NO. 95-349
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
THOMAS ZABAWA,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel P. Buckley (argued) ; Berg, Lilly,
Andriolo & Tollefsen, Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Micheal Wellenstein (argued), Ass't Attorney
General, Helena, Montana
Michael Salvagni, Gallatin County Attorney,
Gary Balaz, Deputy County Attorney,
Bozeman, Montana
Submitted: June 27, 1996
Decided: November 21, 1996
Filed:
1
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
Thomas Zabawa (Zabawa) appeals from the judgment and sentence
entered by the Eighteenth Judicial District Court, Gallatin County,
on his guilty plea to the offense of felony assault. We affirm.
Zabawa raises the following issues on appeal:
1. Did the District Court err in concluding that application
of § 46-18-221, MCA, commonly referred to as the weapon enhancement
statute, did not subject Zabawa to multiple punishments in
violation of the Double Jeopardy Clause of the Fifth Amendment to
the United States Constitution?
2. Did the District Court abuse its discretion in failing to
apply the exceptions to the mandatory minimum sentence contained in
§ 46-18-222, MCA?
The State of Montana (State) charged Zabawa with felony
assault, in violation of § 45-5-202(2) (a) or (b), MCA, in February
of 1995. Zabawa subsequently pled guilty to felony assault under
§ 45-5-202(2) (b), MCA, for pointing a rifle at his ex-wife, thereby
causing her reasonable apprehension of serious bodily injury.
Zabawa filed a sentencing memorandum challenging the
constitutionality of applying the weapon enhancement statute when
the underlying offense requires proof of use of a weapon as an
element of the offense. Specifically, Zabawa contended that
application of the weapon enhancement statute would subject him to
multiple punishments for the same offense in violation of the
Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution. He also argued that, if the District Court rejected
2
his constitutional argument, his sentence under the weapon
enhancement statute should be suspended pursuant to § 46-18-222,
MCA, which provides for exceptions to mandatory minimum sentences.
The District Court concluded that applying the weapon
enhancement statute did not subject Zabawa to multiple punishments
in violation of the Double Jeopardy Clause and that the § 46-18-
222, MCA, exceptions to mandatory minimum sentences were
inapplicable. The court sentenced Zabawa to a three-year
commitment to the Department of Corrections and Human Services
(Department) for the felony assault and an additional three-year
commitment for use of a firearm in commission of the assault, with
the sentences to run consecutively. Zabawa appeals.
1. Did the District Court err in concluding that
application of § 46-18-221, MCA, commonly referred to as
the weapon enhancement statute, did not subject Zabawa to
multiple punishments in violation of the Double Jeopardy
Clause of the Fifth Amendment to the United States
Constitution?
Zabawa argues on appeal that the District Court erred in
concluding that application of the weapon enhancement statute did
not subject him to multiple punishments for the same offense in
violation of the Double Jeopardy Clause of the Fifth Amendment to
the United States Constitution and Article II, Section 25 of the
Montana Constitution. We review a district court's conclusions of
law to determine whether the court's interpretation of the law is
correct. State v. Gould (1995), 273 Mont. 207, 219, 902 P.2d 532,
540.
At the outset, we note that Zabawa cites the Double Jeopardy
Clauses of both the United States Constitution and the Montana
3
Constitution for his argument that enhancing his felony assault
sentence by applying the weapon enhancement statute constitutes a
prohibited multiple punishment for the same offense because the use
of a weapon is an element of the felony assault offense for which
he was convicted. He claims no greater protection from double
jeopardy under Article II, Section 25 of the Montana Constitution
than under the Fifth Amendment to the United States Constitution,
however, and relied entirely on federal interpretations under the
United States Constitution during oral argument; in Zabawa's view,
those interpretations supported his argument under that
Constitution. Accordingly, we address only the double jeopardy
protection afforded under the United States Constitution, leaving
for resolution in a future case which may present it the issue of
whether Article II, Section 25 of the Montana Constitution provides
greater protection from double jeopardy than is provided by the
United States Constitution. Given the posture in which this case
is presented, we are bound by the double jeopardy interpretations
of the United States Supreme Court.
In this regard, the dissent's characterization of State v.
Nelson (1996), 275 Mont. 86, 910 P.2d 247, and Buckman v. Montana
Deaconess Hospital (19861, 224 Mont. 318, 730 P.2d 380, is
misleading. In Nelson, a unanimous opinion issued less than ten
months ago, we deemed the Double Jeopardy Clauses of the Montana
Constitution and the United States Constitution coextensive, for
purposes of the case, because no greater protection from double
jeopardy was claimed therein under the Montana Constitution.
4
Nelson, 910 P.2d at 250. Pointedly, Nelson left for another day--
in a case presenting it--the issue of whether the Montana
Constitution affords greater double jeopardy protection than the
United States Constitution.
Nor is Buckman relevant here. There, the appellant relied on
the Contracts Clauses of both the Montana and United States
Constitutions for the same measure of protection in both the trial
court and this Court. We simply--and properly--chose to address
the issue under the Montana Constitution first and to turn to the
United States Constitution only in the event the case could not be
resolved on adequate and independent state grounds. Buckman, 730
P.2d at 384. For this Court to uphold the fundamental proposition
that the Montana Constitution "provides protection of rights
separate from the protection afforded by the federal constitution"
(see Buckman, 730 P.2d at 384) is a markedly different matter than
for this Court to sua soonte create--and then resolve--the issue of
whether the Montana Constitution provides greater protection, as
the dissent would have us do here. Thus, in this case, where
Zabawa claimed no greater protection from double jeopardy under the
Montana Constitution than under the United States Constitution, we
address only the federal constitutional issue presented.
The Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution, applicable to the states through the
Fourteenth Amendment, generally protects against three distinct
abuses: a second prosecution for the same offense following an
acquittal; a second prosecution for the same offense following a
5
conviction; and multiple punishments for the same offense. Nelson,
910 P.2d at 250. Double jeopardy cases often focus on the "same
offense" issue. See, e.q., State v. Wolfe (1991), 250 Mont. 400,
821 P.2d 339; State v. Crowder (1991), 248 Mont. 169, 810 P.2d 299;
State v. Palmer (1983), 207 Mont. 152, 673 P.2d 1234. Here,
however, Zabawa contends that application of the weapon enhancement
statute is a multiple punishment prohibited by the Double Jeopardy
Clause.
Missouri v. Hunter (1983), 459 U.S. 359, 103 S.Ct. 673, 74
L.Ed.2d 535, is the United States Supreme Court's seminal case on
the multiple punishment aspect of the Double Jeopardy Clause. In
Hunter, the defendant robbed a convenience store in Kansas City,
Missouri, with a handgun. An off-duty police officer arrived at
the store and ordered the defendant and two accomplices to stop;
the defendant fired a shot at the officer and he and his
accomplices fled. Hunter, 459 U.S. at 360-61.
The defendant was apprehended, tried and convicted of robbery
in the first degree, armed criminal action and assault with malice.
Hunter, 459 U.S. at 361. A Missouri statute provided a minimum
sentence of five years' imprisonment for any person convicted of
robbery in the first degree "'by means of a dangerous and deadly
weapon."' Under another Missouri statute, any person who committed
a felony "'by, with, or through the use, assistance, or aid of a
dangerous or deadly weapon [was] also guilty of the crime of armed
criminal action"' with a mandatory minimum sentence of three years'
imprisonment. Hunter, 459 U.S. at 362.
6
The Missouri Court of Appeals, relying on Missouri Supreme
Court decisions, concluded that the defendant's sentences for both
robbery in the first degree and armed criminal action violated the
Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution and reversed the defendant's sentence for armed
criminal action. The Missouri Supreme Court denied review.
Hunter, 459 U.S. at 362-63
The United States Supreme Court noted that the Missouri
Supreme Court previously had construed the two statutes at issue as
"defining the same crime" and that the Missouri court recognized
that the legislature intended to provide for cumulative punishments
pursuant to these statutes. Hunter, 459 U.S. at 368. The Supreme
Court properly deferred to the Missouri court's interpretation of
the Missouri statutes at issue; however, the Supreme Court pointed
out that it was not bound by the Missouri court's legal conclusion
that the statutes violated the Double Jeopardy Clause. Hunter, 459
U.S. at 368.
The Supreme Court concluded that the Missouri Court of Appeals
had misperceived the nature of the Double Jeopardy Clause's
protection against multiple punishments. Hunter, 459 U.S. at 366
The Supreme Court held:
Where, as here, a legislature specifically authorizes
cumulative punishment under two statutes . . a court's
task of statutory construction is at an end and the
prosecutor may seek and the trial court or jury may
impose cumulative punishment under such statutes in a
single trial.
Hunter, 459 U.S. at 368-69. Thus,
[wlith respect to cumulative sentences imposed in a
7
single trial, the Double Jeopardy Clause does no more
than prevent the sentencing court from prescribing
greater punishment than the legislature intended.
Hunter, 459 U.S. at 366.
In Hunter, therefore, the Supreme Court unequivocally held
that, where legislative intent is clear, cumulative punishments
imposed in a single trial do not violate the Double Jeopardy Clause
of the Fifth Amendment to the United States Constitution. While
this holding appears to be at odds with long-held perceptions
regarding the double jeopardy prohibition against multiple
punishments, we are bound by it. Therefore, resolution of Zabawa's
double jeopardy argument depends on whether, in enacting § 46-la-
221, MCA, the Montana legislature intended to impose multiple
punishments where the underlying offense requires proof of the use
of a weapon as an element of the offense.
Section 46-18-221, MCA, provides in pertinent part:
(1) 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(l),
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.
Our role in construing statutes is to "ascertain and declare what
is in terms or in substance contained therein, not to insert what
has been omitted. .'I Section l-2-101, MCA. The intention of
the legislature is to be pursued. Section l-2-102, MCA. We do so
by interpreting the plain meaning of the words used by the
legislature in the statute. Clarke v. Massey (1995), 271 Mont.
8
412, 416, 897 P.2d 1085, 1088. Where the language is clear and
unambiguous, the statute speaks for itself and we will not resort
to other means of interpretation. Clarke, 897 P.2d at 1088.
Zabawa does not dispute that the I' in addition to the
punishment provided for the commission [of the underlying offense]"
language contained in § 46-18-221(l), MCA, indicates an intent by
the Montana legislature to impose multiple sentences when a weapon
is used in the commission of the underlying offense. He argues, in
essence, that the "any offense" language contained in the statute
does not include offenses which require proof of the use of a
weapon as an element of the offense. We disagree.
"Any j1 is defined as--and commonly understood to mean--"one, no
matter what one: EVERY[.] I1 WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, 97
(1971). T h u s , the plain meaning of "any offense" is "one offense,
regardless of which one." Adoption of Zabawa's interpretation of
the "any offense" language contained in § 46-18-221(l), MCA, would
require us to insert language limiting the "any offense" language
to "any offense which does not have as an element the use of a
weapon." We may not insert language which has been omitted from a
statute; therefore, adding such a limitation would exceed our
proper role in construing statutes. See § l-2-101, MCA.
Moreover, "we presume.that the legislature enacts a law with
full knowledge of all existing laws on the same subject. . .'I
Blythe v. Radiometer America, Inc. (19931, 262 Mont. 464, 475, 866
P.2d 218, 225. Here, the legislature used the "any offense"
language in 5 46-18-221, MCA, with full knowledge that numerous
9
offenses have the use of a weapon as an element. See, e.q., §§ 45-
5-202(2), 45-5-206(l) (b), and 45-5-211(l) (b), MCA. Despite that
knowledge, the legislature affirmatively chose to use the "any
offense" language without limitation. Accordingly, we conclude
that the "any offense" language used in 5 46-18-221, MCA, includes
offenses in which the use of a weapon is an element as well as
offenses which do not contain such an element.
