No 

No. 98-500

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 159

295 Mont. 133

983 P.2d 345

STATE OF MONTANA,

Plaintiff and Respondent,

v.

CARLOS AGUILAR,

Defendant and Appellant.

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APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Assistant Appellate Defender, Appellate Defender Office;

Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Michael S. Wellenstein,

Assistant Attorney General; Helena, Montana

Mike McGrath, Lewis and Clark County Attorney; Mike Menahan, 

Deputy County Attorney; Helena, Montana

Submitted on Briefs: March 25, 1999

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Decided: July 8, 1999

Filed:

__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶I. The defendant, Carlos Aguilar, was charged by information filed in the District 

Court for the First Judicial District in Lewis and Clark County with felony assault. 

Following a trial by jury, Aguilar was convicted and sentenced to the State prison for 

commission of the felony assault, and received an additional sentence for use of a 

weapon during commission of the crime. Aguilar appeals the sentence imposed by 

the District Court. We reverse and vacate the enhanced portion of his sentence and 

remand for entry of judgment consistent with this opinion.

¶II. The issue on appeal is whether the weapon enhancement statute, § 46-18-221, 

MCA, when applied to a conviction for felony assault, violates the double jeopardy 

provision of the Montana Constitution found at Article II, Section 25.

FACTUAL AND PROCEDURAL BACKGROUND

¶III. On approximately August 3, 1996, Carlos Aguilar arrived in Helena by bus, and 

went to East Helena to visit his two sons Jessie, age seven and Jonathon, age five, who 

lived with their mother, Aguilar's ex-wife, Kim Stock. Aguilar and the two boys are 

black, and Stock is white. 

¶IV. Stock's current boyfriend, John Christenson, who is white, was sleeping 

upstairs at Stock's house while Aguilar was playing Nintendo with his sons. Aguilar 

asked his sons how Christenson was treating them. One of the boys told Aguilar that 

Christenson called them "niggers" and directed other profanity at them. Jessie, the 

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seven-year-old, also told Aguilar that Christenson had beaten Jonathon, the five-yearold, with a thorny rose bush and drawn blood. Aguilar confronted Stock about the 

physical abuse, and she admitted that Christenson had beaten Jonathon with the rose 

bush. 

¶V. After hearing of Christenson's verbal and physical abuse of his boys, Aguilar 

confronted Christenson. He asked Christenson to go out onto the porch to talk to 

him. After some conversation, Aguilar grabbed Christenson by the throat and held 

him against the house. Christenson told Aguilar that he was cutting him, and Aguilar 

responded that "that was what he intended to do." He then told Christenson that if 

he ever mistreated his sons again he would kill him. 

¶VI. On August 3, 1996, Carlos Aguilar was charged in the Justice Court for Lewis 

and Clark County with felony assault in violation of § 45-5-202, MCA. Aguilar 

waived preliminary examination and was bound over to the District Court for Lewis 

and Clark County for further proceedings. On August 30, 1996, an information was 

filed in the District Court for Lewis and Clark County charging Aguilar with felony 

assault for "purposely or knowingly caus[ing] bodily injury to John Alfred 

Christenson, Jr. by cutting him with a knife, in violation of Section 45-5-202(2), 

MCA." Aguilar pled not guilty on September 19, 1996, and a jury trial commenced 

on February 24, 1996. At trial, Christenson testified that he had a scratch on the 

neck, and was cut on the thumb. He testified that although he did not see a knife, 

Aguilar had held one to his throat. Aguilar maintained that he scratched Christenson 

on the neck with his fingernails, not a knife. On February 25, 1996, the jury found 

Aguilar guilty of felony assault. The District Court sentenced Aguilar to ten years in 

the State prison with eight years suspended for felony assault, and to an additional 

ten years with eight years suspended for use of a weapon during commission of the 

assault. 

¶VII. Aguilar appealed the sentence enhancement to this Court on the basis that he 

was under duress at the time he committed the assault; that the mandatory minimum 

sentence requirements therefore did not apply pursuant to § 46-18-222(3), MCA; and 

that the District Court erred by refusing to apply this exception. Based on the 

stipulation by Aguilar and the State that the District Court failed to address the 

applicability of the exception to the mandatory minimum sentence for use of a 

weapon, we vacated the sentence of the District Court and remanded for 

resentencing. We also dismissed Aguilar's appeal without prejudice.

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¶VIII. On resentencing, the District Court held that the duress exception to the 

mandatory minimum sentence prescribed by the sentence enhancement statute did 

not apply because the threats were directed at third parties and not the defendant. 

Therefore, the court again imposed the original sentence of ten years with eight 

suspended for the charge of felony assault and ten years with eight suspended for use 

of a dangerous weapon. On August 6, 1998, Aguilar again appealed the judgment 

and conviction of the District Court. 

¶IX. Aguilar's opening brief, filed prior to our decision in State v. Guillaume, 1999 

MT 12, 975 P.2d 312, 56 St.Rep. 117, was again limited to the issue of whether the 

District Court erred by refusing to consider duress as an exception to the mandatory 

minimum enhancement of his sentence for use of a weapon. The State did not discuss 

double jeopardy in its responsive brief because it had not been raised in Aguilar's 

opening brief. Double jeopardy was first raised by Aguilar in reply to the State's 

brief. However, the State concedes that Guillaume controls and that Aguilar cannot 

be sentenced separately for use of a weapon. The State contends, however, that this 

case should be remanded to the District Court for reconsideration of Aguilar's entire 

sentence.

