*1
STATE OF MONTANA,
Respondent,
Plaintiff
CARLOS AGUILAR,
Appellant.
Defendant
No. 98-500.
Submitted on Briefs March
1999.
July 8,
Decided
1999.
159.
St.Rep.
629.
For Chad Assistant Appellate Ap- Office; Defender Helena. pellate Mazurek, Respondent: Joseph Attorney General;
For Hon. P. Wellenstein, Attorney General; Helena; Micheál S. Assistant Mike Menahan, McGrath, County Attorney; Dep- Mike and Clark Lewis Attorney; Helena. uty County the Court. opinion delivered the TRIEWEILER
JUSTICE defendant, charged by information Aguilar, Carlos The District in Lewis and the First Judicial the District Court for filed in by jury, Aguilar a trial Following County with assault. Clark *2 for commission of prison to the State and sentenced was convicted for use of a assault, an additional sentence felony and received the the sen- Aguilar appeals crime. of the during commission and vacate the en- Court. We reverse by the District imposed tence entry judgment and remand for his sentence portion of hanced opinion. this with consistent weapon enhancement stat- whether the appeal on is The issue ¶2 assault, felony MCA, for 46-18-221, to a conviction
ute, when § Montana Constitution of the jeopardy provision the double violates II, Section 25. at Article found BACKGROUND AND PROCEDURAL
FACTUAL arrived in Hel- 3,1996, Aguilar Carlos August approximately On ¶3 Jessie, age visit his two sons bus, to East Helena to by and went ena mother, five, their Jonathon, who lived with age seven black, is boys are and Stock and the two ex-wife, Aguilar Kim Stock. white. white, Christenson, is was who boyfriend, John Stock’s current playing was Aguilar house while at Stock’s upstairs
sleeping how Christenson was asked his sons Aguilar sons. with his Nintendo that Christenson called boys Aguilar told treating them. One Jessie, them. the at profanity directed other “niggers” them had beaten that Christenson Aguilar also told seven-year-old, and drawn blood. thorny rose bush Jonathon, five-year-old, with a abuse, admitted and she physical about the Stock confronted Aguilar with the rose bush. Jonathon had beaten that Christenson abuse of physical verbal and hearing of Christenson’s After Christenson He asked Christenson. confronted boys, Aguilar his conversation, After some to him. to talk porch onto the go out against and held him by the throat Christenson grabbed Aguilar him, cutting that he was Aguilar told house. Christenson He to do.” he intended was what that “that responded Aguilar again he his sons mistreated that if he ever told Christenson then him. kill would August On Aguilar Carlos charged in the Justice County
Court for Lewis and Clark felony with assault in violation of 45-5-202, Aguilar MCA. waived preliminary examination and was bound over to the District Court for Lewis County and Clark for fur- 30,1996, ther proceedings. August On an information was filed in the District Court for Lewis and County Clark charging Aguilar with fel- ony “purposely assault for or knowingly causfing] bodily injury to Christenson, John knife, Alfred Jr. cutting him with a in violation 45-5-202(2), of Section Aguilar MCA.” pled guilty not September on 19,1996, jury 24,1996. and a trial February commenced on trial, At Christenson testified that he had a neck, scratch on the and was cut on the thumb. He testified that although he knife, did not see a Aguilar had held one to Aguilar his throat. maintained that he scratched Christenson on the neck with fingernails, his not a knife. February 25,1996, On jury Aguilar guilty found felony assault. The District Court Aguilar sentenced years to ten in the prison State years eight suspended assault, with and to an additional years ten eight years suspended for use of a weapon during com- mission of the assault. Aguilar appealed the to this Court on the
basis that he was under at duress the time he assault; committed the mandatory that the minimum requirements sentence therefore did *3 apply pursuant 46-18-222(3), not to MCA; § and that the District by refusing Court erred apply to this exception. Based stipula- on the by Aguilar tion and the State that the District Court failed to address applicability the of exception the to mandatory the minimum sen- tence for use of a weapon, we vacated the sentence of the District Court and remanded for resentencing. We also dismissed appeal without prejudice. On resentencing, the District Court
¶8 held that the duress excep- mandatory tion to the minimum sentence prescribed by the sentence enhancement statute did not apply because the threats were directed at third parties Therefore, not the defendant. the court again im- the posed original years sentence of ten eight suspended with for the charge felony of assault and years ten with eight suspended for use of dangerous weapon. 6,1998, a On August Aguilar again appealed the judgment and conviction of the District Court. brief, Aguilar’s opening filed prior to our decision in State v.
