State v. Brown

1999 MT 31, 975 P.2d 321, 293 Mont. 268, 56 State Rptr. 139, 1999 Mont. LEXIS 31
CourtMontana Supreme Court
DecidedFebruary 19, 1999
Docket97-617
StatusPublished
Cited by23 cases

This text of 1999 MT 31 (State v. Brown) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Brown, 1999 MT 31, 975 P.2d 321, 293 Mont. 268, 56 State Rptr. 139, 1999 Mont. LEXIS 31 (Mo. 1999).

Opinions

JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Following a jury trial in the Twentieth Judicial District Court, Lake County, Wayne J. Brown (Brown) was found guilty of felony assault. The District Court sentenced Brown to a term of ten years in prison for the offense of felony assault, and imposed an additional term of ten years in prison for use of a weapon. Brown appeals the court’s order of judgment and commitment on the basis of double jeopardy. We reverse and remand for resentencing.

¶2 The following issues are presented for review:

¶3 1. Is Brown’s double jeopardy challenge properly before this Court when it was not raised in the District Court?

¶4 2. Does application of the weapon enhancement statute, § 46-18-221, MCA, to a conviction for felony assault, a violation of § 45-5-202(2)(b), MCA, violate the double jeopardy provision of Article II, Section 25 of the Montana Constitution?

BACKGROUND

¶5 On October 13,1996, Flathead Tribal Police Officer Vernon Fisher (Officer Fisher) and three other officers executed an arrest warrant on Brown at the residence of Jim Fyant (Fyant) located in Arlee, Montana. When the officers arrived at Fyant’s residence, they observed Brown climb over a fence and run through a field. Officer Fisher immediately pursued Brown on foot and repeatedly commanded Brown to stop. Brown was carrying a loaded handgun in the waistband of his trousers. During the chase, Brown twice turned around and pointed his gun at Officer Fisher. Both times, Officer Fisher responded by dropping to the ground and pointing his gun at Brown. Officer Fisher testified that he was afraid Brown was going to shoot him. After a short while, the officers managed to surround Brown. Brown stopped running, uncocked his gun, and tossed it aside. Brown was thereafter arrested.

¶6 Brown was charged by information with felony assault, a violation of § 45-5-202(2)(b), MCA. A jury trial was held on July 17, 1997, and Brown was found guilty of the charged offense. On August 13, 1997, the District Court held a sentencing hearing. The court sentenced Brown to a term of ten years in prison for felony assault, and imposed an additional ten years in prison for use of a weapon pursuant to § 46-18-221, MCA (hereinafter the weapon enhancement statute). The court stated that the reasons for the sentence were Brown’s prior criminal history [270]*270and the nature of the offense, which the court described as “an assault involving the use of a weapon against a law enforcement official.” At the time of sentencing, Brown did not object to the court’s application of the weapon enhancement statute to his conviction for felony assault. The court issued its final order of judgment and commitment on August 27, 1997. Brown filed a notice of appeal on October 21, 1997.

DISCUSSION

Issue One

¶7 Is Brown’s double jeopardy challenge properly before this Court when it was not raised in the District Court?

¶8 The State of Montana (State) contends that Brown’s double jeopardy challenge is not reviewable. The State cites State v. Lafley, 1998 MT 21, ¶ 26, 287 Mont. 276, ¶ 26, 954 P.2d 1112, ¶ 26, for the rule that “[i]n a direct appeal, the defendant is limited to those issues that were properly preserved in the district court and to allegations that the sentence is illegal or exceeds statutory mandates.” See also Sections 46-20-104(2) and -701(2), MCA and State v. Lenihan (1979), 184 Mont. 338, 343, 602 P.2d 997, 1000 (holding that if a criminal defendant alleges that his sentence is illegal or exceeds statutory mandates, this Court will review the sentence even if the defendant failed to make a timely objection in the district court). A sentence is not illegal if it is within the parameters provided by statute. Lafley, ¶ 26 (citations omitted). The State points out that Brown failed to object to the sentence imposed on him at sentencing. The State further points out that Brown’s sentence is legal because it is within the statutory parameters. See Section 45-5-202(3)(a), MCA (authorizing imprisonment for a term not to exceed 10 years for the offense of felony assault) and Section 46-18-221, MCA (requiring imposition of an additional term of imprisonment of 2 to 10 years for use of a weapon). Based on these facts, the State argues that Brown’s double jeopardy challenge fails to meet the test of reviewability outlined in Lafley.