During oral argument, Zabawa cited to State v. Trimmer (1985),
214 Mont. 427, 694 P.2d 490, in support of his position that the
"any offense" language contained in § 46-18-221(l), MCA, is
ambiguous. His reliance on Trimmer is misplaced.
In Trimmer, the defendant was convicted of misdemeanor assault
and sentenced to six months in jail and a $500 fine. The district
court also sentenced the defendant to two years in prison, to be
served consecutively to the six-month jail sentence, under the
weapon enhancement statute. Trimmer, 694 P.2d at 490-91.
On appeal, we interpreted the weapon enhancement statute
according to its plain language. & Trimmer, 694 P.2d at 491-92.
We noted that the weapon enhancement statute does not convert a
misdemeanor conviction into a felony conviction, but simply
provides for an additional sentence "tacked on to whatever sentence
is imposed for the conviction." Trimmer, 694 P.2d at 493. Because
a misdemeanor conviction can result in incarceration only in a
county jail, however, we determined that the requirement in the
weapon enhancement statute that the additional sentence be served
in a state prison indicated that the legislature intended the
10
statute to apply to felonies and not to misdemeanors. Trimmer, 694
P.2d at 493. We concluded that the language "in addition to"
referred to an underlying felony conviction over which a district
court has jurisdiction to sentence a defendant to a term in the
state prison. Trimmer, 694 P.2d at 493.
Our holding in Trimmer that the weapon enhancement statute
applies only to felonies was based on the plain and unambiguous
language contained therein. See Trimmer, 694 P.2d at 492.
Contrary to Zabawa's assertion here, we concluded that "any
offense" was clear and unambiguous when read in the context of the
entire statute. See Trimmer, 694 P.2d at 492. Nothing in Trimmer
supports limiting the "any offense" language in § 46-18-221, MCA,
to only those underlying felonies in which the use of a weapon is
not an element.
Zabawa also relies on Simpson v. United States (1978), 435
U.S. 6, 98 s.ct. 909, 55 L.Ed.2d 70, in support of his double
jeopardy argument. Simnson is inapplicable to the present case.
The petitioners in Simpson robbed two banks using handguns to
intimidate bank employees. They were convicted of aggravated bank
robbery, in violation of 18 U.S.C. § 2113(a) and (d), and using
firearms to commit a felony, in violation of 18 U.S.C. § 924(c).
The issue on appeal to the United States Supreme Court was whether,
in the case of bank robbery committed with a gun, Congress intended
to authorize not only the imposition of an increased penalty under
18 U.S.C. § 2113(d), but also the imposition of an additional
penalty under 18 U.S.C. § 924(c). Simpson, 435 U.S. at 8.
11
Simuson is a statutory construction case in which the Supreme
Court considered legislative history in determining Congressional
intent in enacting 18 U.S.C. 5 924(c). Simoson, 435 U.S. at 13-15.
It was not decided on double jeopardy grounds. Indeed, having
observed that the Blockburser test provides guidance for
determining whether two separately defined crimes constitute the
"same offense" for double jeopardy purposes, the Supreme Court
concluded that a Blockburser analysis is unnecessary where
Congress' intent regarding cumulative punishments is clear. See
Simoson, 435 U.S. at 11-12. Based on the legislative history, the
Supreme Court ultimately concluded that Congress did not intend for
a defendant to be sentenced cumulatively for aggravated bank
robbery and for the use of firearms to commit a felony in a
prosecution growing out of a bank robbery committed with the use of
firearms. Simpson, 435 U.S. at 16. The Supreme Court's
conclusion, based on the legislative history of federal statutes,
is not relevant to this Court's interpretation of the Montana
legislature's intent in enacting 5 46-18-221, MCA.
Zabawa also relies on Simuson for the principle that
ambiguities concerning the scope of criminal statutes should be
resolved in favor of lenity. We need not address Zabawa's lenity
argument because, as concluded above, the language contained in,
and the meaning of, § 46-18-221, MCA, are clear.
In summary, neither Trimmer nor Simpson supports Zabawa's
argument that application of the weapon enhancement statute in this
case results in impermissible multiple punishments in violation of
12
the Double Jeopardy Clause. The plain meaning of the language used
in § 46-18-221, MCA, reflects the Montana legislature's intent to
impose cumulative punishments where a firearm or other dangerous
weapon is used during the commission of an underlying offense.
Pursuant to Hunter, therefore, we conclude that, because the
legislature's intent is clear, the imposition of cumulative
sentences under § 45-5-202(3), MCA, and § 46-18-221(l), MCA, is not
prohibited by the Double Jeopardy Clause of the Fifth Amendment to
the United States Constitution. We hold that the District Court
correctly concluded that application of the weapon enhancement
statute did not subject Zabawa to multiple punishments in violation
of that Double Jeopardy Clause.
2. Did the District Court abuse its discretion in
failing to apply the exceptions to the mandatory minimum
sentence contained in § 46-18-222, MCA?
The mandatory minimum sentence under the weapon enhancement
statute is two years in the state prison, and that minimum can be
deferred or suspended only as provided in § 46-18-222, MCA.
Sections 46-18-221(l) and (3), MCA. Zabawa argued that the
mandatory minimum under the weapon enhancement statute should be
suspended pursuant to the exceptions to mandatory minimum sentences
contained in §§ 46-18-222(Z) and (3), MCA. The District Court
determined that the exceptions were inapplicable and sentenced
Zabawa to three years' commitment to the Department under the
weapon enhancement statute. Zabawa asserts that the court erred.
