*1 STATE OF MONTANA, Respondent, Plaintiff and v.
CASEY LEE CECH,
Appellant.
Defendant
DA 06-0111.
No.
January
Submitted on Briefs
2007.
August
Decided
For Mike Respondent: Attorney Honorable Becker, General, Helena; Com, Attorney George Ilka Assistant H. County Attorney; Geoffrey Mahar, Deputy County Attorney, Chief Hamilton. Opinion
JUSTICE RICE delivered the of the Court. (Cech) Appellant Casey appeals Cech from the order of the ¶1 Court, Twenty-First County, Judicial District denying Ravalli his dismiss grounds motion to on jeopardy. of double We reverse. following We consider the issue on appeal: ¶2 Did by ruling the District Court err that Cech’s conviction of ¶3 possession of stolen did not property Washington subsequent bar a property for theft of the in Montana?
BACKGROUND 15,2004, Accord, On October Cech test-drove a silver 2001 Honda ¶4 (SFE) $25,000, reportedly belonging valued at to SFE Auto Sales of Corvallis, vehicle, Montana. Cech failed to return the and SFE 17, 2004, reported County the theft. On October the Ravalli Sheriffs County Ephrata, Office learned from the Grant Sheriffs Office Cech, Washington, that the stolen vehicle had been recovered and that vehicle, under driving who was had been arrested Washington law. 18, 2005, of January Washington On Cech was convicted in degree, attempting pursuing police
assault in the third to elude vehicle, and, Honda, regard possessing to the stolen months in property degree. in the first Cech was sentenced to sixteen 28, 2005, jail County, Washington. On June Cech was Grant Court, Judicial District charged by Twenty-First information MCA. The felony theft violation County, Ravalli knowingly or exerted “purposely Cech obtained alleged information belonging to SFE Auto Sales ....” control over a vehicle unauthorized July 20, plea Cech entered a of not initial on appearance At his guilty. 29,2005, grounds filed a motion to dismiss on August On Cech Thereafter, Cech District Court denied. jeopardy, which the
double agreement plea bargain to a which changed plea guilty pursuant his MCA, reserve, right appeal Cech’s under § did years in the sentenced to serve ten double issue. appeals. Montana State Prison. He OF REVIEW
STANDARD a motion to dismiss A court’s denial of defendant’s district of law that jeopardy presents question of double charge on the basis Beavers, 260, 21, 1999MT for correctness. State v. this Court reviews
DISCUSSION
Cech’s conviction
by ruling
District Court err
Did the
did not bar
property
of stolen
in Montana?
for theft of the
*3
matter,
appeal
properly
that his
a
Cech offers
preliminary
As
appeal
did not reserve this issue for
though
this Court even
he
before
because,
voluntary guilty plea
while a
guilty plea
entered his
when he
non-jurisdictional defects and defenses
usually constitutes a waiver of
jurisdictional
a
the issue he raises is
prior
plea,
that occurred
to the
31,
State,
873
waived, citing Hagan v.
265 Mont.
cannot be
one which
(1994).
that
“[i]t
stated that
is well established
Hagan,
P.2d 1385
we
made
voluntary
understandingly
guilty which is
plea
defenses,
defects and
nonjurisdictional
constitutes
waiver
prior
occurred
ofconstitutional violations which
including claims
explained
further
35,
State,
[W]e conclude at the time the Judicial District Court accepted guilty plea Stilson’s the record before it contained his prior
two convictions and was sufficient for the court government determine whether power bring lacked the charges at issue due prohibitions to the constitutional against placing person twice in jeopardy. We conclude that Stilson has not waived jeopardy his double claim and proceed therefore address the merits of his claim.
Stilson,
22-23,
Mont.
because
Cech’s
for theft in Montana was barred on double
jeopardy grounds as a result of his
possession
conviction for
of stolen
property in Washington. Cech contends
his
(1)
barred under
statute,
Montana’s double jeopardy
46-11-504, MCA;
(2) the
jeopardy
double
clause of the Fifth Amendment
to the United
Constitution,
States
because the theft offense has the same elements
as the Washington
offense,
of stolen property
thus
satisfying the elements test
Blockburger
U.S.,
v.
set out in
284 U.S.
299,
(1932);
Cech’s three theories because Cech cannot establish elements one and three of the Montana statute’s double test as set forth in Tadewaldt, (1996); 922 P.2d under the dual sovereignty by doctrine as defined the United States Supreme Court, Cech committed distinct two offenses when he stole a *4 vehicle in Montana possessed and then in Washington; vehicle (3) and was not to the multiple prosecutions for the same prohibited offense which is under the Montana Constitution. Because we conclude that argument, Cech’s first under Montana
334 meritorious, third statute, is do not reach the second and we arguments. MCA, 46-11-504(1), provides: prosecution jurisdiction.
