No. 14490 

IN THE SUPREME COURT OF' THE STATE OF MCMPANA 

1978 

IN THEMAmoF' FRANK E. DAVIS, 

Petitioner. 

ORIGINAL PlacExoING: 

Counsel of Record: 

For Petitioner: 

David J. Patterson, Pbntana Defender Project, Missoula, 

mntana 

Daniel Howard, Student Intern argued, Defender Project, 

Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Wntana 

James Masar, County Attorney, Deer Lodqe, Mntana 

Kermit Daniels argued, Deer Idge, Wntana 

Decided: 3Fr -- - g73 

Filed: ,< ,;-qfL( 

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Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

This is an original petition for post-conviction relief 

by an inmate of the Montana State Prison. Petitioner seeks 

reduction of three 20 year sentences for theft imposed upon him 

as a persistent felony offender. 

The issue on appeal is whether petitioner was legally 

sentenced as a persistent felony offender thereby subjecting 

him to an increased term of imprisonment. 

In February 3, 1977, petitioner Frank E. Davis plead 

not guilty to three counts of felony theft of copper wire from 

the Montana Power Company in the District Court of Powell County. 

While in jail awaiting trial on the theft charges petitioner attempted to escape by digging a hole in the jail wall. 

He was apprehended and charged with attempted escape and felony 

criminal mischief. The state gave proper notice of its intention to seek increased punishment of petitioner as a persistent 

felony offender pursuant to section 95-1506, R.C.M. 1947. Following a jury trial, petitioner was convicted of both offenses and 

sentenced to 15 years for attempted escape and 5 years for felony 

criminal mischief. The latter sentence was subsequently vacated 

by this Court for failure of the state to prove an element of the 

crime. State v. Davis (1978) , Mont . , 577 P.2d 375, 35 

One week after sentence was imposed on the attempted escape 

and felony criminal mischief convictions, petitioner withdrew his 

plea of not guilty to the three theft charges and entered a plea 

of guilty. Written notice was never given to petitioner that the 

state would seek increased punishment against him as a persistent 

felony offender on the theft charges. Nonetheless, the sentencing 

judge concluded that petitioner was a persistent felony offender 

and sentenced him to 20 years imprisonment on each of the three 
theft charges to be served concurrently with the sentence previously imposed on the attempted escape and felony criminal 

mischief convictions. 

In this proceeding, petitioner seeks reduction of the 

three concurrent 20 year sentences imposed against him on the 

three theft charges to the statutory maximum of 10 years on each 

charge for nonpersistent felony offenders. Section 94-6-302(4), 

R.C.M. 1947. 

The crux of petitioner's contention is simply that he 

could not be sentenced to increased punishment as a persistent 

felony offender where the state did not give him written notice 

thereof as required by section 95-1506, R.C.M. 1947. 

The state admits it gave petitioner no notice of its 

intention to seek increased punishment. The state contends, however, that once petitioner was found to be a persistent felony 

offender at his sentencing on the attempted escape and criminal 

mischief convictions, the court was entitled to take judicial 

notice of that finding in sentencing him on the theft charges. 

Section 95-1506, R.C.M. 1947, provides in pertinent part: 

"Procedural reauirements--~ersistent felonv 

of fenders. (1) ff the stateL seeks treatmentAof 

the accused as a persistent felony offender 

under 95-1507 or $5-2206.5 or both of those 

sections, notice of that fact must be given in 

writing to the accused or his attorney before 

the entry of a plea of guilty by the accused . . . 

"(3) If the accused is convicted upon the felony 

charge, the notice, together with proper proof of 

timely service, shall be filed with the court before the time fixed for sentencing . . . 

"(4) The hearing shall be held before the court 

alone. If the court finds any of the allegations 

of prior conviction true, the accused shall be 

sentenced under the provisions of 95-1507 and 

95-2206.5. " 

This statute is clear and unambiguous. The state must 

give written notice of its intention to seek increased punishment 
of an accused as a persistent felony offender prior to entry 

of his plea. Discretion to treat an accused as a persistent 

felony offender is vested in the state, i.e. the prosecutor, 

not in the sentencing court. Prior notice of such intention 

must be given by the state in writing, proof of service of such 

notice must be made before sentencing, and the sentencing court 

must find the allegations of prior conviction true before increased punishment can be imposed upon an accused as a persistent 

felony offender. 

The intent of the statute is clear from its plain language. 

The accused must be informed of the increased sentence to which 

he is subject before he pleads guilty or goes to trial. If an 

accused is not so informed, an increased sentence cannot be imposed. 

The county attorney in the first instance controls the decision 

on whether or not to invoke the persistent felony offender statute by the notice requirements of the statute. If he fails to 

give the required notice to invoke the persistent felony offender 

statutes, increased punishment thereunder is not in issue before 

the sentencing court. We need not determine whether the sentencing court can invoke the persistent felony offender statute on 

its own initiative by ordering the information amended prior to 

entry of plea or otherwise as such was not done in this case. 

Here, the amended information charging petitioner with 

three counts of theft stated on its face: "The maximum sentence 

for each count of THEFT is imprisonment in the Montana State 

Prison for any term not to exceed ten (10) years." No notice, 

written or oral, by the prosecutor or the court, was given petitioner that he would be sentenced to increased punishment as a 

persistent felony offender. Petitioner plead guilty and was 

sentenced on each count to 20 years, double the statutory maximum 

for each offense standing alone. Fundamental fairness in view 

of the statutory notice requirements prohibits this result. 
The state argues that petitioner's status as a persistent felony offender was established at the prior sentencing 

on the attempted escape and criminal mischief charges of which 

the court could take judicial notice. This argument misses the 

point. Whether petitioner was in fact a prior felony offender 

or not, he was not so charged. On the contrary, the information 

expressly informed him that the maximum sentence on each count 

was 10 years. Had petitioner known that he was subject to a 

maximum sentence of 100 years as a persistent felony offender 

(section 95-1507, R.C.M. 1947) he might well have declined to 

change his plea to guilty. 

It could be argued that petitioner's failure to object 

to lack of notice at the time of sentencing constituted a waiver 

of any objection to the sentence imposed. We reject this approach. 

Statutes providing for enhanced punishment are penal in nature 

and must be strictly construed. State v. State Highway Patrol 

(1958), 133 Mont. 162, 321 P.2d 612; Shipman v. Todd (1957), 131 

Mont. 365, 310 P.2d 300. Montana's statute requiring written 

notice thereof prior to entry of plea is explicit and unambiguous. 

Compliance with its requirements is a condition precedent to increased punishment of a defendant as a persistent felony offender. 

An implied waiver of any objection to the sentence by failure to 

object at the time of sentencing is not only illusory but would 

effectively undermine the intent, purpose and requirements of the 

statute. We decline to find an implied waiver under these circumstances. 

Petitioner also requests that he not be designated a persistent felony offender for parole purposes. This we decline to 

do. His status as a persistent felony offender for purposes of 

parole eligibility is established in his sentence on the attempted 

escape charges which remains uncontested. 

The sentence imposed upon petitioner on April 7, 1977, in 
Cause #2238 in the District Court of the Third Judicial District 

of the State of Montana, in and for the County of Powell, is 

reduced to a term of 10 years imprisonment on each count to be 

served concurrently as provided in the original sentence. 

Chief Justice 

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