No. 92-403 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vJEFF WAYNE BROWN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Jefferson, 

The Honorable Robert J. Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Wendy Holt on, H 

For Respondent: 

ontana 

Hon. Joseph P. Mazurek, Attorney General, Micheal 

Wellenstein, Assistant Attorney General, Helena, 

Montana; Richard J. Llewellyn, Jefferson County 

Attorney, Boulder, Montana 

Filed: 

Submitted on Briefs: November 18, 1993 

Decided: December 22, 1993 
Justice Fred J. Weber delivered the Opinion of the Court 

Defendant Jeff Wayne Brown appeals the judgment by the 

District Court of the Fifth Judicial District, Jefferson County, 

which sentenced him to forty years of imprisonment. We affirm in 

part, vacate in part and remand. 

The issues for review are restated as follows: 

1. Did the District Court err in imposing two ten-year 

sentences under the weapon enhancement statute when the underlying 

charges of felony assault arose from the same incident? 

2. Did the District Court err in imposing a forty-year 

sentence under the circumstances of this case? 

On July 25, 1991, after a day spent fishing and drinking 

together, Jeff Wayne Brown (Brown), his brother Darren Brown and 

Gerald Mullaney stopped at the Two Bit Saloon in Whitehall, 

Montana, while a tire on Darren Brown's truck was being repaired; 

When the trio started to bother other bar patrons, the bartender 

asked them to leave the bar. 

Brown left momentarily and then reentered the bar brandishing 

a pistol. He pointed it in the direction of the bartender, cocked 

it and made threatening statements. The bartender's back was 

turned so he was unaware of this, but one of the bar patrons told 

Brown to put the pistol away. ~rown did so and then left the bar. 

After Brown left the bar, the three men got into Darren 

Brown's truck. Darren Brown drove slowly past the bar while the 

defendant hung out the window of the truck and fired shots at the 

bar entrance. Although the shots frightened bar patrons and 

2 
employees, no one was injured. Darren Brown then accelerated his 

truck and as he sped out of town, lost control of his truck and 

struck two pedestrians who were standing on the shoulder of the 

road. The impact killed one of the pedestrians and seriously 

injured the other. 

The State charged Jeff Wayne Brown with felony assault, 

attempted aggravated assault and deliberate homicide by 

accountability. Brown later entered into a plea agreement, 

pursuant to which the State agreed to amend the information to 

charge Brown with two counts of felony assault and Brown agreed to 

plead guilty to the two counts of felony assault. The parties 

further agreed that the State would recommend a sentence of thirty 

years of imprisonment. The thirty years recommended by the State 

included the maximum sentence of ten years imprisonment for each of 

the two felony assault charges and a sentence enhancement of an 

additional five years imprisonment for each offense for using a 

firearm in the commission of the offenses. 

Judge Frank Davis was the original presiding judge in this 

case. When Judge Davis accepted Brown's change of plea after the 

parties had entered the plea agreement, he advised Brown, among 

other things, that the maximum sentence he could receive was thirty 

years. After a remarkable community response generated by a 

newspaper advertisement which encouraged people to write letters to 

the District Court, Judge Davis recused himself from the case and 

Judge Robert J. Boyd assumed jurisdiction. Judge Boyd sentenced 

Brown to forty years with sixteen years suspended. 
Did the District Court err in imposing two ten-year sentences 

under 46-18-221, MCA, when the underlying charges of felony 

assault arose from the same incident? 

Section 46-18-221, MCA, provides for additional sentences for 

offenses committed with a dangerous weapon. In his first brief in 

this appeal, Brown argued that 5 46-19-221, MCA, did not permit an 

additional ten-year sentence for each of his felony assault 

offenses. After Brown submitted his initial brief, this Court 

ruled on that issue in State v. Byers (Mont. 1993), - P. 2d -r 

50 St.Rep. 1163, 1175, holding that the sentence enhancement for 

use of a dangerous weapon applies to each offense. Brown's reply 

brief concedes that Bvers controls; thus, we will not further 

address this issue. 

11. 

Did the District Court err in sentencing Brown to forty years 

when Brown had been advised by the original juc?ge in the groceeding 

that the maximum term of imprisonment was thirty years? 

On appeal, Brown has asked this Court to vacate ten years of 

his forty-year sentence. He contends that Montana law specifically 

requires the sentencing court to ensure that a defendant is 

informed of the maximum possible punishment that may be imposed. 

Brown further contends that because Judge Davis advised him that 

the maximum sentence of imprisonment was thirty years, Judge Boyd 

could not impose a term of imprisonment in excess of thirty years. 

