### No. 13883 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

THE STATE OF MONTANA, Plaintiff and Respondent,

-vsJOHNNYMALDONADO, Defendant and Appellant.

Appeal from: District Court of the Thirteenth Judicial, District, Honorable Robert Wilson, Judge presiding. Counsel of Record: For Appellant: Johnny Maldonado, Pro Se, Deer Lodge,Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Harold F. Hanser, County Attorney, Billings, Montana Submitted on briefs



# RRi2

# 1978 Filed: - 

### Submitted: November 15, 1977 Decided: 

## 12 

# ,978 -Mr. Justice John Conway Harrison delivered the Opinion of the Court. ~efendant, ~ohnny JoeMaldonado, appeals from an order of the District Court, Yellowstone County, denying his petition for post-conviction relief. On September 11, 1970, defendant entered a guilty plea to a charge of second degree assault, 

### a felony under sections 94-602(5) and 94-114, R.C.M. 1947. The districtjudge deferred imposition of sentence for a period of three years. On August 25, 1971, the State filed a petition to revoke defendant's deferred imposition of sentence, alleging that during the period of hisprobation, defendant had been charged with the crime of receiving stolen property, had leftthe stateand absconded from supervision, and had failed toreport tohis probation officer 

### as required. Atthe September 22, 1971, hearing on the petition to revoke, defendant admitted the second and third allegations inthe petition, but denied he had been charged with receiving stolenproperty. The DistrictCourt ordered that the 

### terms of the deferred imposition of sentence remain ineffect, except that defendant was required to serve sixmonths in the county jail on 

### a work-release program. The court order

was modified on November 29, 1971, toprovide that defendant

serve only weekends injail. On December 8, 1972, the State filed a second petition torevoke defendant's deferred imposition of sentence, alleging defendant committed the offenses of burglary and criminal possession of dangerous drugs on October 25, 1972. Atthe revocation hearing held on January 25, 1973, the Statepresented evidence thatwhen police responded to a burglary alarm ata local hardware storeatabout 2:00 a.m., October 25, 1972, defendant 

### was found inside the storewithanother individual, near a gun casewhich was broken and several guns removed. Upon receiving this evidence atthe January 25, 1973, revocation hearing, the District Court revoked the originally deferred imposition of sentence on the second degree assault conviction, and sentenced defendant tofiveyears and ninemonths inthe Montana state prison. On July 25, 1975, after serving approximately one-half of his sentence on the second degree assault charge, defendant

was paroled. While 

### still on parole, on April 4, 1976, a Billings police officer arrested defendant in a local bar on

a charge of carrying a concealed weapon. The District Court granted the Yellowstone County attorney leave to filean Information, charging defendant with carrying a concealed weapon within the city 

### limitsof Billings, Montana, in violation of section 94-8-210, R.C.M. 1947. The county attorney filed a notice toincrease punishment pursuant to section 95-1506, R.C.M. 1947, alleging defendant was a prior convicted felonunder section 95-1507, R.C.M. 1947, due to hisprevious conviction for second degree assault. In his affidavit in support of the Information charging defendant with carrying a concealed weapon, the deputy county attorney alleged that atapproximately 12:30 a.m., April 

### 4, 1976, Officer Hatfield of the Billings Police Department was flagged down by an anonymous person and informed thatdefendant was inside the Empire Bar inBillings, carrying a concealed weapon. Affiant stated Officer Hatfield and Officer Trimbo entered thebar and observed defendant; upon searching defendant the officers discovered and seized

a .38 caliber Smith & Wesson pistol with a two inch barrel, which defendant was carrying ina shoulder holster concealed by hisbrown leather jacket.These facts alleged inthe affidavit

### were largely corroborated by defendant himself athis arraignment on the concealed weapon charge. Defendant admitted he was carrying

a concealed and loaded .38 caliber Smith & Wesson revolver ina shoulder holster while he was inthe Empire Bar. Defendant stated thathe understood he was subject, as a persistent felony offender, toincreased punishment up to 100 years imprisonment. Defendant pleaded guilty and the DistrictCourt sentenced defendant to serve twenty years in the stateprison. On October 

