No. 83-354 INTHE SUPREME COURT OF THE STATE OF MONTANA 1.984

STATE OF MONTANA, Plaintiff and Respondent,

-vsDOUGLAS TRIMMER, Defenda.nt and Appellant.

APPEAL FROM: DistrictCourt of theEighth JudicialDistrict, In and fortheCounty of Cascade, The Honorable JoelG. 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 JimMcLean 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

# -1985Mr. Justice Daniel J. Shea delivered the Opinion of the Court.

Defendant, Douglas Trimmer appeals from a sentence imposedhy the Cascade CountyDistrictCourt fora 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~cementstatute, 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 forresentencing. 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 negligentlyassaulted several people with -- aweapon. 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,butwent 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-yearprison sentence. Defendantprotested 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 sentenceat the stateprison. 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.yto the 6-month jail sentence. Defendant i.sout.

onbond 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 dueprocess of law and equal protectjon of the law because it contains no provision for notifying a defendant the statute will be applied to misdemeanors. Finally, defendant argues the sentence was imposed in violatj-onof the correctional policy of Article 11, § 22, 1972Montana 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~hetherthe sentence enhancement statute ($ 46-18-2211 a.pplies to misdemeanors. Defendant argues that the statute on its face canhe construed to apply tomisdemeanorshecause of the language "any offense," but that the legislaturedid 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 statuteby 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 "afterhours"kegqerparty at ahouse inGreat Falls. Shortly after their arrival, a fight broke out between RobertLingafelter 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. Defendantwent to Lingafelter,helped him up,and told him to gohome. Lingafelterdid 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 toyinqwith itby 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 onewas killed. Essentially based on these events,defendantwas 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 "withaweapon."

--Defendant seems to argue that on its face the sentence enhancement statutedoes apply tomisdemeanors 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 theabsurd result of effectively convertingamisdemeanor conviction into a felony conviction hy imposing a sentence that falls within the parameters of 2 felony sentence. The State contends,on the otherhand, 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 legislaturemusthave 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 4cs case that in no way supports a conc3.usiontha-toffenses 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~quagea.s its premise the State then argues that this Courtmust 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 decisionbased 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 dangerousweapon. (1) A personwho hasbeen found guilty of

### any offense andwho,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 thepunish- merit for the commission~fsuch offense, he sen-.

. -- .- - - -- - - - - 

## --- -- -- tenced 

### - to a term 

### of imprisonment in the sta-teprison of not less than 2 years or more than 10 ---- 

### ---- years,except asprovided in 46-18-222." (Emphasis added.) The State pulls the language in the statute--"any offensen--totallyout of context, and then proceeds to argue the statute must apply to misd~meanorsas 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 lonqbeen a ruleOF sta-tutoryconstructionthat a literal application of a statute which would lead to absurd results should be avoidedwhenever any reasonableexpl-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. Yello~zrstoneCounty

(19641,1.44Mont. 25, 394 P.2d 182. If thisCourtwere faced only with the language relied on by the State--"any offensew--wecould simply rely on thisuniversal rule to show the State's interpretationwould lead to absurd results. But here it is also clear an interpretationof 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--"inaddition tow--tellsus the sentence must be tacked on to whatever sentence is imposed for the conviction. Clearly, therefore, the enhancement statute does not convert amisdemeanor conviction intoa felony conviction because the enhancement statute imposes a sentence that must be served in the state prison. And the1angua.geof the statute requiring that the additional.sentence (aminimum of two years and a maximum of ten years) must be served in "state prison," tells us also the legislaturemust have intended that feloniesonly 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 amisdemeanor convictionwould be beyond the jurisdiction of the sentencing court. When placed in context, the language "inaddition to,"must cl.earlyrefer to an underlying felony conviction over which the District Court has jurisdi.ctionto sentencea defendant to the stateprison. 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-oninto 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 juryprevented aprison sentenceby convicting defendant only of the misdemeanor, which carries with it a maximum 6-month jail sentence (S45-5-201(2),MCA, supra). Although the jury is commonly instructed that it is not to be concerned with the penalty, it isnot unreasonable for the jury to believe that when it acquitted defendant of the felony chargehewould not stillbe sentenced toprison for amisdemeanorbecause felony sentencing standards were applied. The applicationof t.hesentencing 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 termbeyond themaximum sixmonths. 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 themisdemeanor convictionwas 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 allmisdemeanors ($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 sentenceup to amaximum 10-year prison sentence to be added to the sentence imposed for the underlying conviction. Clearly a justice courtwould 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 applicationof 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 toprison. 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 courtwould be limited to a sentence not to exceed themaximum 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 criminalviol-ations. Although it is unnecessary to rely on the legislative proceedings to reach our decision,we nonetheless agree withthe defendant that the legislative proceedings support a conclusion that the enhancement statutewas intended to apply to felonies only. All of the 1eqi.slativeproceedings 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-arenhancement statute involved here was finally enacted, the 1-egislatureconsidered other versions, and not

one of those versions indicated that the legislature even considered that misdemeanors were also to be sweptup 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

waswithin 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 intheresult, but notwith all that is saidinthe Opinion.

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