No. 90-227 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 9 0 

STATE OF MONTANA, 

Plaintiff and Respondent, 

ERNEST MAZURKIEWICZ, a/k/a 

ERNEST LUZADDER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Broadwater, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark P. Yeshe, Attorney at Law, Helena, Montana 

Nicholas C. Jacques, Attorney at Law, Helena, 

Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; Patti Powell, 

Assistant Attorney General, Helena, Montana 

John T. Flynn, Broadwater County Attorney, Townsend, 

Montana 

Filed: 

Submitted on Briefs: August 20, 1990 

Decided: October 24, 1990 
., I I 1 

Justice R. C. McDonough delivered the Opinion of the Court. 

Ernest Mazurkiewicz appeals from the judgment of the First 

Judicial District, Lewis and Clark County. Following a plea of 

guilty on the charges of robbery and deliberate homicide, the 

District Court sentenced Mazurkiewicz to forty years on the robbery 

charge and fifty years on the deliberate homicide charge, with 

those terms to run concurrently. The court also imposed an eight 

year prison term for the use of a weapon. It was ordered that this 

term be served consecutively to the forty and fifty year terms. 

The District Court designated ~azurkiewicz a dangerous offender for 

purposes of parole eligibility and ordered him to pay restitution. 

We reverse that portion of the judgment requiring restitution. In 

all other respects the judgment is affirmed. 

The issues presented for review are: 

1. Whether imposition of a consecutive sentence for use of 

a weapon was a denial of due process; 

2. Whether the District Court erred in concluding that 

Mazurkiewicz used a weapon in the commission of a crime; 

3. Whether the District Court erred in finding Mazurkiewicz 

to be a dangerous offender; 

4. Whether the District Court erred in ordering Mazurkiewicz 

to pay restitution. 

The facts in this case are not in dispute. The defendant, 

Ernest Mazurkiewicz, was traveling with a group of friends when 

they met Larry Beckwith. Apparently, after friendly conversation, 

Mr. Beckwith agreed to take two of Mazurkiewicz s friends to Alaska 

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and help them get a job. 

Mr. Beckwith traveled with Mazurkiewicz and his friends 

towards Townsend, Montana. During this period of time, a decision 

was made to rob Mr. Beckwith. Roy Duncan, a co-defendant, left the 

car that Mazurkiewicz was riding in and rode with Beckwith in his 

truck. Shortly before they reached Townsend both vehicles pulled 

over. At this point, Duncan went back to Mazurkiewiczls car and 

asked for his gun so that he could use it in the planned robbery. 

Mazurkiewicz gave him the gun and Duncan went back to Beckwith's 

truck. 

The two vehicles separated at this point. Eventually however, 

Mazurkiewicz met Roy Duncan and another accomplice at a gas 

station. Duncan then told Mazurkiewicz that they had killed Larry 

Beckwith during the robbery. The group then traveled south towards 

Las Vegas, where Mazurkiewicz was eventually arrested. 

Mazurkiewicz was charged with robbery and deliberate homicide 

through accountability. Alternatively, he was charged with 

deliberate homicide under the felony murder statute, 45-5- 

102(l)(b), MCA. Initially, Mazurkiewicz pled not guilty. However 

on December 19, 1989, he changed his plea and pled guilty to 

accountability for the robbery and deliberate homicide under the 

felony murder rule. 

After a sentencing hearing was held, the court sentenced 

Mazurkiewicz to forty years for accountability for robbery and 

fifty years for the offense of homicide to be served concurrently. 

The lower court also sentenced him to eight years for use of a 

dangerous weapon. This sentence, it was ordered, was to be served 
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consecutively to the forty and fifty year terms. The court, having 

determined that Mazurkiewicz played "an important part in this 

terrible crime committed against an innocent person," declared him 

a dangerous offender for purposes of parole and probation. 

Mazurkiewicz appeals from this sentence. 

Mazurkiewicz argues that Montana's weapons enhancement statute 

is unconstitutional. Section 46-18-221(1), MCA, provides: 

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(1), 

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. 

According to ~azurkiewicz, this statute, by its use of a 

mental state and by its mandate for a consecutive sentence, creates 

an offense separate from the underlying offense. For that reason, 

use of a weapon should be separately charged, and the issue should 

be submitted to the jury for determination beyond a reasonable 

doubt. 

We disagree. The constitutionality of 5 46-18-221 (1) , MCA, 

was recently addressed in State v. Krantz (Mont. 1990), 788 P.2d 

298, 47 St.Rep. 454. In Krantz its constitutionality was clearly 

upheld. We decline Mr. Mazurkiewicz's request to reverse this 

holding. 

Mazurkiewicz next argues that the District Court erred in 

concluding that he used a weapon in the commission of an offense. 
4. t C . t 

He maintains that in order for Montana's weapons enhancement 

statute to apply, it must be shown that the defendant "while 

engaged in the commission of the offense knowingly displayed, 

brandished, or otherwise used a firearm." Section 46-18-221, MCA. 

Mazurkiewicz pled guilty to accountability for the robbery of 

Mr. Beckwith and deliberate homicide under the felony murder rule. 