### 12, 1976, defendant filed a petition for post-conviction relief, pursuant to section 95-2601, R.C.M. 1947, inDistrictCourt, Yellowstone County. Defendant raises the following issues on his appeal from the District Court's April 26, 1977, order denying post-conviction relief: 

### 1. Did section 95-1507, R.C.M. 1947, the persistent felony offender statute, 

### as applied todefendant, violate constitutional safeguards dealing with ex post facto laws and equal protection? 2. 

### Is section 95-1507 unconstitutional under Article 11, Section 28, 1972Montana Constitution? 3. Did the DistrictCourt abuse 

### its discretion in revoking defendant's deferred imposition of sentence on the second degree assault conviction? 

### 4. Did the court's mistaken belief insentencing that defendant had entered his guilty plea tothe second degree assault charge on January 25, 1973 rather than on September 11, 1970, constitute reversible error? 5. Was section 94-8-210, R.C.M. 1947, as ineffect when defendant committed the crime of carrying a concealed weapon, an unconstitutionally vague statute?6. Was defendant sufficiently informed, prior to entering his plea, of the possible sentences he could receive as a persistent felony offender upon conviction of carrying a concealed weapon? 7. Did the DistrictCourt abuse 

### its discretion in finding thatdefendant was not denied effective assistance of counsel? 8. Was the twenty year sentence defendant received so excessive and disproportionate tothe offense as to constitute cruel and unusual punishment? On September 11, 1970, when defendant plead guilty to second degree assault, a felony, Montana's persistent felony offender statute, section 94-4713, R.C.M. 1947, allowed a districtjudge to sentence a defendant to a maximum sentence of ten years imprisonment for a subsequent felony conviction of carrying a concealed weapon. Section 94-4713, was repealed by the legislature in 1973 and replaced with the present section 95-1507. Defendant committed the carrying of 

### a concealed weapon offense on April 

### 4, 1976, when section 95- 1507, was ineffect. The District Court judge sentenced defendant to twenty years inthe stateprison as 

### a persistent felony offender under section 95-1507. Under section 95- 1507(2),themaximum penalty for conviction of the felony of carrying a concealed weapon, for one who has "previously been convicted of a felony" 

### is 100 years inthe stateprison. Defendant alleges that, because the felony second degree assault conviction occurred prior tothe enactment of section 95-1507, the DistrictCourt's use of the assault conviction toincreasepunishment under section 95-1507 on the felony of carrying a concealed weapon charge constituted

an ex post facto law. Defendant contends he could be consti-tutionally sentenced only under section 94-4713, the persistent felony offender statuteineffectwhen he committed the second degree assault. Defendant misconstrues the constitutional prohibitions against ex post facto laws. Both the United States and Montana Constitutionsprohibit theMontana legislature from passing ex post facto laws. Article I, Section 10, United States.Constitution; Article 11, Section 31, 1972 Montana Constitution. Ex post facto laws areprohibited on the theory no one should be punished for conduct which the law did not givehim advance warning was criminal. Section 95-1507, was enacted in 1973prior todefendant's commission of the carrying a concealed weapon felony in 1976. The law did not punish defendant for past conduct, but merely notifieddefendant he was subject to increased punishment, if he 

### inthe future committed an additional felony 

### crime. In rejecting a claim similar todefendant's, the United States Supreme Court stated: "Nor do we think the factthat one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act 

### was passed, makes theAct invalidly retroactive

## * 

## * *



# . The sentence as a 

## * 

## * * habitual criminal 

### is not tobe viewed 

### as either 

### a new jeopardy or additional penalty for the earlier 

### crimes. It 

### isa stiffened penalty for the latestcrime, which 

### isconsidered tobe an aggravated offense because 

### a repetitiveone." Gryger v. Burke, (1948), 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.ed. 1683. See also: McDonald 

