State v. Mazurkiewicz

799 P.2d 1066, 245 Mont. 172, 47 State Rptr. 1962, 1990 Mont. LEXIS 322
CourtMontana Supreme Court
DecidedOctober 24, 1990
Docket90-227
StatusPublished
Cited by12 cases

This text of 799 P.2d 1066 (State v. Mazurkiewicz) 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. Mazurkiewicz, 799 P.2d 1066, 245 Mont. 172, 47 State Rptr. 1962, 1990 Mont. LEXIS 322 (Mo. 1990).

Opinions

JUSTICE McDONOUGH

delivered the Opinion of the Court.

Ernest Mazurkiewicz appeals from the judgment of the First Judicial District, Lewis and Clark County. Following a plea of guilty on the charges of robbery and deliberate homicide, the District Court sentenced Mazurkiewicz to forty years on the robbery charge and fifty years on the deliberate homicide charge, with those terms to run concurrently. The court also imposed an eight year prison term for the use of a weapon. It was ordered that this term be served consecutively to the forty and fifty year terms. The District Court designated Mazurkiewicz a dangerous offender for purposes of parole eligibility and ordered him to pay restitution. We reverse that portion of the judgment requiring restitution. In all other respects the judgment is affirmed.

[174]*174The issues presented for review are:

1. Whether imposition of a consecutive sentence for use of a weapon was a denial of due process;

2. Whether the District Court erred in concluding that Mazurkiewicz used a weapon in the commission of a crime;

3. Whether the District Court erred in finding Mazurkiewicz to be a dangerous offender;

4. Whether the District Court erred in ordering Mazurkiewicz to pay restitution.

The facts in this case are not in dispute. The defendant, Ernest Mazurkiewicz, was traveling with a group of friends when they met Larry Beckwith. Apparently, after friendly conversation, Mr. Beckwith agreed to take two of Mazurkiewicz’s friends to Alaska and help them get a job.

Mr. Beckwith traveled with Mazurkiewicz and his friends towards Townsend, Montana. During this period of time, a decision was made to rob Mr. Beckwith. Roy Duncan, a co-defendant, left the car that Mazurkiewicz was riding in and rode with Beckwith in his truck. Shortly before they reached Townsend both vehicles pulled over. At this point, Duncan went back to Mazurkiewicz’s car and asked for his gun so that he could use it in the planned robbery. Mazurkiewicz gave him the gun and Duncan went back to Beckwith’s truck.

The two vehicles separated at this point. Eventually however, Mazurkiewicz met Roy Duncan and another accomplice at a gas station. Duncan then told Mazurkiewicz that they had killed Larry Beckwith during the robbery. The group then traveled south towards Las Vegas, where Mazurkiewicz was eventually arrested.

Mazurkiewicz was charged with robbery and deliberate homicide through accountability. Alternatively, he was charged with deliberate homicide under the felony murder statute, § 45-5-102(l)(b), MCA. Initially, Mazurkiewicz pled not guilty. However on December 19, 1989, he changed his plea and pled guilty to accountability for the robbery and deliberate homicide under the felony murder rule.

After a sentencing hearing was held, the court sentenced Mazurkiewicz to forty years for accountability for robbery and fifty years for the offense of homicide to be served concurrently. The lower court also sentenced him to eight years for use of a dangerous weapon. This sentence, it was ordered, was to be served consecutively to the forty and fifty year terms. The court, having determined that [175]*175Mazurkiewicz played “an important part in this terrible crime committed against an innocent person,” declared him a dangerous offender for purposes of parole and probation. Mazurkiewicz appeals from this sentence.

I

Mazurkiewicz argues that Montana’s weapons enhancement statute is unconstitutional. Section 46-18-221(1), MCA, provides:

“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, destructive device, as defined in 45-8-332(1), or other dangerous weapon shall, in addition to the punishment provided for the commission of such offense, be sentenced to a term of imprisonment in the state prison of not less than 2 years or more than 10 years, except as provided in 46-18-222.”

According to Mazurkiewicz, this statute, by its use of a mental state and by its mandate for a consecutive sentence, creates an offense separate from the underlying offense. For that reason, use of a weapon should be separately charged, and the issue should be submitted to the jury for determination beyond a reasonable doubt.

We disagree. The constitutionality of § 46-18-221(1), MCA, was recently addressed in State v. Krantz (Mont. 1990), [241 Mont. 501,] 788 P.2d 298, 47 St.Rep. 454. In Krantz its constitutionality was clearly upheld. We decline Mr. Mazurkiewicz’s request to reverse this holding.

II

Mazurkiewicz next argues that the District Court erred in concluding that he used a weapon in the commission of an offense. He maintains that in order for Montana’s weapons enhancement statute to apply, it must be shown that the defendant “while engaged in the commission of the offense knowingly displayed, brandished, or otherwise used a firearm.” Section 46-18-221, MCA.

Mazurkiewicz pled guilty to accountability for the robbery of Mr. Beckwith and deliberate homicide under the felony murder rule. Therefore he was not the person who actually committed the robbery and homicide. Based upon these facts, Mazurkiewicz argues that it was erroneous for the lower court to determine that he “knowingly displayed, brandished or otherwise used a firearm” during the commission of an offense. He maintains that Montana’s weapons enhancement statute contains no indication that it was meant to [176]*176apply to anyone other than those actually committing the offense. Therefore, Mazurkiewicz’s conduct, which only consisted of handing the weapon to Duncan, does not qualify as use of a weapon as mandated by the statute.

In support of this argument, Mazurkiewicz relies upon cases of other jurisdictions decided under statutes similar to our own. See People v. Walker (Cal. 1976), 18 Cal.3d 232, 133 Cal. Rptr. 520, 555 P.2d 306; State v. Hicks (1979), 38 Or. App. 97, 589 P.2d 1130; State v. Thompson (1980), 101 Idaho 430, 614 P.2d 970. Many of these cases rely upon the policy that a penal statute should be construed as favorably to the defendant as its language and the circumstances of its application reasonably permit. According to this policy, a defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or construction of language used in a statute. Walker, 133 Cal. Rptr. at 526, 555 P.2d at 312 (citing Keeler v. Superior Court (1970), 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617). Mazurkiewicz argues that by construing our statutes to apply to accomplices and others not actually “brandishing, displaying or using a dangerous weapon,” the lower court abdicated its responsibilities articulated by this long established policy. Thus, he maintains his conviction for use of a weapon should be overturned.

We disagree. The lower court, in response to an objection to its determination of this issue stated:

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State v. Mazurkiewicz
799 P.2d 1066 (Montana Supreme Court, 1990)

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Bluebook (online)
799 P.2d 1066, 245 Mont. 172, 47 State Rptr. 1962, 1990 Mont. LEXIS 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mazurkiewicz-mont-1990.