Therefore he was not the person who actually committed the robbery 

and homicide. Based upon these facts, Mazurkiewicz argues that it 

was erroneous for the lower court to determine that he "knowingly 

displayed, brandished or otherwise used a firearm1' during the 

commission of an offense. He maintains that Montana's weapons 

enhancement statute contains no indication that it was meant to 

apply to anyone other than those actually committing the offense. 

Therefore, Mazurkiewiczss conduct, which only consisted of handing 

the weapon to Duncan, does not qualify as use of a weapon as 

mandated by the statute. 

In support of this argument, Mazurkiewicz relies upon cases 

of other jurisdictions decided under statutes similar to our own. 

See People v. Walker (Cal. 1976), 555 P.2d 306; State v. Hicks (Or. 

1979), 589 P.2d 1130; State v. Thompson (Idaho 1980), 614 P.2d 970. 

Many of these cases rely upon the policy that a penal statute 

should be construed as favorably to the defendant as its language 

and the circumstances of its application reasonably permit. 

According to this policy, a defendant is entitled to the benefit 

of every reasonable doubt as to the true interpretation of words 

or construction of language used in a statute. Walker, 555 P.2d 

at 312 (citing Keeler v. Superior Court (1970) , 470 P. 2d 617) . 
e I t I 

Mazurkiewicz argues that by construing our statutes to apply to 

accomplices and others not actually "brandishing, displaying or 

using a dangerous weapon,I1 the lower court abdicated its 

responsibilities articulated by this long established policy. 

Thus, he maintains his conviction for use of a weapon should be 

overturned. 

We disagree. The lower court, in response to an objection to 

its determination of this issue stated: 

[Alnd to clarify the dangerous weapon designation, the 

dangerous weapon sentence, the statement of the defendant 

himself was that he handed the gun to the person who shot 

it and as far as I am concerned that is use of a 

dangerous weapon. 

Mazurkiewicz was convicted of robbery by accountability. His 

conviction stems from the fact that he helped plan the robbery and 

that he physically furnished the gun which was used in the robbery 

and murder of Larry Beckwith. As an accomplice to these crimes, 

Mazurkiewicz is equally responsible for the crimes to the same 

degree as his confederates, who actually perpetrated the acts. He 

knowingly supplied the means to commit the crimes, and admitted 

knowing the gun was to be used in the robbery. We hold this is 

sufficient to meet the language of the statute which mandates 

sentence enhancement for llotherwise [using] a firearm." 

Mazurkiewicz next argues that the lower court erred in 

designating him a dangerous offender for purposes of parole 

eligibility. Section 46-18-404, MCA, provides that a sentencing 

court shall designate an offender a non-dangerous offender if, in 

the five years preceding the commission of the instant offense, he 
was neither convicted of nor incarcerated for a felony offense, and 

if the court has determined that the offender does not represent 

a substantial danger to society. 

Mr. Mazurkiewicz has two prior felony convictions. Both of 

these convictions were for nonviolent crimes and both convictions 

occurred over five years before the instant offense occurred. 

~azurkiewicz also points out that his connection with the instant 

offense was rather remote. His only connection was handing over 

a gun and driving away. He stated that he did not know that Mr. 

Beckwith would be murdered. Based upon these facts, he maintains 

that the dangerous designation was improper under the dictates of 

5 46-18-404, MCA. 

We disagree. In making its determination to designate 

Mazurkiewicz a dangerous offender, the lower court noted that he 

had a prior record of violating the terms of probation for felonies 

committed in Georgia and Iowa. This prior history, the court 

noted, indicated Mazurkiewicz was a poor candidate for supervised 

release. The court also considered the serious nature of the 

crimes committed by Mazurkiewicz and noted that he played a 

substantial role in the robbery and death of an innocent man. 

In light of the sel-iousness of the crimes committed by 

Mazurkiewicz, we refuse to reverse the holding of the trial court. 

He played an active role in the robbery of a completely innocent 

person. This robbery resulted in the death of Larry Beckwith. 

Given these facts we refuse to reverse the judgment of the trial 

court on this issue. 
Finally, Mazurkiewicz argues that the lower court erred in 

requiring him to pay restitution. According to Mazurkiewicz, 

restitution can only be required as a condition of a deferred or 

suspended sentence. Since he had no time suspended or deferred, 

Mazurkiewicz argues that the lower court's order requiring him to 

pay restitution was improper. 

We agree. Section 46-18-242, MCA, clearly states that 

restitution may be a proper condition of a deferred, suspended or 

partially suspended sentence. No statute allows restitution 

requirements to be imposed in the absence of these sentences. We 

therefore reverse and vacate this portion of the trial court's 

judgment, and affirm on all other issues. 

We concur: 
Justice William E. Hunt, Sr., concurring and dissenting: 

I concur in all of the Opinion except that concerning the 

enhancement statute, 5 46-18-221, MCA, set forth in the majority 

Opinion. I dissent from that portion of the Opinion for the reason 

set forth in Justice John C. Sheehy's concurring and dissenting 

Opinion in State v. Krantz (Mont. 1990), 788 P.2d 298, 47 St.Rep. 

454.