No. 83-354 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1.984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDOUGLAS TRIMMER, 

Defenda.nt and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Conner, Baiz & Olson; Kenneth R. Olson argued, Great 

Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Jim McLean argued, Asst. Atty. General, Helena 

J. Fred Bourdeau, County Attorney, Great Falls, 

Montana; Jerry Guenther, Deputy County Atty., 

Great Falls, Montana 

Submitted: July 26, 1984 

Decided: January 4, 1985 

Filed: JAN 4 - 1985 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Defendant, Douglas Trimmer appeals from a sentence 

imposed hy the Cascade County District Court for a conviction 

of misdemeanor assault. The trial court sentenced defendant 

to the maximum 6 months in jail and $500 fine based on the 

penalty provided for misdemeanor assault ($ 45-5-201, MCA). 

The court then invoked the sentence enha~cement statute, S 

46-18-221, MCA, held that its application was mandatory 

because defendant committed the negligent assault with a 

weapon, and sentenced defendant to the minimum permitted, two 

years in prison. Based on the provisions of the enhancement 

statute, the 2-year sentence in prison was ordered served 

consecutively to the 6-month jail sentence. Although defendant raises several issues, one of them is dispositive. We 

hold the sentence enhancement statute applies only to felonies and the trial court erred in applying it to defendant's 

conviction for misdemeanor assault. We vacate the sentence 

and remand for resentencing. 

The State charged defendant with felony assault under S 

45-5-201, MCA, a charge that he purposely or knowingly 

wounded several people with a rifle. The jury, however, was 

instructed on both felony aggravated assault and the lesser 

included misdemeanor offense of assault--a charge that 

defendant negligently assaulted several people with -- a weapon. 

See 5 45-5-201, MCA. The jury expressly acquitted defendant 

of felony assault but did convict defendant of misdemeanor 

assault. The maximum permissible penalty for misdemeanor 

assault is 6 months in jail and a $500 fine (§ 45-5-201(2), 

MCA) . 
At the sentencing hearing the court imposed the maximum 

6-month jail term and $500 fine on defendant, but went a step 

further and told defendant that the court must also apply S 

46-18-221, MCA, the sentence enhancement statute. This 

enhancement statute, in certain circumstances where a crime 

has been committed with a weapon, mandates an additional 

minimum 2-year prison sentence and a maximum 1-0-year prison 

sentence. Defendant protested that the sentence enhancement 

statute did not apply to misdemeanor convictions, and raised 

other obiections, but each objection was overruled. The 

trial court then sentenced defendant to a minimum 2-year 

prison sentence at the state prison. Because the enhancement 

statute requires the sentences to be served consecutively to 

the sentence i-mposed for the underlying crime, the trial 

court ordered that the 2-year prison sentence be served 

consecutivel.y to the 6-month jail sentence. Defendant i.s out. 

on bond pending this appeal. 

Defendant asserts both statutory and constitutional 

grounds in arguing the additional sentence imposed was improper. Defendant first contends that the sentence enhancement statute applies only to felonies and therefore could not 

he applied to his conviction of misdemeanor assault. Assuming the statute does apply, however, defendant attacks the 

sentence on several constitutional. grounds. He argues that 

as applied to his misdemeanor conviction, the sentence constitutes cruel and unusual punishment in violation of both 

the United States and Montana Constitutions. Defendant also 

contends the sentence violates Art. 11, § 22 of the Montana 

Constitution because it constitutes excessive punishment. 

Defendant further arques that the statute, as applied to 

misdemeanors, is overbroad and vague, and denies him due 
process of law and equal protectjon of the law because it 

contains no provision for notifying a defendant the statute 

will be appl ied to misdemeanors. Finally, defendant argues 

the sentence was imposed in violatj-on of the correctional 

policy of Article 11, § 22, 1972 Montana Constitution, and of 

5 46-18-101, MCA, which attempts to set forth a statutory 

policy consistent with the Constitution. 

