NO. 79-67 IN THE SUPREMF COURT OF THE STATE OF MONTANA 1980

STATE OF MONTANA, Plaintiff and Respondent,

EDMOND WILSON DAVISON, Defendant and Appellant.

Appeal from: DistrictCourt of the Eleventh Judicial District, In and for the County of Flathead. Honorable James M. Salansky, Judge presiding. Counsel of Record: ForAppellant: Daley, Sherlock and Nardi, Kalispell,Montana Patrick Sherlock argued, Kalispell,Montana For Respondent: Hon. Mike Greely,Attorney General, Helena, Montana Richard Larson argued,Assistant Attorney General,

Helena,Montana Ted 0. Lympus, County Attorney, Kalispell,Montana

Submitted: April 14, 1980 Decided:

## JUL

ClerkMr. Chief JusticeFrank I. Haswell delivered the Opinion of the Court. Defendant, Edmond Wilson Davison, was charged with the offenses of aggravated burglary and sexual intercourse without consent inthe DistrictCourt of Flathead County. A verdict of guiltyof each offensewas returned by thejury. Defendant was sentenced to 15years on each count plus an additional fiveyears foruse of a knife tobe served consecutively for a totalof 35 years. From the conviction and sentence, defendant appeals, During the earlymorning hours of March 2, 1979, two men forced theirway into a mobile home located near the citylimits of Kalispell, Montana. Christine Decker and her three year old daughter were asleep in separatebedrooms of themobile home at thattime. Christinewas awakened asthe two men entered her bedroom. The room wasdark and her head was immediately covered

sothat she could not see. She testified that a sharp instrument

was held against her back and side, but no wounds were inflicted. She was then raped by her attacker and then by the accomplice. Herhead was covered during the entire attack. After the attack themen asked her where shekept her money. Shewas then told to keep quiet and forced tolieunder her bed as the two men retreated from the home. The daughter sleptthrough the attack. After the two men leftMs. Decker summoned the Kalispell City Police and law enforcement personnel arrived shortlythereafter. The victimwas taken toa Kalispell hospital. The examining physician found evidence of recent sexual intercourse, but

no prominent physical wounds. Ms. Decker was never able toidentify her attackers. She testified that she locked the doors before retiringthenight of March 2, 1979. Sheriff's deputies found evidence of forced entry intoMs. Decker's home and evidence that her purse had been rifled, but no positive evidence indicating who had been involved.Law enforcement investigation ultimately led officers t2o Victor Gardner. Gardner confessed to the crimesand implicated defendant. On March 5, 1979,the defendant and his wife were arrested in Kalispell on an outstandingwarrant that related to

a bad check charge. Defendantwas taken to the county jail for questioning. Defendantwas interrogated by deputies Christian and Lamb. The questioning concerned defendant's involvement in the abovedescribed rape. Before being questioned,the defendant was given

a "Miranda"warning. During the interrogation,which lasted two to three hours, defendant denied any involvementwith the rape or the burglary. At one point during the questioning, defendant was told that if he attempted to leave, he would be knocked back in his chair. During the interrogation,Christian removed his jacket and briefly placed it over the defendant's head for the stated reason of demonstrating to defendant how the victim had been assaulted. Defendant stated that Christian banged defendant's head into thewall during this demonstration. Christian denied this. Later,during the questioning,Christian removed his service revolver from its holster, unloaded it in front of the defendant, and returned the revolver to itsholster. According to Christian this was done to protect defendant,himself and Deputy Lamb,because Christianwas concerned that defendant might attempt to take the revolver. Defendant testified that Christian threatened to strike him with the empty revolver. Christian denied making this,

or any other threat. According to Christian's testimony at the suppression hearing, the defendant had been in a highly emotional state during the interrogation and the interrogationroomwas very warm. Defendant would notmake a statement to Christian or Lamb. Defendant testified that he was told during the interrogation that if he did not cooperate with the officers they would do their best to get a60-year sentence for defendant. Christian testified that he did not remember mentioning a possible 60-year sentence to the defendant,but Christian did remember that he did notmake any threats. Near the end of the interrogation, a tape recording of the confession of the codefendant,Victor Gardner,was played to defendant. At the conclusion of the interview,the defendantwas led from the interrogationroom. Defendant testified that ~hristian and Lamb had been "mad" at him and generally belligerent during the interrogation. Before being taken to his cell, the defendant was confronted by Officer Hawk, and defendant asked Hawk if Gardner had in fact confessed. Hawk assured the defendant that Gardner had. Hawk suggested to the defendant that if he had a problemwith Lamb and Christian that he (defendant) might prefer talking with Hawk. Defendant agreed to talk with Hawk, and at this time the defendant made a tape-recorded confession. The defendant was again given his

"Miranda" rights prior to the confession. Defendant's confessionmatched Gardner's version and the victim's version of the crime. Gardner testified that the twomen had broken into themobile home armed with a knife,had raped the victim and rifled her purse. At the trial the defendant stated that he did not break into the victim's home and that he had given his confession after hearing Gardner's because he was afraid that "they were going to send me to prison for 60years." The jury found defendant guilty as charged and the trial court judge sentenced him to 35 years at the Montana State Prison. Victor Gardner, the codefendant,was sentenced to a total of 8 years under a plea bargain arrangement. Defendant advances three specifications of error: 1. Error in ruling thatdefendant's confessionwas admissible. 2. Whether defendant's right to trial was adverselyaffected by the imposition of a lesser sentenceupon his codefendant? 3. Whether the enhancement of defendant's sentencepursuant to section 46-18-221,MCA, constitutes a violation of due process or the proscription against double jeopardy? Defendant contends that his confessionwas involuntary, and, as a consequence, inadmissible at his trial. Both the United States Supreme Court and this Court have considered the issue of involuntary confessions in a large number of cases. These cases make it clear that an involuntary confessionmay not be used against a defendant in a criminal trial. This rule is true whether the defendant was physically ormentally coerced intomaking the confession. Leyra v. Denno (1954),347U.S. 556, 74 S.Ct. 716, 98 L.Ed 948. An extensive rationale for this rule ispresented in State Mont. v. Allies (1979), 

## , 606 P.2d 1043 at 1048-49, 36 St. Rep. 2352 at 2358-59. The purpose for excluding such evidence is partially because a coerced confessionmay be untrustworthy,but

more importantly, such confessionsviolate the guarantee against self-incrimination as well as the right to due process of law. As the United States Supreme Court said: "The use of coerced confessions, whether true or false, is forbiddenbecause themethod used to extract them offends constitutional principals." Lego v. Twomey (1972), 404 U.S. 477, 485, 92 S.Ct. 619, 624, 30 L Ed 2d 618, 625. The courts will not condone the action taken by law enforcement authorities in securing a coerced confession. Spano

v. New York (1959),360 U.S. 315, 79 S.Ct. 1202, 3 L Ed 2d 1265. In reviewing the voluntariness of confessions the emphasis is on whether the statement is a product of free choice or compulsion. This emphasisprotects the individual's right not to incriminate himself. Miranda 

### v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 

### L Ed 2d 694.In Schnecklothv. Bustamonte (1973),412 U.S. 218, 93 S.Ct. 2041, 36 L Ed 2d 854, the Supreme Court said: "Rather, 'voluntariness'has reflected an accomodation of the complex of values implicated in police questioning of a suspect. At one end of the spectrum is the acknowledged need forpolice questioning as a tool for the effective enforcement of criminal laws. See Culombev. Connecticut, supra,at 578- 580. Without such investigation, those who were innocent might be falsely accused,those who were guiltymight wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished. Haynes v. Washington, 373 U.S. 503, 515. At the other end of the spectrum is the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness, and that the possibility of unfair and even brutal police tacticsposes a real and serious threat to civilized notions of justice. 

### ' [I]n cases involving involuntary confessions, this Court enforces the strongly felt attitude of our society that important human values are saarificed where an agency of the government, in the course of securing a conviction,wrings a confession out of an accused against his will.' Blackburn v. Alabama, 361 U.S. 199, 206-207. See also Culombe v. Connecticut, supra, at 581-584; Chambers v. Florida, 309 U.S. 227, 235-238." 412U.S. at 224-225. The United States Supreme Court has said that the test to be applied in determining whether a particular confession is voluntary or involuntary, is as follows: "Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, itmay be used against him. If it isnot, if his will had been overborne and his capacity for self-determination critically impaired,the use of his confession offendsdue process." Culombev. Connecticut

