NO. 95-349

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,

Plaintiff and Respondent,

v.

THOMAS ZABAWA,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Daniel P. Buckley (argued) ; Berg, Lilly,

Andriolo & Tollefsen, Bozeman, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Micheal Wellenstein (argued), Ass't Attorney

General, Helena, Montana

Michael Salvagni, Gallatin County Attorney,

Gary Balaz, Deputy County Attorney,

Bozeman, Montana

Filed:

Submitted: June 27, 1996

Decided: November 21, 1996

1

Clerk
Justice Karla M. Gray delivered the Opinion of the Court.

Thomas Zabawa (Zabawa) appeals from the judgment and sentence

entered by the Eighteenth Judicial District Court, Gallatin County,

on his guilty plea to the offense of felony assault. We affirm.

Zabawa raises the following issues on appeal:

1. Did the District Court err in concluding that application

of § 46-18-221, MCA, commonly referred to as the weapon enhancement

statute, did not subject Zabawa to multiple punishments in

violation of the Double Jeopardy Clause of the Fifth Amendment to

the United States Constitution?

2. Did the District Court abuse its discretion in failing to

apply the exceptions to the mandatory minimum sentence contained in

§ 46-18-222, MCA?

The State of Montana (State) charged Zabawa with felony

assault, in violation of § 45-5-202(2) (a) or (b), MCA, in February

of 1995. Zabawa subsequently pled guilty to felony assault under

§ 45-5-202(2) (b), MCA, for pointing a rifle at his ex-wife, thereby

causing her reasonable apprehension of serious bodily injury.

Zabawa filed a sentencing memorandum challenging the

constitutionality of applying the weapon enhancement statute when

the underlying offense requires proof of use of a weapon as an

element of the offense. Specifically, Zabawa contended that

application of the weapon enhancement statute would subject him to

multiple punishments for the same offense in violation of the

Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution. He also argued that, if the District Court rejected

2
his constitutional argument, his sentence under the weapon

enhancement statute should be suspended pursuant to § 46-18-222,

MCA, which provides for exceptions to mandatory minimum sentences.

The District Court concluded that applying the weapon

enhancement statute did not subject Zabawa to multiple punishments

in violation of the Double Jeopardy Clause and that the § 46-18-

222, MCA, exceptions to mandatory minimum sentences were

inapplicable. The court sentenced Zabawa to a three-year

commitment to the Department of Corrections and Human Services

(Department) for the felony assault and an additional three-year

commitment for use of a firearm in commission of the assault, with

the sentences to run consecutively. Zabawa appeals.

1 . Did the District Court err in concluding that

application of § 46-18-221, MCA, commonly referred to as

the weapon enhancement statute, did not subject Zabawa to

multiple punishments in violation of the Double Jeopardy

Clause of the Fifth Amendment to the United States

Constitution?

Zabawa argues on appeal that the District Court erred in

concluding that application of the weapon enhancement statute did

not subject him to multiple punishments for the same offense in

violation of the Double Jeopardy Clause of the Fifth Amendment to

the United States Constitution and Article II, Section 25 of the

Montana Constitution. We review a district court's conclusions of

law to determine whether the court's interpretation of the law is

correct. State v. Gould (1995), 273 Mont. 207, 219, 902 P.2d 532,

540.

At the outset, we note that Zabawa cites the Double Jeopardy

Clauses of both the United States Constitution and the Montana

3
Constitution for his argument that enhancing his felony assault

sentence by applying the weapon enhancement statute constitutes a

prohibited multiple punishment for the same offense because the use

of a weapon is an element of the felony assault offense for which

he was convicted. He claims no greater protection from double

jeopardy under Article II, Section 25 of the Montana Constitution

than under the Fifth Amendment to the United States Constitution,

however, and relied entirely on federal interpretations under the

United States Constitution during oral argument; in Zabawa's view,

those interpretations supported his argument under that

Constitution. Accordingly, we address only the double jeopardy

protection afforded under the United States Constitution, leaving

for resolution in a future case which may present it the issue of

whether Article II, Section 25 of the Montana Constitution provides

greater protection from double jeopardy than is provided by the

United States Constitution. Given the posture in which this case

is presented, we are bound by the double jeopardy interpretations

of the United States Supreme Court.

In this regard, the dissent's characterization of State v.

Nelson (1996), 275 Mont. 86, 910 P.2d 247, and Buckman v. Montana

Deaconess Hospital (19861, 224 Mont. 318, 730 P.2d 380, is

misleading. In Nelson, a unanimous opinion issued less than ten

months ago, we deemed the Double Jeopardy Clauses of the Montana

Constitution and the United States Constitution coextensive, for

purposes of the case, because no greater protection from double

jeopardy was claimed therein under the Montana Constitution.

4
Nelson, 910 P.2d at 250. Pointedly, Nelson left for another day--

in a case presenting it--the issue of whether the Montana

Constitution affords greater double jeopardy protection than the

United States Constitution.

Nor is Buckman relevant here. There, the appellant relied on

the Contracts Clauses of both the Montana and United States

Constitutions for the same measure of protection in both the trial

court and this Court. We simply--and properly--chose to address

the issue under the Montana Constitution first and to turn to the

United States Constitution only in the event the case could not be

resolved on adequate and independent state grounds. Buckman, 730

P.2d at 384. For this Court to uphold the fundamental proposition

that the Montana Constitution "provides protection of rights

separate from the protection afforded by the federal constitution"

(see Buckman, 730 P.2d at 384) is a markedly different matter than

for this Court to sua soonte create--and then resolve--the issue of

whether the Montana Constitution provides greater protection, as

the dissent would have us do here. Thus, in this case, where

Zabawa claimed no greater protection from double jeopardy under the

Montana Constitution than under the United States Constitution, we

address only the federal constitutional issue presented.