Former another When any an offense within the of state conduct constitutes court, any is a prosecution or federal a bar to a subsequent prosecution prosecution in this state if: the first an in a acquittal subsequent resulted in or conviction and the arising is based on an offense out same prosecution transaction.... criminal provides noted that this statute
We have defendants with greater against under the protection double than United of federal constitutional Supreme application States Court’s 299, 52 Tadewaldt, prohibition Blockburger, 284 U.S. S. Ct. 180. 268, 922 467; P.2d 747 P.2d at (1987). Tadewaldt, three-part Court test from deduced barred, to determine is statute whether setting forth the as follows: factors
(1) a defendant’s conduct constitutes an offense within the occurred and prosecution the court where of the court the subsequent within where pursued; is conviction; acquittal resulted or arising is based on an offense out that term [as ofthe same transaction is defined MCA].
Tadewaldt, 264, 922 conjunctive P.2d 465. “Due to statute, factors met in order to bar nature of the all three must be 350, 12, 318 MT Mont. subsequent prosecution.” State v. Honda, Cech, Washington charged regard degree in the first in violation R.C.W. property of stolen guilty That provides person “[a] 9A.56.150. statute possesses if he or she possessing degree stolen in the property ... one thousand five hundred dollars property which exceeds 9A.56.150. value.” R.C.W. § receive, retain, means
“Possessing knowingly stolen property” conceal, knowing that it has of stolen dispose or possess, the same to use of appropriate been stolen to withhold person other the true owner or entitled thereto. any person than *5 “ theft, by robbery, R.C.W. 9A.56.140. ‘Stolen’ means obtained or § 9A.56.010(14). turn, extortion[.]” R.C.W. In “theft” “[t]o means wrongfully obtain or exert unauthorized control over the property or services of another ... with intent to him deprive or her of such 9A.56.020(l)(a). property or services....” R.C.W. § theft, Montana subsequently charged Cech with in violation of § 45-6-301(1), MCA, provides which part: relevant
Theft. A person commits the offense of theft when the person purposely knowingly or obtains or exerts unauthorized control property over of the owner and:
(a) purpose has the of depriving the owner of the property; (b) purposely uses, or knowingly conceals, or abandons property in a deprives manner that the owner of the property; or
(c) uses, conceals, or abandons the property knowing that the use, concealment, or abandonment probably will deprive the owner property of the ....
“Obtains or exerts control” includes “the taking, carrying away, or sale, conveyance, to, or transfer in, of title possession interest or of property.” MCA. Applying the test, three-factor Tadewaldt the District Court
determined that Cech’s claim failed under the first factor because there was not concurrent over Cech’s conduct:
Clearly, same, offenses are not the nor possession is property an element of Theft under Mont. Code Ann. 45-2- 301(1). The State of Washington did authority not have the to prosecute Cech for the same offense he charged was with in Montana because no taking, carrying away, sale, conveyance, or transfer of property alleged is to have occurred in the State of Washington. Therefore, concurrent fails because Montana and Washington authority courts lacked prosecute equivalent offenses based on the same conduct. Cech, therefore, [Citation omitted.] satisfy fails to the first factor of the three-part test which must be met in order to bar prosecution on the basis of double jeopardy. Because all three factors have to be met order to bar the subsequent prosecution, the Court need not consider the remaining factors. disagree We must with the District Court’s conclusion under the
first Tadewaldt factor.
previously
We have
held this
satisfied
jurisdictions
when
both
prosecute
for the same
offense.
229
courts, must establish that the defendant jurisdiction. offense” in each “equivalent him the states, in both but the identical offense charged Cech was not with factor, that he was necessary, purposes it was offenses, only that his charged equivalent identical or actually jurisdictions. equivalent both constituted conduct issue his unlawful charge upon founded The Montana, following stealing he was the same vehicle charge alleged, which Washington, driving his of that vehicle above, that Cech and definitions set forth to the elements pursuant another . . . with property control over had “exerted unauthorized Washington. the owner of such deprive” intent authority under its also had the charge, Washington addition to *6 degree” of “Theft in the Cech the offense charge to statutes control over the exert[ing] or unauthorized obtaining] “wrongfully for her of to him or deprive intent or of another ... with property services 9A.56.020(l)(a). 9A.56.030 and services....” R.C.W. property §§ such or charge, and did Cech charge, to Similarly, Montana had the 45-6-301, MCA, he had alleging under § theft of the vehicle property unauthorized control over exert[ed] or “knowingly obtain[ed] depriving owner purpose “the of the owner” with out, the elements While, pointed the District Court as property.” may not have and Montana actually brought charges had that Cech’s conduct identical, it is our conclusion nonetheless been jurisdictions him and thus in both “equivalent offenses” as factor is satisfied factor.1 The second first Tadewaldt satisfied the in the of stolen well, convicted of since Cech was Washington. State of of an offense requires The third “Same first prosecution. as the the “same transaction”
arising out of or a series of acts consisting of as “conduct transaction” is defined (a) a criminal accomplish by: purpose are motivated omissions that accomplishment incidental necessary are objective and that arise from MCA. Offenses objective ....” Section of that each conduct of “a defendant’s transaction when the same criminal accomplish the same by purpose is motivated 374, 747 P.2d at Sword, (citing 229 20 objective.” 208-09). by the analysis factor offered acknowledge under the first the alternative We
concurrence, adopt it. but decline Sword, In charged violating the United States the defendant with Endangered Species Act of 1973 when he killed a bear in an area hunting permitted. where bear was not The defendant later pled him guilty. Subsequently, charged the State of Montana making false application statements on his for a license to trophy transport After considering bear. Sword’s conduct that served as the basis of his federal charge-“possessing, carrying, and of a transporting bear taken unlawfully”-we concluded that charge his state arose out of the same transaction:
The trophy license possess authorized him to and transport trophy. Thus, his false statements as well as his other acts were necessary motivated or at least incidental accomplishment of the objective criminal of possessing, carrying, and transporting grizzly of a unlawfully. bear taken Clearly the Montana prosecution is based on an arising out of the same transaction....
Sword,
374,
229 Mont. at
Therefore,
and theft of coins from a residence.
probation,
While on
the defendant
sold some of these same
coins. He was then
with violation of
45-6-30l(3)(b), MCA, for receiving
stolen property. This Court held
that the two convictions-the initial theft and the later sale of stolen
property-“clearly
arose from the same transaction” because the
convictions stemmed from the
taking
and,
same initial
of the coins
consequently,
the second
by
was barred
the prior
*7
Hernandez,
conviction.
223,
¶22 conclusion here. Cech’s conduct which prosecutions served as a basis for both sought accomplish same objective-control criminal of the vehicle-leading filing analogous charges of directed at such in conduct both states. Cech could not been charged of the stolen vehicle in Washington had he not first in stolen the Honda Montana and taken Washington. motivation, it to Cech’s asserted “knowingly that of ... withhold[ing] or appropriate[ing]” any the Honda “to the use of person thereto,” other than the true person owner or entitled R.C.W. § 9A.56.140, “depriving or of property’ the owner of the under 45-6- § 301(l)(a), MCA, Thus, was the charges same. these arose out of the
same transaction. met, factors are all three Tadewaldt conclude that We for theft MCA, subsequent prosecution 46-11-504, therefore bars the
§ reversed and this the District Court is The decision of in Montana. charge. for dismissal matter is remanded GRAY, LEAPHART and WARNER JUSTICES CHIEF JUSTICE concur. concurring. specially
JUSTICE NELSON all that is said. Opinion, our but not with I in the result of concur (1996), 261, we Tadewaldt, 277 Mont. In State v. (Tadewaldt’s 46-11-504, MCA. of analyzed the 1993 version 1994.) in then provided, The statute August in committed as follows: part, pertinent an the concurrent constitutes offense within
When conduct another state the United States or of this state and of jurisdiction or concurrent separate, overlapping, or of two courts jurisdiction is state, any other prosecution in this under the same in this state subsequent prosecution a bar to state if: prosecution barring further circumstances or in a acquittal in an prosecution resulted on an offense prosecution is based subsequent and the conviction transaction;.... same arising out of the MCA(1993). language, we enunciated 46-11-504, Based on this test: following three-part statute, by its under this prosecution is barred subsequent [A] (1) a defendant’s terms, three factors are met: following if the of the court offense within the constitutes an conduct and within the occurred prosecution the first where (2) the pursued; the court where the conviction; acquittal or a results an arising out of the an offense is based on subsequent prosecution same transaction. P.2d at 465.
Tadewaldt, Laws of see Legislature amended § unchanged has remained Montana, 1997, and the statute Ch. as follows: pertinent part, provides, then. It since offense within constitutes an conduct When is a any jurisdiction court, a prosecution or federal any state if: in this state subsequent prosecution bar to in a acquittal resulted on an offense is based and the conviction *8 transaction;.... arising out same of the 46-11-504, prosecution Accordingly, subsequent MCA. was
Section (1) in the case at hand if Cech’s conduct constituted an offense barred jurisdiction Washington court; the the within conviction; in an or a and prosecution acquittal resulted the subsequent prosecution arising on an Montana is based offense out of the same transaction. satisfy The District Court determined that could not
(1). Gazda, 350, 15, Citing 2003 MT ¶ opined P.3d the court that in both “jurisdiction exists courts jurisdictions authority both prosecute when have for the same The then proceeded analyze offense.” court the offenses of possessing degree, 9A.56.150(1), in the first RCW and theft, 45-6-301(1), MCA, “[cjlearly, that concluded the offenses Thus, are same.” court decided that “concurrent fails and Washington because Montana courts lacked authority to prosecute equivalent offenses based on the same conduct” Cech, therefore, satisfy “fails to three-part factor of the test.” respect, In this the District unquestionably Court erred. Nothing
in 46-11-504 states prosecuted offense in the first “the or “equivalent” must be same” as to the offense Again, provides: Montana. the statute When conduct constitutes an within the offense
any court, state or federal prosecution any is a to a subsequent prosecution bar in this state if: acquittal resulted in an or in a conviction and the subsequent prosecution is based on an offense arising transaction;.... out of the same added). (emphases MCA The statute does not state preliminary language
in the any jurisdiction that “a to a a bar this state same or an for equivalent Rather, unambiguously it states “a offense.” prosecution in any jurisdiction is a bar Moreover, state”-nothing more. the statute not state in does (1): on the equivalent arising subsection “based same or an offense out Rather, arising of the same transaction.” it “based on states: Accordingly, requirement out the same there no transaction.” was demonstrate, as required, that Cech the District Court that “both jurisdictions authority offense,” prosecute the same and I disagreement point. concur our with the District Court on this See Opinion, said, analysis support. not without That District Court’s factor was not argued the State that the Tadewaldt in that case the federal and Montana courts lacked
satisfied
because
prosecute “equivalent
offenses” based on
same
*9
Gazda,
“agree[d]”
conduct.
14. We stated that we
¶
14,
contention, Gazda,
explicitly
that
Court has
noting
“[t]his
this
¶
jurisdictions
in
both
held that
exists
both courts when
offense,” Gazda,
authority
prosecute
(citing
have
to
for the same
15¶
(1987)).
Sword,
370, 373, 747
206, 208
State v.
229 Mont.
P.2d
We then
that
had not satisfied the first Tadewaldt
reasoned
Gazda
“[tjhere is
the
could
suggestion
because
no
that
United States
have
homicide,
the
charged
with deliberate
nor that
State could have
Gazda
charged
possession,
with felon in
a federal statute with no
Gazda
Gazda,
15.
comparable state statute.”
¶
14
reasoning
set forth in
This
and
State’s contentions
above,
explained
nothing
are
As
46-
plainly unsupportable.
§
Gazda
11-504, MCA,
required
charged by
that Gazda be
United States
“equivalent”
and the
of Montana with “the same” or an
offense
State
holding
grafted
we
apply.
contrary,
in order for the statute to
In
to
requirement
a
that
onto
46-11-504 and the
Tadewaldt factor
§
simply
language
not exist in the
statute.
does
factor,
rendering
As
for
of the first Tadewaldt
we
support
(see
15); however,
for
cited
Sword does not stand
a
Sword
authority
court have
requirement
that the first court and the Montana
“equivalent”
based on the same
prosecute
“the same”
offenses
killing
grizzly
After
bear
the Great Bear
underlying conduct.
Wilderness,
hunting,
grizzly
which at that
time was closed to
bear
that
had killed the bear
trophy
Sword
on his
license
he
reported
Wilderness,
bear
open
grizzly
which at the time was
Bob Marshall
knowingly
court to
hunting.
eventually pleaded guilty
federal
Sword
unlawfully.
carrying,
transporting
grizzly
bear taken
possessing,
subscribing
materially
to a
He then
in state court with
license. See
application
grizzly
trophy
on an
bear
false statement
Sword,
371-72,
at
747 P.2d
229
46-11-504,
considering
MCA
barred
§
whether
46-11-504(1) required
prosecution,
Montana
we
observed
§
“1)
the United States have
questions:
Did Montana and
answers to two
2)
on an
Is the Montana
based
jurisdiction?
concurrent
Mont.
arising out of the same transaction?”
offense
transported
mountain,
it from the
made false statements on the trophy
application,
hide,
and stored the
his conduct violated both
1538(a)(1)(G)
16 U.S.C.
87-l-102(2)(a), MCA,
§
we
§
concluded that
the United States and the State of Montana had concurrent
jurisdiction. Sword,
373-74,
when both prosecute for “the same” or “equivalent” offenses. But if even Sword could be so interpreted to require that the offenses be the same or equivalent in order for concurrent he, Legislature deleted the reference to “concurrent” in the 1997 46-11-504, amendment MCA. § Compare 46-11-504, (1985). MCA MCA Thus, Sword did not support our reasoning 15 of Gazda with respect to the first Tadewaldt factor. *10 Again, the version of § 46-11-504 at issue in provides: Gazda
‘When conduct constitutes an offense within the jurisdiction of any court, state or federal in any jurisdiction is a bar to a subsequent prosecution in this state if: prosecution resulted in an acquittal or in a conviction and the subsequent prosecution is based on an arising offense out of the same transaction....”
Gazda, MCA). 12 (ellipsis original) in (quoting 46-11-504, ¶ Nothing language this requires that the offense prosecuted in the first jurisdiction and the charged offense in Montana be the same or equivalent; the language simply requires that two they offenses-whatever are-“aris[e] out of the same transaction.” Therefore, portion explaining Gazda and applying the first 46-11-504(1), provides Section MCA as follows: jurisdiction When conduct constitutes an offense within the concurrent ofthis state and the or concurrent separate, any United States or another state or of two courts of overlapping, other jurisdiction state, in this such subsequent prosecution is a bar to a in this state under the
following circumstances: acquittal The first resulted in an or in a conviction as defined arising in 46-11-503 and the is based on an offense out of the same transaction. factor, Gazda, 13-17, should is incorrect and be ¶¶ Tadewaldt overruled.3 hand, perpetuates the case the Court our Unfortunately, at the District Court’s conclusion disagreeing
error in Gazda. After case, the not satisfied in this Court that the Tadewaldt explains: have held factor is satisfied when both previously
We prosecute for the same offense. jurisdictions have at 208. We further that existed in explained that in order demonstrate courts, defendant must establish that the same conduct both jurisdiction. subjected “equivalent him to the offense” in each 14. ¶ necessary goes on that “it not Opinion, The Court to state was factor, actually of the purposes [Cech] that offenses, only that conduct at issue equivalent identical or his 18; jurisdictions.” Opinion, an equivalent constituted offense in both (referring “analogous” charges). Opinion, see also [must “the in 46-11-504 that same conduct Where does it state offense’ in each subjected ‘equivalent have] [the defendant] to the [must have] “[the defendant’s] or that conduct at issue jurisdiction” jurisdictions”? an Nowhere. The equivalent constituted both subjected states conduct must have the defendant statute that the “an offense” in “an offense” the state or federal and transaction.” “arising Montana out of same same,” prosecuted transaction must “the MCA. While the be same,” “equivalent” or now-charged offenses need be “the even statute, “analogous.” unambiguous language to the Pursuant they simply must arise out of the same transaction. that a defendant Accordingly, stating I the Court errs believe “equivalent the same conduct him
must establish that the defendant’s conduct issue in each offense” jurisdictions. “equivalent offense” in both must have constituted contains no plain language 18. The statute Opinion, ¶¶ much less “the “equivalent,” the two offenses be requirement language selected same,” not to add terms ought and courts such *11 factor had not been met on to hold that the third Tadewaldt We went in Gazda underlying from the federal conviction was distinct the conduct Gazda’s because court-i.e., the offenses did not offense in the Montana conduct arise out of Thus, analysis, our factor ¶¶ See 18-24. same transaction. erroneous, change though the double issue. result on did (“In by 1-2-101, the Legislature. Section MCA the construction of a statute, judge simply the office of the to ascertain and declare what therein, is in terms or in substance contained not to insert what has inserted.”). been omitted or to omit what has been reason, For this I agree also cannot reasoning Court’s 18. The first factor is satisfied here not because “Cech’s conduct ... ‘equivalent him to offenses’ in both [Washington and Rather, Montana].” this factor is satisfied because Cech’s conduct of controlling a stolen vehicle constituted an offense in 9A.56.150(1)) (possessing degree, RCW MCA). (theft, an offense in Montana sum, I that our explanation believe and application of the first Tadewaldt factor in 13-17 of ¶¶ Gazda is erroneous and should be Thus, overruled. I agree cannot analysis Court’s of that factor today’s Opinion, 17-18 of ¶¶ which relies on and continues our error exception, Gazda. With that I otherwise concur in the Court’s analysis. Furthermore, I concur in the Court’s ultimate conclusions that all three Tadewaldt factors are met here and that § MCA, bars the State of Montana prosecuting from Cech for theft.