### v. Massachusetts, (1901), 180 U.S. 311,

Defendant contends section 95-1507 violates the equal protection and due process clauses of the Fourteenth Amendment because only a minority of repeat felony offenders are prosecuted under the persistent felony offender statute.Defendant alleges that section 95-1507 

### is ingeneral unconstitutionally selectively applied, and 

### was selectively applied inthe instantcase, due to the county attorney's animosity toward defendant and defendant's counsel. Nothing inthe record supports defendant's assertion that he 

### was singled out for persistent felonyprosecutiondue to the prosecutor's feelingsof personal enmity. Nor does a showing of selectiveenforcement of 

### a criminal law, without more, constitutea constitutionalviolation. 

## "** * the conscious exercise of some selectivity inenforcement 

### is not initself

a federal constitutional violation" absent an allegation and showing that

## "*

## * * the selection

### was deliberately based upon an unjustifiable standard such asrace, religion, or other arbitrary classification

## * 

## * *" such as sex, or the exercise of the FirstAmendment right to free speech. Oyler

v. Boles, (1962), 368 U.S. 448, 456, 82 S.Ct. 501, 7 L ed 2d 446, 453. Defendant next claims that, because section 95-1507 subjects repeat felony offenders topotentially stiffer sentences than firsttime felony offenders, the law violates thatportion of Article 11, Section 28, 1972 Montana Constitution, which provides that "Fullrights arerestored by termination of state supervision for any offense against the state." The success of defendant's argument necessarily depends upon whether the reference inArticle 11, Section 28, to "full rights" includes a "right" of a prior felony offender to not have his prior offense considered, when sentencing him on a subsequent felony. The transcript of proceedings of the Montana constitutional convention clearly indicates the Committee of the whole, in recommending theArticle 11, Section 28 clause on restoration of fullprisoner's rights, 

### was concerned that no obstacles

### prevent the ex-convict from becoming a 

### contributing and participatingmember of the community. Speaking on behalf of the committee, one delegate stated that the ex-prisoner,

no longer under statesupervision, 

### " 

## * * * should be entitled tothe restoration of allciviland political rights, including theright tovote, hold office, and enter occupations which require statelicensing." Vol. 7, Const. Convention Transcript 5550 (remarks of Delegate 

### James). A 

### main concern of the delegateswas that ex-convicts not automatically be precluded from practicing state-licensed professions. Vol. 7, Const. Convention Transcript 5624-26 (remarks of Delegates Habedank and Campbell). See also: Miller

### v. Carter, (7thCir. 

### 1977), 547 F.2d 1314, 1328-29, aff'd. (1978), U.S.



## , 98 S.Ct. 786, 54 L 

### ed 2d 603. The "fullrights" language of Article 11, 

### Section 28 does not include a "right" tobe sentenced for a felony without regard toprior felony convictions. Having a prior felony conviction with the potential for increasingpunishment on a subsequent felony conviction does not hamper rehabilitation of the ex-convict or diminish his civilor political rights. If the ex-convict obeys the law, as all citizens arerequired todo, for fiveyears subsequent to his felony conviction or release from prison, the prior felony may not be used toincrease punishment under section 95-1507 for a subsequent felony. Rather than involving any civilor political "right", increasing the sentence of a persistent felony offender is 

### entirely consistent with the constitutionalmandate that "Laws for the punishment of crime shallbe founded on the principles of prevention and reformation.* 

## * *" Article 11, 

### Section 28, 1972 Montana Constitution.

## "** * Persistence incrime and failure of earlier discipline effectively todeter or reform justify more drastic treatment. 