(1961), 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L Ed 2d 1037. If the defendant should contend that his confessionwas the product of coercion, then the burden is placed on the State to show that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel. The State must prove voluntarinessby a preponderance of the evidence. State v. Smith (1974), 164Mont. 334, 338, 523 P.2d 1395, 1397. The issue of voluntariness and admissibility is addressed in the first instance to the trial court's discretion and dependsupon the totality of the circumstances. Jacksonv. Denno (1964)

## , 378 U.S. 368, 84 S.Ct. 1774, 12 L Ed 2d 908; Statev. Lenon (1977), 174Mont. 264, 570 P.2d 901; Statev. White (1965),146 Mont. 226, 405 P.2d 761. If there is substantial credible evidence to support the trial court's finding, itmust be affirmed. State v. Grimestad Mont

# . (1979), 

## , 598 P.2d 198, 36 St.Rep. 1245, 1251. In the present case the defendant points to several instances of police conductwhich allegedly rendered the confession

a product of coercion. The first of these is Christian's action of briefly placing a coat over defendant'shead. According to the testimony, the coatwas only left on the defendant's head for a few seconds and then removed. Christian testified that this action

was taken to demonstrate to the defendant an aspect of the rape that had been committed. Christian also unloaded his service revolver while the defendantwas being questioned. The explanation given for this actionwas

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. .that Ithought itwas best for my safety and his [defendant's]." Despitedefendant's testimony to the contrary,Christian denied threatening to strike defendant with the revolver. Defendant also contends that hewas threatened with a sentence of 60years if he did not cooperate. Christian testified at the suppression hearing that he could not remember whether a 60- year sentencewas mentioned. He did state that no promises were made to defendant. Deputy Hawk,who was just outside the room where the questioning took place and overheard portions of the interrogation,also testified that no threats or promises were made regarding apossible sentence in exchange for cooperation. Hawk and Christian did testify that "self-help"was discussed with the defendant. Hawk testified as follows: "A. Well, it is on his conscience, if he wants to get it cleared up, if he needs some help with alcohol, if he needs somehelp with drugs, if he has a drug problem. These are things that he can only do forhimself. But theplace to start istoget this taken careof and get it out of the way sohe can start fresh. He isnot going tobe able tohelp himself verywellwith thishanging over him. And sothe emphasis is on self-help. 'Maybe we can get you some.' And then there is the thing as far as therewere no threats made orpromises made, 'However, if you help us then it willgo inthe reports that you were cooperative, and if there is a questionof "was this individual cooperating with the police, was he trying tohelp himself," the answer would have tobe yes.' He was inmy case. Hewas not inthe other two detectives' case. And I think they told him that. "Q. That would be allthehelpyou would givehim was indicatewhether he was cooperative ornot? A. That iscorrect. If there is a question of attitude orthat sort of thing, we can indicate that. There was no otherpromises orthreats made, tomy knowledge.

### " Defendant also contends that thepolice used a "good copbad cop" technique during questioning, and that this technique is another indication of coercion. The defendant testified atthe suppression hearing that Lamb and Christian appeared tobe angry with the defendant when they could not get a confession, while Hawk "was realnice." Hawk and Christian denied that the use of the "good cop-bad cop" technique was prearranged. Itmust be noted that the defendant was advised of his "Miranda" rightson four occasions before he gave his confession. He was advised of hisrights athis arrest, again when deputies Lamb and Christian began questioning him, again before his confessionwastaken, and again as hisconfessionwas being recorded. According tothe testimony atthe suppression hearing, the defendant never asked for an attorney and he never assertedhis right toremain silent. Atthe time the confession was given the defendant was 20 years old, had a tenth grade education, had received

a G.E.D. and had previous service with theUnited StatesMarine Corps. The trialjudge concluded that therewas no coercion, physical brutality, or intimidation involved in securing the confession. He also concluded that, under the totalityof the circumstances,the confession was voluntarily given. The State has emphasized the fact that Lamb and Christian did not intend for their actions to be coercive. Also, Hawk and Christian deny that the "good cop-bad cop" technique was intentionally used. The intention of the law enforcement officers is irrelevant to our inquiry. We are only concerned with whether the confessionwas coerced under the totality of the circumstances. In Miranda, supra, the United States Supreme Court acknowledged that certain techniques used by police questioners, such as the "good cop-bad cop",can take

