IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 96-071
MICHAEL SCOTT STILSON,
Petitioner, OPINION
AND
v. ORDER
STATE OF MONTANA,
Respondent.
Petitioner Michael Scott Stilson has filed a petition for
post-conviction relief alleging that convictions he received in the
Fourth and Eighth Judicial District Courts violated his rights to
not be twice put in jeopardy guaranteed by the Fourteenth and Fifth
Amendments to the United States Constitution, and Article II,
Section 25, of the Montana Constitution.
On March 26, 1991, the State filed an Information in the First
Judicial District Court charging Stilson with the crime of issuing
a bad check, a felony, common scheme, for numerous bad checks
written in Lewis and Clark County. On the same day Stilson pled
guilty to the charge, and on March 27, 1991, the District Court
sentenced Stilson to a three-year deferred imposition of sentence.
On January 29, 1991, the State filed an Information in the
Fourth Judicial District Court charging Stilson with issuing more
than three bad checks in Missoula County, a felony, common scheme.
On April 1, 1991, Stilson pled guilty to the charge, and on May 20,
1991, the District Court sentenced Stilson to a suspended sentence
of six years confinement to run consecutive to the sentence imposed
by the First Judicial District Court.
On May 28, 1991, the State filed an Information in the Eighth
Judicial District Court charging Stilson with issuing a bad check,
a felony, common scheme. While the Cascade County Information
specifically referenced only a single bad check written in Cascade
county, it listed as witnesses individuals from six separate Great
Falls businesses. On June 14, 1991, Stilson pled guilty to the
charge and on the same day the District Court sentenced him to ten
years confinement to run consecutive to the sentences imposed in
the First and Fourth Judicial District Courts. Execution of the
sentence was suspended. The judgment indicated that Stilson wrote
20-25 checks in the Great Falls area and that the total checks
written in Cascade County totaled $2,961.
Stilson also wrote bad checks in Yellowstone and Butte-Silver
Bow Counties. Stilson was not prosecuted in either of those
counties but the judgment entered by the Fourth Judicial District
Court ordered Stilson to pay restitution for those bad checks.
On February 15, 1996, Stilson filed this petition for
post-conviction relief alleging his convictions in the First,
Fourth, and Eighth Judicial District Courts were for the same
common scheme and, therefore, that the Fourth and Eighth Judicial
District Court convictions violated his double jeopardy rights.
The State argues that Stilson's double jeopardy claims are
waived because he failed to raise them prior to entering his guilty
pleas. Stilson argues that he did not waive his double jeopardy
claims when he pled guilty because his claims are jurisdictional.
It is well established that a plea of guilty which is
2
voluntary and understandingly made constitutes a waiver of
nonjurisdictional defects and defenses, including claims of
constitutional violations which occurred prior to the plea. Hagan
v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387 (citing
State v. Turcotte (1974), 164 Mont. 426, 428, 524 P.2d 787, 788).
In Haqan we held that the jurisdictional grounds exception applies
to "those cases in which the district court could determine that
the government lacked the power to bring the indictment atthetimeof
accepting the guilty plea from the face of the indictment or from the record. ‘( Hasan, 873
P.2d at 1388 (quoting United States v. Cortez (9th Cir. 1992), 973
F.2d 764, 767).
When Stilson pled guilty and was sentenced in Cascade County
the District Court had before it a copy of the pre-sentence
investigation report prepared with regard to Stilson's previous
sentencing in Missoula County. The report also referenced
Stilson's conviction in Lewis and Clark County.
Thus, we conclude that at the time the Eighth Judicial
District Court accepted Stilson's guilty plea the record before it
contained his two prior convictions and was sufficient for the
court to determine whether the government lacked the power to bring
the charges at issue due to the constitutional prohibitions against
placing a person twice in jeopardy. We conclude that Stilson has
not waived his double jeopardy claim and therefore proceed to
address the merits of his claim.
Stilson claims that he engaged in one common scheme to write
bad checks in five different counties and the only thing that
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separates his crime into parts is geography. He argues that
1'common scheme" is an element of the crimes charged and that
nothing in the charges evidences a different continuing criminal
design. Stilson maintains that since he was convicted and punished
for the common scheme in Lewis and Clark County, he cannot be
prosecuted or punished again.
The State argues that double jeopardy protections prohibit
multiple punishments for the same offense, and that in this case
the Legislature intended "issuing a bad check" to be the offense,
not "common scheme." The State asserts that "common scheme" is not
an element of the offense but rather a sentence enhancement
provision which determines if the offense is a misdemeanor or
felony. The State maintains that the offense in each county did
not require proof of acts committed in the other counties and
therefore they were separate and distinct offenses. According to
the State, convicting a defendant of one common scheme does not
foreclose convictions of additional common schemes in different
counties.
In State v. Crowder (1991), 248 Mont. 169, 810 P.2d 299, we
stated that in examining questions of double jeopardy, this Court
has consistently applied the test set forth in Blockburger v.
