No. 05-610 IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 35

LARRY DEWAYNE ADAMS, Petitioner and Appellant,

v. STATE OF MONTANA, Respondent and Respondent.

APPEAL FROM: The District Court of th e Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC-98-144, Honorable Jeffrey H. Langton, Presiding Judge

COUNSEL OF RECORD: For Appellant: Sasha K. Brownlee, Brownlee Law Office PLLC, Hamilton, Montana For Respondent: Honorable Mike McGrath, Attorn ey General; Pamela P. Collins, Assistant Attorney Ge neral, Helena, Montana George Corn, County Attorney, Hamilton, Montana
Submitted on Briefs: November 22, 2006 Decided: February 13, 2007 Filed:

__________________________________________ ClerkJustice W. William Leaphart delive red the Opinion of the Court. ¶1 Larry DeWayne Adams appeal s from the Twenty-First Judicial District Court’s denial of his amended petition for postconviction relief. We affirm. ¶2 Adams raises the followi ng issues on appeal: ¶3 1. Did the District Court err in denying Adams’ am ended petition for postconviction relief alleging Adams received in effective assistance of counsel when his attorneys failed to file a motion to dismiss for lack of speedy trial? ¶4 2. Did the District Court err in denying Adams’ am ended petition for postconviction relief alleging Adams received in effective assistance of counsel when his attorney failed to object to a jury instruction on aggravated assault as a lesser included offense of the attempted deliberate homicide charge? ¶5 3. Did the District Court err in denying Adams’ am ended petition for postconviction relief alleging Adams received in effective assistance of counsel when his attorney failed to move for a directed verdict regarding aggravated assault? ¶6 4. Did the District Court legally sentence Adams when it imposed a ten-year weapon enhancement? BACKGROUND ¶7 On October 2, 1998, the State charge d Adams by informatio n with attempted deliberate homicide, obscuring the identity of a machine, possession of a switchblade knife, criminal possession of dangerous drugs, and criminal possession of drug paraphernalia. The information included a notice that, pursuant to § 46-18-221, MCA

