No. 13883 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJOHNNY MALDONADO, 

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 

Filed: - 

RR i 2 1978 

Submitted: November 15, 1977 

Decided: 1 2 ,978 - 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

~efendant, ~ohnny Joe Maldonado, 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 district judge 

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 his probation, defendant had been 

charged with the crime of receiving stolen property, had 

left the state and absconded from supervision, and had 

failed to report to his probation officer as required. 

At the September 22, 1971, hearing on the petition to 

revoke, defendant admitted the second and third allegations 

in the petition, but denied he had been charged with receiving 

stolen property. The District Court ordered that the terms 

of the deferred imposition of sentence remain in effect, 

except that defendant was required to serve six months in 

the county jail on a work-release program. The court order 

was modified on November 29, 1971, to provide that defendant 

serve only weekends in jail. 

On December 8, 1972, the State filed a second petition 

to revoke defendant's deferred imposition of sentence, 

alleging defendant committed the offenses of burglary and 

criminal possession of dangerous drugs on October 25, 1972. 

At the revocation hearing held on January 25, 1973, the 

State presented evidence that when police responded to a 

burglary alarm at a local hardware store at about 2:00 a.m., 

October 25, 1972, defendant was found inside the store with 
another individual, near a gun case which was broken and 

several guns removed. Upon receiving this evidence at the 

January 25, 1973, revocation hearing, the District Court 

revoked the originally deferred imposition of sentence on 

the second degree assault conviction, and sentenced defendant to five years and nine months in the 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 file an 

Information, charging defendant with carrying a concealed 

weapon within the city limits of Billings, Montana, in 

violation of section 94-8-210, R.C.M. 1947. The county 

attorney filed a notice to increase punishment pursuant to 

section 95-1506, R.C.M. 1947, alleging defendant was a prior 

convicted felon under section 95-1507, R.C.M. 1947, due to 

his previous 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 at approximately 12:30 a.m., 

April 4, 1976, Officer Hatfield of the Billings Police 

Department was flagged down by an anonymous person and 

informed that defendant was inside the Empire Bar in Billings, 

carrying a concealed weapon. Affiant stated Officer Hatfield 

and Officer Trimbo entered the bar 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 in a shoulder holster concealed 

by his brown leather jacket. 
These facts alleged in the affidavit were largely 

corroborated by defendant himself at his arraignment on the 

concealed weapon charge. Defendant admitted he was carrying 

a concealed and loaded .38 caliber Smith & Wesson revolver 

in a shoulder holster while he was in the Empire Bar. 

Defendant stated that he understood he was subject, as a 

persistent felony offender, to increased punishment up to 

100 years imprisonment. Defendant pleaded guilty and the 

District Court sentenced defendant to serve twenty years in 

the state prison. 

On October 12, 1976, defendant filed a petition for 

post-conviction relief, pursuant to section 95-2601, R.C.M. 

1947, in District Court, 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 to defendant, violate 

constitutional safeguards dealing with ex post facto laws 

and equal protection? 

2. Is section 95-1507 unconstitutional under Article 

11, Section 28, 1972 Montana Constitution? 

3. Did the District Court abuse its discretion in 

revoking defendant's deferred imposition of sentence on the 

second degree assault conviction? 

4. Did the court's mistaken belief in sentencing that 

defendant had entered his guilty plea to the 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 in effect 

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 District Court abuse its discretion in 

finding that defendant was not denied effective assistance 

of counsel? 

8. Was the twenty year sentence defendant received so 

excessive and disproportionate to the 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 

district judge 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 in effect. The District Court judge sentenced 

defendant to twenty years in the state prison as a persistent 

felony offender under section 95-1507. Under section 95- 

1507(2), the maximum penalty for conviction of the felony of 

carrying a concealed weapon, for one who has "previously 

been convicted of a felony" is 100 years in the state prison. 

Defendant alleges that, because the felony second 

degree assault conviction occurred prior to the enactment of 

section 95-1507, the District Court's use of the assault 

conviction to increase punishment 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 statute in effect when he committed the 

second degree assault. 

Defendant misconstrues the constitutional prohibitions 

against ex post facto laws. Both the United States and 

Montana Constitutions prohibit the Montana 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 are prohibited on the 

theory no one should be punished for conduct which the 

law did not give him advance warning was criminal. Section 

95-1507, was enacted in 1973 prior to defendant's commission 

of the carrying a concealed weapon felony in 1976. The law 

did not punish defendant for past conduct, but merely notified defendant he was subject to increased punishment, if he 

in the future committed an additional felony crime. In 

rejecting a claim similar to defendant's, the United States 

Supreme Court stated : 

"Nor do we think the fact that one of 

the convictions that entered into the calculations by which petitioner became a fourth 

offender occurred before the Act was passed, 

makes the Act invalidly retroactive * * * . The sentence as a * * * habitual criminal is 

not to be viewed as either a new jeopardy or 

additional penalty for the earlier crimes. 

