STATE OF MONTANA, PLAINTIFF AND RESPONDENT, v. THOMAS FREDERICK KRANTZ, DEFENDANT AND APPELLANT.
No. 88-129.
SUPREME COURT OF MONTANA
Submitted Dec. 12, 1989. Decided Mar. 1, 1990.
Rehearing Denied Mar 27, 1990.
788 P.2d 298 | 241 Mont. 501
Marc Racicot, Atty. Gen., Helena, Patti Powell, Asst. Atty. Gen., argued, Helena, Robert L. Deschamps, III, County Attorney, Missoula, Fred Van Valkenburg, Deputy, Missoula, for Plaintiff and Respondent.
CHIEF JUSTICE TURNAGE delivered the Opinion of the Court.
ISSUES
- Did the District Court err in allowing repeated references to a series of similar crimes in the Missoula area after the State agreed at the omnibus hearing not to introduce other crimes evidence?
- Did the District Court abuse its discretion by failing to provide adequate reasons to justify the sentence and the dangerous offender designation?
- Did the District Court violate the appellant‘s due process rights in applying the weapon enhancement statute and the dangerous offender statute?
FACTS
Near midnight on May 24, 1987, a masked gunman using a rusted chrome or stainless steel pistol held up the Missoula Domino‘s Pizza. One week later at about 1:30 a.m. on June 2, an armed robber held up the Missoula Orange Street Inn. Near the Inn, responding sheriff‘s officers spotted a car matching the description of a vehicle seen at a prior robbеry. The officers stopped the car and detained the passenger, Greg Jellison, and the driver, appellant Thomas Krantz. A search of the suspects and their car produced rolls of coins taken from the Orange Street Inn and a chrome-plated, .38 special handgun. Witnesses later identified the appellant as the Domino‘s Pizza robber.
Between May 19 and June 2, 1987, five other robberies following a common pattern had occurred in the Missoula area. In addition to Domino‘s Pizza and the Orange Street Inn, Pickle-O-Pete‘s, the Snow King Restaurant, the Village II, the Campus Inn Motel, and the Executive Motor Inn were also rоbbed. The State charged Krantz with the Domino‘s Pizza, Pickle-O-Pete‘s, and the Snow King robberies and with accountability in the Orange Street Inn holdup.
At the pretrial omnibus hearing, the State agreed not to introduce other crimes evidence. Prior to trial, the State informed the District Court that it would elicit testimony concerning the series of robber-ies to help explain the actions of police officers and victims. The
The jury found the appellant guilty of accountability in the Orange Street Inn holdup and guilty of robbery in the Domino‘s Pizza holdup, but not guilty of the robbery of Pickle-O-Pete‘s and the Snow King Restaurant. The District Court sentenced the appellant to thirty years on each conviction and added ten years to each for use of a weapon. The court ordered the forty-year sentences to run concurrently and designated the appellant a dangerous offender. The defendant now appeals the conviction, sentence enhancement, and dangerous offender designation.
OTHER CRIMES EVIDENCE
The appellant contends that the State‘s references during trial to the series of Missoula robberies violated both the substantive and procedural requirements of Just. We decline to reach this issue because the appellant failed to object to the controverted evidence at any time before or during trial. Failure to object to alleged other crimes evidence precludes consideration of the issue on appeal. State v. Warnick (1982), 202 Mont. 120, 125, 656 P.2d 190, 193.