2(1997), Adams could receive an enhanced sentence for the a ttempted deliberate homicide offense because he used a weapon in the commission of the offense. ¶8 Adams was tried by a jury on September 20 and 21, 1999. Th e jury found Adams guilty of aggravated assault, a lesser included offense of attempted deliberate homicide, not guilty of obscuring the id entity of a machine, guilty of possession of a switchblade knife, guilty of criminal posse ssion of dangerous dr ugs, and guilty of criminal possession of drug paraphernalia. ¶9 Adams’ charges arose out of an alterc ation between Adams and his girlfriend, Jackie Wright, on September 14, 1998. Earl y that morning, Adams returned to the home he and Wright shared in Victor, Montana, after several hour s of drinking at a nearby bar. Adams and Wright started to argue. Adam s began throwing things, including loose change, boots, lamps, and a coff ee table. He picked up a .9 millimeter pistol and started waving it around, then fired it into the wall a couple feet to Wright’s left and a few inches above her head. He th en knelt down in front of Wright, yelled at her, and put the gun to her chest. Wright looked Adam s in the face, thinking he was going to kill her. She heard the gun click, then saw a look of surprise on Adams’ face, as if he was shocked the gun did not fire. ¶10 After the gun failed to fire, Adams went down a hallway then came back without the gun. According to Wright, he then threw another lamp to ward her. She picked up the lamp and tried to defend herself with it as Adams came at her. Adams grabbed Wright and started hitting her on the head and chest w ith his fists. They fell to the floor and Adams straddled her, grabbing her hair and hitting her head on the floor. Wright looked 3up and saw Adams with the coffee table over hi s head as he brought it down on her. She put up her left arm to protect herself, but was hit on the he ad with the table. She felt herself losing consciousness an d realized that she had wet herself. She came around when she felt warmth on her neck. Adams was walking down the hall again and Wright thought he was going to retrieve the gun. Sh e got up and ran out of the house toward the neighbor’s house. She got to the neigh bor’s door and saw Adams following her. She started slamming the screen door to try to wake up the neighbors. She then tried the door knob, found it was unlocked, and entered th e house and locked the door behind her. ¶11 The neighbors in the house testified th ey woke up to th e sound of Wright slamming the screen door. They found Wr ight in their living room. She was telling them to help her, her boyfri end was trying to kill her. The neighbors called the police and tried to calm Wright down. She refused to sit on their furniture because she had lost control of her bladder. The ne ighbors said she appeared to have been beaten and her ear was bleeding. ¶12 After law enforcement arrived and secured the area, Wright was transported to the hospital by ambulance. The em ergency room doctor stitched up a tear in her ear and admitted her to the hospital overnight to obse rve her because of he r head injury. The doctor diagnosed Wright as having a concussi on, which meant that Wright had either been knocked unconscious or hit hard enough on the head to be dazed. Wright also had a laceration of her ear and multiple contusions and abra sions. The doctor testified Wright’s injuries were consistent with be ing beaten by a fist and hit by the edge of a table. Wright testified that as a result of the incident, she ha d pain in her ribs that lasted for about six
4months, and still bothered her when driving long distances. She also testified that the pain in her head from the concu ssion lasted for a month or two. ¶13 Adams testified on his own behalf at trial, asserti ng that the gun was sitting on the kitchen counter, already cocked. When he picked it up to un load it, Wright started to grab for it, and it went off and hit the wall. He said he then ejected the magazine and threw the gun and the mag azine against the wall. He said Wright then started to swing at him, so he laid her on the floor and she pu lled her earring out of her own ear. When he went to get her a washcloth from the bathroom down the hall, Wright ran out the door and down the driveway toward the neighbors’ house. He ran after her because he did not want her to make a fool of herself in the lit tle red and black, lacy, waist-length nighty he said she was wearing that night. He tes tified that when he saw her banging the neighbors’ screen door against her own head, he gave up and went home and went to bed. ¶14 Law enforcement officers test ified that when th ey searched the home later, they found the gun laying against a wall with the magazine still in it. They also testified that Wright was wearing a white night shirt when they found her at the neighbors’ house, and it was stained yellow on the bottom. At Adam s’ house, the officers found the coffee table upright in the middle of the living room w ith Adams’ wallet lyi ng on it. They saw several lamps had been broken. They also sa w a bullet hole in the wall. They recovered a bullet casing in the living room and a fi red .9 millimeter bullet in a hall closet. ¶15 Adams’ defense counsel hired a ballistics expe rt that testified that the gun did not fire every time the trigger was pulled, and that it was not predictable when it would or would not fire. The expert te stified that in order for Wright to hear a clicking sound 5coming from the gun, one of two things woul d have happened: either the trigger was pulled and the hammer fell, causing a round to fire, or the trigger was pulled and the hammer fell, and the gun did not fire, but in th at case, the round in the chamber would be marked. He said the round found in the chamber that nigh t was not marked. He also stated, however, that when the trigger of that particular gun is pulled quickly, the hammer does not fall, and thus the round is not marked, but it can ma ke a mechanical noise that might sound like a click. ¶16 On December 1, 1999, the District Court sentenced Adams to tw enty years in the Montana State Prison for the aggravated assa ult conviction, five ye ars for the criminal possession of dangerous drugs conviction, si x months for the possession of a switchblade knife conviction, and six months for the pos session of drug parapher nalia conviction, all to run consecutively. Pursuant to § 46-1 8-221, MCA (1997), the court sentenced Adams to an additional ten years in prison for usin g a dangerous weapon during the commission of the aggravated assault. Following sentencing, Adams’ a ttorney withdrew as counsel and told Adams he needed to contact the public appellate defenders’ office if he wanted to pursue an appeal. ¶17 On October 16, 2000, Adam s, acting pro se, filed a petition for postconviction relief in the District Court. His petition a lleged ineffective assistance of his original attorney to file a motion to di smiss for lack of a speedy trial. He also alleged ineffective assistance of his subsequently appointed trial attorney fo r offering a lesser included offense instruction on aggravated assault, and for failing to file an appeal to this Court following Adams’ convictions. Finally, Adams’ petition alle ged that the District Court
6imposed the sentence enhancement for use of a dangerous weapon in violation of his constitutional rights. The District Court de nied Adams’ petition for postconviction relief and Adams appealed to this Court. On September 5, 2002, in State v. Adams , 2002 MT 202, 311 Mont. 202, 54 P.3d 50, this Court reversed the District Court, finding that Adams was denied effective assistance of counsel when his tria l attorney withdrew following trial and failed to file an appeal to this Court. We stated that Adams could file an amended petition for postconviction relief and raise: (1) those issues that could have been raised in direct appeal but for couns el’s abandonment of his appeal; and (2) those issues properly raised in a petition for postconviction relief that have not already been raised. Adams , ¶ 22. Adams now raises the above issues on appeal. STANDARD OF REVIEW ¶18 The standard of review of a trial cour t’s denial of a petition for postconviction relief is whether the court’s findings of fact are clearl y erroneous and whether its conclusions of law are correct. Hope v. State , 2003 MT 191, ¶ 13, 316 Mont. 497, ¶ 13, 74 P.3d 1039, ¶ 13. A clai m of ineffective assistance of counsel is reviewed de novo