It is a stiffened penalty for the latest crime, 

which is considered to be an aggravated offense because a repetitive one." 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 in general unconstitutionally selectively applied, and was selectively 

applied in the instant case, due to the county attorney's 

animosity toward defendant and defendant's counsel. Nothing 

in the record supports defendant's assertion that he was 

singled out for persistent felonyprosecutiondue to the 

prosecutor's feelings of personal enmity. Nor does a showing 

of selective enforcement of a criminal law, without more, 

constitute a constitutional violation. "* * * the conscious 

exercise of some selectivity in enforcement is not in itself 

a federal constitutional violation" absent an allegation and 

showing that "* * * the selection was deliberately based 

upon an unjustifiable standard such as race, religion, or 

other arbitrary classification * * *" such as sex, or the 

exercise of the First Amendment 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 to potentially stiffer 

sentences than first time felony offenders, the law violates 

that portion of Article 11, Section 28, 1972 Montana Constitution, 

which provides that "Full rights are restored by termination 

of state supervision for any offense against the state." 

The success of defendant's argument necessarily depends upon 

whether the reference in Article 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 the Article 11, Section 28 clause on restoration of full prisoner's rights, was concerned that no obstacles 
prevent the ex-convict from becoming a contributing and 

participating member of the community. Speaking on behalf 

of the committee, one delegate stated that the ex-prisoner, 

no longer under state supervision, " * * * should be entitled 

to the restoration of all civil and political rights, including 

the right to vote, hold office, and enter occupations which 

require state licensing." Vol. 7, Const. Convention Transcript 

5550 (remarks of Delegate James). A main concern of the 

delegates was 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, (7th Cir. 

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

, 98 S.Ct. 786, 54 L ed 2d 603. 

The "full rights" language of Article 11, Section 28 

does not include a "right" to be sentenced for a felony 

without regard to prior felony convictions. Having a prior 

felony conviction with the potential for increasing punishment on a subsequent felony conviction does not hamper 

rehabilitation of the ex-convict or diminish his civil or 

political rights. If the ex-convict obeys the law, as all 

citizens are required to do, for five years subsequent to 

his felony conviction or release from prison, the prior 

felony may not be used to increase punishment under section 

95-1507 for a subsequent felony. Rather than involving 

any civil or political "right", increasing the sentence of a 

persistent felony offender is entirely consistent with the 

constitutional mandate that "Laws for the punishment of 

crime shall be founded on the principles of prevention and 

reformation.* * *" Article 11, Section 28, 1972 Montana 

Constitution. 
"* * * Persistence in crime and failure of 

earlier discipline effectively to deter or 

reform justify more drastic treatment. * * * 

For the determination of sentences, justice 

generally requires consideration of more 

than the particular acts by 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. His past may be taken to 

indicate his present purposes and tendencies 

and significantly to suggest the period of 

restraint and the kind of discipline that 

ought to be 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 

to revoke 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 at the District Court hearing on the State's second 

petition to revoke the deferred sentence show that on 

October 25, 1972, at 2:00 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 to revoke the deferred imposition of sentence. 

Defendant is not correct in his assertion that the 

District Court had no authority after the first revocation 

hearing to impose a jail term as an additional condition of 

his continued deferred imposition of sentence. Defendant 

contends this Court's holding in State v. Drew, (1971), 158 

Mont. 214, 490 P.2d 230, established that a term in jail may 

never be imposed as a condition of a deferred sentence. 

However, this Court in Drew merely stated that a trial judge 

may not actually impose a sentence and defer the imposition 

of part of that sentence. The district judge may, however, 
defer imposition of sentence and make a jail term a condition of probation. "* * * There is a valid distinction 

under the law in granting a deferred imposition upon conditions, 

rather than imposing a jail sentence with conditions." 

State ex rel. Woodbury v. District Court, (1972), 159 Mont. 

128, 136, 495 P.2d 1119. See also: State v. Thorsness, 

(1974), 165 Mont. 321, 528 P.2d 692. 

Defendant next contends that his persistent felony 

offender sentence is invalid because the district judge 

sentenced him under the misapprehension that defendant plead 

guilty on January 25, 1973, to second degree assault. 

Defendant did, however, on September 11, 1970, plead guilty 

to second degree assault. Although defendant emphasizes 

that he did not on January 25, 1973, plead guilty to a 

burglary charge, the fact that he was found by police at 

2:00 a.m. in a hardware store where the burglar alarm had 

sounded and guns had been removed from a broken display 

case, was sufficient cause to revoke 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 statute as in effect when he 

committed the crime, gave prosecutors discretion to charge 

the transaction as a felony or a misdemeanor, gave no judicial guidelines as to when 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 State v. Pirkey, (1955), 203 Or. 