## * * 

## * For the determination of sentences, justice generally requires consideration of more than the particular actsby which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender. Hispastmay be taken to indicatehispresent purposes and tendencies and significantly to suggest the period of restraint and the kind of discipline that ought tobe imposed upon him." Pennsylvania ex 

### rel. Sullivan v. Ashe, (1937), 302 U.S. 51, 54-55, 58 S.Ct. 59, 82 L.ed. 43. Defendant also asserts that no proper cause was shown torevoke the deferred imposition on the second degree assault charge, and the assault conviction could therefore not be considered as

### a prior felony to increase his punishment on the carrying 

### a concealed weapon charge. The facts adduced atthe DistrictCourt hearing on the State's second petition torevoke the deferred sentence show that on October 25, 1972, at2:00 

### a.m., the police apprehended defendant and another individual inside a hardware store, where a gun case was broken and several guns removed. The District Court had ample cause torevoke the deferred imposition of sentence. Defendant 

### isnot correct inhis assertion that the DistrictCourt had no authority after the firstrevocation hearing to impose a jail term as an additional condition of his continued deferred imposition of sentence. Defendant contends this Court's holding in Statev. Drew, (1971), 158 Mont. 214, 490 P.2d 230, established that a 

### terminjail may

never be imposed as 

### a condition of a deferred sentence. However, this Court inDrewmerely stated that a trialjudge may not actually impose a sentence and defer the imposition of part of that sentence. The districtjudge may, however,defer imposition of sentence and make 

### a jail 

### term a condition of probation. 

## "** * There 

### is a valid distinction under the law ingranting a deferred imposition upon conditions, rather than imposing a jail sentencewith conditions." State ex 

### rel. Woodbury v. District Court, (1972), 159 Mont. 128, 136, 495 P.2d 1119. See also: Statev. Thorsness, (1974), 165Mont. 321, 528 P.2d 692. Defendant next contends thathispersistent felony offender sentence 

### is invalid because the districtjudge sentenced him under themisapprehension thatdefendant plead guilty on January 25, 1973, tosecond degree assault. Defendant did, however, on September 

### 11, 1970, plead guilty to second degree assault. Although defendant emphasizes thathe did not on January 25, 1973, plead guilty to a burglary charge, the factthathe was found by police 

### at 2:00 a.m. ina hardware storewhere the burglar alarm had sounded and guns had been removed from a broken display case, 

### was sufficient cause torevoke defendant's deferred sentence on the second degree assault conviction and was validly used to increase defendant's punishment for his subsequent felony conviction. Defendant also

### asserts that section 94-8-210 the carrying a concealed weapon statuteas ineffectwhen he committed the crime, gave prosecutors discretion to charge the transaction as a felony or a misdemeanor, gave no judicialguidelines as towhen the charges should be felony or misdemeanor, and therefore, was unconstitutionally vague. Defendants cites Olsen v. Delmore, (1956), 48 ~ash.2d 545, 295 P.2d 324, 325, and Statev. Pirkey, (1955), 203 Or. 697, 281 P.2d 698, where the Supreme Courts of both washington and Oregon declared unconstitutional statuteswhich did notdistinguish when identical conduct should be charged by prosecutors as felonies ormisdemeanors. In 1976 when defendant was charged as a persistent felony offender, section 94-8-210 provided that a person convicted of carrying a concealed weapon 

### " 

## * * 

## * shallbe punished by a finenot exceeding fivehundred dollars or by imprisonment inthe county jail for a period not exceeding sixmonths, or by both such fine and imprisonment, or may be punished by imprisonment inthe statepenitentiary for a period not exceeding fiveyears." Defendant contends that because the same offensemay be punished as either a felony

or a misdemeanor, the rule and rationale of Olsen, Pirkey and similar cases require this Court torule that section 94-8-210 

### isunconstitutional. The defendant inOlsen was convicted under a carrying a concealed weapon statutewhich contained a penalty clause worded very similarly tothe penalty clause of section 94-8- 210. The crime inOlsen was 

## "** * punishable by a fineof notmore than fivehundred dollars or imprisonment inthe county jail for not more than one year orboth, - or by imprisonment inthe penitentiary for not 