. Hope , ¶ 13. ¶19 It is a question of law whether a defendan t has been denied the right to a speedy trial, and we review a district court’s determ ination of a question of law for correctness. State v. Keyes , 2000 MT 337, ¶ 7, 303 Mont . 147, ¶ 7, 15 P.3d 443, ¶ 7. ¶20 This Court reviews jury instructions to determine whether the instructions as a whole fully and fairly instruct the ju ry on the law applicable to the case. State v. Martin , 2001 MT 83, ¶ 23, 305 Mont. 123, ¶ 23, 23 P.3d 216, ¶ 23. We give broad discretion to a
7district court in formulating jury instructions. State v. Beavers , 1999 MT 260, ¶ 20, 296 Mont. 340, ¶ 20, 987 P.2d 371, ¶ 20. ¶21 We review a sentence for legality only. State v. Garrymore , 2006 MT 245, ¶ 9, 334 Mont. 1, ¶ 9, 145 P.3d 946, ¶ 9. DISCUSSION ¶22 Adams argues that he received in effective assistance of counsel when his first and subsequent attorneys failed to file a motion to dismiss for lack of speedy trial, when his trial attorney failed to object to a jury instruction on aggravated assault as a lesser included offense of the attemp ted deliberate homicide charge, and when his trial attorney failed to move for a directed verd ict regarding aggravated assault. To prove an ineffective assistance of counsel claim, the de fendant must meet both prongs of the twopart test this Court adopted from Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052 (1984). Under the Strickland test, the defendant must s how his counsel’s performance was deficient and the deficient performance prejudiced him. Hans v. State , 283 Mont. 379, 391-92, 942 P.2d 674, 681-8 2 (1997). A defendant must satisfy both prongs of the test; if an insufficient showing is made regarding one prong, there is no need to address the other. Dawson v. State, 2000 MT 219, ¶ 21, 301 Mont . 135, ¶ 21, 10 P.3d 49, ¶ 21 (citing Strickland , 466 U.S. at 697, 104 S. Ct. at 2069). ¶23 The defendant must overcome the “strong presumption th at counsel’s conduct falls within the wide range of reasonable prof essional conduct,” and that, “under the circumstances, the challenged action ‘might be considered sound trial strategy.’” State v. Jefferson , 2003 MT 90, ¶ 48, 3 15 Mont. 146, ¶ 48, 69 P. 3d 641, ¶ 48 (citing Strickland , 8466 U.S. at 688-89, 104 S. Ct. at 2064-65). This Cour t will review the acts or omissions that the defendant alleges were outside th e range of reasonable professional judgment, taking into consideration all th e circumstances of the case. Jefferson , ¶ 48 (citing Strickland , 466 U.S. at 688, 690, 104 S. Ct. at 2065-66). ¶24 ISSUE 1: Did the District Court err in denying Adams’ amended petition for postconviction relief alleging Adams received ineffective assistance of counsel when his attorneys failed to file a motion to dismiss for lack of speedy trial? ¶25 Adams was arrested on September 14, 19 98. He was appointed an attorney, Donald Spadone, who filed a motion to conti nue the initial appearance set for October 14, 1998, to October 28, 1998, beca use Spadone planned to be ou t of town. Spadone hired a ballistics expert in November 1998. The par ties were ordered to have a face-to-face settlement conference on January 7, 1999. Th e parties did not resolve the case at the face-to-face conference and requested another conference be set in thirty days. Another conference was scheduled for February 4, 1999. Spadone requested th at this conference be moved back another month to March 4, 1999, because he was waiting for the report from the ballistics expert. The court granted this motion. Spadone again re quested that the conference be moved to April 8, 1999, because the gun had be en sent to the wrong address so the ballistics expe rt had not yet had a chance to examine it and write his report. The conference was held on this date , but the parties did not resolve the case. The court then set the trial to start on June 7, 1999. ¶26 On May 20, 1999, just days before trial was to start, Spadone filed a motion to withdraw as Adams’ attorney. Spadone ba sed his motion on the fact that Adams had
9written a letter to the Ravalli County commissione rs which accused Spadone of “wild and unsubstantiated charges as to [Spadone’s] cont act with the victim of the crime.” The letter further alleged Adams had a case agains t Spadone for ineffective assistance of counsel and that Spadone had vi olated Adams’ constitutional rights. Spadone stated that the defendant did not have confidence in Sp adone’s representation of him. The court held a hearing on the motion and subsequently ordered th at Spadone be allowed to withdraw as Adams’ counsel. The court advi sed Adams that a change in attorney would delay his trial. Adams agreed to waive his speedy trial right s in order to be appointed a new attorney. He objected to the court’s appointment of another public defender. Nonetheless, the court appointed a public defender, David Stenerson, over Adams’ objections. The trial was reset to start Septem ber 20, 1999, in order to give new counsel time to prepare. On August 5, 1999, Stenerson was relie ved as Adams’ counsel and Mark McLaverty was appointed instead be cause the county changed public defender contracts. McLaverty represented Adams at his trial starting on September 20, 1999. ¶27 Adams argues that his constitutional right to a speedy trial was violated by the delay between his arrest and his trial. He a sserts that he asked Sp adone to file a motion to dismiss based on lack of speedy trial, bu t no such motion was filed. He also argues that McLaverty should have filed a motion to dismiss on this basi s as well. He argues that had a motion been filed, the outcome w ould have been different because his charges would have been dismissed. Adams must show that his coun sel’s failure to file such a motion fell below reasonable professional judgmen t, and that the failure prejudiced him.

