*1 MONTANA, OF STATE Respondent, Plaintiff v. PAUL GUILLAUME,
GEORGE
Appellant.
Defendant
No. 97-291.
September 16,
Heard
1998.
12, 1998.
Submitted November
February 19,
Decided
1999.
For Ronald L. Appellant: Cascade Public De- Office, Great Falls. fender’s Mazurek, General, Respondent: Joseph Attorney
For P. Carol Helena; Schmidt, General, Attorney Light, Assistant Brant Cas- County Attorney, Rausch, cade Michael Deputy County Cascade Attorney, Great Falls. Opinion
JUSTICE HUNT delivered the of Court. Following jury Court, a trial Eighth in the Judicial District Cas- (Guillaume) County, Paul George cade Guillaume was guilty found felony trespass and criminal property, to a misdemeanor. The years ten in prison District Court sentenced Guillaume to felony for assault, five years prison an additional in for a weapon, use of and six prison trespass months in for criminal to property, the six-month concurrently fifteen-year term to run with the ap- term. Guillaume part peals years court’s order him to ten felony years for assault and an five prison prison additional for use a on the weapon basis We reverse and remand resentencing. for appeal The sole issue on is whether ofthe en- statute, 46-18-221, MCA, to a felony §
hancement conviction for as- 45-5-202(2)(b), sault, MCA, a violation of violates the double jeop- § ardy provision ofArticle Section 25 of Montana Constitution? 6,1996, are On following disputed. July approxi- The facts (Vellucci), a.m.,
mately Vellucci neighbor 3:15 Jodi Robert Bielen (Bielen), through light ga- observed her window unattached also noticed that the door rage garage of Bielen. She walk-in to the immediately seen, Vellucci told Bielen what she had open. was investigate. to garage approached Bielen went Bielen Bielen, garage, garage. up Guillaume exited the Guillaume held saw exclaimed, he “I’ll garage, a hammer that had taken kill you.” swung Guillaume the hammer Bielen’s head. Bielen reacted way in such a that the hammer missed his head but struck his hand. escaped jumping
A ensued and Guillaume the fence. struggle apprehended by police. police later Bielen told the Guillaume was going was to kill him when Guillaume thought that he Guillaume the hammer at his head. swung assault, charged by was information with vio 45-5-202(2)(b),MCA, trespass property, criminal
lation of § 45-6-203, misdemeanor, Ajury a violation of MCA. trial was held on § 27-28,1 997, guilty on January and Guillaume was found all counts. a sentencing hearing. the District Court held February
On years prison Guillaume to ten as The court sentenced sault, years prison pursuant five use of a an additional (hereinafter statute), 46-18-221, MCA to § trespass property, prison months in criminal and six fifteen-year term. concurrently to run with the six-month term prior Guillaume’s that the reasons for the sentence were court stated severity emphasized court history and the offense. The criminal with a threatened and tried kill Bielen the fact that Guillaume *3 hammer. 11,1997, filed a motion to reconsider sen- March Guillaume On
¶5 of ground application weapon enhancement tencing on the the double felony assault conviction violated statute his Montana Constitution. The court denied Guillaume’s provision ofthe This ap- on March 1997. motion and issued its order peal followed. statute, § weapon of the application Does assault, MCA, a
46-18-221, felony for violation to a conviction MCA, 45-5-202(2)(b), provision § violate the double of 25 Constitution? of Montana of Article for of his sen- of motion reconsideration The denial Guillaume’s de to determine we review novo legal question a tence involves is correct. State interpretation law the District Court’s whether 307, 310, (1996), P.2d 928 v. Zabawa of the Section 25 jeopardy provision The double again person put in shall be provides part: “No any jurisdiction.” tried in previously the same offense for multiple prosecutions from both protects defendants
This transaction, arising for offenses out the same multiple punish imposed single prosecution ments for the same offense. State v. (1997),
Savaria 945 P.2d 28. See also State v. (1996), Vargas 165, 167; Mont. 928 P.2d State v. Nelson case, 250. In the instant Guillaume maintains of the application weapon enhancement felony statute to his conviction for assault right violated his to be free for the same offense. Guillaume was sentenced to ten in prison tears for commission of felony defining felony assault. statute assault in rele- part: vant felony
A commits the person person pur- offense assault if the posely knowingly or causes ... apprehension reasonable of serious bodily injury weapon. another use of a 45-5-202(2)(b), MCA. Guillaume’s sentence was enhanced years pursuant
five enhancement statute. That statute provides in relevant part: person guilty who,
A who has been found offense and while offense, engaged in the commission ... knowingly used ... shall,
dangerous weapon in addition to the punishment provided the commission of such sentenced ato term of im- prisonment prison years the state less or more than years .... An additional prescribed by sentence shall this section consecutively run to the provided sentence for the offense. Section46-18-221(1) (4),MCA. Guillaume asserts thathadhenot Bielen, struggle used his actions would have fit charge assault, penalty of misdemeanor is imprison- which ment of no six more than months or a fine of no more than See $500. 45-5-201(l)(d) (“A person and MCA commits the offense of if he purposely knowingly assault ... causes apprehen- reasonable another”). bodily injury sion of Guillaume asserts that the fac- raising charge felony tor his from misdemeanor assault assault a weapon. was his use of Based on this distinction between misde- assault, felony argues meanor and assault provides by statute its own terms for enhanced for use of weapon, and that enhancement statute effectively punished his conviction him twice for *4 This, exactly use a Guillaume is weapon. argues, of what jeopardy provision designed prohibit. was
228 position, dispute not arguing his Guillaume does on its face. weapon enhancement statute constitutional Guillaume repeatedly held that Montana’s acknowledges Court has factor, does statute is not cre weapon enhancement crime in violation of the separate protec ate a crime element 501, (1990), 241 State v. Krantz Mont. tion Forsyth (1988), 389, (citing P.2d 305 State v. 233 Mont. 788 (1987), 363, 384; State 238, 241, 731 225 Spurlock P.2d v. 1315, 1317; v.Davison 188 Mont. P.2d State 497). However, weapon argues Guillaume enhancement applied Crisp to him. v. is unconstitutional as See State statute (A 199, 202, 814 may challenge P.2d defendant a stat constitutionality by that it is unconstitutional on its face or arguing ute’s situation). his applied Spe particular that it is unconstitutional an argues weapon that when use element cifically, Guillaume case, it jeop as it is in this is a violation of double underlying apply enhancement statute. ardy also Zabawa, a case facts acknowledges involving 11 Guillaume ¶ case, application this Court held that nearly to the instant identical statute to conviction of the Fifth Amendment jeopardy provision did not violate the double Zabawa, 928 to the United States Constitution. However, notes that we unresolved left P.2d 156-57. enhance question whether
Zabawa conviction for assault violates to a ment statute of the Montana Constitu jeopardy provision Zabawa, P.2d at 153. Our reasons for Mont. at tion. jeopardy challenge under Montana Zabawa’s double
addressing as follows: were Constitution greater protection from double under claims no
[Zabawa] Montana Constitution than under [Zabawa .... United Constitution Fifth interpretations under the United entirely on federal has] relied view, in Zabawa’s those during argument; oral States Constitution Constitution. argument his under that supported interpretations af- jeopardy protection only the double Accordingly, we address leaving for resolu- the United States forded under case ... whether Article in a future tion from double greater protection States Constitution. by the United provided than is
Zabawa,
tion left in Zabawa. Guillaume claims that Article Section 25 of the Montana Constitution greater affords protection from double jeopardy than does the Fifth Amendment to the United States Con claim, support stitution. In of his analysis undertakes an legislative intent similar employed Zabawa, to that Zabawa, see 313-16, 155-57, 279 928 P.2d at and ultimately concludes that, enacting the weapon statute, the Montana Leg islature did not intend impose multiple to punishments where the underlying offense requires proof of use of a as an element of the offense. agree We Guillaume that Article Section 25 of the
Montana Constitution provides greater protection from double jeop
ardy than is provided by the United
However,
States Constitution.
we
do not reach this conclusion on the
legislative
basis of
intent. Zabawa
is distinguishable from and has
bearing upon
the instant case. In
Zabawa,
this Court was faced
question
with a
of federal constitu
tional law and was bound to follow federal court decisions interpret
Zabawa,
ing that law.
With to trial, cumulative sentences imposed single in a Jeopardy Double prevent Clause does no more than the sentencing court prescribing greater than the legislature in- tended.
Hunter, U.S. at 103 S.Ct. at by Hunter, 678. Instructed whether, inquired into in enacting the weapon enhancement statute, the Montana Legislature impose intended to multiple pun where underlying ishments requires proof offense of the use of a Zabawa, as an element of the offense. 279 Mont. at Zabawa, P.2d at 155. We answered that question in the affirmative.
constitutional law. [Montana] vests in the courts the exclusive Acts, legislative
power interpret provi- construe as well as power sions of the Constitution. Inherent is the responsibil- ity to particular determine whether law conforms the Consti- tution.
In re License Revocation Gildersleeve (citations omitted). Leaphart Justice noted in his dissent Zabawa-. guarantees empty
Constitutional are not mere vessels to be left Rather, legislative they filled at the whim of the branch. have in- meaning independent any legislative trinsic which is intent.
Zabawa, 323-24, 928 Thus, pursuant Mont. at P.2d at 161. III, powers in Article separation
doctrine embodied *6 Constitution, pursuant duty safeguard and to our to the the Montana Constitution, provided by and this state’s and not rights guarantees intent, af legislative apply we must withstanding II, by of Article 25 of the jeopardy provision forded the double Montana Constitution. long principle rights This has and Court embraced minimal,
guarantees
afforded
the United
Constitution are
may interpret provisions
that
of their own constitutions
to
states
greater protection than the United States Constitution. State
afford
(citations
221 Mont.
719 P.2d
v. Johnson
omitted).
has
interpreting
the Montana
this Court
In
lock-step”
to
States Su
repeatedly refused
“march
with
United
Court,
where
constitutional
at issue is
even
the state
preme
State,
nearly
counterpart.
e.g.,
to its federal
See
Ranta v.
identical
that
re
(holding
MT
sentence
attaches);
right
to
State
stage”
view is a “critical
which
of counsel
(holding
person
bodied in jeopardy exemplifies double legal concept person and moral should twice suffer for a stated, Although single simply concept act. of double appear simply applied. does not to be One commentator notes: The double clause has been the source of more confusion enlightenment. The reason for this to be found in the history sources, jeopardy, of double in its development, varied its uneven deceptively simple phraseology. [and] in its It is pay lip easier to ser- give principle principle vice to a than to life meaning.
Jay Development A. Double The Sigler, Jeopardy: Legal of a and So- (1969). Policy cial several presented While cases have courts with difficult double this case is not questions, one ofthem. Under case, the facts of the instant simply applied. raising factor charge Guillaume’s from misde
meanor use assault assault was his of a We weapon. inter offenses, pret this distinction between two and the different pen alties each imposed legislature’s way as the punishing criminal defendant of a use an committing assault.
Thus, when the applied statute was conviction, Guillaume’s subjected Guillaume was a weapon: charge use of once when the was el felony assault, evated from misdemeanor assault again when *7 the weapon applied. agree enhancement statute was We Guillaume that this form double punishment exactly is what dou jeopardy prohibit. ble was intended to argues that jeopardy State double clause of the protect against multiple
Montana Constitution does not
punish
ments
same
explicit
for the
offense because such
is not
disagree
argument
the clause.
with the
We
State’s
because it runs
precedent,
Savaria,
prior
counter to
see
284 Mont. at
P.2d at
Vargas,
2076, 23 L.Ed.2d States United held the double clause ofthe Fifth jeopardy that to United protects against multiple punishments States Constitution double clause offense. Because the of the federal con- same protects against punishments for the same stitution of the the double clause Montana Constitution Moreover, protection. it makes that least the same sense “double not, punishments because, if it did applies multiple then multiple prosecutions meaningless; would be prohibition a could achieve effect as simply prosecution court same second resentencing criminal after the had defendant defendant served Lange of an initial sentence.” Ex Parte part all or
175, 21 L.Ed.
reliance issue commit- case. The is not whether Guillaume ing decided rather, use of the issue whether weapon; ted two offenses punished weapon. point, of a On this was twice for use thoughts many above commentator cited summarizes same jeopardy critics: indubitable. One The need clarification prosecution and dou- necessary distinction is between should determining question, inquiry punishment. ble conduct, [and] the the nature ofthe defendant’s upon concentrated transaction, character of the criminal rather physical protec- the transaction. The arising number of offenses the belief punishment has as rationale against multiple tion *8 punishment that the defendant’s should be commensurate with liability. greater but not than his criminal at 193.
Sigler, supra, argument application The that enhancement stat- ¶22 felony ute to assault conviction results in one two, use of rather than is one of weapon, pure semantics. Were we to argument, strip we would in effect accept jeopardy double of all merely refuse to meaning. pay lip We service to the prin- fundamental of double ciple Although it is true Montana Constitution confers legislature punishments set power appropriate for criminal V, 11, Mont.Const.,
acts,
Sec.
see Art.
power is
unbridled. The
jeopardy
double
clause Article
Section 25 of the Montana Consti
prohibits
legislature
tution
on
imposing
criminal defen
dants
same offense.
previously
stated,
this Court
is vested
power
with the exclusive
to review
particular
legislative
whether a
act conforms to the Constitution.
Gildersleeve,
olation drafting. that a fifteen-year prison State asserts term imposed could have been legislature on Guillaume had the prison felony increased the time for felony assault within the assault statute and excluded the offense of statute. argues legislature’s ability The State modify as- penalty sault to achieve the same result that is achieved the pres- sentencing ent scheme demonstrates viola- disagree. tion exists in this case. We The fact that modification of the felony assault statute could achieve present the same result as the sentencing scheme does not mean that no double violation exists this case. We reverse District Court’s order and remand resentencing rehearing opinion. consistent with this REGNIER,
JUSTICES LEAPHART and TRIEWEILER concur. LEAPHART, specially concurring.
JUSTICE I specially opinion sepa- concur with the of the Court and I write rately to address some of the comments set forth in the dissent. Justice that, posits Nelson of Montana language, clearly less plain protection against than the Fifth Amendment to the U.S. Constitution. He language Section 25—"No quotes person shall be previously any juris- for the same offense again put tried in *9 “is certainly observes that there no textual of diction" —and mention punishments.” observation, any multiple from From this he protection protec- the that Article suggests that reason Section 25 affords Amendment is because the Fifth against multiple tion because, federalism, accepted under of we principles does and well can- interpret providing any protection. our constitution as less Nelson attributes more textual substance to the Fifth Justice fact, compares In language than it is due. when one Amendment guarantees, of the two constitutional the Montana Constitution is the merely any “[N]or Amendment shall specific. more The Fifth states: in subject put for the same offense to be twice of person Const, any V. is of protec- life U.S. amend. There no mention limb[.]” or in being placed than not twice for the same of- tion other dissent, Contrary logic of Justice Nelson’s the Fifth fense. punishment, multiple pun- makes no textual mention of ishment, any jurisdiction. merely It or offenses “tried” prosecutions of concept “jeopardy.” invokes Supreme interpreted the U.S. Court have Both Court and offering protection clauses as respective
their
prosecution
second
for the same of
against
three distinct abuses: a
following
acquittal;
prosecution
second
for the same of
an
fense
conviction;
following
multiple punishments
same
fense
247, 250;
(1996),
v.
offense. State Nelson
440,
Committee saw that our constitution prohibits the existing fed allowing person already eral practice jurisdiction tried in another again to be tried the State of Montana. This fact alone illustrates constitution, as that “jeopardy,” word is used in our has a more meaning it expansive than does in the federal constitution. Given concept “jeopardy” appears independently in the Montana given further that it offers broader prosecutions U.S. why would we turn to the federal courts to ascertain whether or not the Montana Consti protects against tution enhanced punishments? Where the tran scripts the Constitutional any support Convention is there for the adopted proposition, U.S. Court Missouri v.Hunter *10 103 S.Ct. 74 L.Ed.2d the Double Jeopardy Clause no prevent does more than the sentencing court greater from prescribing punishment legislature than the intended?
According to the U.S. Court’s interpretation the Fifth Amendment, protection the against multiple punishments has no in significance; only herent constitutional it means Congress, what or enactment, legislature, statutory says the through it means. How ever, I my as stated dissent State v. Zabawa P.2d guarantees “[constitutional are not mere vessels
to be or empty legislative Rather, left filled the whim of the branch. have they meaning independent any intrinsic which is legislative Zabawa, 323-24, 928 J., intent.” 279 Mont. at P.2d at 161 (Leaphart, If the dissenting). prohibition against punishments any efficacy, it have must have some constitutional essence which is If, beyond legislative interpretation. amendment state and both agree, proscribes multiple punish federal courts double inescapable ments for the same the conclusion is that the en 46-18-221, MCA, hancement is an additional sec § such, for of a it punishment ond use in an assault. As is a mul tiple punishment prohibition in violation of the constitutional II, against found Article Section 25 of the Montana Constitution. any meaning, If the has encompass a which certainly
it must statute “enhances” already punished after a has been for use of defendant otherwise, underlying To hold use of a offense. leaves empty, meaningless promise. an guarantee the constitutional NELSON JUSTICE dissents. facially in this agree I cannot with the Court’s decision case. approach question as is to the of whether Montana’s
appealing its II, provides greater pro- Section jeopardy provision, than the does the Fifth Amend- against multiple punishments tection ment, it is not majority’s supported conclusion that does essentials, authority. its con- legal Reduced to shred of greater protection cludes that Article say reason than that we it does. no other any Understandably, rely argument not on made the Court does devoted, argument entire was
by Guillaume. His brief oral here, but, rather, holding majority’s for the developing legal basis why, rehashing in State v. Zabawa simply wrong. He, like right and the Court was P.2d the dissent was any independent legally utterly develop failed majority, language of Article theory based supportable Convention that would history in the 1971-72 Constitutional or its Court has reached. The Court does holding justify fact, pointedly legis- opinion. majority ignores its better in it could not 25—no doubt because history of Article lative any support Convention transcripts of the Constitutional find in the interpretation. con- Indeed, Rights Committee was clear that Bill it is already cerned, protections provided expanding not with rather, Montana’s Amendment, it determined but was Fifth allowing existing practice per- federal prohibit again tried the State. See jurisdiction to be already tried in one son Convention, II, Transcript, Vol. Verbatim Constitutional *11 V, pp. Vol. 1776-79. 641 and p. II, truth, provides Article Section plain language, its the Fifth Amend- than does jeopardy protection against
less un- clause states jeopardy Montana’s double part, pertinent ment. In ambiguously that: in person again put
No shall be for the same previ- offense ously jurisdiction. in any tried II, any protection
There is no mention Article Section other being not certainly than tried twice for same offense. There is any protection textual punishments. mention As the majority recognize, only why II, does reason Section protection as much does Fifth Amendment is because constitutionally interpret we cannot Jeopardy Montana’s Double providing Clause as that would notwithstanding be the obvious less — simple II, reading conclusion from of the text of Article Section And, precisely protections II, itself. it because the afforded Article coextensive Section are with the Fifth Amendment our deci- sion in Zabawa— which was based federal law —remains correct. majority it states that refuses to to “pay lip service” the fun- principle correctly,
damental More it refuses pay lip plain language service of Article Refusing “to march lock with the step” federal constitution is commendable appropriate where actually provides Montana’s Constitution protection more its counterpart does federal our State —and many respects. Here, constitution does in notable however, the Court beyond Rather, has gone refusing to march lock step. creating from greater whole cloth a jeopardy protection than is contained in plain language history at the Constitutional Convention and in constitution, the federal major- ity defiantly has marched backwards through parade, around the bend and into the swamp. Similarly, Leaphart’s Justice attempt up majority to shore
opinion unavailing. While state interpreting courts their own con- stitutional double clauses are circumscribed the U.S. Su- preme interpretation Court’s the double clause of the provide Fifth Amendment no less than does the federal constitution, say is not to country’s highest even this court is agreement that double encompasses the of multi- concept ple punishments. Like Article the double jeopardy clause of the
Fifth refers “jeopardy,” —“nor any person subject shall same put offence to be twice jeopardy of life or limb.” In in Dept. his dissent Revenue Montana v.Kurth Ranch S.Ct. L.Ed.2d this lack of noting punishment, textual reference to Justice
238 jurisprudential history
Scalia traces in some detail historical and put “’[t]o federal double clause and concludes that be remotely [and that] does not mean ‘to ... jeopardy’ punished,’... terms, provision prohibits, multiple punishments, its this but 798, 803, 114 Kurth, only multiple prosecutions.” 511 U.S. at S.Ct. at (Scalia, J., dissenting, citing 1955, 1958 Chief Justice Stone in In re 470, 50, (1943), 318 U.S. 63 L.Ed Bradley S.Ct. 87 608 Justice (1943), ex rel. Marcus v. Hess 317 U.S. Frankfurter in United States 443). 537, 63 379, 87 points L.Ed. Justice Scalia out that the be S.Ct. multiple-punishment component lief is a that there (1874), parte Lange can be traced dictum Ex 18 jeopardy clause 163, 872, 21 L.Ed. but that it was not until United States v. Wall. (1989), Halper 490 U.S. S.Ct. L.Ed.2d that actually legislatively pun invalidated a authorized successive Court Kurth, at 114 on basis of the this dictum. 511 U.S. ishment 1956, (Scalia, J., dissenting). at S.Ct. has, course, abrogated, v. now been see Hudson United Halper 450), L.Ed.2d and the 522 U.S. 118 S.Ct. interpretation pre-Halper to its Supreme
U.S. Court has returned acknowledges a constitutional Jeopardy Clause which the Double requires successive against multiple punishments but prohibition (cit- Hudson, at _, S.Ct. prosecutions. criminal cases, U.S. among other Missouri v. Hunter ing, 673, 678, 74 the con proposition L.Ed.2d S.Ct. sense, traditionally as jeopardy describes the risk that stitutional such criminal and then when occurs prosecution sociated with a in successive proceedings). ju- necessarily simply full circle. There is Accordingly, we come 25, provides concluding that Article
risprudential basis does Fifth Amend- any jeopardy protection than greater double And, precisely be- ment, interpreted the U.S. Court. it as are coextensive protections afforded Article cause the deci- clause of the Fifth Amendment our law, namely Missouri was based federal sion in Zabawa —-which correct. v. Hunter —remains legisla- majority ignore chooses to the intent While the statute, 46-18-221, weapons § enacting
ture in unconstitutional to declare statute MCA, liberty are not at we into Article interpolation of our on the basis con- not include in this themselves did people language provision they Indeed, if, here, stitutional when enacted it. can give meaning it desires to a constitutional any linkage history,
without to its text or really point then there is no having a constitution all. I dissent. CHIEF JUSTICE TURNAGE and JUSTICE GRAYconcur in the foregoing dissent.