District courts have broad discretion in sentencing criminal
defendants. We review sentences only to determine whether the
13
court abused its discretion. State v. Graveley (1996), 275 Mont.
519, 521, 915 P.2d 184, 186 (citing State v. DeSalvo (1995), 273
Mont. 343, 346, 903 P.2d 202, 204).
Zabawa argues that he presented evidence to the District Court
which warranted application of the exceptions to mandatory minimum
sentences which are contained in §§ 46-18-222(2) and (3), MCA. The
exceptions contained in those subsections apply when, at the time
of the commission of the offense, a defendant's mental capacity was
significantly impaired or the defendant was acting under unusual
and substantial duress. Sections 46-l&3-222(2) and (3), MCA. We
need not address the merits of Zabawa's argument, however.
The statutory exceptions to mandatory minimum sentences allow
a sentencing court which would otherwise be required to impose the
minimum sentence to sentence a defendant to less than the minimum
sentence when the exceptions apply to the facts. State v. Nichols
(1986)) 222 Mont. 71, 82, 720 P.2d 1157, 1164. The exceptions do
not apply unless the sentencing court is initially predisposed to
sentence the defendant to the mandatory minimum sentence; when a
sentence greater than the mandatory minimum is imposed, the
statutory exceptions have no bearing. &g Gravelev, 915 P.2d at
188; Nichols, 720 P.2d at 1164.
Here, the District Court did not sentence Zabawa to the
mandatory minimum sentence of two years required by the weapon
enhancement statute; rather, it sentenced Zabawa to three years'
commitment to the Department. We conclude, therefore, that the
exceptions contained in § 46-18-222, MCA, are inapplicable in this
14
case
Zabawa also argues in this regard that the District Court
erred in failing to include in the judgment a written statement of
its reasons for declining to apply the exceptions to mandatory
minimum sentences, as required by fi 46-l&223(3), MCA. The State
contends, on the other hand, that the statute is inapplicable in
this case.
Section 46-18-223(3), MCA, provides:
If it appears by a preponderance of the information,
including information submitted during the trial, during
the sentencing hearing, and in so much of the presentence
report as the court relies on, that none of the
exceptions at issue apply, the court shall impose the
appropriate mandatory sentence. The court shall state
the reasons for its decision in writing and shall include
an identification of the facts relied upon in making its
determination. The statement shall be included in the
judgment.
We previously have concluded that it is not error for a district
court to fail to make findings on the exceptions to mandatory
minimum sentences when the court imposes a greater sentence than
the mandatory minimum. See State v. Stroud (1984), 210 Mont. 58,
78, 683 P.2d 459, 469 (citing State v. Zampich (1983), 205 Mont.
231, 667 P.2d 955). Accordingly, we conclude that Zabawa's
procedural argument under § 46-18-223, MCA, is without merit
We hold that the District Court did not abuse its discretion
in failing to apply the statutory exceptions to the mandatory
minimum sentence contained in 5 46-18-221(l), MCA.
Affirmed.
We concur:
16
Justice James C. Nelson specially concurs.
I agree with Justice Leaphart's position that we are not bound
to interpret Montana's Constitution in the same fashion that the
United States Supreme Court has interpreted similar or identical
counterparts in the federal constitution. I, nevertheless, also
believe that it is our obligation to decide the cases filed in this
Court on the basis of the issues and arguments raised by the
parties. In my view the best decisions result where both sides
have had the opportunity to vigorously argue and challenge the
positions and authorities of the other side. While the temptation
is often great to decide a~ case on the basis of the argument that
"should have been made," but was not, in blind-siding an issue we
run the very real risk of substituting advocacy for neutrality.
While referring to both the federal and state constitutions,
neither Zabawa nor Nelson advanced any argument or authority that
the protections afforded by the two constitutions, on the matter at
issue, were any different. Contrary to Justice Leaphart's dissent,
I fail to see how this Court can be accused of "refusing" to
address the merits of an issue that was neither raised nor argued.
We did not do that in Nelson and we do not do that here. The
merits of the different protections afforded by the federal and
Montana Constitutions, if any, remains open.
That said, it follows that if there are legitimate bases for
interpreting Montana's Constitution in a manner different than that
suggested by federal precedent, then it is incumbent upon the party
advocating that position to specifically raise that issue in the
Justice W. William Leaphart, dissenting.
I dissent from the Court's back-handed analysis of the Montana
Constitution. The Court characterizes the question presented as
solely one of whether application of the weapon enhancement
statute, § 46-18-221, MCA, violates the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution. In framing
the issue thusly, the Court overlooks the fact that Zabawa claims
that the weapon enhancement statute violates both the Fifth
Amendment of the United States Constitution and Article II, Section
25 of the Montana Constitution.
The Court limits its analysis of Zabawa's double jeopardy
claim to the Fifth Amendment on the basis that Zabawa failed to
claim greater protection under the Montana Constitution than under
the Fifth Amendment. In Justice Nelson's concurring opinion he
agrees with this reasoning and asserts that the absence of
"persuasive authority and reasoned argument" in Zabawa's Montana
constitutional claim prohibits the Court from addressing an
otherwise laudable distinction between the Montana Constitution and
the United States Constitution.
Neither the Court's nor Justice Nelson's approach withstands
scrutiny. In challenging the weapon enhancement statute, Zabawa
clearly relied on both the Fifth Amendment and the Montana
Constitution, Article II, Section 25. Accordingly, Zabawa raised
an issue as to what protections are afforded under Article II,
Section 25 of the Montana Constitution. While recognizing that
19
Zabawa did invoke the Montana Constitution, the Court takes the
position that we are somehow bound by defense counsel's
interpretation of Article II, Section 25, as being co-extensive
with the Fifth Amendment. I disagree entirely. Since counsel has
raised and relied upon a provision of the Montana Constitution, it
is incumbent upon this Court to interpret the meaning of that
provision regardless of whether we agree with counsel's
interpretation or not.