### less than one year

nor more than ten years." Olsen 

### v. Delmore, 295 P.2d 325. InWashington, the classification of a crime as a felony or

a misdemeanor was dependent upon the potential punishment, and not upon the punishment which the offender actually received upon conviction. Crimespunishable by death or imprisonment inthe statepenitentiary were felonies; crimes punishable by fines of less than $250, Orby imprisonment in

a county jail for notmore than ninety days, were misdemeanors. The vice of the statuteinOlsen, and of a similar statute inPirkey, was that 

### it authorized prosecuting officials tocharge identical conduct by different persons as either a felony or a misdemeanor. This unbridled prosecutorial discretion violates the constitutional guarantee of equal protection of the laws. 

## "*

## * * the statuteitself furnishes

no criterionby which todetermine when an accused 

### is tobe charged with felony, and when with a misdemeanor 

## * 

## * 

## *." (Emphasis added.) Statev. Pirkey, 281 P.2d 702. Although the section 94-8-210 penalty clause in effect when defendant committed the 

### crime was worded similarly to theWashington statuteinOlsen, Montana's law does not suffer from the same constitutional infirmity. In Montana, the discretion toclassify an offense as a felony or a misdemeanor belongs tothe sentencing court and not to the prosecuting official. Except for the limited jurisdictional and statuteof limitation purposes of section 94-1-105, R.C.M. 1947, the classification of an offense as a felony or

as a misdemeanor depends entirely upon the actual sentence imposed by the trial court upon conviction. Section 94-2-101 (15)(31),in 1975, read: "(15) 'Felony' means an offense inwhich - the sentence imposed upon conviction 

### is death or imprisonment inthe stateprison for any 

### termexceeding one (1)year." (Emphasis added.) "(31) 'Misdemeanor' means an offense inwhich the sentence imposed upon conviction 

### is imprisonment inthe county jail for any term, - or fine, orboth, or the sentence imposed 

### is imprisonment inthe stateprison for any term of one year or less." (Emphasis added.) Where thepower toclassify a crime as a felony or a misdemeanor isgiven to the judge, through the sentence he imposes, rather than tothe prosecutor, there is no equal protection violation. Gibson v. Dell, (9thCir. 1971), 443 F.2d 75. See: Daloia v. Rhay (9thCir. 1958), 252 F.2d 768, 770. The rationale for this distinctionwas 

### set forthbyMr. Justice Black inhis dissent inBerra v. United States, (1956), 351 U.S. 131, 140, 76 S.Ct. 685, 100 L.ed. 1013: 

### " 

## * * 

## * Of course 

### it is true thatunder our system Congress may vest the judge and jury with broad power to say how much punishment shallbe imposed for a particular offense. But 

### it isquitedifferent tovest such powers ina prosecuting attorney. A judge and jury actunder procedural rules carefully prescribed toprotect the liberty of the individual. Their judgments and verdicts 

### are reached after a public trial inwhich a defendanthas the right tobe represented by an attorney. No such protections are thrown around decisions by a prosecuting attorney." 

## * 

## *" 351 U.S. 140. Nor 

### was the statuteunconstitutionally vague because the judge could sentence the offense as either a felony or a misdemeanor, without statutory guidelines as towhen each grade of sentence should be imposed. One of the purposes of the 1973Montana Criminal Code was tovestwide sentencing discretion inthe trialjudge who 

### is familiar with the character and past record of the defendant, and with the circumstances of the particular case. Although the penalty provision of the carrying a concealed weapon statute, as it

was ineffectwhen defendant committed the crime, was not artfullyphrased, 

### itmeant no more than that one found guilty of the section could be sentenced toimprisonment in the stateprison for a term not to exceed fiveyears. The sentencing clause, therefore, was no different from other sections of the criminal code which likewise vest the - sentencing judge with the discretion toimpose a misdemeanor

or a felony sentence, as the circumstances of the case warrant. See, e.g., section 94-6-104, R.C.M. 1947 (arson sentence not to exceed twenty years imprisonment); section 94-6-204, R.C.M. 1947 (burglary sentence not to exceed ten years imprisonment); section 94-7-202, R.C.M. 1947 (perjury sentence not toexceed tenyears imprisonment).Defendant contends he 