¶9 Brown concedes that his double jeopardy challenge fails to meet the Lafley standard. However, Brown urges this Court to invoke its discretionary power of common law plain error review. We first articulated the doctrine of common law plain error review in State v. Finley (1996), 276 Mont. 126, 915 P.2d 208. We held:

[T]his Court may discretionarily review claimed errors that implicate a criminal defendant’s fundamental constitutional rights, even if no contemporaneous objection is made and notwithstand[271]*271ing the inapplicability of the § 46-20-701(2), MCA, criteria, where failing to review the claimed error at issue may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process.

Finley, 276 Mont. at 137, 915 P.2d at 215. Brown argues that the issue presented in this case meets the Finley standard for common law plain error review. Brown claims that application of the weapon enhancement statute to his felony assault conviction denied him the fundamental right to be free from double jeopardy guaranteed by Article II, Section 25 of the Montana Constitution. Brown further claims that failure to review his double jeopardy challenge would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial or proceedings, and compromise the integrity of the judicial process.

¶10 To support his claims, Brown first cites Wadsworth v. State (1996), 275 Mont. 287, 299, 911 P.2d 1165, 1172, for the proposition that a right may be “fundamental” under the Montana Constitution if the right is either found in the Declaration of Rights listed in Article II, or is a right “without which other constitutionally guaranteed rights would have little meaning.” Brown notes that the protection against double jeopardy is explicit in the Declaration of Rights and, therefore, is a fundamental right.

¶11 Next, Brown argues that his fundamental right to be free from double jeopardy was violated because he received double punishment for use of a weapon: once when he was sentenced for felony assault, a material element of which requires use of a weapon, and again when his sentence was enhanced for use of a weapon by application of the weapon enhancement statute. Brown acknowledges that application of the weapon enhancement statute to a felony assault conviction does not violate double jeopardy under the federal constitution. See State v. Zabawa (1996), 279 Mont. 307, 316, 928 P.2d 151, 156-57. However, Brown contends that the Montana Constitution affords greater protection against double jeopardy than the federal constitution.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. S. Frydenlund
2024 MT 187 (Montana Supreme Court, 2024)
State v. Garrymore
2006 MT 245 (Montana Supreme Court, 2006)
State v. Coker
2005 MT 86N (Montana Supreme Court, 2005)
State v. Legg
2004 MT 26 (Montana Supreme Court, 2004)
State v. Rinkenbach
2003 MT 348 (Montana Supreme Court, 2003)
State v. Davis
2003 MT 341 (Montana Supreme Court, 2003)
State v. Daniels
2003 MT 247 (Montana Supreme Court, 2003)
State v. Cihura
2002 MT 316N (Montana Supreme Court, 2002)
State v. Whitehorn
2002 MT 54 (Montana Supreme Court, 2002)
State v. Anderson
2001 MT 188 (Montana Supreme Court, 2001)
State v. Clausell
2001 MT 62 (Montana Supreme Court, 2001)
State v. St. John
2001 MT 1 (Montana Supreme Court, 2001)
State v. Baker
2000 MT 307 (Montana Supreme Court, 2000)
State v. Weitzel
2000 MT 86 (Montana Supreme Court, 2000)
State v. Aguilar
1999 MT 159 (Montana Supreme Court, 1999)
State v. Roullier
1999 MT 37 (Montana Supreme Court, 1999)
State v. Brown
1999 MT 31 (Montana Supreme Court, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
1999 MT 31, 975 P.2d 321, 293 Mont. 268, 56 State Rptr. 139, 1999 Mont. LEXIS 31, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brown-mont-1999.