As mentioned above, the Court purports to interpret only the
Fifth Amendment and not the Montana Constitution. However, unless
the Court is completely ignoring the fact that Zabawa invoked
Article II, Section 25, as well as the Fifth Amendment, we have to
assume that the Court, sub silento, addresses the state
constitutional issue by interpreting Article II, Section 25, as co-
extensive with the Fifth Amendment and that it is therefore "bound"
by the double jeopardy interpretations of the United States Supreme
Court. Despite its protestations to the contrary, the Court has,
by necessary implication, interpreted Article II, Section 25, as
being co-extensive with the Fifth Amendment.
If, as I believe, Article II, Section 25, in contrast to the
Fifth Amendment, actually affords some protection against multiple
punishments, it is time that we stop perpetuating this case-by-case
line of authority to the effect that Article II, Section 25, and
the Fifth Amendment are co-extensive. It is fast becoming a self-
fulfilling prophecy.
I vehemently disagree with the proposition that we are bound
20
to interpret our constitutional prohibition against double
punishment in the same fashion that the United States Supreme Court
has interpreted the Fifth Amendment to the United States
Constitution. In particular I disagree with the interpretation
that multiple punishments for the same offense are not prohibited
by the Double Jeopardy Clause if that is what the legislature
clearly intended.
Not until State v. Nelson (1996), 275 Mont. 86, 90, 910 P.2d
247, 250, has this Court refused to distinguish protections
afforded under the Montana Constitution from those afforded under
the United States Constitution for the sole reason that an
appellant failed to claim greater protection under the Montana
Constitution. In Buckman v. Montana Deaconess Hospital (19861, 224
Mont. 318, 730 P.2d 380, which involved the constitutionality of
applying a new statutory scheme to lump-sum payments under the
Workers' Compensation Fund, the appellant did not argue that the
Montana Constitution's contract clause afforded her any greater
protection than the United States Constitution's Contract Clause.
Nevertheless, the Court recognized that the State Constitution
provides protection of rights separate from the protection afforded
by the Federal Constitution. Buckman, 730 P.2d at 384 (citing
State v. Johnson (1986), 221 Mont. 503, 513, 719 P.2d 1248, 1254-
55; Pfost v. State (1985), 219 Mont. 206, 215, 713 P.2d 495, 500-
501 (overruled on other grounds); Madison v. Yunker (1978), 180
Mont. 54, 60, 589 P.2d 126, 129).
The Buckman Court examined the Montana contract clause before
21
examining the United States Constitution's Contract Clause to
ascertain if there were independent state grounds to resolve the
issue. Buckman, 730 P.2d at 384. Acknowledging that the Court in
the past had generally interpreted the state and federal contract
clauses as interchangeable guarantees of individual rights, the
Court nevertheless chose to interpret the Montana contract clause
independently of the United States Constitution's Contract Clause.
The appellant in Buckman did not claim greater protection under the
Montana Constitution and yet the Court analyzed the contractual
implications on state constitutional grounds before turning to
federal interpretations of constitutional protection. Buckman, 730
P.2d at 384.
Whether or not an appellant claims greater protection under
the Montana Constitution than under the United States Constitution
in any given case should not be dispositive of whether this Court
examines the individual rights guaranteed under the Montana
Constitution independently of the guarantees in the United States
Constitution. The Montana Supreme Court has the inherent power and
obligation to interpret the Montana Constitution and to protect
individual rights. &, e.s., State v. Finley (Mont. 1996), 915
P.2d 208, 53 St.Rep. 310.
Not only does this Court have the inherent power to interpret
the Montana Constitution, but it is also free to interpret the
State Constitution's provisions differently than the United States
Supreme Court interprets similar provisions in the United States
Constitution. As noted by the Court in Buckman: "[fledera cases
22
cited are relied on for their analytical persuasiveness but in no
way mandate our decision." Buckman, 730 P.2d at 384. In other
words, in interpreting the State Constitution, we are not "bound"
by federal case law interpreting similar provisions in the United
States Constitution.
As I stated in my dissent to Finley in arguing against
applying the United States Supreme Court's pronouncements
concerning the Fifth Amendment right against self-incrimination to
Article II, Section 25 of the Montana Constitution:
As long as we guarantee the minimum rights guaranteed by
the United States Constitution, we are not compelled to
march lock-step with pronouncements of the United States
Supreme Court if our own constitutional provisions call
for more individual rights protection than that
guaranteed by the United States Constitution.
Finley, 915 P.2d at 224 (citing State v. Sierra (1985), 214 Mont.
472, 476, 692 P.2d 1273, 1276).
This Court in the past has refused to "march lock-step" with
the United States Supreme Court where constitutional issues are
concerned, even if the applicable State Constitution provisions are
identical or nearly identical to those of the United States
Constitution. State v. Johnson (1986), 221 Mont. 503, 512, 719
P.2d 1248, 1254. In Johnson, this Court held that a defendant had
invoked his right to counsel under the Montana Constitution when he
asked an arresting officer, after being read his rights, if he had
"the right to address somebody," and subsequently stated that he
"would like to talk to somebody." This holding deviated from the
United States Supreme Court's decision in Fare v. Michael C.
(1979), 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197, which held
23
that only a specific request for counsel invokes a defendant's
constitutional right to counsel. In Johnson, the Court recognized
that in previous criminal law decisions the Court had held that
when a Montana constitutional provision tracts the federal
counterpart (e.g., privilege against self-incrimination), the
decisions of the United States Supreme Court delineate the maximum
breadth of the right. Nevertheless, the Court noted that in the
civil arena it had,
forged ahead independent of the United States Supreme
Court in civil matters which involve constitutional
issues, even where our constitutional provisions are
identical or nearly identical to those of the United
States Constitution.