### was not informed that, upon conviction of carrying a concealed weapon, he might have received a misdemeanor rather than 

### a felony sentence. Defendant asserts had he realized thathe might have been convicted of only a misdemeanor, he would have stood trial rather than plead guilty. To be valid, defendant's guilty plea must have been entered voluntarily and understandingly. Boykin v. Alabama, (1969), 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L ed 2d 274; Statev. Doty, (1977), Mont. 

## , 566 P.2d 1388, 1391, 34 St.Rep. 731. A plea of guilty 

### is invalid 

### as not having been understandingly entered if the defendant was not informed of themaximum potential penalty upon conviction. Tucker v. United States, (5thCir. 1969), 409 F.2d 1291, 1295. In this case, defendant was properly informed of the maximum potential sentenceupon a guilty plea. A guiltyplea is not necessarily invalid if a defendant 

### is not informed of minimum penalties upon conviction. Defendant misconstrues Montana law when he states thathe did not realize he might have been convicted of a misdemeanor rather than a felony. Defendant could have been convicted attrial inthe District Court only of the offense of carrying a concealed weapon. As previously discussed, the offense assumes the character of misdemeanor or felony only after thejudge has imposed sentence. A conviction after trialor a conviction due to a guiltyplea therefore had no effectupon whether the offense would subsequently be classified as a misdemeanor or a felony, and the failure toinform defendant of theminimum sentence did not affect thevoluntariness of his guilty plea.Defendant next alleges he was denied effective assis-tance of counsel when he entered his plea of guilty tothe charge of carrying a concealed weapon. This Court has stated the standard for evaluating an inadequacy of counsel claim is the "farce and sham test". Statev. McElveen, (1975), 168Mont. 500, 504, 544 P.2d 820; Statev. Miller, (1977)I Mont. 

## , 568 P.2d 130, 34 St.Rep. 838. In explaining the specifics of this 

### test, this Court has held that torender effective assistance within the requirements of the SixthAmendment, United States Constitution, and Article 11, Section 24, 1972 Montana Constitution, counsel must attempt to "discover allthe facts and circumstances of the crime" through "thorough investigation of the persons and events involved inthe crime." Statev. McElveen, 168Mont. 506. The representation by counsel must also include adequatepreparation and conference with his client. Statev. McElveen, 168Mont. 504, quoting Williams v. Beto, (5thCir. 1965), 354 F.2d 698, 704. Adequate conference with the client includes advising the client of his rights and eliciting from the client allmatters of defense, or ascertaining that there existsno defense. See: Coles v. Peyton, (4thCir. 1968), 389 F.2d 224, 226, cert.den., 393 U.S. 849, 89 S.Ct. 80, 21L ed 2d120 (1968). Defendant claims that counsel was ineffective because counsel did not attempt to suppress the evidence obtained in

a search of defendant, because counsel did not make any investigation todetermine the constitutionality of the concealed weapons statute, and because counsel made no investigation astowhy defendant was carrying a concealed weapon. The decisions of whether tochallenge the constitutionality of a statuteor tomove to suppress evidence are matters of legal judgment. In this case, we hold the carrying

### a concealed weapon statutewas constitutional. Defendant's attorney stated inan affidavit thatdefendant had explained thatthe police had authority to searchdefendant as a condition of defendant's parole on the second degree assault charge. Defendant claims he had no criminal intentbecause the reason he was 