The Double Jeopardy Clause of the Fifth Amendment to the

United States Constitution, applicable to the states through the

Fourteenth Amendment, generally protects against three distinct

abuses: a second prosecution for the same offense following an

acquittal; a second prosecution for the same offense following a

5
conviction; and multiple punishments for the same offense. Nelson,

910 P.2d at 250. Double jeopardy cases often focus on the "same

offense" issue. See, e.q., State v. Wolfe (1991), 250 Mont. 400,

821 P.2d 339; State v. Crowder (1991), 248 Mont. 169, 810 P.2d 299;

State v. Palmer (1983), 207 Mont. 152, 673 P.2d 1234. Here,

however, Zabawa contends that application of the weapon enhancement

statute is a multiple punishment prohibited by the Double Jeopardy

Clause.

Missouri v. Hunter (1983), 459 U.S. 359, 103 S.Ct. 673, 74

L.Ed.2d 535, is the United States Supreme Court's seminal case on

the multiple punishment aspect of the Double Jeopardy Clause. In

Hunter, the defendant robbed a convenience store in Kansas City,

Missouri, with a handgun. An off-duty police officer arrived at

the store and ordered the defendant and two accomplices to stop;

the defendant fired a shot at the officer and he and his

accomplices fled. Hunter, 459 U.S. at 360-61.

The defendant was apprehended, tried and convicted of robbery

in the first degree, armed criminal action and assault with malice.

Hunter, 459 U.S. at 361. A Missouri statute provided a minimum

sentence of five years' imprisonment for any person convicted of

robbery in the first degree "'by means of a dangerous and deadly

weapon."' Under another Missouri statute, any person who committed

a felony "'by, with, or through the use, assistance, or aid of a

dangerous or deadly weapon [was] also guilty of the crime of armed

criminal action"' with a mandatory minimum sentence of three years'

imprisonment. Hunter, 459 U.S. at 362.

6
The Missouri Court of Appeals, relying on Missouri Supreme

Court decisions, concluded that the defendant's sentences for both

robbery in the first degree and armed criminal action violated the

Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution and reversed the defendant's sentence for armed

criminal action. The Missouri Supreme Court denied review.

Hunter, 459 U.S. at 362-63

The United States Supreme Court noted that the Missouri

Supreme Court previously had construed the two statutes at issue as

"defining the same crime" and that the Missouri court recognized

that the legislature intended to provide for cumulative punishments

pursuant to these statutes. Hunter, 459 U.S. at 368. The Supreme

Court properly deferred to the Missouri court's interpretation of

the Missouri statutes at issue; however, the Supreme Court pointed

out that it was not bound by the Missouri court's legal conclusion

that the statutes violated the Double Jeopardy Clause. Hunter, 459

U.S. at 368.

The Supreme Court concluded that the Missouri Court of Appeals

had misperceived the nature of the Double Jeopardy Clause's

protection against multiple punishments. Hunter, 459 U.S. at 366

The Supreme Court held:

Where, as here, a legislature specifically authorizes

cumulative punishment under two statutes . . a court's

task of statutory construction is at an end and the

prosecutor may seek and the trial court or jury may

impose cumulative punishment under such statutes in a

single trial.

Hunter, 459 U.S. at 368-69. Thus,

[wlith respect to cumulative sentences imposed in a

7
single trial, the Double Jeopardy Clause does no more

than prevent the sentencing court from prescribing

greater punishment than the legislature intended.

Hunter, 459 U.S. at 366.

In Hunter, therefore, the Supreme Court unequivocally held

that, where legislative intent is clear, cumulative punishments

imposed in a single trial do not violate the Double Jeopardy Clause

of the Fifth Amendment to the United States Constitution. While

this holding appears to be at odds with long-held perceptions

regarding the double jeopardy prohibition against multiple

punishments, we are bound by it. Therefore, resolution of Zabawa's

double jeopardy argument depends on whether, in enacting § 46-la221, MCA, the Montana legislature intended to impose multiple

punishments where the underlying offense requires proof of the use

of a weapon as an element of the offense.

Section 46-18-221, MCA, provides in pertinent part:

(1) 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(l),

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.

Our role in construing statutes is to "ascertain and declare what

is in terms or in substance contained therein, not to insert what

has been omitted. .'I Section l-2-101, MCA. The intention of

the legislature is to be pursued. Section l-2-102, MCA. We do so

by interpreting the plain meaning of the words used by the

legislature in the statute. Clarke v. Massey (1995), 271 Mont.

8
412, 416, 897 P.2d 1085, 1088. Where the language is clear and

unambiguous, the statute speaks for itself and we will not resort

to other means of interpretation. Clarke, 897 P.2d at 1088.

Zabawa does not dispute that the I' in addition to the

punishment provided for the commission [of the underlying offense]"

language contained in § 46-18-221(l), MCA, indicates an intent by

the Montana legislature to impose multiple sentences when a weapon

is used in the commission of the underlying offense. He argues, in

essence, that the "any offense" language contained in the statute

does not include offenses which require proof of the use of a

weapon as an element of the offense. We disagree.

"Any j1 is defined as--and commonly understood to mean--"one, no

matter what one: EVERY[.] I1 WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY, 97

(1971). Thus, the plain meaning of "any offense" is "one offense,

regardless of which one." Adoption of Zabawa's interpretation of

the "any offense" language contained in § 46-18-221(l), MCA, would

require us to insert language limiting the "any offense" language

to "any offense which does not have as an element the use of a

weapon." We may not insert language which has been omitted from a

statute; therefore, adding such a limitation would exceed our

proper role in construing statutes. See § l-2-101, MCA.

Moreover, "we presume.that the legislature enacts a law with

full knowledge of all existing laws on the same subject. . .'I

Blythe v. Radiometer America, Inc. (19931, 262 Mont. 464, 475, 866

P.2d 218, 225. Here, the legislature used the "any offense"

language in 5 46-18-221, MCA, with full knowledge that numerous

9
offenses have the use of a weapon as an element. See, e.q., §§ 45-

5-202(2), 45-5-206(l) (b), and 45-5-211(l) (b), MCA. Despite that

knowledge, the legislature affirmatively chose to use the "any

offense" language without limitation. Accordingly, we conclude

that the "any offense" language used in 5 46-18-221, MCA, includes

offenses in which the use of a weapon is an element as well as

offenses which do not contain such an element.

During oral argument, Zabawa cited to State v. Trimmer (1985),

214 Mont. 427, 694 P.2d 490, in support of his position that the

"any offense" language contained in § 46-18-221(l), MCA, is

ambiguous. His reliance on Trimmer is misplaced.

In Trimmer, the defendant was convicted of misdemeanor assault

and sentenced to six months in jail and a $500 fine. The district

court also sentenced the defendant to two years in prison, to be

served consecutively to the six-month jail sentence, under the

weapon enhancement statute. Trimmer, 694 P.2d at 490-91.

On appeal, we interpreted the weapon enhancement statute

according to its plain language. & Trimmer, 694 P.2d at 491-92.

We noted that the weapon enhancement statute does not convert a

misdemeanor conviction into a felony conviction, but simply

provides for an additional sentence "tacked on to whatever sentence

is imposed for the conviction." Trimmer, 694 P.2d at 493. Because

a misdemeanor conviction can result in incarceration only in a

county jail, however, we determined that the requirement in the

weapon enhancement statute that the additional sentence be served

in a state prison indicated that the legislature intended the

10
statute to apply to felonies and not to misdemeanors. Trimmer, 694

P.2d at 493. We concluded that the language "in addition to"

referred to an underlying felony conviction over which a district

court has jurisdiction to sentence a defendant to a term in the

state prison. Trimmer, 694 P.2d at 493.

Our holding in Trimmer that the weapon enhancement statute

applies only to felonies was based on the plain and unambiguous

language contained therein. See Trimmer, 694 P.2d at 492.

Contrary to Zabawa's assertion here, we concluded that "any

offense" was clear and unambiguous when read in the context of the

entire statute. See Trimmer, 694 P.2d at 492. Nothing in Trimmer

supports limiting the "any offense" language in § 46-18-221, MCA,

to only those underlying felonies in which the use of a weapon is

not an element.

Zabawa also relies on Simpson v. United States (1978), 435

U.S. 6, 98 s.ct. 909, 55 L.Ed.2d 70, in support of his double

jeopardy argument. Simnson is inapplicable to the present case.

The petitioners in Simpson robbed two banks using handguns to

intimidate bank employees. They were convicted of aggravated bank

robbery, in violation of 18 U.S.C. § 2113(a) and (d), and using

firearms to commit a felony, in violation of 18 U.S.C. § 924(c).

The issue on appeal to the United States Supreme Court was whether,

in the case of bank robbery committed with a gun, Congress intended

to authorize not only the imposition of an increased penalty under

18 U.S.C. § 2113(d), but also the imposition of an additional

penalty under 18 U.S.C. § 924(c). Simpson, 435 U.S. at 8.

11
Simuson is a statutory construction case in which the Supreme

Court considered legislative history in determining Congressional

intent in enacting 18 U.S.C. 5 924(c). Simoson, 435 U.S. at 13-15.

It was not decided on double jeopardy grounds. Indeed, having

observed that the Blockburser test provides guidance for

determining whether two separately defined crimes constitute the

"same offense" for double jeopardy purposes, the Supreme Court

concluded that a Blockburser analysis is unnecessary where

Congress' intent regarding cumulative punishments is clear. See

Simoson, 435 U.S. at 11-12. Based on the legislative history, the

Supreme Court ultimately concluded that Congress did not intend for

a defendant to be sentenced cumulatively for aggravated bank

robbery and for the use of firearms to commit a felony in a

prosecution growing out of a bank robbery committed with the use of

firearms. Simpson, 435 U.S. at 16. The Supreme Court's

conclusion, based on the legislative history of federal statutes,

is not relevant to this Court's interpretation of the Montana

legislature's intent in enacting 5 46-18-221, MCA.

Zabawa also relies on Simuson for the principle that

ambiguities concerning the scope of criminal statutes should be

resolved in favor of lenity. We need not address Zabawa's lenity

argument because, as concluded above, the language contained in,

and the meaning of, § 46-18-221, MCA, are clear.

In summary, neither Trimmer nor Simpson supports Zabawa's

argument that application of the weapon enhancement statute in this

case results in impermissible multiple punishments in violation of

12
the Double Jeopardy Clause. The plain meaning of the language used

in § 46-18-221, MCA, reflects the Montana legislature's intent to

impose cumulative punishments where a firearm or other dangerous

weapon is used during the commission of an underlying offense.

Pursuant to Hunter, therefore, we conclude that, because the

legislature's intent is clear, the imposition of cumulative

sentences under § 45-5-202(3), MCA, and § 46-18-221(l), MCA, is not

prohibited by the Double Jeopardy Clause of the Fifth Amendment to

the United States Constitution. We hold that the District Court

correctly concluded that application of the weapon enhancement

statute did not subject Zabawa to multiple punishments in violation

of that Double Jeopardy Clause.

2. Did the District Court abuse its discretion in

failing to apply the exceptions to the mandatory minimum

sentence contained in § 46-18-222, MCA?

The mandatory minimum sentence under the weapon enhancement

statute is two years in the state prison, and that minimum can be

deferred or suspended only as provided in § 46-18-222, MCA.

Sections 46-18-221(l) and (3), MCA. Zabawa argued that the

mandatory minimum under the weapon enhancement statute should be

suspended pursuant to the exceptions to mandatory minimum sentences

contained in §§ 46-18-222(Z) and (3), MCA. The District Court

determined that the exceptions were inapplicable and sentenced

Zabawa to three years' commitment to the Department under the

weapon enhancement statute. Zabawa asserts that the court erred.