In vacating the sentence we decide only the issue of 

v~hether the sentence enhancement statute ($ 46-18-2211 a.pplies to misdemeanors. Defendant argues that the statute on 

its face can he construed to apply to misdemeanors hecause of 

the language "any offense," but that the legislature did not 

intend it to be so applied. The State, on the other hand, 

argues that the language "any offense," clearly indicates 

that the statute applies to misdemeanors, and further, that 

if this Court gets to the issue of construing the statute by 

referring to the legislative proceedings, those proceedi.ngs 

establish an intent that misdemeanors also are covered by the 

enhancement statute. Although we aaree with the defendant 

that the legislative proceedings establish an intent by the 

legislature to apply the enhancement statute only to 

felonies, we conclude that the statute, on its face, applies 

only to felonies. All that is required to reach this 

conclusion is to read the statute in its entirety. 

Although the facts leading to the iury verdict do not 

bear on our decision on these questions of law, a short 

recitation of the facts helps to place the jury verdict in 

focus . 

On July 11, 1982, defendant and a friend went to an 

"after hours" kegqer party at a house in Great Falls. Shortly after their arrival, a fight broke out between Robert 
Lingafelter and some of the partygoers. Defendant was not 

involved in this scuffle. Defendant came out of the house 

and he saw Lingafelter lying on the lawn across the street. 

Defendant went to Lingafelter, helped him up, and told him to 

go home. Lingafelter did go home, but only to return shortly 

with a high-powered rifle. 

Defendant was inside the house when he heard a shot 

Lingafelter had fired into the air. Mass confusion followed 

and defendant went outside and saw Lingafel-ter with the 

rifle. Another partygoer, Daniel Johns, convinced 

Lingafelter to put the rifle down, and when he did so defendant grabbed it and began unloading it. Defendant got one 

live shell out and then the rifle jammed. Defendant 

dischambered a second live shell, despite attempts by Johns 

to grab the rifle. The defendant ran down a nearby alley 

with the rifle and began toyinq with it by raising it to his 

shoulder and watching through the scope the events at the 

house, some 20-30 yards away. Defendant testified that 

although he did not remember pulling the trigger, the rifle 

suddenly fired. Three people standing in the yard were 

seriously wounded. Fortunately, no one was killed. 

Essentially based on these events, defendant was charged 

with felony aggravated assault and the jury acquitted him of 

this charge, although the jury convicted defendant of negligently committing an assault upon the three wounded persons 

"with -- a weapon." 

Defendant seems to argue that on its face the sentence 

enhancement statute does apply to misdemeanors because of the 

language -- "3 offense." But defendant contends that the 

legislative history of the statute shows it was not intended 

to apply to misdemeanors, and that to do so would reach the 
absurd result of effectively converting a misdemeanor conviction into a felony conviction hy imposing a sentence that 

falls within the parameters of 2 felony sentence. The State 

contends, on the other hand, that the character of an offense 

as a felony or as a misdemeanor is fixed only at the time of 

sentencing when the judqe imposes the sentence and, therefore, that the legislature must have intended the enhancement 

statute to cover misdemeanors as well as felonies. For this 

outrageous assertion, the State inappropriately relies on 

State v. Maldondgo (1978), 176 Mont. 322, 578 ~.2d 296, a 

4 cs 

case that in no way supports a conc3.usion tha-t offenses in 

Montana are unclassified until. the time of sentencing. 

The State, with Maldonado as its first premise, then 

agrees that the statutory language -- "any offense" -- can 

only lead to the conclusion that the statute also applies to 

misdemeanors. With this so-cal.led clear la~quage a.s its 

premise the State then argues that this Court must adhere to 

the plain meaning of the statute and cannot insert what has 

been omitted or omit what has been inserted. We agree with 

the State that the meaning of the statute is plain on its 

face, but the clarity we see is not the clarity the State 

sees. We reach our decision based on a reading of the entire 

statute rather than simply relying on the language "any 

offense. " 

The sentence enhancement statute, S 46-18-221, MCA, 

provides in part: 

"Additional sentence for offenses committed with a 

dangerous weapon. (1) A person who has been found 

guilty of any offense and who, while engaged in the 

commission of the offense, knowinqly displayed, 

brandished, or otherwise used a firearm, destructive device, as defined in 45-8-332 (1) , or other 

dangerous weapon shall, in addition -- to the punish- 

--- merit -. . - - . - for - - - - the - - commission~f - - -- such offense, he -- sentenced - to a term of imprisonment in the sta-te 
prison of ---- not less than 2 years ---- or more than 10 

years, except as provided in 46-18-222." (Emphasis 

added. ) 

The State pulls the language in the statute--"any 

offensen--totally out of context, and then proceeds to argue 

the statute must apply to misd~meanors as well as to felonies. Rut the State ignores the remaining language of the 

statute, which, when read in context, shows to any reasonable 

mind, the statute applies only to felonies. 

It. has lonq been a rule OF sta-tutory construction that a 

literal application of a statute which would lead to absurd 

results should be avoided whenever any reasonable expl-anation 

can be given consistent with the legislative purpose of the 

statute. U.S. v. Ryan (1931), 284 U.S. 167, 52 S.Ct. 65, 76 

L.Ed. 224; Billings Properties, Inc. v. Yell o~zrstone County 

(19641, 1.44 Mont. 25, 394 P.2d 182. If this Court were faced 

only with the language relied on by the State--"any 

offensew--we could simply rely on this universal rule to show 

the State's interpretation would lead to absurd results. But 

here it is also clear an interpretation of the statute as a 

whole leads to the inescapable conclusion that the legislature intended the statute to apply to felony convictions 

only. 

We discuss first our reading of the statute. The enhancement statute imposes a sentence "in - addition - to" the 

punishment which could be imposed by a violation of the 

statute involved. This langua~e--"in addition tow--tells us 

the sentence must be tacked on to whatever sentence is imposed for the conviction. Clearly, therefore, the enhancement statute does not convert a misdemeanor conviction into a 

felony conviction because the enhancement statute imposes a 

sentence that must be served in the state prison. And the 
1angua.ge of the statute requiring that the additional. sentence (a minimum of two years and a maximum of ten years) 

must be served in "state prison," tells us also the legislature must have intended that felonies only are subject to the 

enhancement statute. By statute 5 45-2-101 (36) , MCA) , a 

misdemeanor conviction can result cn1.y in imprisonment in a 

county jail.. Therefore, a prison sentence for a misdemeanor 

conviction would be beyond the jurisdiction of the sentencing 

court. When placed in context, the language 

"in addition to," must cl.early refer to an underlying felony 

conviction over which the District Court has jurisdi.ction to 

sentence a defendant to the state prison. 

We have no difficulty, therefore, in holding the enhancement statute applies only to a situation in which the 

underlying conviction is for a felony. 

And even assuming, based on the State's argument, the 

language "any offense" applies to both felonies and misdemeanors, this interpretation would lead to absurd results. 

To literally apply the statute to misdemeanors would in 

effect convert a misdemeanor convicti-on into a felony sentence. For example, here the jurv expressly acquitted defendant of the felony aggravated assault charge. If the jury 

had convicted defendant, he cou1.d have been sentenced to a 

maximum of 20 years in prison (S 45-5-202, MCA) . However, 

the jury prevented a prison sentence by convicting defendant 

only of the misdemeanor, which carries with it a maximum 

6-month jail sentence (S 45-5-201(2), MCA, supra). 

Although the jury is commonly instructed that it is not 

to be concerned with the penalty, it is not unreasonable for 

the jury to believe that when it acquitted defendant of the 

felony charge he would not still be sentenced to prison for a 
misdemeanor because felony sentencing standards were applied. 

The application of t.he sentencing enhancement statute to this 

case was a gross usurpation of the jury function. The jury 

convicted defendant of a misdemeanor and the jury had every 

right to believe defendant would be sentenced for a misdemeanor only and that he would get no more than the maximum 

penalty for this misdemeanor assault conviction. When the 

jury convicted defendant of the misdemeanor assault charge 

only the misdemeanor penalties were available to the trial 

court as sentencing options. Those options contained in $ 

45-5-201(2), MCA, did not include that of sentencing 

defendant to a term beyond the maximum six months. 

The State's argument also ignores the statutory 

jurisdictional scheme to which the enhancement statute must, 

be applied. This statutory scheme does not permit a person 

convicted of a misdemeanor to be sent to prison, and this is 

true regardless of whether the misdemeanor conviction was in 

justice court or in district court. 

Offenses are primarily classified as felonies and 

misdemeanors. A district court only has original 

jurisdiction to try felony cases (fj 3-5-302(a), MCA). A 

justice court has original jurisdiction over all misdemeanors 

($5 3-10-303 (I), MCA) . However, a district court has 

concurrent jurisdiction over misdemeanors in two situations. 

First, S 3-5-302(2) (a) provides that a district court has 

jurisdiction over B misdemeanor offense if it is charged as 

part of the same transaction in which a felony is also 

charged. And second, S 3-5-302(c) provides that a district 

court has jurisdiction over a misdemeanor offense if it is 

classified as a lesser included offense of a charged felony. 
A justice court has no jurisdiction to impose a prison 

sentence; rather, it has only the jurisdiction to impose a 

maximum 6-month jail sentence (SS 3-10-303 and 46-2-202, 

MCA). The enhancement statute, on the other hand, provides 

for a mjnimum 2-year prison sentence up to a maximum 10-year 

prison sentence to be added to the sentence imposed for the 

underlying conviction. Clearly a justice court would have no 

jurisdiction to invoke this enhancement statute because its 

jurisdiction is limited to a maximum 6-month jail sentence. 

Therefore, a justice court conviction could never result in a 

valid application of the enhancement statute. 

Nor could a district court ever apply the enhancement 

statute to a misdemeanor conviction. Assuming a conviction 

in district court for a misdemeanor charge, the district 

court nonetheless does not have expanded jurisdiction to 

sentence the convicted person to prison. Rather, the court's 

jurisdiction to sentence is limited to the maximum sentence 

that can be imposed for the particular misdemeanor 

conviction. For example, defendant here was convicted of 

misdemeanor assault under S 45-5-201(b), MCA, and (subsection 

(2)) of the statute authorizes a maximum 6-month jai.1 

sentence. In sentencing defendant, the district court would 

be limited to a sentence not to exceed the maximum provided 

by this statute--6 months in jail. 

It is clear, therefore, that before a sentence could be 

imposed such as was imposed here, there would first have to 

be a massive legislative overhaul of the statutes creating 

and defining jurisdiction and creating and setting the 

sentencing limits for criminal viol-ations. 

Although it is unnecessary to rely on the legislative 

proceedings to reach our decision, we nonetheless agree with 
the defendant that the legislative proceedings support a 

conclusion that the enhancement statute was intended to apply 

to felonies only. All of the 1eqi.slative proceedings cited 

to us by the parties that relate to the enhancement statute 

contain not one reference that sentence enhancement would 

apply to misdemeanors as well as felonies. In fact, before 

the particul-ar enhancement statute involved here was finally 

enacted, the 1-egislature considered other versions, and not 

one of those versions indicated that the legislature even 

considered that misdemeanors were also to be swept up by the 

legis! ative desire to enhance sentences in certain 

circumstances. 

We vacate the entire sentence and remand for resentencing. The 6-month jail sentence together with the $500 fine 

was within the permissible limits for the misdemeanor assault 

conviction, but we are unable to determine whether this 

maximum sentence was influenced by the misperceived duty of 

the trial court to also sentence defendant to a minimum 

2-year sentence in the state prison by application of the 

enhanced sentence statute. We therefore vacate the entire 

sentence and remand for resentencing on the misdemeanor 

assault conviction. 

We Concur: 
I specially concur in the result, but not with all that 

is said in the Opinion. 

*