DA 12-0257

IN THE SUPREME COURT OF THE STATE OF MONTANA

2014 MT 48

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

THOMAS L. ZINK,

 Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,

In and For the County of Flathead, Cause No. DC 09-018(A)

Honorable Ted O. Lympus, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Wright Legal, P.C., Helena, Montana 

For Appellee:

Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant 

Attorney General, Helena, Montana

Ed Corrigan, Flathead County Attorney, Travis Ahner, Deputy County 

Attorney, Kalispell, Montana 

Submitted on Briefs: January 15, 2014

 Decided: February 25, 2014

Filed:

__________________________________________

Clerk

February 25 2014
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Justice Michael E Wheat delivered the Opinion of the Court.

BACKGROUND

¶1 The State of Montana charged Thomas Zink (Zink) by Information with aggravated 

assault against his wife pursuant to § 45-5-202(1), MCA. The State later moved to amend 

the Information to add a criminal endangerment charge pursuant § 45-5-207(1), MCA. 

Before trial, Zink moved to dismiss the endangerment charge as a lesser-included offense of 

aggravated assault. The District Court denied that motion.

¶2 At trial, the State presented testimony from Zink’s wife, Elizabeth Zink (Elizabeth). 

Elizabeth testified that she was in the midst of bathing one of her children when Zink called 

her into the hallway, “grabbed me and threw me into the wall and held me up against the 

wall by my wrists,” then “shoved me into the floor” and “hit me on my back.” Elizabeth got 

up and went to the kitchen, where Zink “came at me with both hands, and he squeezed hard 

right away, he squeezed really hard.” Elizabeth heard a “crunching gurgle” come from her 

neck, followed by Zink squeezing harder and telling her to die. “I thought, God, is this really 

going to happen, am I really going to die?” 

¶3 The District Court instructed the jury on criminal endangerment, aggravated assault, 

and assault as a lesser-included offense of aggravated assault. The jury convicted Zink on 

the criminal endangerment count and the lesser offense of assault. 

¶4 At sentencing, Mr. Hinchey (Hinchey), Zink’s counsel, argued for a probationary 

sentence on the grounds that Zink was not convicted on aggravated assault, a violent felony. 

Hinchey repeatedly emphasized that the jury chose the lesser offense, and thus found that 

Elizabeth did not suffer reasonable apprehension of serious bodily injury. Hinchey also 
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referred to Zink’s testimony to show that he was a loving father and that Elizabeth and her 

children were not in danger from Zink upon his release. Hinchey did not invoke 

§ 46-18-225, MCA, which requires a sentencing court to evaluate specific criteria when 

assessing imprisonment alternatives for non-violent offenders. The State argued for 

imprisonment in Montana State Prison based on Zink’s past convictions for partner assault, 

the severity of the assault, and his attempt to justify and minimize the assault. The District 

Court sentenced Zink to ten years on the criminal endangerment count and a concurrent six 

months on the assault count. 

¶5 Zink appeals from the District Court’s order, arguing that criminal endangerment is a 

lesser-included offense of aggravated assault and thus charging both crimes is prohibited by 

statute. Zink also argues that he received ineffective assistance of counsel when Hinchey 

failed to invoke § 46-18-225, MCA. 

¶6 The following issues are presented for review:

¶7 Did the District Court err in denying Zink’s pre-trial motion to dismiss the charge of 

criminal endangerment as a lesser-included offense of aggravated assault?

¶8 Did Zink receive ineffective assistance of counsel when his attorney failed to raise the

statutory criteria for alternatives to imprisonment for sentencing non-violent offenders?

STANDARDS OF REVIEW

¶9 The denial of a motion to dismiss in a criminal case is a conclusion of law which we 

review de novo. State v. Dixon, 2000 MT 82, ¶ 10, 299 Mont. 165, 998 P.2d 544 (citing 

State v. Weaver, 1998 MT 167, ¶ 43, 290 Mont. 58, 964 P.2d 713). Ineffective assistance of 
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counsel (IAC) claims present mixed questions of law and fact that we review de novo. State 

v. Gunderson, 2010 MT 166, ¶ 66, 357 Mont. 142, 237 P.3d 74.

DISCUSSION

¶10 Did the District Court err in denying Zink’s pre-trial motion to dismiss the charge of 

criminal endangerment as a lesser-included offense of aggravated assault?

¶11 Zink invokes Montana’s statutory prohibition on multiple convictions as well as the 

federal prohibition of multiplicitous charges under the Double Jeopardy Clause. Under both 

protections, Zink argues that criminal endangerment is a lesser-included offense of 

aggravated assault. 

A. Statutory Prohibition on Multiple Convictions

¶12 Zink contends that criminal endangerment is a lesser-included offense of aggravated 

assault, and thus the State may not charge him with both. Zink cites to State v. Tellegen, 

2013 MT 337, ¶ 23, 372 Mont. 454, 314 P.3d 902 for the proposition that a defendant may 

not be charged with both a greater and lesser offense.1That case concerned a defendant’s 

conviction on both a lesser and greater offense, which is prohibited under § 46-11-410(2)(a), 

MCA. Tellegen, ¶ 26. The same statute specifically provides that, “[w]hen the same 

transaction may establish the commission of more than one offense, a person charged with 

the conduct may be prosecuted for each offense.” Section 46-11-410(1), MCA. Montana 
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law also specifically authorizes charging in the alternative. Section 46-11-404(3), MCA

(“The prosecution is not required to elect between the different offenses set forth in the 

charging document, and the defendant may be convicted of any number of the offenses 

charged except as provided in 46-11-410.”). 

¶13 Even if criminal endangerment is a lesser-included offense of aggravated assault, Zink 

was not convicted on both charges, so § 46-11-410, MCA, is not implicated. The jury 

convicted Zink on criminal endangerment and misdemeanor assault instead of aggravated

assault. Zink does not argue that simple assault and criminal endangerment are lesser or 

included in one another. Rather, he argues that because the criminal endangerment charge is 

a lesser-included offense of aggravated assault, the endangerment charge should have been 

dismissed at the outset and he should not have been tried on both counts. As expressly stated 

in the statute, however, a defendant may be charged in the alternative, so long as he is 

convicted of only one offense. Section 46-11-410, MCA. Montana’s statutory prohibition 

on multiple convictions was not violated, so we need not address whether criminal 

endangerment is a lesser-included offense of aggravated assault. 

B. Multiplicity of Charges

¶14 Zink also argues that the charges here were multiplicitous because they address one 

crime with multiple charges. As discussed above, Montana law specifically allows charging 

 

1 Tellegen inaccurately summarized § 46-11-410, MCA, but was later amended to correct that 

inaccuracy in State v. Tellegen, 2013 MT 337A, ¶ 23, ___Mont. ___, ___ P.3d___. The amended 

portion follows, with strikeouts deleted and additions underlined: “Montana law prohibits charging

convicting a defendant with on multiple offenses when one offense is included in the other. Section 

46-11-410(2)(a), MCA. This restriction The prohibition on double jeopardy bars both multiple 
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in the alternative, and prohibits only convictions on multiplicitous charges. Sections 

46-11-404(3), 410, MCA. Instead, Zink cites to federal law for the proposition that “[u]nless 

each offense requires proof of an element that the other does not, a defendant may not be 

charged with both.” U.S. v. Woerner, 709 F.3d 527, 539 (5th Cir. 2013) (citations omitted). 

¶15 Federal jurisprudence, however, only protects a defendant from conviction on 

multiplicitous charges. “[A] defendant has no constitutional right to elect which of two 

applicable federal statutes shall be the basis of his indictment and prosecution,” United States 

v. Batchelder, 442 U.S. 114, 125, 99 S. Ct. 2198, 2205 (1979), nor does the Double Jeopardy 

Clause act as a “bar to the Government’s proceeding with prosecution simultaneously under 

the two statutes.” Ball v. United States, 470 U.S. 856, 860, 105 S. Ct. 1668, 1671 (1985). 

The reason for concern with multiplicity of charges is that it creates the potentialfor multiple 

punishments or convictions in violation of the Double Jeopardy Clause. State v. Robbins, 32 

P.3d 171,182 (Kan. 2001). Thus, courts may cure any double jeopardy problems with 

multiplicitous indictments by vacating those convictions that are multiplicitous. See United 

States v. Kerley, 544 F.3d 172, 179 (2d Cir. 2008); United States v. Ehle, 640 F.3d 689, 699 

(6th Cir. 2011); United States v. Lynn, 636 F.3d 1127, 1139 (9th Cir. 2011); United States v. 

Bonilla, 579 F.3d 1233, 1246 (11th Cir. 2009).

¶16 Zink was not subjected to multiple convictions or punishments, so he was not placed 

in jeopardy by the allegedly multiplicitous charges. Even if Zink had been convicted on 

multiplicitous charges, the District Court could have cured that problem by vacating the 

 

prosecutions and multiple punishments for the same offense. State v. Guillaume, 1999 MT 29, ¶¶ 8, 

19, 293 Mont. 224, 975 P.2d 312.”
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offending conviction. Accordingly, Zink’s double jeopardy claim is without merit, and we 

need not address whether criminal endangerment is a lesser-included offense of aggravated 

assault. 

¶17 Did Zink receive ineffective assistance of counsel when his attorney failed to raise the 

statutory criteria for alternatives to imprisonment for sentencing non-violent offenders?

¶18 To determine whether an individual has received ineffective assistance of counsel, we 

use the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 

2052, 2064 (1984). Under this test, the defendant must demonstrate that counsel’s 

performance was deficient, and that counsel’s deficient performance prejudiced the 

defendant. State v. Miner, 2012 MT 20, ¶ 11, 364 Mont. 1, 271 P.3d 56. Under Strickland’s 

second prong, we examine whether there is a reasonable probability that counsel’s lack of 

reasonable professional conduct renders the trial result unreliable or the proceedings 

fundamentally unfair. Miner, ¶ 12. If an insufficient showing is made regarding one prong 

of the test, there is no need to address the other prong. Dawson v. State, 2000 MT 219, ¶ 21, 

301 Mont. 135, 10 P.3d 49 (quoting Strickland, 466 U.S. at 697, 104 S. Ct. at 2069). “If it is 

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . 

that course should be followed.” Strickland, 466 U.S. at 697, 104 S. Ct. at 2069. 

¶19 Section 46-18-225, MCA, provides that a sentencing court must weigh alternatives to 

imprisonment for non-violent felony offenders, taking into account whether: 

(a) the interests of justice and the needs of public safety truly require 

the level of security provided by imprisonment of the offender in a state 

prison; 

(b) the needs of the offender can be better served in the community or 

in a facility or program other than a state prison; 
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(c) there are substantial grounds tending to excuse or justify the offense, 

though failing to establish a defense; 

(d) the offender acted under strong provocation; 

(e) the offender has made restitution or will make restitution to the 

victim of the offender’s criminal conduct; 

(f) the offender has no prior history of conviction for a criminal act or, 

if the offender has a prior history of conviction for a criminal act, the offender 

has led a law-abiding life for a substantial period of time before the 

commission of the present crime; 

(g) the offender’s criminal conduct was the result of circumstances that 

are unlikely to recur; 

(h) the character and attitude of the offender indicate that the offender is 

likely to commit another crime; 

(i) the offender is likely to respond quickly to correctional or

rehabilitative treatment; and 

(j) imprisonment of the offender would create an excessive hardship on 

the offender or the offender’s family. 

Section 46-18-225(2), MCA.

¶20 Courts have an affirmative duty to consider the § 46-18-225 criteria in sentencing a

non-violent offender. State v. Nelson, 274 Mont. 11, 20, 906 P.2d 663, 668 (1995). While 

we would prefer “[e]xplicit, rather than implicit consideration of the criteria,” an absence of 

explicit consideration does not render a sentence illegal or incorrect. Nelson, 52 Mont. at 20, 

906 P.2d at 668. “The point is not to require some mechanical nod toward § 46-18-225, 

MCA, but rather to insure that in the appropriate case the District Court gives real 

consideration to . . . a sentence other than imprisonment.” State v. Weisweaver, 2010 MT 

198, ¶ 15, 357 Mont. 384, 239 P.3d 952. In State v. Wilson, 2011 MT 277, ¶ 35, 362 Mont. 

416, 264 P.3d 1146, a sentencing court did not specifically address the § 46-18-225 criteria 

but did address a number of concerns related to the criteria, such as likelihood of 

reoccurrence, prior criminal history, and the likelihood of correctional or rehabilitative 
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success. Because those facts spoke directly to the § 46-18-225 criteria, we held that formal 

reference to the statute would not have resulted in a different sentence. Wilson, ¶ 35. 

¶21 We applied the same reasoning in Weisweaver, where the sentencing court failed to 

formally reference § 46-18-225 criteria and counsel did not object to that omission. 

Weisweaver, ¶¶ 6, 16. Because the sentencing court considered Weisweaver’s criminal 

history, the severity of his addiction, and his need for intensive treatment, we concluded that 

the court gave “adequate consideration to the relevant circumstances . . . and to his 

susceptibility to alternative sentencing.” Weisweaver, ¶ 16. Since further consideration of 

the § 46-18-225 criteria would not have resulted in a different sentence, the defendant could 

not show prejudice from counsel’s failure to object on those grounds. Weisweaver, ¶¶ 19-20.

¶22 We conclude that Zink cannot show prejudice from Hinchey’s failure to formally 

invoke § 46-18-225, MCA. Hinchey argued for a probationary sentence instead of 

imprisonment and pointed to facts relating to the § 46-18-225 criteria. Although Zink 

presented testimony on his good character from co-workers and the potential impact of 

Zink’s imprisonment on his elderly parents, the District Court also considered evidence that 

Zink had previously been charged with partner assault on Elizabeth and that she feared harm 

from him in the future. The Pre-Sentence Investigation report indicated that Zink tried to 

justify and minimize his responsibility for the assault, and Zink testified at sentencing that 

his actions towards Elizabeth were simply a misunderstanding. During the oral 

pronouncement of sentence, the court specifically recognized the severity of Zink’s crime. 

These facts all speak directly to the criteria in § 46-18-225(2), MCA. Nothing in the record 

indicates that the court failed to properly consider facts relevant to those criteria. Zink fails 
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to show how formal invocation of those criteria would have had any chance of success in 

changing the court’s decision. Zink suffered no prejudice as a result of Hinchey’s failure to 

invoke the statutory criteria in question, and therefore, his IAC claim fails the second prong 

of Strickland. Because this claim is easily disposed on Strickland’s second prong, we need 

not evaluate whether Hinchey’s representation of Zink was deficient. Strickland, 466 U.S. at 

697, 104 S. Ct. at 2069; Dawson, ¶ 21. 

CONCLUSION

¶23 Zink was not simultaneously convicted on a lesser and greater offense, and has 

suffered no prejudice from his counsel’s conduct at sentencing. Zink’s conviction and 

sentence are affirmed.

/S/ MICHAEL E WHEAT

We Concur:

/S/ JIM RICE

/S/ PATRICIA COTTER

/S/ LAURIE McKINNON

/S/ BETH BAKER