# ".

.. a heavy toll on liberty and trade

on the weakness of individuals." 384 U.S. at 455. On the other hand, this technique,by itself, does not render a confession involuntary. Statev. Allies, Mont

# . , 606 P.2d at 1050, 36 St.Rep. at 2361. In the present case, the interrogationwas not overly long. The trial court found that the interrogation lasted approximately three hours. The "nice cop" did not play on the defendant's sympathies or subject him to long, continuous questioning such as occurred in Spano v, New York, supra. The timing of the defendant's confessiorlisparticularly perti.nentto this inquiry. At the end of the questioning by Christian and Lamb the confession of Victor Gardner was played for the defendant. Shortly thereafter, the defendant asked Hawk whether Gardner had indeed confessed. When Hawk assured the defendant that Gardner had confessed the defendant gave his own confession. In other words, it appears that the knowledge of Gardner's confession triggered the defendant's confession. In addition, the defendant was twice given his "Miranda"warning by Hawk shortly before the confessionwas made. This chain of events would severely blunt or nullify the charge that the confession was theproduct of coercive tactics employed prior to the playing of Gardner's confession.The defendant also alleges the coercive effect of the threat that he could receive up to sixty years in prison if he failed to cooperate. The District Court found that the defendant

was advised of the maximum penalty and that it could be imposed if he did not cooperate. This finding is supportedby substantial, credible evidence and must be accepted as true. In Territory v. Underwood (1888), 8 Mont. 131, 135, 19 P. 398, 400, this Court reversed a conviction where a confessionwas obtained by a promise of favor and influence. In Underwood, however, it is apparent that the confessionwas directly prompted by promises that the chargeswould be dropped or the punishment reduced. The contrary appears in the present case. At the suppression hearing the defendant was questioned by the Court concerning the "Miranda" warnings, as follows: "Q. You understood what theymeant, didn't you? A. Yes sir.

"Q. But you chose not to ask for a lawyer? A. No sir. "Q. You chosenot to remain silent either? A. Yes sir. "Q. You decided to spill it, right? A. Idecided to cooperatewith them, yes sir. "Q. What made you decide finally to cooperate? A. After thinking it all over, sir,after what they told me and after what Deputy Hawk told me and after listening to whatVic said, I just thought I better--They said they already had me guilty." Given all of the factors: the defendant's age and education, the length of the interrogation, the number of times the "Miranda"warning was given, the defendant's acknowledgment that he understood these warnings, and most important,the triggering effect of Gardner's confession, it cannot be said that the trial court abused its discretion in finding the confession voluntary. We hold that the totality of the circumstances supportsthe Distrlci,; Court's finding that the confessionwas freely given. As a consequence,itwas not error for the confession to be allowed into evidence. The defendant next contends that his 35-year sentence, in contrast to Victor Gardner's sentence of eight years under a plea bargain agreement,constitutes a deprivation of defendant's right to trial under Art. 11, 526, 1972Montana Constitution,and the Sixth Amendment of the United StatesConstitution. Victor Gardner confessed to the chargesof aggravated burglary and sexual intercourse without consent. Pursuant to a plea bargain Gardner pleaded guilty to the rape charge and received an eight-year sentence. After trial and a jury verdict of guilty, the defendant received a 35-year sentence. According to the defendant the disparity in the sentences indicates that he isbeing punished for insisting upon a trial. Defendant states in his brief: 

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# . the Defendantand all future criminal defendants will be put on notice that the penalty for the exercise of the fundamental right to a trial by jury is harsh." The defendant received less than themaximum 70-year sentence that could have been imposed as a result of being convicted of sexual intercourse without consent (20years) and aggravated burglary (40years). sections 45-5-503(2)and 45-6-204(3)

## ,MCA. Section 46-18-221,MCA, allows a maximum, additional 10-year sentence for offenses committed with a dangerous weapon. There is no rule that a disparity of sentences given to codefendan ilarly situated is improper. As was said in Peoplev.-iB~*b&r

"Dueto the individualizednature of sentencing, there is no rule that confederates in crimemust receive equal sentences,nor that failure to impose equal sentences violates equal protection of the law 

# .

# .."

See also Statev. Butler (1966), 148 Mont. 46, 417 P-2d100. It is defendant's contention that he was punished for going to trial. This Court has said that a sentencemay not be augmented because a defendant has insisted on his privilege against self-Mont