United States (1932), 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306.
Crowder, 810 P.2d at 304. We noted that Blockburser dealt with two
different double jeopardy issues--one was whether the defendant
could be convicted of violating two different statutory provisions
arising from a single sale of dangerous drugs, and the second was
4
whether the defendant could be convicted of two counts of selling
a dangerous drug under a single provision of the Narcotics Act.
Crowder, 810 P.2d at 304-05.
When two distinct statutory provisions are involved, the test
to determine whether there are two offenses or only one is whether
each provision requires proof of a fact which the other does not.
Crowder, 810 P.2d at 304 (citing Blockburser, 284 U.S. at 304).
The U.S. Supreme Court explained this "elements test" by stating
that:
A single act may be an offense against two statutes; and
if each statute requires proof of an additional fact
which the other does not, an acquittal or conviction
under either statute does not exempt the defendant from
prosecution and punishment under the other.
Blockburser, 284 U.S. at 304.
This Court has employed the "elements test" to determine
whether a defendant can be charged and convicted of violating two
statutes for the same act or transaction. See State v. Wolfe
(1991), 250 Mont. 400, 821 P.2d 339 (holding that a defendant can
be convicted of both possession of explosives and criminal
mischief); State v. Clawson (1989), 239 Mont. 413, 781 P.2d 267
(holding that a defendant can be convicted of both sexual
intercourse without consent and aggravated kidnapping); State v.
Long (19861, 223 Mont. 502, 726 P.2d 1364 (holding that a defendant
can be convicted of both misdemeanor assault and sexual assault).
In Crowder, however, we dealt with a situation similar to the
second Blockburser issue. Crowder was charged with two violations
of the same statutory provision (possession of dangerous drugs) and
5
we were faced with the question of whether Crowder's possession of
drugs on his person and possession of drugs on his property
constituted two separate acts of possession. Crowder asserted that
principles of fundamental fairness required that he be charged only
once for conduct which amounted to the same transaction. Crowder,
810 P.2d at 304.
We again looked to the Blockburqer Court which addressed the
issue as follows:
Each of several successive sales constitutes a distinct
offense, however, closely they may follow each other.
[Wlhen the impulse is single, but one indictment
iik; no matter how long the action may continue. If
successive impulses are separately given, even though all
unite in swelling a common stream of action, separate
indictments lie.
Blockburqer, 284 U.S. at 302 (citation omitted). In affirming the
convictions, the U.S. Supreme Court examined the legislative intent
behind the Narcotics Act and concluded that the statute did not
punish engaging in the business of selling dangerous drugs, but
rather penalized any sale. Blockburser, 284 U.S. at 302.
We adopted a similar analysis in Crowder and articulated a
second test when only one statutory provision is involved. To
determine the "allowable unit of prosecution" courts look to
legislative intent since discretion is with the legislature to
impose punishments, subject only to constitutional limitations.
Crowder, 810 P.2d at 305 (citing Bell v. United States (1955), 349
U.S. 81, 82, 75 S. Ct. 620, 622, 99 L. Ed. 905, 910). In Crowder
we held that the Legislature intended to punish each separate
possession of dangerous drugs and concluded that the district court
6
did not err in failing to join the separate counts of possession on
the person and possession on the premises. Crowder 810 P.Zd at
305-06.
The facts of the present case align themselves with Crowder in
that Stilson was charged under the same statute, 5 45-6-316, MCA
(1989) I and was convicted in all three different counties of
issuing a bad check, a felony, common scheme. Thus, the question
is whether the Legislature intended that a defendant could be
punished for more than one common scheme.
We acknowledge the fact that in State v. Fleming (1987), 225
Mont. 48, 730 P.2d 1178, we stated that "[clommon scheme is clearly
an element to be charged and proven under § 45-6-316, MCA, as it is
specifically mentioned in subsection (3) of the statute." Fleminq,
730 P.2d at 1180. Therefore, we do not agree with the State's
contention that "common scheme" is merely a sentence enhancement
provision which determines if the crime is a misdemeanor or felony.
Nevertheless, the focus of our analysis still remains whether or
not a defendant may be charged with more than one common scheme.
Stilson's reliance on Fleminq and State v. McHugh (1985), 215
Mont. 296, 697 P.2d 466, is misplaced. In both of those cases the
defendants were charged in only one county with one count of
issuing bad checks as part of a common scheme and the defendants
disputed that their conduct constituted a common scheme. We held
that the acts of issuing multiple bad checks are a common scheme if
the acts were "either individually incomplete such that they show
that a single crime had been committed, or [were] acts which
7
closely followLed one another evidencing a continuing criminal
design." Fleminq, 730 P.2d at 1180. Even though we upheld the
convictions and concluded that the defendants' conduct constituted
a common scheme, we did not address nor foreclose the possibility
that a defendant could, under the appropriate facts and
circumstances, be convicted of more than one common scheme.
Stilson argues that the Legislature did not intend to allow
the State to divide one common scheme into multiple common schemes
and multiple felony violations. According to Stilson, the
Legislature did not provide in 5 45-6-316, MCA, or anywhere else in
the Code, a basis to divide a single common scheme of issuing bad
checks into multiple common schemes.
While we agree with Stilson that the Code does not provide for
multiple common schemes, we conclude that neither has the
legislature foreclosed such a possibility. Under the appropriate
facts and circumstances, we conclude that double jeopardy
protections do not necessarily prevent a defendant who has been
convicted of a common scheme in one county from being convicted of
another common scheme in a different county.
In this case Stilson was charged in each county for only those
checks written in that particular county and the bad checks written
in each county were separate and distinct "common scheme" offenses.
Stilson wrote bad checks to a number of different vendors in each
county and, when taken together, such a series of acts provides the
basis for the charge of felony common scheme in each county. The
evidence required for the State to prove the offense in each county
was different and specific to each county and the series of acts or
transactions in each county were different from those in the other
jurisdictions, both individually and as a group.
Thus, under the specific facts and circumstances of this case,
Stilson committed the crime of writing a bad check, a felony,
common scheme, in each of the jurisdictions for which he was
charged and we hold that the convictions he received in the Fourth
and Eighth Judicial District Courts did not violate his double
jeopardy rights. Therefore,
IT IS HEREBY ORDERED that Stilson's petition for post-
conviction relief is DENIED.
The Clerk is directed to mail a copy of this opinion and order
to all counsel of record and to the Clerks of Court for the First,
Fourth, ant 1 Eiqhth
_ Judicial District Courts
DATED this
Justices
9
Justice W. William Leaphart, dissenting
I would grant the Petition for Post-Conviction relief on
double jeopardy grounds with regard to the conviction of Issuing a
Bad Check, a Felony in the Eighth Judicial District Court, Cause
No. ADC-91-56. Under State v. Hagan (1994), 265 Mont. 31, 873 P.2d
1385, this Court held that jurisdictional claims are narrowly
limited to "those cases in which the district court could determine
that the government lacked the power to bring the indictment at the
time of accepting the guilty plea from the face of the indictment
or from the record." Haqan, 265 Mont. at 36 (citing United States
V. Brace (1989), 488 U.S. 563. The State does not contest
Petitioner's assertion that the Eighth Judicial District Court
accepted Mr. Stilson's guilty plea on the same day that it
sentenced him. On that same day, the Eighth Judicial District
Court had before it the Pre-Sentence Investigation Report (PSI)
prepared with regard to Stilson's previous conviction in Missoula
County for the same check writing scheme. The Missoula County PSI
in turn references the fact that Stilson was convicted in Lewis &
Clark County with regard to the same check writing scheme. Thus,
it is clear to me that when the Eighth Judicial District Court
accepted Stilson's plea of guilty on June 14, 1991, the "record" of
the two prior convictions was both available and sufficient for the
court to determine that, due to the constitutional prohibitions
against placing a person twice in jeopardy, the government lacked
the power to bring the charges at issue.
10
As to whether defendant's state-wide check writing conduct can
be broken into separate "common schemestt in which each county
charges a common scheme limited to the checks written in that
particular county, I note that the Cascade County Information CDC
91-096, charges defendant with Issuing a Bad Check, a Felony, a
common scheme. The Information then makes reference to one check
which was issued in Cascade County. It is axiomatic that more than
one check is necessary in order to constitute a "common scheme."
One cannot tell from the face of the Information whether the other
checks necessary to constitute the "common scheme" were written in
Cascade County or were the same checks which were the basis for the
charges in Lewis & Clark and Missoula Counties. The Cascade County
Judgment does, however, reference the fact that the defendant was
convicted for writing bad checks in Missoula and Helena.
Accordingly, I cannot conclude that the Cascade County charge
of "common scheme" was based solely upon checks issued in Cascade
County and that it did not encompass checks from other counties
wherein the defendant had already been put in jeopardy.
Justice Terry N. Trieweiler and Justice William E. Hunt, Sr.,
join in the foregoing dissent of Justice W. William Leaphart.
Justices
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CERTIFICATEOF SERVICE
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following named:
Jeffrey T. Rena,Director
Jonath: Kudrna, LegalIntern
m
MontanaDefenderProject
Universityof MontanaSchoolof Law
Missoula,MT 59812
Hon. JosephP. Mazurek, A.G.
CreggCoughlin,Assistant
JusticeBldg.
Helena,MT 59620
RobertDeschamps,III
Count) Attorney
f
Missot County Courthouse
da
Missoula,MT 59802
Brant Light
CountyAttorney
1214th StreetNorth
GreatFalls, MT 59401 ’
Mike McGrath
L & C CountyAttorney
228 Broadway,Courthouse
Helena,MT 59624
DennisPaxinos
Yellowstone CountyAttorney
P.O. Box 35025
Billings, MT 59107
ED SMITH
Cl LERK OF THE SUPREME COURT
STATE OF MONTANA
BY:
Dep