### INTHE SUPREME COURT OF THE STATE OF MONTANA OP 21-0475

JUSTINTHOMAS MILLER,

Petitioner, t'

v. FIRST JUDICIAL DISTRICT COURT, LEWISAND CLARK COUNTY, HON. CHRISTOPHER ABBOTT, Presiding Judge,

Respondent. 

# FILED SEP 2 8 2021 Bowen Greenwood Clerk of Suprerrie Court State of Montana 

### ORDER

Justin Thomas Miller seeks a writ of supervisory control over the First Judicial District Court directing it to dismiss negligent homicide charges pending against him in Lewis and Clark County Cause No. DDC-2020-615. After a thorough analysis, the District Court rejected Miller's claim that constitutional and statutory double jeopardy protectionsbarthechargesagainsthim. Millerargues,correctly,thatthisCourtwillreview
a double jeopardy claim on supervisory control, as authorized by M. R. App. P. 14(3), before a defendant's exposure to a second trial. See State v. Burton, 2017 MT 306, ¶ 18, 389Mont.499, 407 P.3d 280. We accordingly accept supervisory control and considerhis petition. Miller, a commercial trucker, learned during an August 6, 2020 Motor Carrier Services (MCS) inspection that his truck's axle had defective or missing parts and loose connecting rods. The MCS officer deemed the trailer unsafe to operate until these defects
were addressed. The State alleges that Miller continued to drive the truck without adequately repairing the axle. Five days later, on August 11, 2020, while Miller was driving on Highway 200 within Lewis and Clark County, the rear wheel assembly disconnected from his trailer and struck a passing vehicle, killing the driver. Missoula County cited Miller a month later for violating motor carrier standards, alleging 09/29/2021

Case Number: OP 21-0475thatMiller committed the offense of"Motor Carrier in Non-Compliance with 49 CFR 396

— lst Offense" and describingthe August 11 violation as "396.7(A) a motor vehicle shall notbeoperated insuch condition asto likely cause an accidentorbreakdown." The citation alleged the offense occurred in Missoula County at Miller Transport's office at 3670 BigFlat Road. Miller appeared in Missoula County Justice Court, entered a plea of

no contestto the citations, and received a fine. The Lewis and Clark County Attorney, who had not been advised of Missoula County's citations before they were filed, obtained leave to file an Information in the First Judicial District Court and filed charges on November 24, 2020. Before the District Court, Miller sought dismissal of the charges under: (1) the guarantee against double, jeopardy found in the Fifth Amendment to the United States Constitution, applicable to the states through operation of the Due Process Clause of the Fourteenth Amendment; (2) the guarantee against doublejeopardy found in Article II, Section 25, of the Montana Constitution; and (3) the statutory prohibition on successive prosecutions based on the same transaction found in § 46-11-504(1), MCA. The District Court addressed and rejected each of Miller's arguments. In this original proceeding, Miller challenges only the court's ruling that the Montana Constitution's double jeopardy provision does not bar the pending charges. This Court applies the Blockburger "same elements" test in determining whether multiple convictions based on the same transaction are barred underArticle II, Section 25, oftheMontanaConstitution. Statev. Minez, 2003 MT 344, ¶33, 318Mont.478, 82 P.3d 1 (citingBlockburger v. UnitedStates, 284U.S.299, 304 (1932)). Underthistest, "[a]single actmaybeanoffense againsttwostatutes; and ifeach statuterequiresproofofanadditional fact which the other does not, an acquittal or conviction under either statute does not exemptthe defendant fromprosecution andpunishmentunderthe other." State v. Savaria, 284 Mont. 216, 222, 945 P.2d 24, 28 (1997) (quoting Blockburger, 284 U.S. at 304). See also State v. Wardell, 2005 MT 252,

## ¶¶ 17-18, 329 Mont. 9, 122 P.3d 443. A court's "inquiry

. . . is directed tothe elements ofproofnecessary to establish each [ofthe offenses 2charged]." State v. Coleman, 185 Mont. 299, 311, 605 P.2d 1000, 1008 (1979). If

"each requires proofof elements that other does not

. . ., [a] defendant may be convicted and sentenced for both

. . . without violating the doublejeopardy prohibition even though the counts arose from the same conduct or episode." Coleman, 185 Mont. at 311-12, 605 P.2d at 1009. Miller does not challenge the District Court's determination that the negligent homicide charges satisfy the Blockburger test. Miller argues instead—primarily onthe strength ofselected comments Made during the 1972 Constitutional Convention—that the Court should honor a greater protection under the Montana Constitution and apply a "same conduct" test for double jeopdrdy to prohibit a second prosecution on a new charge arising from a single "transgression against society." Miller suggests thatthe Court apply a standard the United States Supreme Court
once used when it held that in the case of successive prosecutions, the latter is barred "if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Grady v. Corbin, 495 U.S. 508, 510 (1990). The District Court rejected Miller's analysis, pointing out that "that test

. . . was abandonedjust three years later in UnitedStates v. Dixon, 509 U.S. 688, 704 (1993)." The court found no support in the Convention transcripts suggesting an intent to depart from the Blockburger standard "outside ofthe case ofseparate.sovereigns." Miller alsopoints out that in State v. Guillaume, 1999 MT 29, ¶ 16, 293 Mont. 224, 975 P.2d 312, we recognized a greater protection from Article II, Section 25, of the MontanaConstitution againstmultiplepunishments forthe same offensethanthatprovided by the Fifth Amendment to the United States Constitution. This Court held that applying the weapons enhancement statute to a felony offense when Ihe underlying offense itself requires proving the use ofa weapon violates Montana's constitutional protection against double jeopardy. Guillaume, ¶ 16. The District Court found Guillaume unhelpful here because it addressed a "same prosecution, multiple punishments" situation and "did not

3

### decide whether the term 'same offense' has any different meaning under the Montana

Constitution[1" Millerhas not persuaded usthat the District Court has made a mistake oflaw and is causing a grossinjustice. M. R.App. P. 14(3)(a). We agree that theMontana Constitution does not barthe negligent homicide charges against him, and the case mayproceed totrial. IT IS THEREFORE ORDERED that the District Court's September 1, 2021 Order denyingMiller's motion to dismiss is AFFIRMED. The Clerk is directed to provide notice ofthis Order to counsel for the Petitioner,to all counsel of record in Lewis and Clark County Cause No. DDC-2020-615, and to the First Judicial District Court, the Hon. Christopher Abbott, presiding. Dated this day ofSeptember, 2021.

ChiefJustice



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