No. 88-436 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 5 cn 

cn -': )-. 7 Plaintiff and Respondent, t -I i 

-vsSHERMAN HAWKINS, 

Defendant and Appellant. 

APPEAL FROM: ~istrict Court of the ~hirteenth ~udicial ~istrict, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Allen Beck, ~illings, Montana 

For Respondent : 

Hon. Marc ~acicot, Attorney General, Helena, Montana 

Robert F.W. Smith, Asst. Atty. General, Helena 

Harold Hanser, County Attorney; Donna ~effington, 

Deputy County Atty., ~illings, Montana 

Filed: 

Submitted on Briefs: Aug. 24, 1989 

Decided: October 19, 1989 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Following trial in the Thirteenth Judicial District, Yellowstone County, the jury found Sherman Hawkins guilty of felony 

assault. The court designated Hawkins a persistent felony offender 

and a dangerous offender. Hawkins appeals all three decisions. 

We affirm. 

ISSUES 

The appellant raises the following issues: 

1. Whether the trial court had jurisdiction to designate the 

defendant a persistent felony offender. 

2. Whether the trial court properly designated the defendant 

a dangerous offender. 

3. Whether res judicata and double jeopardy should have 

precluded the defendant's second trial. 

4. Whether the former prosecution should have precluded the 

defendant's second trial. 

5. Whether the trial court should have suppressed the fruits 

of the parole officer's search of the defendant's vehicle. 

FACTS 

On February 5, 1987, LaVon Bretz called the Billings Police 

Department to report that Sherman Hawkins had threatened to kill 

Bretz, Hawkins' ex-wife Francis Kunz, and himself. Responding 

officers learned from the appellant's parole officer that Hawkins 

was on a work release furlough from a first degree murder conviction, that he might be armed and dangerous, and that he was to be 

arrested if he was carrying any weapons. While patroling the area 

of the Kunz home, Deputy Sheriff Dostal spotted Hawkins' pickup 

truck heading in the direction of the Kunz home and began following. Hawkins accelerated to between 80 and 85 miles per hour and 

the officer concluded that Hawkins was either intoxicated or trying 

to elude him. 
When Hawkins stopped in the Kunz driveway, the police 

conducted a felony stop. A pat-down search produced a small pen 

knife and a set of brass knuckles. The officers arrested Hawkins 

for carrying a concealed weapon and for parole violation. Hawkins 

denied the officers permission to search his vehicle, but while 

removing the keys from the truck, one of the officers spotted the 

handle of a pistol on the floor. Hawkins' parole officer conducted 

a warrantless search of the pickup and seized a .38 caliber pistol, 

five cans of beer, and 1.2 pounds of marijuana. 

During processing at the Yellowstone County Sheriff's Office, 

Hawkins allegedly attacked and attempted to strangle attending 

Officer Dostal. Hawkins escaped, but was later captured in Arizona. 

He returned to Montana to face charges of felony assault, carrying 

a concealed weapon, possession of dangerous drugs, and felony 

escape. 

The jury found Hawkins guilty of felony drug possession and 

misdemeanor escape, but returned a hung verdict on the assault and 

weapon charges. The court designated Hawkins a persistent felony 

of fender. Following retrial on the felony assault charge, the jury 

found Hawkins guilty. The court added another persistent felony 

offender designation and also designated Hawkins a dangerous 

offender . I. Persistent Felony Offender Status 

The appellant argues that the District Court did not gain 

jurisdiction to designate him a persistent felony offender because 

the prosecution failed to provide timely notice. The appellant 

correctly points out that written notice must be given before the 

case is called for trial, 1 46-18-503(1), MCA, and that the 

requirement is jurisdictional, State v. Madera (1983), 206 Mont. 

140, 155, 670 P.2d 552, 560. The appellant fails to note that a 

second, procedural notice is also required prior to sentencing. 
§ 46-18-503(3), MCA; Madera, 206 Mont. at 155, 670 P.2d at 560. 

The record in this case clearly shows that the State gave 

appropriate notice in both prosecutions. In the first case, 

jurisdictional notice was given on September 3, 1987, and trial 

began on April 12, 1988. The prosecution gave the second, 

procedural notice on May 11, 1988, and sentencing took place on May 

24, 1988. In the second case, jurisdictional notice was given on 

September 1, 1988, and trial began on October 11, 1988. The 

prosecution gave the second, procedural notice on October 17, 1988, 

and sentencing took place on October 25, 1988. 

The appellant raises a second objection. Without elaborating 

on his argument or citing any authority, the appellant asserts that 

the District Court erred in its second designation of Hawkins as 

a persistent felony offender because both underlying convictions 

arose from a single transaction. 

The fact that both crimes arose out of the same transaction 

does not in itself bar application of the persistent felony 

offender designation. A persistent felony offender is defined as, 

an offender who has previously been convicted 

of a felony and who is presently being sentenced for a second felony committed on a 

different occasion than the first. 

46-18-501, MCA. 

The statute requires that the offender has committed at least 

two felonies. The test of whether more than one crime results from 

the same transaction is whether the elements of each charged 

offense require proof of a fact which the others do not. State v. 

Gray (1983), 207 Mont. 261, 269, 673 P.2d 1262, 1267. The first 

jury found Hawkins guilty of felony drug possession which requires 

the prosecution to prove that the defendant knowingly, purposely, 

or negligently possessed more than sixty grams of marijuana. 5 45- 

9-102 (2), (4), MCA; 5 45-2-103 (I), MCA. The second jury found 
Hawkins guilty of felony assault which required proof that he 

knowingly and purposely caused bodily injury to a peace officer who 

was responsible for his custody. 1 45-5-202 (2) (c) , MCA. Clearly, 

these are separate crimes. 

The statute also requires that the offender must have committed the felonies on different occasions. We have not yet considered what constitutes different occasions for the purposes of 

the persistent felony offender statute. In interpreting its 

version of the statute, the Arizona Supreme Court stated, 

We know of no all-encompassing test to determine whether different crimes fall within the 

same occasionw limitation of the statute. 

Any analysis of the question must have reference to the time, place, number of victims, 

and distinct nature of the defendant Is acts. 

In general, however, when different crimes, 

even though unrelated in nature, are committed 

at the same place, on the same victim or group 

of victims, and at the same time or as part of 

a continuous series of criminal acts, they 

should be considered as having been committed 

on the "same occasion1I for purposes of sentence enhancement. 

State v. Henry (Ariz. 1987), 734 P.2d 93, 97. (Citation omitted.) 

We apply a similar analysis here and hold that Hawkins1 two 

felony crimes occurred on different occasions. The drug possession 

charge is a crime against the state which occurred prior to 

Hawkinst arrest in the Kunz driveway. The assault against Deputy 

Dostal occurred some hours later in the Yellowstone County Courthouse. Though the assault during escape was a result of Hawkins1 

drug-related arrest, the crimes are sufficiently disparate in time, 

place, and victim that they cannot be said to have occurred on the 

same occasion. The second persistent felony offender designation 

was appropriate. 
11. Danserous Offender Status 

The appellant argues that the record does not contain substantial credible evidence to support dangerous offender status. He 

correctly points out that the trial court must articulate reasons 

based on substantial credible evidence and may not simply recite 

the statute. See In the Matter of McFadden (1980), 185 Mont. 220, 

222, 605 P.2d 599, 600. 

The District Court has amply satisfied the McFadden requirements. Among other factors, the court considered the presentence 

report, the appellant's prior criminal history, the inability of 

the appellant to live in the community for more than three years 

without being convicted of felony drug possession and felony 

assault, and the violence of the crime and danger to the victim. 

111. Res Judicata and Double Jeopardy 

Again with little elaboration and no authority, the appellant 

asserts that in convicting him of misdemeanor escape and not of 

felony assault, the first jury determined that Hawkins did not 

assault Officer Dostal and, therefore, he cannot be tried again on 

the same factual issue. 

The question of double jeopardy is easily settled; it does not 

arise when the state charges the defendant with felony escape and 

felony assault. State v. Thornton (1985), 218 Mont. 317, 325, 708 

P.2d 273, 278-79. 

The issue of res judicata is more complex. In Sealfon v. 

United States, the United States Supreme Court held that res 

judicata may be a defense to a criminal prosecution. The doctrine 

"operates to conclude those matters in issue which the [previous] 

verdict determined though the offenses be different." Sealfon v. 

United States (1948), 332 U.S. 575, 578, 92 L.Ed. 180, 184, 68 

S.Ct. 237, 239. Similarly, this Court stated in a criminal case, 

that "a final judgment on the merits by a court of competent 
jurisdiction is conclusive as to . . . issues thereby litigated 

.... Coleman v. State (Mont. 1981), 633 P.2d 624, 629, 38 

St.Rep. 1352, 1357-58. 