The appellant cites State v. Brown (1984), 209 Mont. 502, 680 P.2d 582, for the proрosition that the appellant‘s failure to object is not a defense when the omnibus order prohibited the introduction of other crimes evidence. Brown is distinguishable. In Brown, we held that the defendant‘s motion in limine to exclude evidence of prior acts and the trial court‘s order requiring ten days notice of such evidence were sufficient to preserve the issue for appeal. Brown, 209 Mont. at 506-07, 680 P.2d at 584-85. Here, the appellant at no time disapproved of the evidence or disagreed with the District Court‘s finding that it was not other crimes evidence. The record shows that the appellant declined the trial court‘s offer to instruct the jury on othеr crimes evidence. The objection requirement prevents the defendant from consciously planting errors in the trial proceedings and then raising those errors as grounds of appeal. State v. Stroud (1984), 210 Mont. 58, 73, 683 P.2d 459, 467. The appellant cannot
SENTENCING COURT‘S STATEMENT OF REASONS
The appellant argues that in sentencing the District Court failed to consider the presentence report and gave inadequate reasons for the sentence and the dangerous offender designation.
During sentencing the District Court stated,
“[Y]ou have . . . shown a consistent pattern of endangering other people. Thereforе, on the basis of your record and the nature of these crimes, I sentence you on each of the two counts to thirty years in the Montana State Prison, ten extra consecutive to those on each of those two counts for the use of a weapon, and designate you a dangerous offender . . . .”
The written judgment stated,
“A Pre-sentence Investigation Report was ordered and the Court having received and reviewed the report and being fully advised as to the facts of this case . . . .”
“. . .
“Reasons for the sentence are:
1. Defendant‘s criminal record;
2. Serious nature of offense; and
3. Consistent pattern of endangering other people.”
The sentencing court is required by statute to state for the record its reasons when imposing sentence.
We have generally upheld minimal statements of sentencing reasons. In State v. Petroff we held that, “[t]he recommendations of the Pre-sentence Investigation [and] [t]he Defendant‘s prior criminal record” provided a sufficient statement. Petroff, 757 P.2d at 761, 45 St.Rep. at 835. In State v. Johnson, we upheld a sentence based on the “[d]efendant‘s history of alcohol and driving offenses” coupled with the presentence report. Johnson (1986), 221 Mont. 503, 518, 719 P.2d 1248, 1257.
We hold that the District Court‘s statement of reasons in this case is sufficient. Whether the sentence and dangerous offender status
CONSTITUTIONALITY OF SENTENCE ENHANCEMENT
Standing
The State contests the appellant‘s standing to challenge the constitutionality of the procedure used to enhance his sentence for use of a weapon and to designate him a dangerous offender. To challenge the constitutionality of a criminal statute or procedure, the defendant must show a direct, personal injury resulting from application of the law in question. State v. Bruns (1984), 213 Mont. 372, 380-81, 691 P.2d 817, 822. The State argues that because the appellant‘s sentence, including enhancement, did not exceed the maximum possible sentences for robbery and accountability, the appellant suffered no injury.
We disagree with the State and hold that the appellant has standing to challenge both the weapon enhancement statute and the dangerous offender statute.1 The appellant faces direct injury to his liberty interest. See State v. Nichols (1986), 222 Mont. 71, 78, 720 P.2d 1157, 1162. Under the weapon enhancement statute, he faces ten years in prison in addition to thirty years for the underlying crimes. See
Separate Crimes and Elements
The appellant argues that under several United States Supreme Court decisions the Montana statute proscribing use of a weapon in the commission of a crime,
In Specht v. Patterson (1967), 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326, the Supreme Court addressed the due process ramifications of using sentence-enhancement factors in place of elements of a crime. The State of Colorado convicted Specht of indecent liberties under a statute which carried a maximum penalty of ten years, but sentenced him without further notice or hearing under Colorado‘s Sex Offenders Act. The Act provided that after reviewing the defendant‘s psychiatric evaluation the trial court would determine if the defendant was a threat of bodily harm to the public, a habitual offender, or mentally ill. If the court so found, the defendant could be incarcerated for an indeterminate term of one day to life. Specht, 386 U.S. at 607-08, 87 S.Ct. at 1211, 18 L.Ed.2d at 328-29. The Court reversed the sentence holding that because the sentencing procedure required determination of new factual issues under a discrete statute, due process entitled the defendant to full trial procedures on those issues. Specht, 386 U.S. at 609-10, 87 S.Ct. at 1212, 18 L.Ed.2d at 330.
In the case of In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, the Supreme Court considered the constitutionality of incarcerating a juvenile for larceny under the New York Family Court Act. The Act required that facts of juvenile misbehavior be determined only by a preponderance of the evidence. Winship, 397 U.S. at 360, 90 S.Ct. at 1070, 25 L.Ed.2d at 373. After recounting the history and policy behind the reasonable doubt standard, the Court reversed the case stating,
“Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact neсessary to constitute the crime with which he is charged.”
Winship, 397 U.S. at 364, 90 S.Ct. at 1073, 25 L.Ed.2d at 375.
In Mullaney v. Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508, the Supreme Court applied its statement in Winship. Under Maine law proof of an intentional and unlawful homicide raised a conclusive presumption of malice aforethought and, therefore, murder. If, however, the defendant proved by a fair preponderance of the evidence that he committed the homicide in the heat of passion on sudden provocation, the homicide would be reduced to
“a State could undermine many of the interests [In re Winship] sought to protect without effecting any substantive change in its law. It would only be necessary to redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment.”
Mullaney, 421 U.S. at 698, 95 S.Ct. at 1889, 44 L.Ed.2d at 519.
In two recent cases, the Supreme Court limited the broad ramifications of Specht, Winship, and Mullaney to give the states greater latitude in defining the elements of a crime and factors mitigating and aggravating sentencing. In Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281, the Supremе Court upheld New York‘s murder statutes which reduced murder to manslaughter if the defendant proved by a preponderance of the evidence the affirmative defense of acting under the influence of extreme emotional disturbance. Patterson, 432 U.S. at 205, 97 S.Ct. at 2324, 53 L.Ed.2d at 289. Apparently recognizing the near impossible burden created by Mullaney, the Court stated that it is not necessary that “a State must prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of punishment.”
Patterson, 432 U.S. at 207, 97 S.Ct. at 2325, 53 L.Ed.2d at 290.
In its most recent decision on the subject, McMillan v. Pennsylvania (1986), 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67, the Supremе Court considered whether the Pennsylvania Mandatory Minimum Sentencing Act withstood due process scrutiny under the Specht-Mullaney-Patterson line of decisions. The Act required the sentencing court to impose at least a five-year minimum sentence for the underlying crime if the court found by a preponderance of the evidence that the defendant had visible possession of a firearm while committing a crime. The Court distinguished Specht and Mullaney in holding that under Patterson, the Pennsylvania Act did not vio-
The appellant argues that the present case is controlled by Specht, Winship, and Mullaney. Under these decisions, due process requires that whenever a factual determination could lead to punishment beyond the maximum provided for the underlying crime, that issue must be treated as a separate crime or as an element of a crime. The defendant would be entitled to notice, a hearing, an opportunity to present evidence and confront witnesses, and a requirement that a jury find the fact beyond a reasonable doubt — in other words, a trial on the issue. In the present case, the appellant would be entitled to have the issues of weapon usage and dangerous offender status included as issues during the robbery and accountability trial instead of considered by the court during sentencing.
The appellant distinguishes Patterson and McMillan because the statutes at issue in those cases did not increase the maximum sentence possible for the underlying crime. Like the present appellant, the Specht and Mullaney defendants faced sentences in addition to those imposed for the underlying crimes based on determinations of new issues of fact. In the appellant‘s interpretation, these cases teach that once all facts which would allow a maximum sentence have been proved beyond a reasonable doubt, other factors which increase or decrease the sentence within the maximum may be considered without full due process procedures. They may be affirmative defenses to be proved by the defendant, or they mаy be sentencing factors to be applied by the court. On the other hand, factors which would increase the sentence beyond the maximum for the underlying crime are separate crimes or elements of a crime subject to full trial procedures.
We do not believe that the Supreme Court intended such a narrow interpretation. The message of Patterson and McMillan is that the decision to designate specified factors as elements of a crime, as affirmative defenses, or as sentencing factors, is fundamentally a decision left to the states. In McMillan the Court restated the basic premise of Patterson:
“It goes without saying that preventing and dealing with crime is much more the business оf the States than it is of the Federal Government and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally within the power of the State to regulate procedures under which its laws are carried out,
including the burden of producing evidence and the burden of persuasion, and its decisions in this regard is not subject to proscription under the Due Process Clause unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”
McMillan, 477 U.S. at 85, 106 S.Ct. at 2415-16, 91 L.Ed.2d at 76 (quoting Patterson, 432 U.S. at 201-02, 97 S.Ct. at 2322, 53 L.Ed.2d at 286-87). (Citations and quotations omitted.) The McMillan Court emphasized that, while due рrocess imposes some limits beyond which the states may not go, application of the reasonable doubt standard has always depended on how state legislatures choose to define a crime. McMillan, 477 U.S. at 85, 106 S.Ct. at 2415, 91 L.Ed.2d at 75.
We do not believe that the system established by the Montana legislature goes beyond the permissible limits. The Supreme Court refused to establish any “bright line” test of those limits, McMillan, 477 U.S. at 86, 106 S.Ct. at 2416, 91 L.Ed.2d at 76, and we decline the appellant‘s invitation to establish one based on the maximum sentence of the substantive crime. The Court‘s primary concern in this series of cases is that states would circumvent due process by redefining the essential elеments of guilt as affirmative defenses or as sentencing factors.
Montana‘s weapon enhancement statute and dangerous offender statute do neither. The 1977 Montana Legislature adopted the weapon enhancement statute as part of a bill intended to limit the discretion of sentencing courts by establishing guidelines and minimum mandatory sentences for potentially violent crimes. Consideration of H.B. 261 Before the Senate Judiciary Comm. 45th Leg. (1977) (statement of Rep. Ramirez). Like the Pennsylvania statute challenged in McMillan, the Montana statute simply takes one factor traditionally used in sentencing, the use of a weapon during a crime, and dictates the minimum weight the court must assign. See McMillan, 477 U.S. at 89-90, 106 S.Ct. at 2418, 91 L.Ed.2d at 78-79. Similarly, the 1977 Legislature intended the dangerous offender statute to restrict the discretion of the parole board by limiting the parole eligibility of violent and repeat offenders. Consideration of H.B. 385 Before the House Judiciary Comm. 45th Leg. (1977) (statements of Sen. Thomas and Hank Burgess, Bd. of Pardons). The statute takes a traditional factor in determining parole eligibility, the danger to society, and dictates the precise weight to be assigned. Furthermore, in bills establishing both statutes, the Legislature di-
The Montana weapon enhancement statute contains a number of elements similar to those found in substantive criminal statutes, but those elements do not make it a separate crime. The enhancement statute contains a recidivist provisiоn, requires a mental state of knowingly, and may require a finding of fact, use of a weapon, not necessary to establish guilt of the underlying crime. The recidivist provision carries out the statute‘s purpose by limiting the sentencing court‘s discretion in imposing increased punishment for repeat offenders. The mens rea requirement protects the defendant by imposing on the court an additional and appropriate finding in determining weapon usage. All sentencing factors may, and often do, require the court to consider facts not established during trial. These elements are as much pertinent and necessary attributes of traditional sentencing considerations as they are attributes of substantive crimes.
The appellant cites cases of the United States Supreme Court and the Circuit Courts of Appeals which have held that the federal weapon enhancement statute and other enhancement-type statutes are separate crimes.2 The State counters that those cases are based on statutory construction and not due process considerations. The State cites numerous cases in which the federal courts held that enhancement statutes, even when they impose penalties beyond the maximum allowed for the substantive crime, did not create separate crimes and did not violate due process.3
While both arguments are persuasive, we do not find either convincing. To paraphrase McMillan, the fact that Montana and the federal government have formulated different statutory schemes to punish armed felons is merely a reflection of our federal system, which demands tolerance for a spectrum of state and federal procedures dealing with a common problem of law enforcement. See McMillan, 477 U.S. at 90, 106 S.Ct. at 2418, 91 L.Ed.2d at 79.
Due Process in Sentencing
The appellant argues that even if the weapon enhancement and dangerous offender designation are not separate crimes, applicаtion of those statutes still violate the Fourteenth Amendment because the prosecution failed to give adequate notice by stating in the charging document its intention to seek an enhanced sentence and dangerous offender designation.
Montana recognizes that due process applies to sentencing, but the defendant‘s liberty interest during sentencing is less than that interest during trial. State v. Nichols (1986), 222 Mont. 71, 76, 720 P.2d 1157, 1161. The process that is due, therefore, is not necessarily as great as that required by the substantive criminal charges. The defendant is entitled to reasonable notice and an opportunity to be heard during sentencing. Oyler v. Boles (1962), 368 U.S. 448, 452, 82 S.Ct. 501, 504, 7 L.Ed.2d 446, 450.
Notice оf the sentencing hearing itself provides sufficient notice of potential dangerous offender designation because the statute requires the sentencing court to consider the issue. Nichols, 222 Mont. at 78, 720 P.2d at 1162. As a practical matter, the criminal defendant is always on notice. The State‘s failure to give more notice in this case did not violate the appellant‘s due process rights.
Because enhancement of a sentence for the use of a weapon is not an issue in every case, due process requires the State to provide some notice in the charging document, Forsyth, 233 Mont. at 761 P.2d at 384, 45 St.Rep. at 1602, if the issue is not inherent in the definition of thе substantive charges, Davison, 188 Mont. at 446, 614 P.2d at 497. The charge of robbery does not necessarily entail
The error, however, was harmless. The State alleged use of a weapon in its affidavit and motion for leave to file information. Furthermore, the record indicates that the prosecution repeatedly elicited testimony that the appellant and his accomplice used a handgun during the robberies and the weapon enhancement statute requires the sentencing court to impose an additional minimum sentence when a weapon is used. The appellant had actual notice that use of a weapon would be a consideration during sentencing. See State v. Madera (1983), 206 Mont. 140, 152, 670 P.2d 552, 558.
We conclude that the sentence imposed by the trial court did not violate the appellant‘s right to due process.
Affirmed.
JUSTICES HARRISON, McDONOUGH, WEBER and BARZ concur.
JUSTICE SHEEHY, concurring and dissenting:
A general definition of crime is a union of act and mental state banned by the law. In Montana, mental state is found in the use of the adverbs “knowingly” and “purposely.” However, the legislature may define an act as a crime without requiring mental state. When that is done, the banned act is one that brings on absolute liability. The Montana statute states:
“45-2-104. Absolute liability. A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in subsection (33) [knowingly], (37) [negligently], and (58) [purposely] of 45-2-101 only if the offense is punishable by a fine not exceeding $500 or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” (Emphasis added.)
In this case, the penalty for using a gun imposes a jail term. The question whether the legislature intended to impose absolute liability for the use of a gun in committing a felony must be found in the statute defining the gun penalty. It must clearly indicate a legislative purpose to impose absolute liability fоr the conduct described.
It cannot be found in this case that the legislature intended to impose absolute liability for the use of a gun in committing a felony because it interposed the mental state word “knowingly” in its definition of the act. The statute states:
“46-18-221. Additional sentence for offenses committed with a dangerous weapon. (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 . . . or other dangerous weapon shall, in addition to the punishment provided for the commission of such offense, be sentenced to a tеrm of imprisonment in the state prison of not less than 2 years nor more than 10 years . . .”
“. . .
“(4) An additional sentence prescribed by this section shall run consecutively to the sentence provided for the offense.” (Emphasis added.)
In this case, who found that Krantz acted “knowingly” in using a firearm to commit a felony? Certainly the jury did not, because the use of a firearm was not alleged in the charging information, nor was it contained in the instructions of the court. The court itself, at the time of sentencing, made no reference to whether Krantz acted “knowingly” in brandishing the firearm.
The crime of robbery in Montana can be proved by the state withоut a showing that a dangerous weapon was used. The statute provides:
“45-5-401. Robbery. (1) A person commits the offense of robbery if in the course of committing a theft he:
“(a) inflicts bodily injury upon another;
“(b) threatens to inflict bodily injury upon any person or purposely or knowingly puts any person in fear of immediate bodily injury; or
“(c) commits or threatens immediately to commit any felony other than theft.”
The penalty for committing the offense of robbery is a state prison term of not less than two years nor more than 40 years and a fine of not more than $50,000.
Thus, the use of a dangerous weapon in the commission of a robbery is an aggravating factor, for which an additiоnal penalty may be imposed under
In Jordan v. U.S. Circuit Court for the District of Columbia (D.C. Cir. 1956), 233 F.2d 362, 367 (vacated on other grounds 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114 (1956)) where defendant had been convicted of assault with intent to commit robbery and was given an additional five year term of imprisonment under a statute allowing such where the crime was committed with a pistol or firearm, the court vacated the additional sentence stating:
“. . . where the aggravation arises from the manner which the crime was committed, in substance a different aspect of the offense is sought to be punished. Accordingly, we think . . . that the facts in aggravation must be charged in the indictment and found to be true by the jury.”
If the legislature had merely provided that the use of a gun in the commission of a felony would automatically lead to the increased penalty, there would be no problem here. However, the legislature inserted the word “knowingly,” as an element in the use of the gun. This element requires a fact-finding, and a fact-finding can only be done in criminal cases by a jury. In effect, the use of a gun is a separate offense, for which every element must be proved beyond a reasonable doubt. In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. Because of the insertion of the word “knowingly,” we should in effect overrule State v. Madera (1983), 206 Mont. 140, 670 P.2d 552; State v. Davison (1980), 188 Mont. 432, 614 P.2d 489; and not regard the holding by the Court of Appeals for the Ninth Circuit in LaMere v. Risley (9th Cir. 1987), 827 F.2d 622.
There is an additional factоr why we should require fact-finding by the jury with respect to the use of a firearm. There is a recidivist provision in
“. . .
“(2) A person convicted of a second or subsequent offense under this section shall, in addition to the punishment provided for the commission of the present offense, be sentenced to a term of imprisonment in the state prison of not less than 4 years or more than 20 years, except as provided in 46-18-222. For the purpose of this subsection, the following persons shall be considered to have been convicted of a previous offense under this section:
“(a) a person who has previously been convictеd of an offense, committed on a different occasion than the present offense, under 18 U.S.C. 924(c); and
“(b) a person who has previously been convicted of an offense in this or another state, committed on a different occasion than the present offense, during the commission of which he knowingly displayed, brandished, or otherwise used a firearm, destructive device, as defined in 45-8-332(1), or other dangerous weapon.
“(3) The imposition or execution of the minimum sentence prescribed by this section may not be deferred or suspended, except as provided in 46-18-222.”
“(4) An additional sentence prescribed by this section shall run consecutively to the sentence provided for the offense.”
The following factors, therefore, should require us to find that gun-toting in the commission of a crime is a separate issue or offense which must be charged in the information and found by the jury:
- The forbidden act of brandishing a firearm.
- The forbidden act done knowingly.
- The punishment being separate and mandatory.
- Additional penalties for recidivism.
I would, therefore, affirm the conviction of Krantz for the felony offense but reverse the enhancement of his sentence that relates to the use of a firearm for the reason that the separate offense was not separately charged and found by the jury. There are Due Process and Sixth Amendment implications here not met in our statute.
JUSTICE HUNT concurs with JUSTICE SHEEHY.