Johnson, 719 P.2d at 1254. Thus, in Johnson, the Court saw no
reason not to pursue its own resolution of constitutional matters
in criminal cases, finding that "[wlhere state and federal
constitutional provisions are identical, each is enforceable in its
own respective sphere .'I Johnson, 719 P.2d at 1255 (citing
Emery v. State (1978), 177 Mont. 73, 79, 580 P.2d 445, 448; Madison
v. Yunker (1978), 180 Mont. 54, 60, 589 P.2d 126, 129).
Thus, states may interpret their own constitutions to
afford greater protections than the Supreme Court of the
United States has recognized in its interpretations of
the federal counterparts to state constitutions.
Johnson, 719 P.2d at 1254 (citing City and County of Denver v.
Nielson (Cola. 1977), 572 P.2d 484). The Court went on to say that
federal rights are considered minimal and a state constitution may
be more demanding than the equivalent federal constitutional
provision and this is true even though our state constitutional
language is substantially similar to the language of the United
24
States Constitution. Johnson, 719 P.2d at1254-55 (citing Deras v.
Myers (Or. 1975), 535 P.2d 541, 549 n.17; Pfost, 713 P.2d at 500-
501 (overruled on other grounds)).
Other state courts have declined to follow the United States
Supreme Court's interpretation of double jeopardy protection where
its interpretation does not adequately preserve the rights and
interests sought to be protected. See Hawai'i v. Lessary (1994),
865 P.2d 150. The Hawai'i Supreme Court held that it was not bound
to give the Hawai'i Constitution the same interpretations as those
given under the United States Constitution despite the fact that
the Hawai'i double jeopardy clause was virtually identical to the
United States Constitution's Double Jeopardy Clause. Lessarv, 865
P.2d at 154. The Hawai'i Supreme Court interpreted the Hawai'i
Constitution as affording the defendant greater protection against
multiple prosecutions than the defendant would have been afforded
under United States v. Dixon (1993), 509 U.S. 688, 113 S.Ct. 2849,
125 L.Ed.2d 556. The Hawai'i Court agreed with the dissenters in
Dixon that individuals should be protected against multiple
prosecutions even when multiple punishments are permissible under
the "same elements" test and therefore the Court held that the
decision in Dixon did not adequately protect individuals from being
"subject for the same offense to be twice put in jeopardy."
Lessarv, 865 P.2d at 155.
Just as the Hawai'i Court declined to adopt federal
interpretations of the Double Jeopardy Clause in Dixon, I would
decline to adopt the United States Supreme Court's interpretation
25
of the "multiple punishment" element of the Double Jeopardy Clause
in Missouri v. Hunter (19831, 459 U.S. 359, 103 S.Ct. 673, 74
L.Ed.2d 535. Instead, I interpret the double jeopardy clause of
Article II, Section 25 of the Montana Constitution, as providing
substantive protection against multiple punishments irrespective of
any legislative enactments.
In Hunter, the United States Supreme Court upheld two
sentences imposed in a single trial under two separate state
statutes, one that punished armed robbery, and one that punished
"armed criminal action." Hunter, 459 U.S. at 362. Using the test
from Blockburger v. United States (1932), 284 U.S. 299, 304, 52
S.Ct. 180, 182, 76 L.Ed. 306, 309, the Court held that the statutes
were presumptively the "same offense" because neither provision
required proof of a fact which the other did not, but the Court
also found that the state legislature had nevertheless specifically
authorized cumulative punishment under the two statutes. Hunter,
459 U.S. at 368-69.
The Court held that the Double Jeopardy Clause of the Fifth
Amendment merely prevents the sentencing court from prescribing
greater punishment than the legislature intended. Hunter, 459 U.S.
at 366. In interpreting the Fifth Amendment, the Court in Hunter
held that, where legislative intent is clear, cumulative
punishments imposed in a single trial do not violate the Double
Jeopardy Clause.
In my view, we do a grave disservice to the framers of the
Montana Constitution when we hold that a constitutional provision
26
means nothing more than what the legislative branch intends it to
mean. Constitutional guarantees are not mere vessels to be left
empty or filled at the whim of the legislative branch. Rather,
they have intrinsic meaning which is independent of any legislative
intent. Contrary to this Court's characterization of the issue,
the question is not whether Article II, Section 25 of the Montana
Constitution provides "greater protection" from double punishment
than does the Fifth Amendment, the question is whether it provides
any protection independently of what the legislature chooses to
provide.
This Court, in following the lead of the United States Supreme
Court in Hunter, has, in effect, held that the question of whether
cumulative punishments for the same offense are permissible is
merely a question of legislative intent. In other words, there is
no constitutional prohibition whatsoever. In the view of this
Court, the question of whether multiple punishments are permitted
is resolved through statutory rather than constitutional
interpretation. The Court has rewritten the constitution so that
it proscribes multiple punishments for the same offense unless the
legislature provides to the contrary. The legislative intent
exception swallows the constitutional guarantee. I reject the
notion that our constitutional guarantee against multiple
punishments for the same offense means nothing more than what the
most recent legislative body has decreed it to mean.
The question of whether the weapon enhancement provision
violates the constitution is not a question of legislative intent.
27
Rather, it is a question of whether enhancement constitutes
punishment for the "same offense" as the underlying offense of
felony assault. This requires application of the Blockburqer test
to determine whether the elements of the weapon enhancement statute
are subsumed within the elements of the felony assault statute.
The "element" or constituent part of the weapon enhancement
statute, § 46-18-221, MCA, is singular; that is, it merely requires
that the defendant display, brandish, or use a firearm, destructive
device, or other dangerous weapon in the commission of any offense.
The requirement that he be convicted of "any offense" is merely a
prerequisite of the sentencing enhancement.
The underlying charge in this case was felony assault under §
45-5-202(2) (b), MCA, which provides as follows:
(2) A person commits the offense of felony assault
if he purposely or knowingly causes:
ibj reasonable apprehension of serious bodily
injury in another by use of a weapon . .
Thus, given the charge of felony assault, the State was required to
prove that Zabawa used a weapon to cause reasonable apprehension of
serious bodily injury. Use of a weapon is the exact same conduct
required to enhance Zabawa's sentence under § 46-18-221, MCA.
Because the State would not be required to prove any additional
facts in order to have Zabawa's sentence enhanced, it is apparent
that the weapon enhancement statute is subsumed within the offense
of felony assault.
Under the Blockburqer test, when the same act violates two
different statutes, the inquiry for determining if there are two
28
offenses or only one is "whether each provision requires proof of
a fact which the other does not." Blockburser, 284 U.S. at 304.
Clearly, the weapon enhancement statute does not require proof of
a fact which is not required under the charge of felony assault.
Since the weapon enhancement statute is subsumed within the felony
assault charge, the two are the same for double jeopardy purposes
and punishment cannot be had for both.
Not only is this Court not required to "march lock-step" with
the United States Supreme Court's interpretation of the
constitutional protection against double jeopardy in Hunter, but
where a federal interpretation fails to afford adequate
constitutional protection and is also subject to faulty analysis,
this Court should turn to the Montana Constitution in an effort to
afford adequate protection on independent state grounds. The
Supreme Court's rule in Hunter, that legislative intent controls
the parameters of the protection of the Double Jeopardy Clause,
rests on unconvincing precedent.
Hunter relied primarily on two United States Supreme Court
decisions, one of which is Whalen v. United States (1980), 445 U.S.
684, 100 S.Ct. 1432, 63 L.Ed.2d 715. In Whalen, the defendant was
convicted of first degree "felony murder" on the theory that he
murdered his victim during the perpetration of a rape. He was also
convicted of the rape. The United States Supreme Court held that
consecutive sentences could not be imposed for both crimes on the
ground "that Congress did not authorize consecutive sentences for
rape and for a killing committed in the course of the rape . .'I
29
Whalen, 445 U.S. at 693. Further, 11 [tlhe Double Jeopardy Clause at
the very least precludes federal courts from imposing consecutive
sentences unless authorized by Congress to do ~0.~~ Whalen, 445
U.S. at 689 (emphasis added). "This is not to say that there are
not constitutional limitations upon this [legislative] power."
Whalen, 445 U.S. at 689 n.3 (citations omitted). Contrary to the
suggestion in Hunter, Whalen does not hold that had Congress
intended consecutive punishments for both the rape and the murder
it would have been constitutionally permissible.
Hunter also relied on Albernaz v. United States (1981), 450
U.S. 333, 101 s.ct. 1137, 67 L.Ed.2d 275. The dissent in Hunter
correctly points out that the majority relied on dicta in Albernaz
for the basis of its holding that cumulative punishment does not
violate the Constitution so long as it is authorized by the
legislature. Hunter, 459 U.S. at 371 n.3 (Marshall, J.
dissenting). In Albernaz, the Court held that multiple punishments
for convictions for conspiracy to import marijuana and conspiracy
to distribute marijuana did not violate the Double Jeopardy Clause
because Congress intended to permit the imposition of consecutive
sentences under the two statutes at issue. Albernaz, 450 U.S. at
344. Albernaz, like Blockburqer, involved a case where one
transaction resulted in the defendants' convictions for more than
one crime. The crimes were distinguishable on the basis that each
required an element the other did not. The offenses were not
subsumed one within the other. Thus, Albernaz presented a
different situation than Hunter or the present case wherein one of
30
the statutes (Missouri's "armed criminal action" statute and
Montana's dangerous weapon enhancement statute) is subsumed within
the other. The issue in Hunter and in the case before us is
whether the double jeopardy prohibition precludes punishing a
defendant under a separate statute whose only element is a
necessary element of the underlying crime. In light of its
misapplication of precedent and its conclusion that the
constitutional prohibition against multiple punishments is merely
a matter of legislative intent, I would hold that Hunter is not
persuasive, and certainly not binding, precedent as far as Article
II, Section 25 of the Montana Constitution is concerned. Instead
I would hold that the Article II, Section 25 prohibition against
multiple punishments has inherent meaning, irrespective of any
expression of legislative intent. The double jeopardy clause in
Article II, Section 25, limits the power of all branches of
government, including the legislature. Whether the legislature
intends multiple punishments or not, as a matter of state
constitutional law, such cumulative punishment is proscribed under
the double jeopardy clause.
If weapon enhancement of Zabawa's sentence for assault "with
a weapon" does not constitute double punishment for the same
offense, I cannot envision any circumstance which would.
II
Even assuming, aryuendo, that the Court is correct in
abdicating its responsibility to the legislature to interpret the
state constitution, it should only do so when the expression of
31
legislative intent is clearly indicated. Hunter, 459 U.S. at 366.
I seriously question whether the legislature, in enacting 5
46-18-221, MCA, clearly intended to apply weapon enhancement to an
offense such as this. Section 46-18-221, MCA, on its face, applies
to "any offense." Literally, there is no question but that, this
all encompassing language includes felony assault. However, since
the legislature failed to distinguish between offenses which do not
require use of a weapon and those which do, I question whether it
is "clear" that the legislature intended to apply weapon
enhancement to an offense which itself requires proof of a weapon.