The pivotal question in the case sub judice is what issues the 

jury decided in the first trial. If the jury decided that Hawkins 

did not assault Officer Dostal, res judicata would bar re-litigation of that issue. Faced with a similar problem in Sealfon, the 

United States Supreme Court looked to the facts necessarily adduced 

at trial and the jury instructions. Sealfon, 332 U.S. at 578-79, 

92 L.Ed. at 184, 68 S.Ct. at 239. 

The Hawkins court instructed the jury that to find the 

defendant guilty of felony assault, they would have to conclude 

that he attempted to strangle Officer Dostal. On the issue of 

escape, the court instructed the jury to first consider the crime 

of felony escape, which also required a finding that Hawkins 

attempted to strangle Officer Dostal. The court further instructed, "In the event you cannot find the defendant guilty of . . . ESCAPE (FELONY), you must consider the lesser included offense of 

ESCAPE (MISDEMEANOR) . . . . I' The jury returned a verdict of 

guilty of misdemeanor escape, but hung on the assault charge. 

Contrary to appellant's assertion, it is apparent that the 

jury did not conclude that Hawkins did not assault Officer Dostal. 

They explicitly failed to come to any conclusion on that issue by 

entering no verdict on the assault charge. Since the jury could 

not decide if Hawkins assaulted Officer Dostal, they could not find 

him guilty of felony escape, but could, and did, find him guilty 

of misdemeanor escape. Because the first jury never decided the 

issue of assault, it was a proper subject of the second trial and 

not blocked by the doctrine of res judicata. 
IV. Lesser Included Offense 

The appellant asserts without explanation that since Hawkins 

was not convicted of felony escape, he cannot be charged with the 

lesser included offense of felony assault. We have previously held 

that felony escape and felony assault are not inclusive, State v. 

Thornton (1985), 218 Mont. 317, 325, 708 P.2d 273, 278-79, and find 

no merit in the appellant's argument. 

V. Search and Seizure 

The appellant lastly argues that the trial court erred in not 

suppressing the marijuana evidence found in Hawkins' truck because 

the evidence was the result of a warrantless search by parole 

officers. The appellant apparently contends that evidence discovered during a parole officerls search of a parolee should be 

restricted to parole revocation proceedings. We disagree. 

The search in this case is controlled by our holding in State 

v. Burke. In that case we followed the United States Supreme Court 

in holding that a probation officer may search a probationer's 

vehicle without a warrant as long as the officer has reasonable 

cause. Burke (Mont. 1988), 766 P.2d 254, 256, 45 St.Rep. 2278, 

2280. 

Reasonable cause existed in the present case. While on 

furlough from a first degree murder sentence, Hawkins threatened 

to kill LaVon Bretz and Francis Kunz. Arresting officers found 

brass knuckles in his pocket and his erratic driving indicated 

that Hawkins may have been intoxicated. The parole officer was 

thereby given reasonable cause to search Hawkins1 vehicle for 

alcohol and weapons. The marijuana was a fortuitous discovery 

pursuant to a lawful search. 

The conduct of the police officers is also controlled by our 

holding in Burke. In Burke, we noted that probation officers are 

not always available in Montana, and we encouraged police and 
probation officers to cooperate and communicate in the effective 

administration of the probation system. Burke, 766 P.2d at 257, 

45 St.Rep. at 2283. Parole officers were available in this case, 

and the cooperation and communication were appropriate. Hawkins1 

parole officer was notified early in the incident and the information he provided insured an uneventful arrest. The police waited 

for the parole officer to make the decision to conduct a search of 

the vehicle. The parole officer determined that he had reasonable 

cause and that no warrant was necessary. 

We take note of the apparent contradiction between Hawkins' 

adamant refusal to allow the police to search his vehicle and the 

officers1 testimony that Hawkins paradoxically gave them permission 

to secure the pickup truck by removing the keys. Hawkins testified 

that he never authorized removal of the keys. The District Court, 

as the finder of fact in the suppression hearing, chose to believe 

the police officers rather than Hawkins. Without more evidence, 

we hold that the court did not abuse its discretion. 

The appellant argues that Hawkins1 parole officer acted as a 

mere "pawnn of the police in searching Hawkins' vehicle. In Burke 

we stated that probationers should not be afforded a fortuitous 

opportunity to escape punishment for probation violations simply 

because probation officers were not present during observation or 

arrest. Burke, 766 P.2d at 257, 45 St.Rep. at 2282-83. We will 

also not give parolees carte blanche to avoid punishment for 

criminal acts simply because a police arrest led to a lawful search 

by parole officers. 

We find the appellant's assertions without merit. 

Affirmed. 
We concur: 

(ices -