# . incrimination. Matter of Jones (1978)

## , , 578 P.2d 1150, 1154, 35 St.Rep. 469, 474. The same rationale applies to the constitutional right to a trial. The correct analysis of this problem is stated in United Statesv. Peskin (7thCir. 1975),

"A sentence which reflectspunishment for a defendant's availing himself of his right to trial will be set aside,United Statesv. Wiley, 278 F.2d 500

(7thCir. 1960), but a disparity between a sentence imposed on a defendant who pleads guilty and on anothzr who Ls convicted after trial is not, standing alone, enough to establish that the latter has been punished for exercising a constitutionalright. United States v. Wilson, 506 F.2d 1252, 1259-60

(7thCir. 1974). "The trial judge commented at the time of sentencing on factors which he felt spelled out greater culpability for Mr. Peskin than his codefendants. We have no reason to find an abuse of discretion." In other words, it is not to be presumed that a disparity in sentences imposed indicates increased punishment for exercising the right to a trial. A defendant must show abuse of discretion. In the present case, the sentencing court enumerated several factorsupon which it based the sentence. These factors include the nature of the crime committed,the fact that defendant's past behavior had been characterized by violent episodes, and the fact that society needed to be protected from the defendant. This Court has said that a sentencewithin the maximum authorized by statute is generally not cruel and unusual punishment. Statev. Karathanos (1972),158Mont. 461, 468, 493 P.2d 326. This Court has also said that the extent of punishment is vested in the sound discretion of the trial court. Petition of Amor (1963), 143Mont. 305, 389 P.2d 54. We note that the equitability of a sentence, as opposed to its legality, is a matter for the Sentence Review Board. State v. Metz (1979), Mont

# . I

In thepresent case, the sentencewas well within the statutory maximum. The judge outlined his reasons for the sentenceand these reasons do not include the defendant's decisiontogo totrial. The reasons given support the severity of the sentence given. There was no showing of abuse of discretion. Consequently, the defendant was not denied hisright toa trial. Pursuant tosection 46-18-221, MCA, the defendant was sentenced tofive additional years forthe commission of rape with a dangerous weapon. Because this statutory sectionwas not recited inthe charging document, defendant claims thathe was sentenced for a crime with which he was not charged. The SixthAmendment of the United StatesConstitution states: "In allcriminal prosecutions, the accused shallenjoy the right

# .. . tobe informed of the nature and cause of the accusation." It iswell accepted that a defendant must be fairly apprised of the crime he isbeing charged with and given a chance tobe heard. Cole v. Arkansas (1948), 333 U.S. 196, 201, 68 S.Ct. 514, 92 L Ed 644; Statev. Holt (1948), 121Mont. 459, 194P.2d 651. As a consequence, the charging document must charge the crime with certainty and precision. Statev. Hem (1923), 69 Mont. 57, 60, 220 P. 80. Section 46-11-401, MCA, is a statutory implementation of these generalprincipals and this statute outlines the necessary elements tobe included in a charging document. Section 46-18-221, MCA, imposes an additionalmandatory sentence upon a defendant found guilty of an offense while knowingly using a dangerous weapon. (Inthiscase, the defendant used

a knife.) The language of the statuteclearly indicates that it is only intended toprovide for an enhanced penalty once the defendant has been found guilty of an underlying offense. In addition, this statute is found inthe chapter of theCriminal Procedure Code which dealswith the sentencing of criminal defendants. Wehold that the statutedoes not provide for a separate, substantiveoffense. For cases from otherjurisdictions which have construedsimilar statutes as being sentencing rather than criminal statutes see: Statev. Petrich (1978),21Wash.App. 100, 583 P.2d 674; Brown v. District Court (Colo. 1977), 569 P.2d 1390, 1391;and In

re Culbreth (1976), 130 Cal.Rptr. 719, 551 P.2d 23, 25. The instant case doesnot present a situationwhere it is uncertain whether the legislature intended to create distinct offenses such as inWhitton v. State (Alaska1970), 479 P.2d 302, 305. Section 46- 18-221, MCA, only applies once a defendant has been found guilty of the underlying offense. The Utah Supreme Court addressed a similar problem in State