This Court has already had occasion to decide whether the
phrase "any offense" in § 46-18-221, MCA, means literally "any"
offense and we held that it did not. In State v. Trimmer (1985),
214 Mont. 427, 694 P.2d 490, we held that "any offense" applies to
felonies but not to misdemeanors since an enhancement of two to ten
years in the state prison would be internally inconsistent with the
definition of a misdemeanor as an offense which is punishable by
imprisonment in the county jail. Thus, Trimmer establishes that
"any" does not literally mean "any" offense; it means any "felony
offense."
The majority rejects the notion that Trimmer stands for the
proposition that the "any offense" language in § 46-18-221(l), MCA,
is ambiguous and claims that the Court in Trimmer interpreted the
weapon enhancement statute according to its plain language.
However, the majority does not interpret the weapon enhancement
statute solely according to its "plain language." Rather it
32
resorts to § 45-2-101(41), MCA, which defines a misdemeanor offense
as one which is punishable by imprisonment in the state prison for
a term of one year or less to conclude that "any offense" only
applies to felony offenses. Reading the weapon enhancement statute
in conjunction with this state's constitutional guarantee against
multiple punishment does not deviate from a plain reading of the
statute any more than does a reading in conjunction with the
statutory definition of misdemeanor.
I submit that, if the definition of misdemeanor compels a
narrowing of the phrase "any offense," certainly Article II,
Section 25's prohibition against double punishment demands the same
deference. That is, that "any offense" means any offense which
does not itself require use of a weapon.
In determining whether the legislature intended to impose
cumulative punishments for the same conduct, the United States
Supreme Court has consistently relied on the test of statutory
construction stated in Blockburser. The assumption underlying the
Blockburser rule is that Congress ordinarily does not intend to
punish the same offense under two different statutes. Ball v.
United States (19851, 470 U.S. 856, 861, 105 S.Ct. 1668, 1671, 84
L.Ed.2d 740, 746; Whalen, 445 U.S. at 692.
Accordingly, where two statutory provisions proscribe the
"same offense," they are construed not to authorize
cumulative punishments in the absence of a clear
indication of contrary legislative intent.
Whalen, 445 U.S. at 692.
In Ball
-I the Court examined the statutory language and the
legislative history and held that Congress did not intend a
33
convicted felon caught with a weapon to be punished under separate
statutes, one for receiving a firearm, and one for possessing it.
Applying the Blockburaer rule, the Court found that proof of
illegal receipt of a firearm necessarily includes proof of illegal
possession of that weapon and that, therefore, Congress did not
intend to subject felons to two convictions. Ball
-I 470 U.S. at
862. Because one offense was entirely subsumed within the other,
the Court presumed that Congress did not intend cumulative
punishments for the same offense.
Another canon of statutory construction used by the United
States Supreme Court to divine legislative intent identifies the
social evils sought to be addressed by each offense. a, e.q.,
United States v. Woodward (1985), 469 U.S. 105, 109, 105 S.Ct. 611,
613, 83 L.Ed.2d 518, 522 (currency reporting and false statement
statutes directed to separate evils); Albernaz, 450 U.S. 333, 343
(separate statutes proscribing conspiracy to import and to
distribute marijuana are directed to separate evils). This method
assumes the legislature would intend statutes to apply separately
only if each statute prohibits a distinct evil.
In the present case, Zabawa is being punished for felony
assault under § 45-5-202(2) (b), MCA, because he used a weapon when
he purposely or knowingly caused his ex-wife reasonable
apprehension of serious bodily injury. If he had caused his ex-
wife to suffer reasonable apprehension of bodily injury without use
of a weapon he would have been charged with misdemeanor assault
under § 45-5-201(l) cd), MCA, punishable by a maximum of a six-month
34
county jail sentence or a $500 fine, or both.
The Montana legislature has already addressed the separate
evils of assault with or without a weapon and has provided
different punishments for the separate offenses. Assault with a
weapon is a felony offense carrying the possibility of twenty years
in the state prison compared to assault without a weapon carrying
a maximum jail sentence of six months. The legislature clearly
intended to address these separate crimes by creating two distinct
assault offenses. The legislature has already provided punishment
for the evil inherent in the use of a weapon in an assault. It
cannot be said that the weapon enhancement statute is designed to
address any separate or distinct evil. On the contrary, it
addresses precisely the same evil, use of a weapon.
The majority has cited the proposition that "we presume that
the legislature enacts a law with full knowledge of all existing
laws on the same subject. . _'I The United States Supreme Court
did not decide Hunter until 1983. Thus, when the Montana
legislature enacted the weapon enhancement statute in 1977, it
would not have assumed that Article II, Section 25, allows
cumulative punishments if so intended by the legislature. Rather,
in that pre-Hunter time period, the legislature would have assumed
that the state constitutional prohibition against multiple
punishments was exactly that: i.e.--an absolute prohibition against
multiple punishments for the same offense.
Another indication that the Montana legislature did not intend
to circumvent citizens' rights to be free from double jeopardy is
35
the fact that the legislature has afforded defendants greater
protection from double jeopardy in the double prosecution context.
In State v. Tadewaldt (Mont. 19961, 922 P.2d 463, 53 St.Rep. 635,
this Court recognized that § 46-11-504(l), MCA, affords defendants
greater protection from double punishment than afforded by the
United States Constitution as interpreted in Blockburqer.
Tadewaldt, 922 P.2d at 467. The fact that the legislature provided
Montana citizens greater protection from double jeopardy in the
double prosecution context belies the Court's assumption that the
legislature clearly intended to deprive Montanans of protection
from "double punishment" through application of the weapon
enhancement statute to offenses which necessarily include use of a
weapon.
The weapon enhancement statute should, and could, be
interpreted to apply only to offenses which do not themselves
require proof of use of a weapon. Such an interpretation would
leave the statute intact and would not offend the double jeopardy
clause.
Justices William E. Hunt, Sr. and Terry N. Trieweiler join in the
foregoing dissent.
I
Jus ices
/
36