District courts have broad discretion in sentencing criminal

defendants. We review sentences only to determine whether the

13
court abused its discretion. State v. Graveley (1996), 275 Mont.

519, 521, 915 P.2d 184, 186 (citing State v. DeSalvo (1995), 273

Mont. 343, 346, 903 P.2d 202, 204).

Zabawa argues that he presented evidence to the District Court

which warranted application of the exceptions to mandatory minimum

sentences which are contained in §§ 46-18-222(2) and (3), MCA. The

exceptions contained in those subsections apply when, at the time

of the commission of the offense, a defendant's mental capacity was

significantly impaired or the defendant was acting under unusual

and substantial duress. Sections 46-l&3-222(2) and (3), MCA. We

need not address the merits of Zabawa's argument, however.

The statutory exceptions to mandatory minimum sentences allow

a sentencing court which would otherwise be required to impose the

minimum sentence to sentence a defendant to less than the minimum

sentence when the exceptions apply to the facts. State v. Nichols

(1986)) 222 Mont. 71, 82, 720 P.2d 1157, 1164. The exceptions do

not apply unless the sentencing court is initially predisposed to

sentence the defendant to the mandatory minimum sentence; when a

sentence greater than the mandatory minimum is imposed, the

statutory exceptions have no bearing. &g Gravelev, 915 P.2d at

188; Nichols, 720 P.2d at 1164.

Here, the District Court did not sentence Zabawa to the

mandatory minimum sentence of two years required by the weapon

enhancement statute; rather, it sentenced Zabawa to three years'

commitment to the Department. We conclude, therefore, that the

exceptions contained in § 46-18-222, MCA, are inapplicable in this

14
case

Zabawa also argues in this regard that the District Court

erred in failing to include in the judgment a written statement of

its reasons for declining to apply the exceptions to mandatory

minimum sentences, as required by fi 46-l&223(3), MCA. The State

contends, on the other hand, that the statute is inapplicable in

this case.

Section 46-18-223(3), MCA, provides:

If it appears by a preponderance of the information,

including information submitted during the trial, during

the sentencing hearing, and in so much of the presentence

report as the court relies on, that none of the

exceptions at issue apply, the court shall impose the

appropriate mandatory sentence. The court shall state

the reasons for its decision in writing and shall include

an identification of the facts relied upon in making its

determination. The statement shall be included in the

judgment.

We previously have concluded that it is not error for a district

court to fail to make findings on the exceptions to mandatory

minimum sentences when the court imposes a greater sentence than

the mandatory minimum. See State v. Stroud (1984), 210 Mont. 58,

78, 683 P.2d 459, 469 (citing State v. Zampich (1983), 205 Mont.

231, 667 P.2d 955). Accordingly, we conclude that Zabawa's

procedural argument under § 46-18-223, MCA, is without merit

We hold that the District Court did not abuse its discretion

in failing to apply the statutory exceptions to the mandatory

minimum sentence contained in 5 46-18-221(l), MCA.

Affirmed.
We concur:

16
Justice James C. Nelson specially concurs.

I agree with Justice Leaphart's position that we are not bound

to interpret Montana's Constitution in the same fashion that the

United States Supreme Court has interpreted similar or identical

counterparts in the federal constitution. I, nevertheless, also

believe that it is our obligation to decide the cases filed in this

Court on the basis of the issues and arguments raised by the

parties. In my view the best decisions result where both sides

have had the opportunity to vigorously argue and challenge the

positions and authorities of the other side. While the temptation

is often great to decide a~ case on the basis of the argument that

"should have been made," but was not, in blind-siding an issue we

run the very real risk of substituting advocacy for neutrality.

While referring to both the federal and state constitutions,

neither Zabawa nor Nelson advanced any argument or authority that

the protections afforded by the two constitutions, on the matter at

issue, were any different. Contrary to Justice Leaphart's dissent,

I fail to see how this Court can be accused of "refusing" to

address the merits of an issue that was neither raised nor argued.

We did not do that in Nelson and we do not do that here. The

merits of the different protections afforded by the federal and

Montana Constitutions, if any, remains open.

That said, it follows that if there are legitimate bases for

interpreting Montana's Constitution in a manner different than that

suggested by federal precedent, then it is incumbent upon the party

advocating that position to specifically raise that issue in the
Justice W. William Leaphart, dissenting.

I dissent from the Court's back-handed analysis of the Montana

Constitution. The Court characterizes the question presented as

solely one of whether application of the weapon enhancement

statute, § 46-18-221, MCA, violates the Double Jeopardy Clause of

the Fifth Amendment to the United States Constitution. In framing

the issue thusly, the Court overlooks the fact that Zabawa claims

that the weapon enhancement statute violates both the Fifth

Amendment of the United States Constitution and Article II, Section

25 of the Montana Constitution.

The Court limits its analysis of Zabawa's double jeopardy

claim to the Fifth Amendment on the basis that Zabawa failed to

claim greater protection under the Montana Constitution than under

the Fifth Amendment. In Justice Nelson's concurring opinion he

agrees with this reasoning and asserts that the absence of

"persuasive authority and reasoned argument" in Zabawa's Montana

constitutional claim prohibits the Court from addressing an

otherwise laudable distinction between the Montana Constitution and

the United States Constitution.

Neither the Court's nor Justice Nelson's approach withstands

scrutiny. In challenging the weapon enhancement statute, Zabawa

clearly relied on both the Fifth Amendment and the Montana

Constitution, Article II, Section 25. Accordingly, Zabawa raised

an issue as to what protections are afforded under Article II,

Section 25 of the Montana Constitution. While recognizing that

19
Zabawa did invoke the Montana Constitution, the Court takes the

position that we are somehow bound by defense counsel's

interpretation of Article II, Section 25, as being co-extensive

with the Fifth Amendment. I disagree entirely. Since counsel has

raised and relied upon a provision of the Montana Constitution, it

is incumbent upon this Court to interpret the meaning of that

provision regardless of whether we agree with counsel's

interpretation or not.

As mentioned above, the Court purports to interpret only the

Fifth Amendment and not the Montana Constitution. However, unless

the Court is completely ignoring the fact that Zabawa invoked

Article II, Section 25, as well as the Fifth Amendment, we have to

assume that the Court, sub silento, addresses the state

constitutional issue by interpreting Article II, Section 25, as coextensive with the Fifth Amendment and that it is therefore "bound"

by the double jeopardy interpretations of the United States Supreme

Court. Despite its protestations to the contrary, the Court has,

by necessary implication, interpreted Article II, Section 25, as

being co-extensive with the Fifth Amendment.

If, as I believe, Article II, Section 25, in contrast to the

Fifth Amendment, actually affords some protection against multiple

punishments, it is time that we stop perpetuating this case-by-case

line of authority to the effect that Article II, Section 25, and

the Fifth Amendment are co-extensive. It is fast becoming a selffulfilling prophecy.

I vehemently disagree with the proposition that we are bound

20
to interpret our constitutional prohibition against double

punishment in the same fashion that the United States Supreme Court

has interpreted the Fifth Amendment to the United States

Constitution. In particular I disagree with the interpretation

that multiple punishments for the same offense are not prohibited

by the Double Jeopardy Clause if that is what the legislature

clearly intended.

Not until State v. Nelson (1996), 275 Mont. 86, 90, 910 P.2d

247, 250, has this Court refused to distinguish protections

afforded under the Montana Constitution from those afforded under

the United States Constitution for the sole reason that an

appellant failed to claim greater protection under the Montana

Constitution. In Buckman v. Montana Deaconess Hospital (19861, 224

Mont. 318, 730 P.2d 380, which involved the constitutionality of

applying a new statutory scheme to lump-sum payments under the

Workers' Compensation Fund, the appellant did not argue that the

Montana Constitution's contract clause afforded her any greater

protection than the United States Constitution's Contract Clause.

Nevertheless, the Court recognized that the State Constitution

provides protection of rights separate from the protection afforded

by the Federal Constitution. Buckman, 730 P.2d at 384 (citing

State v. Johnson (1986), 221 Mont. 503, 513, 719 P.2d 1248, 1254-

55; Pfost v. State (1985), 219 Mont. 206, 215, 713 P.2d 495, 500-

501 (overruled on other grounds); Madison v. Yunker (1978), 180

Mont. 54, 60, 589 P.2d 126, 129).

The Buckman Court examined the Montana contract clause before

21
examining the United States Constitution's Contract Clause to

ascertain if there were independent state grounds to resolve the

issue. Buckman, 730 P.2d at 384. Acknowledging that the Court in

the past had generally interpreted the state and federal contract

clauses as interchangeable guarantees of individual rights, the

Court nevertheless chose to interpret the Montana contract clause

independently of the United States Constitution's Contract Clause.

The appellant in Buckman did not claim greater protection under the

Montana Constitution and yet the Court analyzed the contractual

implications on state constitutional grounds before turning to

federal interpretations of constitutional protection. Buckman, 730

P.2d at 384.

Whether or not an appellant claims greater protection under

the Montana Constitution than under the United States Constitution

in any given case should not be dispositive of whether this Court

examines the individual rights guaranteed under the Montana

Constitution independently of the guarantees in the United States

Constitution. The Montana Supreme Court has the inherent power and

obligation to interpret the Montana Constitution and to protect

individual rights. &, e.s., State v. Finley (Mont. 1996), 915

P.2d 208, 53 St.Rep. 310.

Not only does this Court have the inherent power to interpret

the Montana Constitution, but it is also free to interpret the

State Constitution's provisions differently than the United States

Supreme Court interprets similar provisions in the United States

Constitution. As noted by the Court in Buckman: "[fledera cases

22
cited are relied on for their analytical persuasiveness but in no

way mandate our decision." Buckman, 730 P.2d at 384. In other

words, in interpreting the State Constitution, we are not "bound"

by federal case law interpreting similar provisions in the United

States Constitution.

As I stated in my dissent to Finley in arguing against

applying the United States Supreme Court's pronouncements

concerning the Fifth Amendment right against self-incrimination to

Article II, Section 25 of the Montana Constitution:

As long as we guarantee the minimum rights guaranteed by

the United States Constitution, we are not compelled to

march lock-step with pronouncements of the United States

Supreme Court if our own constitutional provisions call

for more individual rights protection than that

guaranteed by the United States Constitution.

Finley, 915 P.2d at 224 (citing State v. Sierra (1985), 214 Mont.

472, 476, 692 P.2d 1273, 1276).

This Court in the past has refused to "march lock-step" with

the United States Supreme Court where constitutional issues are

concerned, even if the applicable State Constitution provisions are

identical or nearly identical to those of the United States

Constitution. State v. Johnson (1986), 221 Mont. 503, 512, 719

P.2d 1248, 1254. In Johnson, this Court held that a defendant had

invoked his right to counsel under the Montana Constitution when he

asked an arresting officer, after being read his rights, if he had

"the right to address somebody," and subsequently stated that he

"would like to talk to somebody." This holding deviated from the

United States Supreme Court's decision in Fare v. Michael C.

(1979), 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197, which held

23
that only a specific request for counsel invokes a defendant's

constitutional right to counsel. In Johnson, the Court recognized

that in previous criminal law decisions the Court had held that

when a Montana constitutional provision tracts the federal

counterpart (e.g., privilege against self-incrimination), the

decisions of the United States Supreme Court delineate the maximum

breadth of the right. Nevertheless, the Court noted that in the

civil arena it had,

forged ahead independent of the United States Supreme

Court in civil matters which involve constitutional

issues, even where our constitutional provisions are

identical or nearly identical to those of the United

States Constitution.

Johnson, 719 P.2d at 1254. Thus, in Johnson, the Court saw no

reason not to pursue its own resolution of constitutional matters

in criminal cases, finding that "[wlhere state and federal

constitutional provisions are identical, each is enforceable in its

own respective sphere .'I Johnson, 719 P.2d at 1255 (citing

Emery v. State (1978), 177 Mont. 73, 79, 580 P.2d 445, 448; Madison

v. Yunker (1978), 180 Mont. 54, 60, 589 P.2d 126, 129).

Thus, states may interpret their own constitutions to

afford greater protections than the Supreme Court of the

United States has recognized in its interpretations of

the federal counterparts to state constitutions.

Johnson, 719 P.2d at 1254 (citing City and County of Denver v.

Nielson (Cola. 1977), 572 P.2d 484). The Court went on to say that

federal rights are considered minimal and a state constitution may

be more demanding than the equivalent federal constitutional

provision and this is true even though our state constitutional

language is substantially similar to the language of the United

24
States Constitution. Johnson, 719 P.2d at1254-55 (citing Deras v.

Myers (Or. 1975), 535 P.2d 541, 549 n.17; Pfost, 713 P.2d at 500-

501 (overruled on other grounds)).

Other state courts have declined to follow the United States

Supreme Court's interpretation of double jeopardy protection where

its interpretation does not adequately preserve the rights and

interests sought to be protected. See Hawai'i v. Lessary (1994),

865 P.2d 150. The Hawai'i Supreme Court held that it was not bound

to give the Hawai'i Constitution the same interpretations as those

given under the United States Constitution despite the fact that

the Hawai'i double jeopardy clause was virtually identical to the

United States Constitution's Double Jeopardy Clause. Lessarv, 865

P.2d at 154. The Hawai'i Supreme Court interpreted the Hawai'i

Constitution as affording the defendant greater protection against

multiple prosecutions than the defendant would have been afforded

under United States v. Dixon (1993), 509 U.S. 688, 113 S.Ct. 2849,

125 L.Ed.2d 556. The Hawai'i Court agreed with the dissenters in

Dixon that individuals should be protected against multiple

prosecutions even when multiple punishments are permissible under

the "same elements" test and therefore the Court held that the

decision in Dixon did not adequately protect individuals from being

"subject for the same offense to be twice put in jeopardy."

Lessarv, 865 P.2d at 155.

Just as the Hawai'i Court declined to adopt federal

interpretations of the Double Jeopardy Clause in Dixon, I would

decline to adopt the United States Supreme Court's interpretation

25
of the "multiple punishment" element of the Double Jeopardy Clause

in Missouri v. Hunter (19831, 459 U.S. 359, 103 S.Ct. 673, 74

L.Ed.2d 535. Instead, I interpret the double jeopardy clause of

Article II, Section 25 of the Montana Constitution, as providing

substantive protection against multiple punishments irrespective of

any legislative enactments.

In Hunter, the United States Supreme Court upheld two

sentences imposed in a single trial under two separate state

statutes, one that punished armed robbery, and one that punished

"armed criminal action." Hunter, 459 U.S. at 362. Using the test

from Blockburger v. United States (1932), 284 U.S. 299, 304, 52

S.Ct. 180, 182, 76 L.Ed. 306, 309, the Court held that the statutes

were presumptively the "same offense" because neither provision

required proof of a fact which the other did not, but the Court

also found that the state legislature had nevertheless specifically

authorized cumulative punishment under the two statutes. Hunter,

459 U.S. at 368-69.

The Court held that the Double Jeopardy Clause of the Fifth

Amendment merely prevents the sentencing court from prescribing

greater punishment than the legislature intended. Hunter, 459 U.S.

at 366. In interpreting the Fifth Amendment, the Court in Hunter

held that, where legislative intent is clear, cumulative

punishments imposed in a single trial do not violate the Double

Jeopardy Clause.

In my view, we do a grave disservice to the framers of the

Montana Constitution when we hold that a constitutional provision

26
means nothing more than what the legislative branch intends it to

mean. Constitutional guarantees are not mere vessels to be left

empty or filled at the whim of the legislative branch. Rather,

they have intrinsic meaning which is independent of any legislative

intent. Contrary to this Court's characterization of the issue,

the question is not whether Article II, Section 25 of the Montana

Constitution provides "greater protection" from double punishment

than does the Fifth Amendment, the question is whether it provides

any protection independently of what the legislature chooses to

provide.

This Court, in following the lead of the United States Supreme

Court in Hunter, has, in effect, held that the question of whether

cumulative punishments for the same offense are permissible is

merely a question of legislative intent. In other words, there is

no constitutional prohibition whatsoever. In the view of this

Court, the question of whether multiple punishments are permitted

is resolved through statutory rather than constitutional

interpretation. The Court has rewritten the constitution so that

it proscribes multiple punishments for the same offense unless the

legislature provides to the contrary. The legislative intent

exception swallows the constitutional guarantee. I reject the

notion that our constitutional guarantee against multiple

punishments for the same offense means nothing more than what the

most recent legislative body has decreed it to mean.

The question of whether the weapon enhancement provision

violates the constitution is not a question of legislative intent.

27
Rather, it is a question of whether enhancement constitutes

punishment for the "same offense" as the underlying offense of

felony assault. This requires application of the Blockburqer test

to determine whether the elements of the weapon enhancement statute

are subsumed within the elements of the felony assault statute.

The "element" or constituent part of the weapon enhancement

statute, § 46-18-221, MCA, is singular; that is, it merely requires

that the defendant display, brandish, or use a firearm, destructive

device, or other dangerous weapon in the commission of any offense.

The requirement that he be convicted of "any offense" is merely a

prerequisite of the sentencing enhancement.

The underlying charge in this case was felony assault under §

45-5-202(2) (b), MCA, which provides as follows:

(2) A person commits the offense of felony assault

if he purposely or knowingly causes:

ibj reasonable apprehension of serious bodily

injury in another by use of a weapon . .

Thus, given the charge of felony assault, the State was required to

prove that Zabawa used a weapon to cause reasonable apprehension of

serious bodily injury. Use of a weapon is the exact same conduct

required to enhance Zabawa's sentence under § 46-18-221, MCA.

Because the State would not be required to prove any additional

facts in order to have Zabawa's sentence enhanced, it is apparent

that the weapon enhancement statute is subsumed within the offense

of felony assault.

Under the Blockburqer test, when the same act violates two

different statutes, the inquiry for determining if there are two

28
offenses or only one is "whether each provision requires proof of

a fact which the other does not." Blockburser, 284 U.S. at 304.

Clearly, the weapon enhancement statute does not require proof of

a fact which is not required under the charge of felony assault.

Since the weapon enhancement statute is subsumed within the felony

assault charge, the two are the same for double jeopardy purposes

and punishment cannot be had for both.

Not only is this Court not required to "march lock-step" with

the United States Supreme Court's interpretation of the

constitutional protection against double jeopardy in Hunter, but

where a federal interpretation fails to afford adequate

constitutional protection and is also subject to faulty analysis,

this Court should turn to the Montana Constitution in an effort to

afford adequate protection on independent state grounds. The

Supreme Court's rule in Hunter, that legislative intent controls

the parameters of the protection of the Double Jeopardy Clause,

rests on unconvincing precedent.

Hunter relied primarily on two United States Supreme Court

decisions, one of which is Whalen v. United States (1980), 445 U.S.

684, 100 S.Ct. 1432, 63 L.Ed.2d 715. In Whalen, the defendant was

convicted of first degree "felony murder" on the theory that he

murdered his victim during the perpetration of a rape. He was also

convicted of the rape. The United States Supreme Court held that

consecutive sentences could not be imposed for both crimes on the

ground "that Congress did not authorize consecutive sentences for

rape and for a killing committed in the course of the rape . .'I

29
Whalen, 445 U.S. at 693. Further, 11 [tlhe Double Jeopardy Clause at

the very least precludes federal courts from imposing consecutive

sentences unless authorized by Congress to do ~0.~~ Whalen, 445

U.S. at 689 (emphasis added). "This is not to say that there are

not constitutional limitations upon this [legislative] power."

Whalen, 445 U.S. at 689 n.3 (citations omitted). Contrary to the

suggestion in Hunter, Whalen does not hold that had Congress

intended consecutive punishments for both the rape and the murder

it would have been constitutionally permissible.

Hunter also relied on Albernaz v. United States (1981), 450

U.S. 333, 101 s.ct. 1137, 67 L.Ed.2d 275. The dissent in Hunter

correctly points out that the majority relied on dicta in Albernaz

for the basis of its holding that cumulative punishment does not

violate the Constitution so long as it is authorized by the

legislature. Hunter, 459 U.S. at 371 n.3 (Marshall, J.

dissenting). In Albernaz, the Court held that multiple punishments

for convictions for conspiracy to import marijuana and conspiracy

to distribute marijuana did not violate the Double Jeopardy Clause

because Congress intended to permit the imposition of consecutive

sentences under the two statutes at issue. Albernaz, 450 U.S. at

344. Albernaz, like Blockburqer, involved a case where one

transaction resulted in the defendants' convictions for more than

one crime. The crimes were distinguishable on the basis that each

required an element the other did not. The offenses were not

subsumed one within the other. Thus, Albernaz presented a

different situation than Hunter or the present case wherein one of

30
the statutes (Missouri's "armed criminal action" statute and

Montana's dangerous weapon enhancement statute) is subsumed within

the other. The issue in Hunter and in the case before us is

whether the double jeopardy prohibition precludes punishing a

defendant under a separate statute whose only element is a

necessary element of the underlying crime. In light of its

misapplication of precedent and its conclusion that the

constitutional prohibition against multiple punishments is merely

a matter of legislative intent, I would hold that Hunter is not

persuasive, and certainly not binding, precedent as far as Article

II, Section 25 of the Montana Constitution is concerned. Instead

I would hold that the Article II, Section 25 prohibition against

multiple punishments has inherent meaning, irrespective of any

expression of legislative intent. The double jeopardy clause in

Article II, Section 25, limits the power of all branches of

government, including the legislature. Whether the legislature

intends multiple punishments or not, as a matter of state

constitutional law, such cumulative punishment is proscribed under

the double jeopardy clause.

If weapon enhancement of Zabawa's sentence for assault "with

a weapon" does not constitute double punishment for the same

offense, I cannot envision any circumstance which would.

II

Even assuming, aryuendo, that the Court is correct in

abdicating its responsibility to the legislature to interpret the

state constitution, it should only do so when the expression of

3 1
legislative intent is clearly indicated. Hunter, 459 U.S. at 366.

I seriously question whether the legislature, in enacting 5

46-18-221, MCA, clearly intended to apply weapon enhancement to an

offense such as this. Section 46-18-221, MCA, on its face, applies

to "any offense." Literally, there is no question but that, this

all encompassing language includes felony assault. However, since

the legislature failed to distinguish between offenses which do not

require use of a weapon and those which do, I question whether it

is "clear" that the legislature intended to apply weapon

enhancement to an offense which itself requires proof of a weapon.

