No. 14490 INTHE SUPREME COURT OF'THE STATE OFMCMPANA 1978



### INTHEMAmoF'FRANKE. DAVIS, Petitioner.

ORIGINALPlacExoING:

Counselof Record: For Petitioner: David J. Patterson, Pbntana DefenderProject, Missoula,

mntana Daniel Howard, Student Internargued, Defender Project,

Missoula, Montana For Respondent: Hon. MikeGreely, Attorney General, Helena, Wntana JamesMasar, CountyAttorney, DeerLodqe, Mntana KermitDaniels argued, DeerIdge, Wntana

Decided: 

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## . IMr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. This is an originalpetition for post-conviction relief by an inmate of theMontana 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. Davisplead not guilty to three counts of felony theft of copperwire from the Montana Power Company in the District Court of Powell County. While in jail awaiting trial on the theft chargespetitioner attempted to escape by digging a hole in the jailwall. He was apprehended and charged with attempted escape and felony criminalmischief. The state gave proper notice of its intention to seek increased punishment of petitioner as a persistent felony offenderpursuant 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 criminalmischief. The latter sentencewas subsequently vacated by this Court for failure of the state to prove an element of the crime. Statev. Davis (1978)

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# . , 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 statewould 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 imprisonmenton each of the threetheft charges to be served concurrentlywith the sentencepreviously 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 statutorymaximum 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 inpertinentpart: "Proceduralreauirements--~ersistentfelonv offenders.(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 

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"(3) If the accused is convicted upon the felony charge, the notice, together with proper proof of timely service, shall be filedwith the court before the time fixed for sentencing 

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# .. "(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 increasedpunishmentof an accused as a persistent felony offenderprior to entry of his plea. Discretion to treat an accused as a persistent felony offender isvested in the state, i.e. theprosecutor, not in the sentencing court. Prior notice of such intention must be given by the state in writing,proof of service of such noticemust 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 thepersistent felony offender statute by the notice requirementsof the statute. If he fails to give the required notice to invoke the persistent felony offender statutes, increased punishment thereunder is not in issuebefore the sentencing court. We need not determinewhether the sentencing court can invoke thepersistent felony offender statuteon its own initiative by ordering the information amended prior to entry of plea or otherwise as suchwas 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 requirementsprohibits this result.The state argues that petitioner's statusas a persistent felony offenderwas established at the prior sentencing

on the attempted escape and criminalmischief charges of which the court could take judicial notice. This argumentmisses 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 themaximum sentence on each count

was 10years. Had petitioner known that he was subject to a maximum sentence of 100years 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. Statev. 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. Compliancewith its requirements is a conditionprecedent 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 requirementsof 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 chargeswhich remainsuncontested. The sentence imposed upon petitioner on April 7, 1977, inCause #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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