v. Angus (Utah 1978), 581 P.2d 992. The Utah Court said: "Wehave no disagreementwith the proposition that fairness and dueprocess of law require that the information against him be sufficient to clearly state the charge and bring him within the operation of the statutory penalty therefor. But his argument that the information must specifically set forth that the enhancement of penalty would be imposed if he was convicted iswithout merit. The punishment for a crime is not and has never been considered a part of the pleading charging a crime. The information is sufficient if it alleges either: (1)that the defendant is being charged under the enhancement statute,or (2) that a firearmwas used in the commission of the offense charged in the information. The trial by the jury is to determine the guilt or innocence of the defendant. After conviction, the penalty to be imposed is an entirely separate proposition to be determined by the court as a matter of law on the basis of the penalty prescribed by the statutes." 581 P.2d at 995. InAngus the information specifically alleged that the offense

was committed by use of a firearm and the Court found no denial of due process. In thepresent case the charging document mentions that the defendantwas armed with a knife while committing the crimes with which he was charged. The jury found the defendant guilty of aggravated burglary, which isdefined, in part, as committing burglary while being armed with a weapon. Section 45-6-204(2)(a), MCA. The jury was instructed as to this statute. As a result, the defendant was not denied dueprocess for lack of notice or lack of hearing.The defendant next contends that the additional five years imposed pursuant to section 46-18-221,MCA, subjected him to multiple punishments in violation of the double jeopardy clauses of the federal and state constitutions. InNorth Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L Ed 2d 656, the Supreme Court said that the double jeopardy clause 

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# ... Protects against multiple punishments for the same offense." It must be noted,however, that Pearce was concerned with whether the proscription against double jeopardywas violated when punishment already exacted for an offensewas not fully credited in imposing sentence upon a new conviction for the same offense. Pearce did not deal with whether double jeopardy applies when an enhancing statute is used to increase the punishment for an underlying offense. In Simpson

### v. United States (1978),435 U.S. 6, 98 S.Ct. 2d 909, 55 ~.~d/70, the Supreme Court was presented with this constitutional issue,but the case was decided on other grounds. The Supreme Court looked to legislative intent and found that Congress did not intend for the enhancement statute to be used in sentencing defendants convicted of certain crimes. 435 U.S. at 12-13. We find that there is no such intent expressed by section 46-18-221, MCA, which applies to "any offense." In Statev. Foster (1979),91Wash.2d 466, 589 P.2d 789, the Court considered a double jeopardy claim under a similar enhancement statute and said: 

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# . appellant contends that application of the firearm enhancement statute is violative of his rights under the double jeopardy clause of the fifth amendment to the United States Constitution. To support this contention, appellant citesNorth Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969),in which the United States Supreme Court stated that the FifthAmendment 'protects againstmultiple punishments for the same offense.' Neither Pearce nor the cases cited within it to support this cited proposition are apposite to the challenged statutory schemewhich provides for enhanced penalty based on the existence of an additional factor--the use of a firearm. In a recent case which presented a double jeopardy challenge to a federal statute imposingan additional penalty for the use of a firearm while committing a felony, the United States Supreme Court expressly declined to reach the constitutional issue. See Simpson v. United States, 435U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978). We are aware of no authority which supports appellant's claim of double jeopardy for this type of enhanced penalty scheme." 589 P.2d at 797. We apply the same reasoning to the present case. The statute in~rol-ved is merely an enhancing statute. It does not create or penalize the defendant for a separate offense. Thedefendant places a great deal of reliance on Whitton

v. State, supra. InWhitton the Alaska court felt that the legislaturemay have intended for the enhancement statute to be a separate distinct offense. They went on to hold

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. . thatAlaska's constitutionalprohibition against double jeopardyprevents one from receiving multiple prison sentences for the same offense."

This Court need not reach the question posed in Whitton, i.e. may a state imposemultiple prison sentences for the same offense. InWhitton, the court firstdecided that the enhancement statute might have been intended as a distinct, separate offense,with an attendant punishment. In the present case, the enhancement statutedoes not define a separat1.2, distinct offense. Consequently, there isnot, under section 46-18-221,MCA, the imposition of amultiple prison sentence arising from a single criminal offense. Rather, this statutemandates an increased prison sentence for a single, specific crime if a dangerous weapon is used by the de2~ndant. Therefore,no double jeopardy violation is involved. Affirmed.

Chief JusticeMr. Justice Daniel J. Shea will file a concurring opinion at a later date.