This Court has already had occasion to decide whether the

phrase "any offense" in § 46-18-221, MCA, means literally "any"

offense and we held that it did not. In State v. Trimmer (1985),

214 Mont. 427, 694 P.2d 490, we held that "any offense" applies to

felonies but not to misdemeanors since an enhancement of two to ten

years in the state prison would be internally inconsistent with the

definition of a misdemeanor as an offense which is punishable by

imprisonment in the county jail. Thus, Trimmer establishes that

"any" does not literally mean "any" offense; it means any "felony

offense."

The majority rejects the notion that Trimmer stands for the

proposition that the "any offense" language in § 46-18-221(l), MCA,

is ambiguous and claims that the Court in Trimmer interpreted the

weapon enhancement statute according to its plain language.

However, the majority does not interpret the weapon enhancement

statute solely according to its "plain language." Rather it

32
resorts to § 45-2-101(41), MCA, which defines a misdemeanor offense

as one which is punishable by imprisonment in the state prison for

a term of one year or less to conclude that "any offense" only

applies to felony offenses. Reading the weapon enhancement statute

in conjunction with this state's constitutional guarantee against

multiple punishment does not deviate from a plain reading of the

statute any more than does a reading in conjunction with the

statutory definition of misdemeanor.

I submit that, if the definition of misdemeanor compels a

narrowing of the phrase "any offense," certainly Article II,

Section 25's prohibition against double punishment demands the same

deference. That is, that "any offense" means any offense which

does not itself require use of a weapon.

In determining whether the legislature intended to impose

cumulative punishments for the same conduct, the United States

Supreme Court has consistently relied on the test of statutory

construction stated in Blockburser. The assumption underlying the

Blockburser rule is that Congress ordinarily does not intend to

punish the same offense under two different statutes. Ball v.

United States (19851, 470 U.S. 856, 861, 105 S.Ct. 1668, 1671, 84

L.Ed.2d 740, 746; Whalen, 445 U.S. at 692.

Accordingly, where two statutory provisions proscribe the

"same offense," they are construed not to authorize

cumulative punishments in the absence of a clear

indication of contrary legislative intent.

Whalen, 445 U.S. at 692.

In Ball -I the Court examined the statutory language and the

legislative history and held that Congress did not intend a

33
convicted felon caught with a weapon to be punished under separate

statutes, one for receiving a firearm, and one for possessing it.

Applying the Blockburaer rule, the Court found that proof of

illegal receipt of a firearm necessarily includes proof of illegal

possession of that weapon and that, therefore, Congress did not

intend to subject felons to two convictions. -IBall 470 U.S. at

862. Because one offense was entirely subsumed within the other,

the Court presumed that Congress did not intend cumulative

punishments for the same offense.

Another canon of statutory construction used by the United

States Supreme Court to divine legislative intent identifies the

social evils sought to be addressed by each offense. a, e.q.,

United States v. Woodward (1985), 469 U.S. 105, 109, 105 S.Ct. 611,

613, 83 L.Ed.2d 518, 522 (currency reporting and false statement

statutes directed to separate evils); Albernaz, 450 U.S. 333, 343

(separate statutes proscribing conspiracy to import and to

distribute marijuana are directed to separate evils). This method

assumes the legislature would intend statutes to apply separately

only if each statute prohibits a distinct evil.

In the present case, Zabawa is being punished for felony

assault under § 45-5-202(2) (b), MCA, because he used a weapon when

he purposely or knowingly caused his ex-wife reasonable

apprehension of serious bodily injury. If he had caused his exwife to suffer reasonable apprehension of bodily injury without use

of a weapon he would have been charged with misdemeanor assault

under § 45-5-201(l) cd), MCA, punishable by a maximum of a six-month

34
county jail sentence or a $500 fine, or both.

The Montana legislature has already addressed the separate

evils of assault with or without a weapon and has provided

different punishments for the separate offenses. Assault with a

weapon is a felony offense carrying the possibility of twenty years

in the state prison compared to assault without a weapon carrying

a maximum jail sentence of six months. The legislature clearly

intended to address these separate crimes by creating two distinct

assault offenses. The legislature has already provided punishment

for the evil inherent in the use of a weapon in an assault. It

cannot be said that the weapon enhancement statute is designed to

address any separate or distinct evil. On the contrary, it

addresses precisely the same evil, use of a weapon.

The majority has cited the proposition that "we presume that

the legislature enacts a law with full knowledge of all existing

laws on the same subject. . _'I The United States Supreme Court

did not decide Hunter until 1983. Thus, when the Montana

legislature enacted the weapon enhancement statute in 1977, it

would not have assumed that Article II, Section 25, allows

cumulative punishments if so intended by the legislature. Rather,

in that pre-Hunter time period, the legislature would have assumed

that the state constitutional prohibition against multiple

punishments was exactly that: i.e.--an absolute prohibition against

multiple punishments for the same offense.

Another indication that the Montana legislature did not intend

to circumvent citizens' rights to be free from double jeopardy is

35
the fact that the legislature has afforded defendants greater

protection from double jeopardy in the double prosecution context.

In State v. Tadewaldt (Mont. 19961, 922 P.2d 463, 53 St.Rep. 635,

this Court recognized that § 46-11-504(l), MCA, affords defendants

greater protection from double punishment than afforded by the

United States Constitution as interpreted in Blockburqer.

Tadewaldt, 922 P.2d at 467. The fact that the legislature provided

Montana citizens greater protection from double jeopardy in the

double prosecution context belies the Court's assumption that the

legislature clearly intended to deprive Montanans of protection

from "double punishment" through application of the weapon

enhancement statute to offenses which necessarily include use of a

weapon.

The weapon enhancement statute should, and could, be

interpreted to apply only to offenses which do not themselves

require proof of use of a weapon. Such an interpretation would

leave the statute intact and would not offend the double jeopardy

clause.

Justices William E. Hunt, Sr. and Terry N. Trieweiler join in the

foregoing dissent.

I

/

Jus ices

36