Guillaume, 12, 293 224, 312, 1999 Mont. 975 P.2d was again lim ited to the issue of whether the District by Court erred refusing to mandatory as an to the minimum exception consider duress enhance- of a The State did not weapon. ment of his sentence for use discuss responsive in its brief because it had not been jeopardy double raised jeopardy brief. Double was first raised Aguilar’s opening in However, the State’s brief. the State Aguilar reply in to concedes that Aguilar separately controls and that cannot be sentenced Guillaume contends, however, a The State that this weapon. for use of case to the District Court for reconsideration be remanded should Aguilar’s entire sentence. conclude, Roullier, 37, as we did in State v. 1999 MT We 970, 304, P.2d that illegal
Mont. judgment stricken and the amended to that extent. simply be should
DISCUSSION Guillaume, felony in In the defendant was convicted assault 11¶ 202(2)(b), Guillaume, MCA. 1999 MT of 45-5- See ¶ violation § 224, 1, 975 312, P.2d 1.The District Court sentenced the Mont. ¶ ¶ assault, felony to an years prison to ten for the addi defendant years weapon pursuant for use of a to sentence en tional five 45-18-221, Guillaume, at MCA. 1. statute found See ¶ hancement him, argued that as to the stat defendant in Guillaume The Constitution, jeopardy the double clause ofthe Montana ute violated Guillaume, II, agreed See 1. We with the defen Section 25. ¶ Article II, “Article ofthe Montana Consti concluded that Section 25 dant and pro from double than is greater protection jeopardy provide[s] tution ultimately held that: by the United States Constitution.” We vided felony weapon enhancement statute to convic- [Application of use of a underlying requires proof offense tions where II, jeopardy ofArticle Section provision violates the double the Montana Constitution. 25 of
Guillaume, 16. ¶ nearly identical to in the instant case are those The facts assault, ac- charged sentenced Aguilar
Guillaume. time use of a was enhanced a second and his sentence cordingly, weapon. that the rule which we announced parties agree Both deci retroactively pursuant to this case our apply does
Guillaume
268, 975
31, 293
Brown,
Mont.
P.2d
1999 MT
*4
sions in State
970,
304,
in
Roullier,
37, Mont.
977 P.2d
which
293
1999
State v.
an
error doctrine to review error
plain
law
the common
we invoked
right
initially
that was not
constitutional
a fundamental
implicating
Furthermore, we have concluded that a
appeal.
raised on
new rule of
applied
yet
in
must be
to all cases not
final.
prosecutions
law criminal
(1995),
114,
(citing
272 Mont.
CHIEF JUSTICE JUSTICES HUNT and REGNIER concur. GRAY,concurring
JUSTICE part dissenting part. specially I concur in the that holding Court’s Guillaume re- that the enhancement quires portion Aguilar’s of sentence be my stricken. It continues to be that wrongly view Guillaume was de- However, and, every- cided. Guillaume is now the law ofthis state like else, one I am bound it. respectfully portion I dissent from that opinion Court’s permits Aguilar’s only
which the District Court to revise sentence to deleting the extent of provides sentence enhancement. The Court rejecting no rationale a request for State’s for remand for recon- sentence, solely of entire It relying sideration on Roullier. is Roullier, participate, true that in a case in I did not the Court which purpose revising remanded for the limited the sentence to strike decision, however, Nothing sug- the sentence enhancement. in that gests requested that State had a remand for reconsideration the limited provides the entire sentence or a rationale for remand. Moreover, v. Brown, 31, 1999 MT both Guillaume and State ¶ 268, 321, 15, 15, decided than two 293 Mont. 975 P.2d less ¶ ¶ Roullier, enhancement weeks before the Court held that the sentence jeopardy “rehearing” violated double and remanded necessary simply would be resentencing. “rehearing” Since no it judgment, from the is offending strike the hear- my sentencing that remanded for a new view those cases were *5 sentencing. entirely appropriate, given This seems and new ing sentencing. in district courts in criminal of discretion vested amount of a criminal sentence a district court believed part we strike When given opportunity the district court should be appropriate, the defendant. resentence taken present nor the case has Court no- In neither Roullier
18¶ Thus, and Brown. remands Guillaume expansive tice ofthe more months, have twice remanded for re- less than six we four cases over on a much more lim- resentencing and twice remanded hearing and approach and re- I followthe Guillaume Brown ited basis. would resentencing, particularly the absence of rehearing and mand for doing otherwise. any rationale