10¶28 A criminal defendant’s right to a spee dy trial is guarantee d by both the Sixth Amendment of the United States Constitution and Article II, Section 24 of the Montana Constitution. State v. Price , 2001 MT 212, ¶ 11, 306 Mont. 381, ¶ 11, 34 P.3d 112, ¶ 11. The United States Supreme Court established f our factors to consider when analyzing a claimed denial of speedy trial: length of dela y, the reason for the delay, the defendant’s timely assertion of his right to a speedy trial, and the prejudice to the defense caused by the delay. Barker v. Wingo , 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972 ). This Court adopted these factors for analyzing such claims. See City of Billings v. Bruce , 1998 MT 186, ¶ 19, 290 Mont. 148, ¶ 19, 965 P.2d 866, ¶ 19.

a. Length of Delay ¶29 The time between Adams’ arre st and the beginning of th e first trial date amounts to 267 days, and from his arrest to actual trial amounts to 372 days . A delay of 200 or more days triggers furthe r speedy trial analysis. Bruce , ¶ 55. Both the 267-day delay and the 372-day delay render further speedy trial analysis necessary. b. Reason for Delay ¶30 This factor requires us to determine which party is responsible for specific periods of delay and allocate the total time of delay between the parties. Price , ¶ 14. If 275 or more days of delay are attributable to the St ate, the initial burden is on the State to show that the defendant suffered no prejudice from the delay. Bruce , ¶ 56. If fewer than 275 days are attributable to the State, the defendant retains the burden to demonstrate prejudice. Bruce , ¶ 56.

11¶31 Adams requested continuances from February 4 to April 8, 1999, to move back the face-to-face conference so that he could have the benefit of the ballistics expert’s report, causing a delay of 64 days. Ins titutional delays are those that are caused by overcrowded court dockets and other similar events, and are attributable to the State. State v. Small , 279 Mont. 113, 118-19, 926 P.2d 1376, 1379 (19 96). In this case, there is no evidence the delay was caused by any conduct on the pa rt of the State, nor was it institutional delay; therefore, the delay is attributable to the defendant. State v. Mooney , 248 Mont. 115, 119, 809 P.2d 591, 594 (1991) ( overruled in part on ot her grounds by Bruce , 1998 MT 186, 290 Mont. 1 48, 965 P.2d 866). ¶32 The additional 105-day delay between the first trial setting and the second trial setting resulted from Spadone’s motion to withdraw as counsel, which was prompted by Adams’ accusations of ineffective assistance of counsel. This delay is attributable to Adams. State v. Dess , 184 Mont. 116, 119, 123-24, 602 P.2d 142, 1 44, 146 (1979) (delay caused by defendant’s motion for continuance when public defender retired and asked for time for defendant’s new attorney to get caught up on case attributed to defendant). ¶33 In total, of the 372 days of delay, at most, 203 days are attributable to the State, and 169 days are attributable to Adams. Since fewer than 275 da ys of the delay are attributable to the State, th e burden is on Adams to demonstr ate prejudice from the delay.

c. Assertion of Right ¶34 To satisfy this factor, the defendant must either dema nd a speedy trial or file a motion to dismiss for lack of a speedy trial prior to the commencement of trial. Bruce , ¶ 57. Adams asserts that he requested Spadone to file a motion to dismiss for denial of a
12speedy trial in the spring of 1 999, before the first trial setting. Although he states he made note of this in daily logs he kept in jail, he failed to produce such logs in any court proceedings. Adams also assert s that he requested McLaverty to file a motion to dismiss on the same basis. McLaverty testified th at he and Adams had discussed speedy trial rights, but that Adams had already made a limited waiver of those rights so that McLaverty could prepare for tria l. McLaverty testified that Adams did not ask him to file a motion to dismiss for lack of speedy trial. However, because this is an ineffective assistance of counsel claim, we will give Adams the benefit of the doubt and assume, arguendo, that he asked McLaverty to file a motion to dismiss for denial of speedy trial. d. Prejudice ¶35 The speedy trial guarantee is designed to minimize delay and the prejudice resulting from pretrial incarceration, anxiety a nd concern, and impairment of defense.
Bruce , ¶ 68. As we previously explained, the burden is on Adams to demonstrate prejudice from the delay. ¶36 In this case, Adams does not allege prej udice from pretrial incarceration except to the extent it impaired his ability to help defend himself. He states that he was prejudiced by the delay “because he was in carcerated for approximately nine months and was unable to effectively assist in his defense.” At th e hearing on this issue, Adams claimed had he not been in jail, he would have inspected the premises, reviewed the evidence, made phone calls, and interviewed witnesses. Ad ams does not demonstrate how his inability to do these things (all of which his attorney s did in preparation for tr ial) impaired his ability

13to defend himself. Adams does not allege that the delay caused him anxiety or concern. Thus, Adams has not carried the bur den of demonstrating prejudice. ¶37 Since Adams has failed to demonstrate any prejudice from the delay in his trial, he has failed to establish that the outcome of th e proceedings would have been different had his attorneys filed a motion to dismiss as he re quested. We affirm the District Court’s conclusion that Adams was not denied effectiv e assistance of counsel for his attorneys’ failure to file a motion to di smiss for lack of speedy trial. ¶38 ISSUE 2: Did the District Court err in deny ing Adams’ amended petition for postconviction relief alleging Adams received ineffective assistance of counsel when his attorney failed to object to a jury instruct ion on aggravated assault as a lesser included offense of the attempte d deliberate homicide charge? ¶39 Adams was charged with attempted deliberate homicide. At the close of trial, the court instructed the jury on attempted deliberate homicide, as well as aggravated assault and felony assault as lesser included offenses . Adams alleges that McLaverty should have objected to the ju ry instruction that allowed the jury to consider aggravated assault as a lesser included offense. He states there was no basis fo r the jury to convict him for aggravated assault because he did not cause Wright serious bodily injury. ¶40 As provided in § 45-5-202, MCA, a pers on commits the offense of aggravated assault if the person purposely or knowingly causes serious bodily injury to another. Serious bodily injury is defi ned as bodily injury that: (i) creates a substantial risk of death; (ii) causes serious permanent disf igurement or protracted loss or impairment of the function or proce ss of a bodily member or organ; or
14(iii) at the time of injury, can reasonabl y be expected to result in serious permanent disfigurement or protracted loss or impairment of the function or process of a bodily member or organ. Section 45-2-101, MCA. ¶41 Contrary to his assertions, the record c ontains evidence from which the jury could conclude that Adams inflicted serious bod ily injury on Wrig ht. The doctor, the neighbors, and law enforcement officers testified that Wright was injured, and that the tear in her ear left a scar. The jury heard testimony th at Adams caused a concussion when he brought the table down on Wright’s h ead, and that the pain from that lasted for a month or two. They also heard Wright testif y that she continued to have occasional pain in her ribs. ¶42 McLaverty testified at the hearing on the amended petition that in discussing trial strategy with Adams, Adams’ biggest concern wa s that he did not want to be convicted of attempted deliberate homicide. To that e nd, McLaverty did not object to any lesser included offenses. Part of the defense strategy in closing wa s to argue that, if anything, Adams’ conduct constituted felony assault with a weapon. The jury was instructed it could consider either of thes e lesser included offenses. ¶43 A criminal defendant is entitled to jury instru ctions that cover an issue or theory if there is evidence to suppor t such an instruction. Beavers , ¶ 23. It is fundamental under Montana law that “a defendant is entitled to a jury instruction on a le sser included offense when one of the parties requests it and the re cord contains evidence from which the jury could rationally find the defendant guilty of th e lesser offense and acquit of the greater.”
Beavers , ¶ 23. An attorney’s failure to object does not constitute ineffective assistance of 15counsel if the objection lacked merit and would have been properly overruled. State v. Hildreth , 267 Mont. 423, 4 32-33, 884 P.2d 771, 777 ( 1994) (citing State v. Rodgers , 257 Mont. 413, 421, 849 P.2d 1028, 1033 (1993)). An objec tion to the introduction of the jury instruction on aggravated assault would not have b een properly sustained in this case because the record contained evidence from which the jury could rationally find the defendant guilty of aggravat ed assault and acquit of attempted deliberate homicide. ¶44 We affirm the District Court’s conclusi on that Adams was not denied effective assistance of counsel for his attorney’s failure to object to a jury instruction on aggravated assault. ¶45 ISSUE 3: Did the District Court err in denying Adams’ amended petition for postconviction relief alleging Adams received ineffective assistance of counsel when his attorney failed to move for a directed verdict rega rding aggravated assault? ¶46 Adams argues that he received ineffe ctive assistance of counsel because McLaverty failed to move for a directed verdict at the close of evidence on the aggravated assault charge beca use there was no evidence to support a finding of serious bodily injury. A district court will grant a motion for a directed ve rdict “only when there is a complete absence of any evidence which would justify submitting an issue to a jury.” State v. Smith , 2005 MT 325, ¶ 25, 3 29 Mont. 526, ¶ 25, 127 P. 3d 353, ¶ 25. When the evidence provided by the parties conflicts, “the court should not inva de the province of the jury by directing a verdict.” Smith , ¶ 25. Given that Adams an d the State provided conflicting evidence on the issu e of serious bodily injury, a directed verdict would not have been granted. 16¶47 We affirm the District Court’s conclusi on that Adams was not denied effective assistance of counsel for his attorney’s failure to move for a directed verdict. ¶48 ISSUE 4: Did the District Court lega lly sentence Adams when it imposed a ten-year weapon enhancement? ¶49 Adams provides two arguments to support his contention that the court imposed an illegal sentence when it sentenced him to an additional ten years in prison pursuant to § 46-18-221, MCA (1997). First, he assert s there was not enough evidence to support a finding that a weapon was used in the commission of the aggravated assault, and secondly, that the enhanced sentence violat ed his right to due process of law. ¶50 The weapons enhancement stat ute in effect at the time of the offense and Adams’ sentencing provided: A person who has been found guilty of any offense and who, while engaged in the commission of the offense, kno wingly displayed, brandished, or otherwise used a firearm, destructive device, as defined in 45-8-332(1), or other dangerous weapon shall, in add ition to the punishment provided for the commission of such offense, be sent enced to a term of imprisonment in the state prison of not less than 2 year s or more than 10 years except as provided in 46-18-222. Section 46-18-221, MCA (1997). A weapon is defined as “an instrument, article, or substance that, regardless of its primary function, is readily capabl e of being used to produce death or serious bodily in jury.” Section 45-2-101, MCA. ¶51 In his first argument, Adams contends that the evidence does not support a conclusion that he used the tabl e as a weapon since he demons trated that he could not lift the table over his head as a lleged by Wright. Adams overlo oks the fact that the weapons enhancement can be based on the display , brandishment , or use of a firearm or weapon.
17He also overlooks the fact that, in addition to the testimony that he used a coffee table to hit Wright in the head, there was testimony that he brandished and po inted a .9 millimeter pistol at Wright’s chest. The record clearl y supports the conclusion that Adams used or displayed a weapon in the commission of the offense. ¶52 In his second argument, Adams relies on Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348 (2000), to support his conten tion that he was denied his right to due process, as provided by the United States and Montana Constitutions, when the court enhanced his sentence without a finding by the jury that he had used a weapon. The United States Supreme Court, in Apprendi , held that “[o]ther th an the fact of a prior conviction, any fact that increases the penalt y for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi , 530 U.S. at 490, 120 S. Ct. at 2362-63. ¶53 In 2001, in accordance with the Apprendi decision, the Montana Legislature amended § 46-18-221, MCA, so that in orde r to enhance a sentence for an offense committed with a dangerous w eapon, the provisions of § 46-1-401, MCA, must be complied with. With regard to jury trials, § 46-1-401, MCA, now requires that the jury unanimously make a separate finding that th e enhancing act (i.e., the use of a weapon) occurred beyond a reasonable doubt. ¶54 Adams argues that the 1997 version of § 46-1-401, MCA, whic h applied to him and did not require a separate finding, was unco nstitutional. He contends that the fact the legislature amended the statute in 2001 “sho w[s] an acknowledgem ent that there was a

18significant issue with the pr evious Statute.” In essence, Adams argues that Apprendi be applied retroactively. ¶55 In response, the State argues that Adams failed to preserve this issue on appeal and it should be dismissed pursuant to State v. Courville , 2002 MT 330, 313 Mont. 218, 61 P.3d 749 (citations omitted). In Courville , we relied on the general rule that “issues not raised before the trial court and new legal th eories are not consider ed by this Court on appeal because it is unfair to fault the tr ial court on an issue it was never given an opportunity to consider.” Courville , ¶ 5. However, the issue pr esented here is similar to the issue in our recent Garrymore decision. Garrymore , ¶ 3. In Garrymore , the defendant did not object at sentencing wh en the court imposed a parole eligibility restriction pursuant to statut e, but then later relied on Apprendi and argued on appeal that this parole restriction viol ated his statutory and constitutional due process rights. Garrymore , ¶¶ 7-8. The State asserted that Garry more’s failure to ob ject at sentencing precluded him from raising the issue on direct appeal. Garrymore , ¶ 10. We determined that this was the type of illegal sentence issue that falls under the Lenihan exception. Garrymore , ¶ 5. In Lenihan , we stated: “It appears to be the better rule to allow an appellate court to review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory ma ndates, even if no objection is made at the time of sentencing.” Garrymore , ¶ 11 (quoting State v. Lenihan , 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979)). Since Adams coul d have raised this i ssue on direct appeal, and since we remanded allowing him to address any issues he could ha ve raised on direct appeal, we will undertake appellate review of the sentencing issue raised herein. 19¶56 Because the events giving rise to th e charges and Adams’ conviction occurred before the Apprendi decision was made, we must determine if Apprendi applies retroactively. In Gratzer v. Mahoney , 2006 MT 282, ¶ 11, 334 Mont. 297, ¶ 11, __ P.3d __, ¶ 11, this Court held that Apprendi does not apply retroactively to cases on collateral review. However, we have never determined whether Apprendi applies retroactively to cases on direct appeal. This Court has adopted the United States Supreme Court’s conclusion that “a new rule fo r the conduct of criminal pr osecutions is to be applied retroactively to all cases, state or federal, pe nding on direct review or not yet final.” State v. Egelhoff , 272 Mont. 114, 125, 90 0 P.2d 260, 267 (1995) ( overruled on other grounds by Montana v. Egelhoff , 518 U.S. 37, 116 S. Ct . 2013 (1996)) (quoting Griffith v. Kentucky , 479 U.S. 314, 328, 107 S. Ct. 708, 716 (1987)); see also State v. Waters , 1999 MT 229, ¶ 21, 296 Mont. 101 , ¶ 21, 987 P.2d 1142, ¶ 21. A new rule is one which “breaks new ground or imposes a new oblig ation on the States or the Federal Government.” Egelhoff , 272 Mont. at 126, 90 0 P.2d at 267 (citing Teague v. Lane , 489 U.S. 288, 301, 109 S. Ct. 1060, 10 70 (1989)). The rule stated in Apprendi is one which imposed a new obligation on the State, a nd therefore is a new rule which applies retroactively to cases pending on direct review or not final at the time the new decision was issued. ¶57 As stated, Adams argues his sentence wa s unconstitutional because the statute he was sentenced under does not follo w the procedures required under Apprendi . Although the State gave notice in the information that his sentence could be enhanced for use of a weapon, that issue was not submitted to the jury, and thus, the ju ry did not make a 20unanimous finding of use of a weapon be yond a reasonable d oubt. This, Adams contends, constitutes error under Apprendi

. ¶58 The State argues that any error here was harmless because the finding that Adams displayed, brandished, or used a firearm or other dangerous weapon was implicit in the jury’s verdict finding Adams guilty of aggravat ed assault. We agr ee with the State that Apprendi error is subject to harmless error revi ew, and although we find the error here harmless, we reject the State’ s contention that Adams’ use of a weapon was implicit in the jury’s verdict of aggrav ated assault. Our conclusion is based on the following analysis. ¶59 A defendant’s right to a jury trial is guaranteed by the Sixth Amendment of the United States Constitution. The Due Proce ss Clause of the Cons titution “protects the accused against conviction except upon proof beyond a reasonable dou bt of every fact necessary to constitute the crime with which he is charged.” In re Winship , 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970). In the case of Neder v. United States , 527 U.S. 1, 8, 119 S. Ct. 1827, 1833 (1999), the trial court failed to instruct the jury to make a finding of materiality, an element of the fraud crimes with which the defe ndant was charged. The United States Suprem e Court determined that the failure to submit an element of a crime to a jury as required by the Constitution does not rise to the level of structural error which would require automatic reversal. Neder , 527 U.S. at 8-9, 119 S. Ct. at 1833-34. Thus, failure to submit an element of a crime to a jury is subject to the harmless error test. Neder , 527 U.S. at 15, 119 S. Ct. at 1837. The test for determining whether such a constitutional error is harmless is “whether it appears ‘beyond a reas onable doubt that the
21error complained of did not contri bute to the verdict obtained.’” Neder , 527 U.S. at 15, 119 S. Ct. at 1837 (quoting Chapman v. California , 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967)). After applying the harmle ss error test, the Court stated: In this situation, where a reviewi ng court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless. Neder , 527 U.S. at 17, 119 S. Ct. at 1837. Si nce Neder did not and could not bring forth facts contesting the omitted element, the resu lt would have been the same had the court instructed the jury to make a finding of materiality. Neder , 527 U.S. at 19, 119 S. Ct. at 1838. The United States Suprem e Court instructed reviewing courts that in cases such as this one, the reviewing court must examine the record to determin e if the result would have been the same absent the error; if the reviewing court cannot conclude beyond a reasonable doubt that the jury verdict would have been the sa me, it cannot conclude that harmless error occurred. Neder , 527 U.S. at 19, 119 S. Ct. at 1838. The error will not be harmless if the record shows that the defendant conteste d the omitted element and raised sufficient evidence to support a contrary finding. Neder , 527 U.S. at 19, 119 S. Ct. at 1838. ¶60 After Neder was decided, the United States Supreme Court decided Apprendi

. The issue in Apprendi was whether a defendant’s sentence could be enhanced beyond the statutory maximum based on a fact found by the sentencing judge, ra ther than the jury which determined the verdict. Apprendi , 530 U.S. at 469, 120 S. Ct. at 2351. The Court stated that sentencing factors, like elemen ts to a crime, implicate a defendant’s due
22process rights because lib erty is at stake. Apprendi , 530 U.S. at 476- 78, 120 S. Ct. at 2355-56. Thus, the Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi , 530 U.S. at 490, 120 S. Ct. at 2362-63. ¶61 The standard of review applicable to Apprendi error was not addressed until the recent decision of Washington v. Recuenco , __ U.S. __, 126 S. Ct. 2546 (2006). The alleged error in Recuenco was that the trial court su bjected the defendant to a firearm enhancement at sentencing based only on th e jury’s finding that he was armed with a “deadly weapon,” wh ich the State of Washington conceded was an error under Blakely v. Washington , 542 U.S. 296, 124 S. Ct. 2531 (2004). Recuenco , ___ U.S. at ___, 126 S. Ct. at 2549. Blakely error, like Apprendi error, occurs when the judge enhances a sentence beyond the statutory maximum based on aggravating facts not found by a jury or admitted by the defendant. Blakely , 542 U.S. at 303-04, 124 S. Ct. at 2537-38; Cunningham v. California , 2007 WL 135687, *11 (U.S. Ja n. 22, 2007). The State of Washington argued Blakely error was harmless error, but the Washington Supreme Court determined that this type of error was stru ctural error which will always invalidate the conviction. Recuenco , ___ U.S. at ___, 126 S. Ct. at 2550. The Unite d States Supreme Court reversed the Washington Supreme Court, relying on the Neder holding that harmless error analysis applies to errors where the trial court failed to submit an element of an offense to a jury. Recuenco , __ U.S. at __, 126 S. Ct. at 2552. The Supreme Court stated that “an instructio n that omits an element of an offense does not necessarily render 23a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Recuenco , __ U.S. at __, 126 S. Ct. at 2551 (quoting Neder , 527 U.S. at 9, 119 S. Ct. at 1833). Taking the analysis one step furt her, the United States Supreme Court noted its recognition in Apprendi “that elements and sentencing factors must be treated the same for Sixth Amendment purposes ,” and thus, it held that “[f]ailure to submit a sentencing factor to the jury, like fa ilure to submit an elemen t to the ju ry, is not structural error.” Recuenco , __ U.S. at __, 126 S. Ct . at 2552-53. The case was remanded for a harmless error analysis. Recuenco , __ U.S. at __, 126 S. Ct. at 2553. ¶62 Following Recuenco , the Ninth Circuit Court of Appeals applied the harmless error test formulated in Neder in a case alleging Apprendi error. United States v. ZepedaMartinez , 470 F.3d 909, 910 (9th Cir. 2006). Th e appropriate harmless error test is whether the “court finds beyond a reasonable doubt that the re sult ‘would have been the same absent the error.’” Zepeda-Martinez , 470 F.3d at 913 (quoting Neder , 527 U.S. at 19, 119 S. Ct. at 1838). The error is harm less if the record contains overwhelming and uncontroverted evidence supporting the sentencing factor. Zepeda-Martinez , 470 F.3d at 913. The error is not harmle ss if “the defendant contested the omitted element and raised evidence sufficient to sup port a contrary finding.” Zepeda-Martinez , 470 F.3d at 913 (quoting Neder , 527 U.S. at 19, 11 9 S. Ct. at 1838). ¶63 Thus, the inquiry in this case is whethe r, beyond a reasonable doubt, Adams would have received an enhanced sentence based on the display or use of a weapon had the question been presented to the jury. The evid ence presented at tria l was that Adams used a coffee table and a gun as weapons. The doctor presented evidence that Wright’s
24injuries were consistent with being hit by a coffee table. She had bruising on her arm consistent with trying to protect herself from a blow, and a tear in her ear that could have been caused by the edge of a coffee table. Adams contested his alleged use of the coffee table by demonstrating that he could not pick it up. However, in his appeal brief on the “weapon” issue, he does not contest that a gun was used. He fails to mention the gun at all. Further, during closing argument, Adam s actually argued that this assault, if anything, amounted to felony assault with a weapon, thus acknowledging the use of a weapon. The evidence that Adams used a gun while comm itting aggravated assault is uncontroverted. Having reviewed the record , we conclude that the result would have been the same. That is, Adam s would have received an enhanced sentence based on use of a weapon had the jury been asked to make a finding on that issue. Thus, the error in this case is harmless. ¶64 A defendant’s right to a jury trial is also guaranteed by Article II, Section 26 of the Montana Constitution. This Court has ad opted its own two-step analysis to determine whether an alleged error prejudi ced a defendant’s right to a fair trial and is therefore reversible. State v. Van Kirk , 2001 MT 184, ¶ 37, 306 Mont . 215, ¶ 37, 32 P.3d 735, ¶ 37. We must first determine whether the claime d error is structural error or trial error. Van Kirk , ¶ 37. “‘Structural’ error is that t ype of error that ‘[a]ffects the framework within which the trial proceeds, rather than simply an error in the trial process itself.’” Van Kirk , ¶ 38 (quoting Arizona v. Fulminante , 499 U.S. 279, 310, 111 S. Ct. 1246, 1265, (1991)). Following the United Stat es Supreme Court’s ruling in Recuenco , __ U.S. at __, 126 S. Ct. at 2552-53, failure to submit a senten cing factor to the ju ry is not structural 25error. Thus, in this case, th e trial court’s failure to subm it the sentencing factor (Adams’ use of a weapon) to the jury was trial error. Van Kirk , ¶ 40 (trial error is “that type of error that typically occurs dur ing the presentation of a case to the jury”). Trial error is subject to review under our harmless error statute, § 46-20-701, MCA. Van Kirk , ¶ 40. A cause may not be reversed unl ess the record shows the error is prejudicial. Section 46- 20-701, MCA. ¶65 Because the error is tria l error, we proceed to our second step—determining whether the error was harmless under the circumstances. Van Kirk , ¶ 41. In determining whether it was harmless error fo r a court to enhance a defend ant’s sentence on facts not specifically found by a jury, we adopt the United States Su preme Court’s analysis set forth above. We must determine whether Adams would ha ve received an enhanced sentence based on the display or use of a we apon had the question been presented to the jury. Because the evidence that Adams used a gun while committing aggravated assault is uncontroverted, we conclude that the resu lt would be the same; that Adams would have received an enhanced sentence ba sed on use of a weapon had th e jury been asked to make a finding on that issue. The e rror in this case is harmless. ¶66 We affirm the District Court.

/S/ W. WILLIAM LEAPHART

26We concur:

/S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ JOHN WARNER /S/ BRIAN MORRIS

27