The State argues that Brown in fact knew that he could be 

sentenced to a maximum of forty years imprisonment and that the 

State did not misinform him as to the maximum sentence. The State 
further asserts that Brown was also aware that the prosecutor's 

recommendation for two five-year sentences under 5 46-18-221, MCA, 

did not bind the sentencing court, that the sentence was within the 

discretion of the District Court and that Brown knew that the court 

was not required to permit him to withdraw his guilty pleas. It 

further asserts that Brown cannot credibly maintain that he did not 

know the maximum sentence the court could impose because he 

acknowledged that he had discussed the sentencing laws and was 

informed by his attorney of the maximum sentence he could receive 

for the offenses. Finally, the State contends that the District 

Court's misstatement does not constitute reversible error because 

Brown was well aware of the maximum sentence that could be imposed 

for the offenses to which he pled guilty. 

Prior to accepting the plea agreement, the District Court 

advised Brown as follows: 

THE COURT: You understand that the State proposes to File an 

amended information charging you with two counts of felony 

assault and proposes to ask that if you're convicted of those 

that your sentence by -- for the use of a gun. The ~ossible 

pmishment for that under that amended information, if I 

permit it to be filed, would be thirtv vears in the state 

prison. . . . (Emphasis supplied.) 

This statement is clearly incorrect as Brown could receive an 

additional sentence of ten years for of the two felony assault 

offenses according to this Court's recent decision in w. 

Therefore, the correct maximum sentence included two additional 

sentence enhancements of ten years each--a total of forty years. 

- See 51 45-5-202 and 46-18-221, MCA. 

A sentencing court must comply with 1 46-12-210, MCA, which 
provides in pertinent part: 

46-12-210. 

of guilty, 

understands 

Advice to defendant. (1) Before accepting a plea 

the court shall determine that the defendant 

the following: ... 

(a) (iii) the maximum penalty ~rovided by law, includinq 

the effect of anv penalty enhancement provision . . . . (Emphasis supplied.) 

The court also must comply with 5 46-16-105(1), MCA, which 

provides : 

46-16-105. Plea of guilty. (I) Before or during trial, a 

plea of guilty may be accepted when: 

(a) the defendant enters a plea of guilty in open court: 

and 

(b) the court has informed the defendant of the 

conseauences of his plea and of the maximum penaltv provided 

bv law which may be imposed upon acceptance of such plea. 

(Emphasis supplied.) 

In addition to the above-quoted sections, the clear language 

of 46-16-105, MCA, mandates that courts advise defendants of 

maximum punishment for offenses before the court may accept a plea 

of guilty. Further, 5 46-12-204!2), MCA, recpires the court to 

determine that a guilty plea is "voluntary" before accepting it. 

-- See also Benjamin v. McCormick (l990), 243 Mont. 252, 256, 792 P.2d 

7, 10 (defendant must have an adequate understanding of the 

consequences of his guilty plea). 

Brown relies on Beniamin and In re the Matter of Orman (1986)' 

224 Mont. 332, 336, 731 P.2d 893, 895, to support his argument that 

where a defendant is incorrectly advised of the maximum penalty 

allowed, the sentence must be modified to reflect his 

understanding. In Benjamin, the defendant was advised by the court 

and the prosecution that he would serve approximately one year in 

prison. However, a further provision of his sentence required him 
to complete the prison's program for sexual offenders which would 

have resulted in at least two years imprisonment. The defendant's 

guilty plea was based on a specific error; i.e., that he had been 

misinformed as to the consequences of his plea. Benjamin, 792 P.2d 

at 10. 

Similarly, in w, the correct period of time of suspending 

a driver's license for a second refusal to take a breathalizer test 

was imprisonment for one year. The arresting officers incorrectly 

advised the defendant several times that his license would be 

suspended for ninety days. We concluded, under the circumstances 

of that case, that even a person who was not under the influence of 

alcohol would reasonably have concluded that his license would be 

suspended for only ninety days. w, 731 P.2d at 895. 

The State argues extensively that Brown's subjective knowledge 

that he could be sentenced to a maximum of forty years is crucial. 

We disagree. We conclude that the plain language of the code 

sections quoted above provides that a defendant must be advised of 

the maximum punishment. We further conclude that Benjamin and 

Orman support Brown's argument that the sentence must be modified 

to provide for a sentence no longer than the maximum sentence which 

Judge Davis advised Brown he could receive for the charged 

offenses . 

We hold the District Court erred in imposing a forty-year 

sentence under the circumstances of this case. The District Court 

is instructed to modify the sentencing order by changing the term 

of imprisonment to thirty years, thereby eliminating five years 
from the enhancement to the sentence for each felony assault 

offense. The District Court is further instructed to redetermine 

the number of years, if any, which are to be suspended. 

Affirmed in part, vacated in part and remanded. 

We Concur: 
December 22, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Wendy Holton 

Attorney at Law 

7 West 6th, Suite 4K 

Helena, MT 59601 

Hon. Joseph P. Mazurek, Attorney Generz! 

Micheal Wellenstein, Assistant 

Justice Bldg. 

Helena, MT 59601 

Richard J. Llewelly n 

County Attorney 

Jefferson County Cnurthnrrw. 

Boulder, MT 59632 

ED SMITH 

CLERK OF THE SURREME COURT