697, 281 P.2d 698, where the Supreme Courts of both washington 

and Oregon declared unconstitutional statutes which did not 
distinguish when identical conduct should be charged by 

prosecutors as felonies or misdemeanors. 

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 " * * * shall be 

punished by a fine not exceeding five hundred dollars or by 

imprisonment in the county jail for a period not exceeding 

six months, or by both such fine and imprisonment, or may be 

punished by imprisonment in the state penitentiary for a 

period not exceeding five years." Defendant contends that 

because the same offense may be punished as either a felony 

or a misdemeanor, the rule and rationale of Olsen, Pirkey 

and similar cases require this Court to rule that section 

94-8-210 is unconstitutional. 

The defendant in Olsen was convicted under a carrying a 

concealed weapon statute which contained a penalty clause 

worded very similarly to the penalty clause of section 94-8- 

210. The crime in Olsen was "* * * punishable by a fine of 

not more than five hundred dollars or imprisonment in the 

county jail for not more than one year or both, - or by 

imprisonment in the penitentiary for not less than one year 

nor more than ten years." Olsen v. Delmore, 295 P.2d 325. 

In Washington, 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. Crimes punishable by death or 

imprisonment in the state penitentiary were felonies; crimes 

punishable by fines of less than $250, Or by imprisonment in 

a county jail for not more than ninety days, were misdemeanors. 

The vice of the statute in Olsen, and of a similar statute 

in Pirkey, was that it authorized prosecuting officials to 
charge 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 statute itself furnishes 

no criterion by which to determine when an accused is to be 

charged with felony, and when with a misdemeanor * * *." 

(Emphasis added.) State v. Pirkey, 281 P.2d 702. 

Although the section 94-8-210 penalty clause in effect 

when defendant committed the crime was worded similarly to 

the Washington statute in Olsen, Montana's law does not 

suffer from the same constitutional infirmity. In Montana, 

the discretion to classify an offense as a felony or a 

misdemeanor belongs to the sentencing court and not to the 

prosecuting official. Except for the limited jurisdictional 

and statute of 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 in which - the 

sentence imposed upon conviction is death 

or imprisonment in the state prison for any 

term exceeding one (1) year." (Emphasis 

added. ) 

"(31) 'Misdemeanor' means an offense in which 

the sentence imposed upon conviction is 

imprisonment in the county jail for any term, - 

or fine, or both, or the sentence imposed is 

imprisonment in the state prison for any term 

of one year or less." (Emphasis added.) 

Where the power to classify a crime as a felony or a 

misdemeanor is given to the judge, through the sentence he 

imposes, rather than to the prosecutor, there is no equal 

protection violation. Gibson v. Dell, (9th Cir. 1971), 443 

F.2d 75. See: Daloia v. Rhay (9th Cir. 1958), 252 F.2d 768, 

770. The rationale for this distinction was set forth by 
Mr. Justice Black in his dissent in Berra v. United States, 

(1956), 351 U.S. 131, 140, 76 S.Ct. 685, 100 L.ed. 1013: 

" * * * Of course it is true that under our 

system Congress may vest the judge and jury 

with broad power to say how much punishment 

shall be imposed for a particular offense. 

But it is quite different to vest such powers 

in a prosecuting attorney. A judge and jury 

act under procedural rules carefully prescribed to protect the liberty of the individual. Their judgments and verdicts are 

reached after a public trial in which a defendant has the right to be represented by an 

attorney. No such protections are thrown 

around decisions by a prosecuting attorney." * *" 

351 U.S. 140. 

Nor was the statute unconstitutionally vague because 

the judge could sentence the offense as either a felony or a 

misdemeanor, without statutory guidelines as to when each 

grade of sentence should be imposed. One of the purposes of 

the 1973 Montana Criminal Code was to vest wide sentencing 

discretion in the trial judge 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 in effect when defendant committed the crime, was not 

artfully phrased, it meant no more than that one found 

guilty of the section could be sentenced to imprisonment in 

the state prison for a term not to exceed five years. The 

sentencing clause, therefore, was no different from other 

sections of the criminal code which likewise vest the - 

sentencing judge with the discretion to impose 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 to exceed ten years 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 that he 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; 

State v. 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 the maximum potential penalty upon conviction. Tucker v. 

United States, (5th Cir. 1969), 409 F.2d 1291, 1295. In 

this case, defendant was properly informed of the maximum 

potential sentence upon a guilty plea. A guilty plea is not 

necessarily invalid if a defendant is not informed of minimum 

penalties upon conviction. Defendant misconstrues Montana 

law when he states that he did not realize he might have 

been convicted of a misdemeanor rather than a felony. 

Defendant could have been convicted at trial in the 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 the judge has imposed 

sentence. A conviction after trial or a conviction due to a 

guilty plea therefore had no effect upon whether the offense 

would subsequently be classified as a misdemeanor or a 

felony, and the failure to inform defendant of the minimum 

sentence did not affect the voluntariness of his guilty 

plea. 

Defendant next alleges he was denied effective assis- 
tance of counsel when he entered his plea of guilty to the 

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". State v. McElveen, 

(1975), 168 Mont. 500, 504, 544 P.2d 820; State v. Miller, 

(1977) I Mont. , 568 P.2d 130, 34 St.Rep. 838. 

In explaining the specifics of this test, this Court 

has held that to render effective assistance within the 

requirements of the Sixth Amendment, United States Constitution, and Article 11, Section 24, 1972 Montana Constitution, 

counsel must attempt to "discover all the facts and circumstances of the crime" through "thorough investigation of the 

persons and events involved in the crime." State v. McElveen, 

168 Mont. 506. The representation by counsel must also 

include adequate preparation and conference with his client. 

State v. McElveen, 168 Mont. 504, quoting Williams v. Beto, 

(5th Cir. 1965), 354 F.2d 698, 704. Adequate conference 

with the client includes advising the client of his rights 

and eliciting from the client all matters of defense, or 

ascertaining that there exists no defense. See: Coles v. 

Peyton, (4th Cir. 1968), 389 F.2d 224, 226, cert.den., 393 

U.S. 849, 89 S.Ct. 80, 21 L 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 to determine the constitutionality of the 

concealed weapons statute, and because counsel made no 

investigation as to why defendant was carrying a concealed 

weapon. The decisions of whether to challenge the constitutionality of a statute or to move to suppress evidence are 

matters of legal judgment. In this case, we hold the carrying 
a concealed weapon statute was constitutional. Defendant's 

attorney stated in an affidavit that defendant had explained 

that the police had authority to search defendant as a 

condition of defendant's parole on the second degree assault 

charge. Defendant claims he had no criminal intent because 

the reason he was carrying a concealed weapon was to protect 

himself from attack in the bar that he was in. Concealing a 

pistol or revolver on his person within the city limits, 

however, was sufficient evidence to convict under section 

94-8-210. The reasons for defendant's concealing the weapon 

were in this case irrelevant to the issue of criminal intent, 

though those reasons might have been a relevant consideration 

in sentencing. 

Defendant's counsel, in an affidavit, swore that he 

consulted with defendant as to the facts of the case and 

possible defenses, arranged to take statements from prospective witnesses, had conversations with various persons 

involved in the case, considered and rejected the possibility 

of submitting a motion to suppress, determined that there 

was no sound defense, and finally advised defendant there 

was almost no chance of success at trial. Defense counsel 

then plea bargained with the county attorney and advised 

defendant to enter a guilty plea in exchange for a prosecution request for a twenty year sentence. Subsequent to 

sentencing, defendant's attorney made a motion to vacate the 

twenty year sentence, supported by a memorandum of law. The 

representation of defendant by his attorney was effective 

within the standards set forth in State v. McElveen, supra. 

The final contention of defendant is that the twenty 

year sentence he received was cruel and unusual punishment 

proscribed by the Eighth Amendment, United States ~onstitution, 
and by Article 11, Section 22, 1972 Montana Constitution. 

Defendant contends the sentence is excessive and disproportionate to the crime of carrying a concealed weapon, a 

crime which he alleges usually brings only a fine, a short 

jail sentence, or both such fine and jail sentence. Defendant 

notes that the maximum sentence under section 94-8-210 for 

the offense of carrying a concealed weapon is five years. 

Defendant misconstrues the offense for which 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 

it be within the maximum sentence allowed by statute, may be 

so excessive and disproprotionate to the circumstances of 

the offense as to constitute 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), 144 U.S. 323, 

12 S.Ct. 693, 36 L.ed. 450 (Field, J., dissenting). 

" * * * the Cruel and Unusual Punishment Clause * * * 

proscribes punishment grossly disproportionate to the 

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 " * * * 

the general rule that a sentence within the maximum authorized 

by statute is not cruel and unusual punishment." State v. i 

Karahthos, (1972), 158 Mont. 461, 468, 493 P.2d 326. C 

The twenty year sentence which defendant received was 

well within 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 to the severity of the 
offense. Though the maximum penalty for the first felony 

offense of carrying a concealed weapon is five years imprisonment, defendant had previously been convicted of another 

felony. Persistent felony offender statutes " * * * prescribe 

such penalties as may 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 sentence was 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: