evidence. The
objection requirement prevents the defendant from consciously
planting errors in the trial proceedings and then raising those
errors as grounds of appeal. State v. Stroud (1984), 210 Mont. 58,
73, 683 P.2d 459, 467. The appellant cannot now complain of
prejudice from other crimes evidence when he did not discern any
prejudice at trial.
SENTENCING COURT'S STATEMENT OF REASONS
The appellant argues that in sentencing the District Court

failed to consider the presentence report and gave inadequate
reasons for the sentence and the dangerous offender designation.
During sentencing the District Court stated,
[Ylou have . . . shown a consistent pattern of
endangering other people. Therefore, on the
basis of your record and the nature of these
crimes, I sentence you on each of the two
counts to thirty years in the Montana State
Prison, ten extra consecutive to those on each
of those two counts for the use of a weapon,
and designate you a dangerous offender . . . .
The written judgment stated,
A Pre-sentence Investigation Report was or-
dered and the Court having received and re-
 viewed the report and being fully advised as
to the facts of this case ..
. .

Reasons for the sentence are:
1. Defendant's criminal record;
2. Serious nature of offense; and
3. Consistent pattern of endangering other
people.
The sentencing court is required by statute to state for the
record its reasons when imposing sentence. Section 46-18-
102 (3)(b), MCA. This rule complies with basic fairness by
acknowledging the defendant's right to be informed of the reasons
for his sentence. It also facilitates review by this Court and the
Sentence Review Board. State v. Petroff (Mont. 1988), 757 P.2d

We have generally upheld minimal statements of sentencing
reasons. In State v. Petroff we held that, I1[t]he recommendations
of the Pre-sentence Investigation [and] [tlhe Defendant's prior
criminal record1' provided a sufficient statement. Petroff, 757
P.2d at 761, 45 St.Rep. at 835. In State v. Johnson, we upheld a
sentence based on the [dlefendant s history of alcohol and driving
offenses1'coupled with the presentence report. Johnson (1986), 221
Mont. 503, 518, 719 P.2d 1248, 1257.
We hold that the District Court's statement of reasons in this
case is sufficient. Whether the sentence and dangerous offender
status are supported by the presentence investigative report is a
question more properly raised before the Sentence Review Division.
See Rule 16, Rules of the Sentence Review Division of the Montana
Supreme Court.
CONSTITUTIONALITY OF SENTENCE ENHANCEMENT
Standinq
The State contests the appellant's standing to challenge the
constitutionality of the procedure used to enhance his sentence for
use of a weapon and to designate him a dangerous offender. To
challenge the constitutionality of a criminal statute or procedure,
the defendant must show a direct, personal injury resulting from
application of the law in question. State v. Bruns (1984), 213
Mont. 372, 380-81, 691 P.2d 817, 822. The State argues that
because the appellant's sentence, including enhancement, did not
exceed the maximum possible sentences for robbery and accoun-
tability, the appellant suffered no injury.
We disagree with the State and hold that the appellant has
standing to challenge both the weapon enhancement statute and the
dangerous offender statute.' The appellant faces direct injury to

The State's argument that the appellant gains standing only
if his sentence exceeds the maximum potential sentence allowed for
the substantive crime, depends on the appellant's contention that
his right to due process was violated when the trial court enhanced
his sentence beyond that limit without the full panoply of due
process procedures. Since we do not accept enhancement beyond the
maximum for the underlying crime as establishing a threshold of due
process violation, it also does not establish a threshold for
injury and, thereby, standing.
his liberty interest. See State v. Nichols (1986), 222 Mont. 71,
78, 720 P.2d 1157, 1162. Under the weapon enhancement statute, he
faces ten years in prison in addition to thirty years for the
underlying crimes. See 5 46-18-221(1), MCA. Under the dangerous
offender statute, he will spend up to ten extra years in prison
prior to parole eligibility. See 5 46-23-201(2), MCA.
Separate Crimes and Elements
The appellant argues that under several United States Supreme
Court decisions the Montana statute proscribing use of a weapon in
the commission of a crime, § 46-18-221, MCA, and the statute
restricting parole eligibility, 5 46-18-404 MCA, are distinct
crimes separate from the underlying offense or are elements of the
underlying offense. As such, the prosecution must charge use of
a weapon and dangerous offender status in the information or
indictment, they are questions of fact for the jury, and they must
be proven beyond a reasonable doubt. The appellant asserts that
because the State failed to meet any of these criteria, his
enhanced sentence violated the United States constitutional
guarantee of trial by jury under the Sixth Amendment and guarantee
of due process under the Fourteenth Amendment.
In Specht v. Patterson (1967), 386 U.S. 605, 87 S.Ct. 1209,
18 L.Ed.2d 326, the Supreme Court addressed the due process
ramifications of using sentence-enhancement factors in place of
elements of a crime. The State of Colorado convicted Specht of
indecent liberties under a statute which carried a maximum penalty
of ten years, but sentenced him without further notice or hearing
under Colorado's Sex Offenders Act. The Act provided that after
reviewing the defendant's psychiatric evaluation the trial court
would determine if the defendant was a threat of bodily harm to the
public, a habitual offender, or mentally ill. If the court so
found, the defendant could be incarcerated for an indeterminate
term of one day to life. Specht, 386 U.S. at 607-08, 87 S.Ct. at
1211, 18 L.Ed.2d at 328-29. The Court reversed the sentence
holding that because the sentencing procedure required determina-
tion of new factual issues under a discrete statute, due process
entitled the defendant to full trial procedures on those issues.
Specht, 386 U.S. at 609-10, 87 S.Ct. at 1212, 18 L.Ed.2d at 330.
In the case of In re Winship (1970), 397 U.S. 358, 90 S.Ct.
1068, 25 L.Ed.2d 368, the Supreme Court considered the consti-
tutionality of incarcerating a juvenile for larceny under the New
York Family Court Act. The Act required that facts of juvenile
misbehavior be determined only by a preponderance of the evidence.
Winship, 397 U.S. at 360, 90 S.Ct. at 1070, 25 L.Ed.2d at 373.
After recounting the history and policy behind the reasonable doubt
standard, the Court reversed the case stating,
Lest there remain any doubt about the con-
stitutional stature of the reasonable-doubt
standard, we explicitly hold that the Due
Process Clause protects the accused against
conviction except upon proof beyond a reason-
 able doubt of every fact necessary to con-
stitute the crime with which he is charged.
Winship, 397 U.S. at 364, 90 S.Ct. at 1073, 25 L.Ed.2d at 375.
In Mullaney v. Wilbur (1975), 421U.S. 684, 95 S.Ct. 1881, 44
L.Ed.2d 508, the Supreme Court applied its statement in Winship.
Under Maine law proof of an intentional and unlawful homicide
raised a conclusive presumption of malice aforethought and,
therefore, murder. If, however, the defendant proved by a fair
preponderance of the evidence that he committed the homicide in the
heat of passion on sudden provocation, the homicide would be
reduced to manslaughter. Mullaney, 421 U.S. at 691-92, 95 S.Ct.
at 1886, 44 L.Ed.2d at 515. The Supreme Court held that under the
principles established in Winship, absence of the heat of passion
on sudden provocation was a factual element of murder which the
prosecution must prove beyond a reasonable doubt. Mullaney, 421
U.S. at 704, 95 S.Ct. at 1892, 44 L.Ed.2d at 522. The Court noted
its principal concern that if it allowed states unfettered discre-
tion to define the elements of a crime,
a State could undermine many of the interests
[In re Winship] sought to protect without
effecting any substantive change in its law.
It would only be necessary to redefine the
elements that constitute different crimes,
characterizing them as factors that bear
solely on the extent of punishment.
Mullaney, 421 U.S. at 698, 95 S.Ct. at 1889, 44 L.Ed.2d at 519.
 In two recent cases, the Supreme Court limited the broad
ramifications of Specht, Winship, and Mullanev to give the states
greater latitude in defining the elements of a crime and factors
mitigating and aggravating sentencing. In Patterson v. New York
(1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281, the Supreme
Court upheld New Yorkts murder statutes which reduced murder to
manslaughter if the defendant proved by a preponderance of the
evidence the affirmative defense of acting under the influence of
extreme emotional disturbance. Patterson, 432 U.S. at 205, 97
S.Ct. at 2324, 53 L.Ed.2d at 289. Apparently recognizing the near
impossible burden created by Mullanev, the Court stated that it is
not necessary that
a State must prove beyond a reasonable doubt
every fact, the existence or nonexistence of
which it is willing to recognize as an excul-
patory or mitigating circumstance affecting
the degree of culpability or the severity of
punishment.
Patterson, 432 U.S. at 207, 97 S.Ct. at 2325, 53 L.Ed.2d at 290.
In its most recent decision on the subject, McMillan v.

Pennsylvania (1986), 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67,
the Supreme Court considered whether the Pennsylvania Mandatory
Minimum Sentencing Act withstood due process scrutiny under the
Specht-Mullanev-Patterson line of decisions. The Act required the
sentencing court to impose at least a five-year minimum sentence
for the underlying crime if the court found by a preponderance of
the evidence that the defendant had visible possession of a firearm
while committing a crime. The Court distinguished Specht and
Mullanev in holding that under Patterson, the Pennsylvania Act did
not violate due process. McMillan, 477 U.S. at 91, 106 S.Ct. at
2419, 91 L.Ed.2d at 79.
The appellant argues that the present case is controlled by
Specht, Winship, and Mullanev. Under these decisions, due process
requires that whenever a factual determination could lead to
punishment beyond the maximum provided for the underlying crime,
that issue must be treated as a separate crime or as an element of
a crime. The defendant would be entitled to notice, a hearing, an
opportunity to present evidence and confront witnesses, and a
requirement that a jury find the fact beyond a reasonable doubt
--in other words, a trial on the issue. In the present case, the
appellant would be entitled to have the issues of weapon usage and

dangerous offender status included as issues during the robbery
and accountability trial instead of considered by the court during
sentencing.
The appellant distinguishes Patterson and McMillan because the

statutes at issue in those cases did not increase the maximum
sentence possible for the underlying crime. Like the present
appellant, the Specht and Mullaney defendants faced sentences in
addition to those imposed for the underlying crimes based on
determinations of new issues of fact. In the appellant's inter-
pretation, these cases teach that once all facts which would allow
a maximum sentence have been proved beyond a reasonable doubt,
other factors which increase or decrease the sentence within the
maximum may be considered without full due process procedures.
They may be affirmative defenses to be proved by the defendant, or
they may be sentencing factors to be applied by the court. On the
other hand, factors which would increase the sentence beyond the
maximum for the underlying crime are separate crimes or elements
of a crime subject to full trial procedures.
We do not believe that the Supreme Court intended such a
narrow interpretation. The message of Patterson and McMillan is
that the decision to designate specified factors as elements of a
crime, as affirmative defenses, or as sentencing factors, is
fundamentally a decision left to the states. In McMillan the Court
restated the basic premise of Patterson:
It goes without saying that preventing and
dealing with crime is much more the business
of the States than it is of the Federal
Government and that we should not lightly
construe the Constitution so as to intrude
upon the administration of justice by the
individual States. Among other things, it is
normally within the power of the State to
regulate procedures under which its laws are
carried out, including the burden of producing
evidence and the burden of persuasion, and its
decisions in this regard is not subject to
proscription under the Due Process Clause
unless it offends some principle of justice so
rooted in the traditions and conscience of our
people as to be ranked as fundamental.
McMillan, 477 U.S. at 85, 106 S.Ct. at 2415-16, 91 L.Ed.2d at 76
(quoting Patterson, 432 U.S. at 201-02, 97 S.Ct. at 2322, 53
L.Ed.2d at 286-87). (Citations and quotations omitted.) The
McMillan Court emphasized that, while due process imposes some
limits beyond which the states may not go, application of the
reasonable doubt standard has always depended on how state legisla-
tures choose to define a crime. McMillan, 477 U.S. at 85, 106
S.Ct. at 2415, 91 L.Ed.2d at 75.
We do not believe that the system established by the Montana
legislature goes beyond the permissible limits. The Supreme Court
refused to establish any ''bright linev1 test of those limits,
McMillan, 477 U.S. at 86, 106 S.Ct. at 2416, 91 L.Ed.2d at 76, and
we decline the appellant's invitation to establish one based on the
maximum sentence of the substantive crime. The Court's primary
concern in this series of cases is that states would circumvent due
process by redefining the essential elements of guilt as affirma-
tive defenses or as sentencing factors.
Montana's weapon enhancement statute and dangerous offender
statute do neither. The 1977 Montana Legislature adopted the
weapon enhancement statute as part of a bill intended to limit the
discretion of sentencing courts by establishing guidelines and
minimum mandatory sentences for potentially violent crimes.
Consideration of H.B. 261 Before the Senate Judiciary Comm. 45th
Leg. (1977) (statement of Rep. Ramirez). Like the Pennsylvania
statute challenged in McMillan, the Montana statute simply takes
one factor traditionally used in sentencing, the use of a weapon
during a crime, and dictates the minimum weight the court must
assign. See McMillan, 477 U.S. at 89-90, 106 S.Ct. at 2418, 91
L.Ed.2d at 78-79. Similarly, the 1977 Legislature intended the
dangerous offender statute to restrict the discretion of the parole
board by limiting the parole eligibility of violent and repeat
offenders. Consideration of H.B. 385 Before the House Judiciary
Comm. 45th Leg. (1977) (statements of Sen. Thomas and Hank Burgess,
Bd. of Pardons). The statute takes a traditional factor in
determining parole eligibility, the danger to society, and dictates
the precise weight to be assigned. Furthermore, in bills es-
tablishing both statutes, the Legislature directed that they be
codified in the Revised Codes of Montana at Title 95, Montana Code
of Criminal Procedure, Chapter 22, Sentence and Judgment. Act
approved April 8, 1977, ch. 340, 5 1, 1977 Mont. Laws 1050; Act
approved May 13, 1977, ch. 584, 5 13, 1977 Mont. Laws 1958, 1964.
At that time substantive criminal statutes were codified in Title
94, Crimes and Criminal Procedure, Chapters 1 through 46. The
elements of the underlying crime in this case, robbery, have
remained essentially the same since territorial times. Compare
§ 45-5-401, MCA (1989) with Laws of Mont. Ch. VI, 5 71 (1879).
The Montana weapon enhancement statute contains a number of
elements similar to those found in substantive criminal statutes,
but those elements do not make it a separate crime. The enhance-
ment statute contains a recidivist provision, requires a mental
state of knowingly, and may require a finding of fact, use of a
weapon, not necessary to establish guilt of the underlying crime.
The recidivist provision carries out the statute's purpose by
limiting the sentencing court's discretion in imposing increased
punishment for repeat offenders. The mens rea requirement protects
the defendant by imposing on the court an additional and appro-
priate finding in determining weapon usage. All sentencing factors
may, and often do, require the court to consider facts not es-
tablished during trial. These elements are as much pertinent and
necessary attributes of traditional sentencing considerations as
they are attributes of substantive crimes.
The appellant cites cases of the United States Supreme Court
and the Circuit Courts of Appeals which have held that the federal
weapon enhancement statute and other enhancement-type statutes are
separate crime^.^ The State counters that those cases are based on

United States v. Sudduth (10th Cir. 1972), 457 F.2d 1198,
1201 (holding that, although Congressional intent was ambiguous,
18 U.S.C. 5 924 (c), proscribing use of a weapon during a felony,
creates a distinct crime and, therefore, could not be used to
enhance a sentence after a substantive charge of weapon usage had
been dropped) ; accord Simpson v. United States (1978), 435 U. S. 6,
10, 98 S.Ct. 909, 911-12, 55 L.Ed.2d 70, 75 (holding that the
federal weapon statute cannot be used to increase punishment under
the federal bank robbery statute which includes a weapon enhance-
ment provision) ; see also Garrett v. United States (1985), 471 U.S.
773, 786, 105 S.Ct. 2407, 2415, 85 L.Ed.2d 764, 776 (holding that
in passing 21 U.S.C. 5 848, proscribing continuing criminal
statutory construction and not due process considerations. The
State cites numerous cases in which the federal courts held that
enhancement statutes, even when they impose penalties beyond the
maximum allowed for the substantive crime, did not create separate
crimes and did not violate due process.3
While both arguments are persuasive, we do not find either
convincing. To paraphrase McMillan, the fact that Montana and the
federal government have formulated different statutory schemes to
punish armed felons is merely a reflection of our federal system,
which demands tolerance for a spectrum of state and federal
procedures dealing with a common problem of law enforcement. See
McMillan, 477 U.S. at 90, 106 S.Ct. at 2418, 91 L.Ed.2d at 79.
This Court has repeatedly held that Montana's weapon enhance-
ment statute does not create a separate crime or element of a
crime. State v. Forsyth (Mont. 1988), 761 P.2d 363, 384, 45
St.Rep. 1577, 1602; State v. Spurlock (1987), 225 Mont. 238, 241,
731 P.2d 1315, 1317; State v. Davison (1980), 188 Mont. 432, 445,
614 P.2d 489, 497. We reaffirm those decisions. The Montana

enterprises, Congress intended to create a distinct crime).
See e.g. United States v. Inendino (7th Cir.) , 604 F.2d 458,
463 (18 U.S.C. 5 3575, dangerous special offender statute), cert.
den. 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979); United
States v. Darby (11th Cir. 1984), 744 F.2d 1508, 1538 (21 U.S.C.
§ 849, dangerous special drug offender statute) cert. den. sub nom.
Yamanis v. United States, 471 U.S. 1100, 105 S.Ct. 2322, 85 L.Ed.2d
841 (1985); United States v. West (9th Cir. 1987), 826 F.2d 909,
911 (18 U.S.C. 5 1202(a), armed career criminal statute).
legislature has chosen a scheme which makes dangerous offender
status and use of a weapon sentencing factors. So long as that
scheme remains constitutional, it is not the province of this Court
to transmute these statutory factors into separate crimes or
elements of crimes.4
Due Process in Sentencinq
The appellant argues that even if the weapon enhancement and
dangerous offender designation are not separate crimes, application
of those statutes still violate the Fourteenth Amendment because
the prosecution failed to give adequate notice by stating in the
charging document its intention to seek an enhanced sentence and
dangerous offender designation.
Montana recognizes that due process applies to sentencing, but
the defendant's liberty interest during sentencing is less than
that interest during trial. State v. Nichols (1986), 222 Mont. 71,
76, 720 P.2d 1157, 1161. The process that is due, therefore, is
not necessarily as great as that required by the substantive
criminal charges. The defendant is entitled to reasonable notice
and an opportunity to be heard during sentencing. Oyler v. Boles
(1962), 368 U.S. 448, 452, 82 S.Ct. 501, 504, 7 L.Ed.2d 446, 450.

The appellant also argues that the Montana weapon enhance-
ment statute creates an aggravated version of robbery and the
aggravating element, use of a weapon, must be pled and proved.
Having concluded that use of a weapon is a sentencing factor and
not an element of a crime, we do not find it necessary to address
this argument further.
 Notice of the sentencing hearing itself provides sufficient
notice of potential dangerous offender designation because the
statute requires the sentencing court to consider the issue.
Nichols, 222 Mont. at 78, 720 P.2d at 1162. As a practical matter,
the criminal defendant is always on notice. The State's failure
to give more notice in this case did not violate the appellant's
due process rights.
Because enhancement of a sentence for the use of a weapon is
not an issue in every case, due process requires the State to
provide some notice in the charging document, Forsyth, 761 P.2d at
384, 45 St.Rep. at 1602, if the issue is not inherent in the
definition of the substantive charges, Davison, 188 Mont. at 446,
614 P.2d at 497. The charge of robbery does not necessarily entail
use of a weapon. See 5 45-5-401, MCA. The State's failure to
allege use of a weapon in the charging document, therefore, was
error.
The error, however, was harmless. The State alleged use of
a weapon in its affidavit and motion for leave to file information.

Furthermore, the record indicates that the prosecution repeatedly
elicited testimony that the appellant and his accomplice used a
handgun during the robberies and the weapon enhancement statute
requires the sentencing court to impose an additional minimum
sentence when a weapon is used. The appellant had actual notice
that use of a weapon would be a consideration during sentencing.
See State v. Madera (1983), 206 Mont. 140, 152, 670 P. 2d 552, 558.
We conclude that the sentence imposed by the trial court did

not violate the appellant's right to due process.
Affirmed.

24. Chief Justice

We concur:

Justices
Justice John C. Sheehy, concurring and dissenting:

A general definition of crime is a union of act and mental
state banned by the law. In Montana, mental state is found in the
use of the adverbs llknowinglytt
and ttpurposely.tl However, the
legislature may define an act as a crime without requiring mental
state. When that is done, the banned act is one that brings on
absolute liability. The Montana statute states:
45-2-104. Absolute liability. A person may be guilty
of an offense without having, as to each element thereof,
one of the mental states described in subsection (33)
[knowingly], (37) [negligently], and (58) [purposely] of
45-2-101 only if the offense is punishable by a fine not
exceeding $500 or the statute defining the offense
clearly indicates a legislative purpose to impose
absolute liability for the conduct described. (Emphasis
added. )
In this case, the penalty for using a gun imposes a jail term.
The question whether the legislature intended to impose absolute
liability for the use of a gun in committing a felony must be found
in the statute defining the gun penalty. It must clearly indicate
a legislative purpose to impose absolute liability for the conduct
described.
It cannot be found in this case that the legislature intended
to impose absolute liability for the use of a gun in committing a
felony because it interposed the mental state word ltknowinglyNin
its definition of the act. The statute states:
46-18-221. Additional sentence for offenses committed
with a danserous weapon. (1) A person who has been
found guilty of any offense and who, while engaged in the
commission of the offense, knowinsly displayed,
 brandished, or otherwise used a firearm .. . 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 nor more than 10 years ...

(4) An additional sentence prescribed by this section
shall run consecutively to the sentence provided for the
offense. (Emphasis added. )

In this case, who found that Krantz acted I1knowinglyl1 using
in
a firearm to commit a felony? Certainly the jury did not, because
the use of a firearm was not alleged in the charging information,
nor was it contained in the instructions of the court. The court
itself, at the time of sentencing, made no reference to whether
Krantz acted llknowinglyw brandishing the firearm.
in
The crime of robbery in Montana can be proved by the state
without a showing that a dangerous weapon was used. The statute
provides:
45-5-401. Robbery. (1) A person commits the offense
of robbery if in the course of committing a theft he:
(a) inflicts bodily injury upon another;
(b) threatens to inflict bodily injury upon any person
or purposely or knowingly puts any person in fear of
immediate bodily injury; or
(c) commits or threatens immediately to commit any
felony other than theft.
The penalty for committing the offense of robbery is a state
prison term of not less than two years nor more than years and
a fine of not more than $50,000. Section 45-5-401, MCA.
 Thus, the use of a dangerous weapon in the commission of a
robbery is an aggravating factor, for which an additional penalty
may be imposed under 46-18-221, MCA.
In Jordan v. U.S. Circuit Court for the District of Columbia
(D.C. Cir. 1956), 233 F.2d 362, 367 (vacated on other grounds 352
U.S. 904 (1956)) where defendant had been convicted of assault with
intent to commit robbery and was given an additional five year term
of imprisonment under a statute allowing such where the crime was
committed with a pistol or firearm, the court vacated the
additional sentence stating:
... where the aggravation arises from the manner which
the crime was committed, in substance a different aspect
of the offense is sought to be punished. Accordingly,
we think . . . that the facts in aggravation must be
charged in the indictment and found to be true by the
jury .
If the legislature had merely provided that the use of a gun
in the commission of a felony would automatically lead to the
increased penalty, there would be no problem here. However, the
legislature inserted the word "knowinglyftt an element in the use
as
of the gun. This element requires a fact-finding, and a fact-
finding can only be done in criminal cases by a jury. In effect,
the use of a gun is a separate offense, for which every element
must be proved beyond a reasonable doubt. In Re Winship (1970),
397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. Because of the
insertion of the word ttknowingly,tt should in effect overrule
we
State v. Madera (1983), 206 Mont. 140, 670 P.2d 552; State v.
Davidson (1980), 188 Mont. 432, 614 P.2d 489; and not regard the
holding by the Court of Appeals for the Ninth Circuit in LaMere v.
Risley (9th Cir. 1987), 827 F.2d 622.
There is an additional factor why we should require fact-
finding by the jury with respect to the use of a firearm. There
is a recidivist provision in 5 46-18-221, MCA, as follows:

(2) A person convicted of a second or subsequent offense
under this section shall, in addition to the punishment
provided for the commission of the present offense, be
sentenced to a term of imprisonment in the state prison
of not less than 4 years or more than 20 years, except
as provided in 46-18-222. For the purpose of this
subsection, the following persons shall be considered to
have been convicted of a previous offense under this
section:
(a) a person who has previously been convicted of an
offense, committed on a different occasion than the
present offense, under 18 U.S.C. 924(c); and
(b) a person who has previously been convicted of an
offense in this or another state, committed on a
different occasion than the present offense, during the
commission of which he knowingly displayed, brandished,
or otherwise used a firearm, destructive device, as
defined in 45-8-332(1), or other dangerous weapon.

(3) The imposition or execution of the minimum sentence
prescribed by this section may not be deferred or
suspended, except as provided in 46-18-222.
(4) An additional sentence prescribed by this section
shall run consecutively to the sentence provided for the
offense.

The following factors, therefore, should require us to find
that gun-toting in the commission of a crime is a separate issue
or offense which must be charged in the information and found by
the jury:
(1) The forbidden act of brandishing a firearm.
 (2) The forbidden act done knowingly.
(3) The punishment being separate and mandatory.
(4) Additional penalties for recidivism.
I would, therefore, affirm the conviction of Krantz for the
felony offense but reverse the enhancement of his sentence that
relates to the use of a firearm for the reason that the separate
offense was not separately charged and found by the jury. There
are Due Process and Sixth Amendment implications here not met in
our statute.

Justice William E. Hunt, Sr., concurring and dissenting:
I concur with Justice Sheehy.