### carrying a concealed weapon was toprotect himself from attack inthe bar thathe was 

### in. Concealing a pistol orrevolver on his person within the city 

### limits, however, was sufficientevidence toconvictunder section 94-8-210. 

### The reasons fordefendant's concealing the weapon
were inthis case irrelevant tothe issue of criminal intent, though those reasonsmight have been a relevant consideration insentencing. Defendant's counsel, inan affidavit, swore that he consulted with defendant astothe facts of the case and possible defenses, arranged totake statements from prospectivewitnesses, had conversations with various persons involved inthe case, considered and rejected the possibility of submitting a motion tosuppress, determined that there

was no sound defense, and finally advised defendant there

was almost no chance of success attrial. Defense counsel then plea bargained with the county attorney and advised defendant toenter 

### a guilty plea inexchange for a prosecutionrequest for a twenty year sentence. Subsequent to sentencing, defendant's attorneymade a motion tovacate the twenty year sentence, supported by a memorandum of law. The representation of defendant by his attorney was effective within the standards set forthinStatev. McElveen, supra. The finalcontention of defendant is 

### that the twenty year sentencehe received was cruel and unusual punishment proscribed by the Eighth Amendment, United States ~onstitution,and by Article 11, Section 22, 1972Montana Constitution. Defendant contends the sentence 

### is excessive and disproportionate tothe 

### crimeof carrying a concealed weapon, a 

### crime which he allegesusually brings only a fine, a short jail sentence, orboth such fineand jail sentence. Defendant notes that themaximum sentence under section 94-8-210 for the offense of carrying a concealed weapon 

### is fiveyears. Defendant misconstrues the offense forwhich he was charged. Although he 

### was arrested and convicted of carrying a concealed weapon, he 

### was sentenced not as 

### a first-time felony violator of the criminal 

### laws, but as a persistent felony offender. It 

### is indisputable that a sentence, though 

### itbe within themaximum sentence allowed by statute, may be

soexcessive and disproprotionate tothe circumstances of the offense astoconstitute cruel and unusual punishment. Weems v. United States, (1910), 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.ed. 793; O'Neil v. Vermont, (1892), 

### 144U.S. 323, 12 S.Ct. 693, 36 L.ed. 450 (Field, J., dissenting). 

### " 

## * * 

## * the Cruel and Unusual Punishment Clause 

## * * 

## * proscribes punishment grossly disproportionate tothe severity of the crime* 

## * * 

# ." Ingraham v. Wright, (1977), 430 U.S. 651, 667, 97 S.Ct. 1401, 51 L ed 2d 711, 727, 728. Mindful of this limitation, 

### we note, however 

### " 

## * * * thegeneral rule that a sentencewithin themaximum authorized by statute

### is not cruel and unusual punishment." Statev. i Karahthos, (1972), 158Mont. 461, 468, 493 P.2d 326.

C The twenty year sentence which defendant received was 

### wellwithin the one hundred year maximum sentence authorized by section 95-1507, the persistent felony offender statute under which defendant was sentenced. The punishment proscribed

was not grossly disproportionate tothe severityof the

### offense. Though themaximum penalty for the first felony offense of carrying a concealed weapon is fiveyears imprisonment, defendanthad previously been convicted of another felony. Persistent felony offender statutes 

### " 

## * * 

## * prescribe such penalties asmay be deemed appropriate in view of the nature of the offense and the character of the offender, taking in view his past conduct

## * 

## * * taking into consideration past offenses committed by the accused as a circumstance of aggravation

## * * * 

# ."Carlesi v. New York, (1914), 233 u.S. 51, 59, 34 S.Ct. 576, 58 L.ed. 843, 849. In this case, defendant's previous felony conviction was for second degree assault, a violent crime against another human being. Defendant's second felony conviction

was for carrying a concealed weapon in a shoulder holster concealed by a leather jacket. The concealed weapon was a .38 caliber pistol with a two inch barrel, a weapon which if used on another individual could likely cause serious bodily injury or death. Defendant committed the carrying a concealed weapon offense less than nine months after being paroled on the felony assault crime. Given these circumstances,we cannot say the twenty year sentencewas so grossly disproportionate to the severity of the crime as to constitute cruel and unusual punishment. The order of the District Court denying defendant's petition for post-conviction relief is affirmed.

We Concur: