NO. 9 6 - 4 5 8
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
FRANK NICHOLAS WILSON,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jeffrey T. Renz and Aileen B. Miller;
Montana Defender Project; Missoula, Montana
For Respondent :
Hon. Joseph P. Mazurek, Attorney General;
Pamela P. Collins, Assistant Attorney
General; Helena, Montana
Mike McGrath, Lewis and Clark County
Attorney; Helena, Montana
Submitted on Briefs: February 20, 1 9 9 7
Decided: April 1, 1997
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The defendant, Frank N. Wilson, was charged by information,
filed in the District Court for the First Judicial District in
Lewis and Clark County, with the offense of robbery, a felony, in
violation of § 45-5-401, MCA. He pled guilty to the offense
charged, and the District Court sentenced him to a fifteen-year
term of imprisonment. The District Court also concluded that
during the robbery he used a dangerous weapon and, on that basis,
sentenced him, pursuant to § 46-18-221,MCA, to an additional four-
year term of imprisonment. Wilson appeals. We reverse that part
of the District Court's judgment which was based on § 46-18-221,
MCA, and remand to the District Court for entry of judgment
consistent with this opinion.
The sole issue on appeal is whether the District Court erred
when it concluded that Wilson used a dangerous weapon during the
commission of his offense.
FACTUAL BACKGROUND
Frank Wilson was charged by information with the offense of
robbery, in violation of § 45-5-401,MCA. The information alleged,
in relevant part, as follows:
[Tlhat on or about the 2nd day of November, 1995 . . .
[Wilson] committed the offense of ROBBERY, a felony, in
that in the course of taking money from Alli's Pizza in
East Helena, he put store owners and employees in fear of
immediate bodily injury by pointing a gun at Timothy
Allinson and tieing him up, in violation of Section
45-5-401, MCA.
On February 29, 1996, Wilson pled guilty to the offense with
which he was charged. The District Court accepted his guilty plea
and ordered a presentence investigation report.
The District Court held a sentencing hearing on March 27,
1996. The State of Montana recommended that Wilson receive a
fifteen-year sentence, with ten years suspended, for his robbery
conviction. The State also contended that he used a dangerous
weapon--a gun--during the robbery, and therefore, that the District
Court was required to sentence him, pursuant to § 46-18-221,MCA,
to an additional two-year minimum sentence.
Wilson admitted that during the robbery he pointed a gun at
the victims. However, he claimed that the gun used during the
robbery was not a dangerous weapon, and therefore, that § 46-18-
221, MCA, does not apply to this case. In support of his claim, he
presented evidence of the following facts: (1) the gun used during
the robbery was a broken, unloaded, and inoperable BB gun; (2) the
gun used during the robbery was neither a firearm nor a destructive
device; (3) Wilson did not use, or even attempt to use, the gun as
a bludgeon during the robbery; and (4) the victims were not
physically injured during the robbery.
Although the State did not dispute any of the aforementioned
facts, it asserted that "the victims in this case very clearly felt
. . . [the gun] was a weapon." Based on that assertion, it
maintained that Wilson did in fact use a dangerous weapon during
the robbery, and therefore, that he must be sentenced pursuant to
§ 46-18-221,MCA.
At the conclusion of the hearing, the District Court sentenced
Wilson to a fifteen-year term of imprisonment, with five years
suspended, for the robbery conviction. Furthermore, the District
Court concluded that he used a dangerous weapon during the robbery
and, on that basis, sentenced him, pursuant to § 46-18-221,MCA, to
an additional four-year term of imprisonment.
DISCUSSION
Did the District Court err when it concluded that Wilson used
a dangerous weapon during the commission of his offense?
When we review a district court's conclusions of law, the
standard of review is whether those conclusions are correct. S t a t e
v. W i l l i a m s (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021; C a r b o n
County ,
v. U n i o n R e s e r v e C o a l C o . , Inc. (1995) 271 Mont. 459, 469,
Section 46-18-221,MCA, is entitled "Additional sentence for
offenses committed with a dangerous weapon" and provides, in
relevant part, as follows:
(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(1),
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.
Section 46-18-221(I), MCA.
Initially, Wilson contends that the gun he used during the
robbery was neither a "firearm" nor a "destructive device." The
State does not dispute either of those contentions. Therefore, we
must decide whether Wilson's gun was a "dangerous weapon."
Although the District Court failed to expressly state the
rationale for its holding, it apparently agreed with the State and
concluded that, because Wilson's victims believed the gun was a
weapon which was capable of causing them injury, Wilson did in fact
use a dangerous weapon during the robbery. In essence, the
District Court based its conclusion on the subjective beliefs and
fears of Wilson's victims. However, we are bound by the plain
language of the statute which bases enhanced punishment on the
actual use of a I1dangerous weapon, and says nothing about the
beliefs of the victims.
We conclude, therefore, that § 46-18-221,MCA, is not intended
to prevent fear of danger. The purpose of § 46-18-221,MCA, is to
prevent actual danger, and to deter criminals from using dangerous
weapons during the commission of crimes. We conclude that
§ 46-18-221,MCA, must be analyzed pursuant to an objective test,
and that district courts should analyze the weapon itself, not the
subjective beliefs and fears of the victim, to determine whether a
"dangerous weaponn was used during the commission of an offense.
In this case, the examination of Wilson's gun revealed that it
was not a dangerous weapon. It is undisputed that during the
robbery Wilson used a broken, unloaded, and inoperable BB gun. A
gun in that condition was incapable of being discharged, and
therefore, incapable of causing any actual harm by the manner in
which Wilson threatened to use it.
The State contends that Wilson's gun should be considered a
dangerous weapon because it could have been used as a bludgeon or
a club. There is no evidence in the record, however, to support
the assertion that Wilson actually used, attempted to use, or
intended to use the gun in such a fashion. The "could have" test
would open a PandoratsBox of dangerous weapons limited only by the
imagination of a particular prosecutor. It would provide no prior
notice to offenders that their conduct was subject to enhanced
punishment, and therefore, is antithetical to the fundamental
principle of criminal law that a person of average intelligence is
entitled to notice of the type of conduct that the law proscribes.
See C i t y of C h o t e a u v. J o s l y n (1984), 208 Mont. 499, 505, 678 P.2d
665, 668.
Based on our analysis of § 46-18-221,MCA, and the facts in
this case, we hold that the District Court erred when it concluded
that Wilson used a dangerous weapon during the commission of his
offense. Accordingly, we reverse that part of the District Court's
judgment which was based on § 46-18-221,MCA, and remand this case
to the District Court for entry of judgment consistent with this
opinion.
We Concur:
Chief Justice