¶X. We conclude, as we did in State v. Roullier, 1999 MT 37, 977 P.2d 970, 56 St.Rep. 

157, that the illegal sentence enhancement should simply be stricken and the 

judgment amended to that extent.

DISCUSSION

¶XI. In Guillaume, the defendant was convicted of felony assault in violation of § 45-

5-202(2)(b), MCA. See Guillaume 1999 MT 29, ¶ 1, 975 P.2d 312, ¶ 1, 56 St.Rep. 117, 

¶ 1. The District Court sentenced the defendant to ten years in prison for the felony 

assault, and to an additional five years for use of a weapon pursuant to the sentence 

enhancement statute

found at § 45-18-221, MCA. See Guillaume, ¶ 1. The defendant in Guillaume argued that 

as applied to him, the statute violated the double jeopardy clause of the Montana 

Constitution, Article II, Section 25. See Guillaume, ¶ 1. We agreed with the defendant and 

concluded that "Article II, Section 25 of the Montana Constitution provide[s] greater 

protection from double jeopardy than is provided by the United States Constitution." We 

ultimately held that:

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[A]pplication of the weapon enhancement statute to felony convictions where the 

underlying offense requires proof of use of a weapon violates the double jeopardy 

provision of Article II, Section 25 of the Montana Constitution.

Guillaume, ¶ 16.

¶XII. The facts in the instant case are nearly identical to those in Guillaume. Aguilar 

was charged with felony assault, sentenced accordingly, and his sentence was 

enhanced a second time for use of a weapon. 

¶XIII. Both parties agree that the rule which we announced in Guillaume does apply 

retroactively to this case pursuant to our decisions in State v. Brown, 1999 MT 31, 975 

P.2d 321, 56 St.Rep. 139 and State v. Roullier, 1999 MT 37, 977 P.2d 970, 56 St.Rep. 

157, in which we invoked the common law plain error doctrine to review an error 

implicating a fundamental constitutional right that was not initially raised on appeal. 

Furthermore, we have concluded that a new rule of law in criminal prosecutions 

must be applied to all cases not yet final. See State v. Egelhoff (1996), 272 Mont. 114, 

900 P.2d 260 (citing Griffith v. Kentucky (1987), 479 U.S. 314, 328, 107 S. Ct. 708, 716, 

93 L. Ed. 2d 649, 661, and concluding that Griffith is binding upon this Court). We 

agree that in accordance with our prior decisions, we may properly review the 

applicability of Guillaume to the present case. Furthermore, the rule of law we 

established in Guillaume must be applied to the instant case, because it is not yet final.

¶XIV. We hold that under the circumstances of this case, enhancement of Aguilar's 

sentence for use of a weapon violates the double jeopardy clause of Article II, Section 

25 of the Montana Constitution. Accordingly, we reverse the District Court's 

enhancement of the sentence pursuant to § 46-18-221, MCA, and remand to the 

District Court for revision of that sentence in that limited respect. 

/S/ TERRY N. TRIEWEILER

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We Concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

Justice Karla M. Gray, concurring in part and dissenting in part.

¶15. I specially concur in the Court's holding that Guillaume requires that the 

enhancement portion of Aguilar's sentence be stricken. It continues to be my view 

that Guillaume was wrongly decided. However, Guillaume is now the law of this state 

and, like everyone else, I am bound by it.

¶16. I respectfully dissent from that portion of the Court's opinion which permits the 

District Court to revise Aguilar's sentence only to the extent of deleting the sentence 

enhancement. The Court provides no rationale for rejecting the State's request for a 

remand for reconsideration of Aguilar's entire sentence, relying solely on Roullier. It 

is true that in Roullier, a case in which I did not participate, the Court remanded for 

the limited purpose of revising the sentence to strike the sentence enhancement. 

Nothing in that decision, however, suggests that the State had requested a remand 

for reconsideration of the entire sentence or provides a rationale for the limited 

remand. 

¶17. Moreover, in both Guillaume and State v. Brown, 1999 MT 31, ¶ 15, 975 P.2d 

321, ¶ 15, 56 St.Rep. 139, ¶ 15, decided less than two weeks before Roullier, the Court 

held that the sentence enhancement violated double jeopardy and remanded for 

"rehearing" and resentencing. Since no "rehearing" would be necessary to simply 

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strike the offending sentence enhancement from the judgment, it is my view that 

those cases were remanded for a new sentencing hearing and new sentencing. This 

seems entirely appropriate, given the amount of discretion vested in district courts in 

criminal sentencing. When we strike part of a criminal sentence a district court 

believed appropriate, the district court should be given the opportunity to resentence 

the defendant. 

¶18. In neither Roullier nor the present case has the Court taken notice of the more 

expansive remands in Guillaume and Brown. Thus, in four cases over less than six 

months, we have twice remanded for rehearing and resentencing and twice 

remanded on a much more limited basis. I would follow the Guillaume and Brown

approach and remand for rehearing and resentencing, particularly in the absence of 

any rationale for doing otherwise.

/S/ KARLA M. GRAY

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