No. 88-436

IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, 5cn 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, 1989Chief 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. Thecourt designatedHawkins 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 courthad jurisdiction to designate the defendant a persistent felony offender. 2. Whether the trial courtproperly 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 85miles per hour and the officerconcluded thatHawkinswas either intoxicatedor 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 officerconducted

awarrantless search of thepickup and seized a .38 caliberpistol, 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 OfficerDostal. Hawkins escaped, butwas latercaptured inArizona. He returned toMontana to face charges of felonyassault, 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 offender. Following retrialon 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 onMay 11, 1988,and sentencingtookplace onMay 24, 1988. In the second case, jurisdictional notice was given on September 1, 1988, and trial began on October 11, 1988. The prosecutiongavethe second,procedural notice onOctober 17,1988, and sentencing took place on October 25, 1988. The appellant raisesa second objection. Without elaborating
onhis argumentor citing any authority,theappellant 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 offenderdesignation. Apersistent felonyoffender isdefined 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 statuterequires that the offenderhas committed at least two felonies. The test ofwhether more than one crime results from the same transaction is whether the elements of each charged offense requireproof of a fact which the othersdo not. Statev. Gray (1983), 207 Mont. 261, 269, 673 P.2d 1262, 1267. The first jury foundHawkins guilty of felony drug possession which requires the prosecution to prove that the defendant knowingly,purposely, or negligentlypossessedmore than sixtygrams ofmarijuana. 5 45- 9-102(2), (4), MCA; 5 45-2-103(I), MCA. The second jury foundHawkins guilty of felony assault which required proof that he knowinglyand purposely caused bodily injurytoa peace officerwho was responsible forhis custody. 1 45-5-202(2)(c)

## ,MCA. Clearly, these are separate crimes. The statutealso 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, theArizona 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 questionmust have reference to the time, place, number of victims, and distinct nature of the defendantIs acts. In general, however, when different crimes, even thoughunrelated in nature, are committed at the sameplace, on the samevictim or group ofvictims, and at the same time or aspart of a continuous series of criminal acts, they should be considered as having been committed on the "same occasion1Ifor purposes of sentence enhancement. Statev. Henry (Ariz. 1987), 734 P.2d 93, 97. (Citationomitted.) We apply a similar analysis here and hold that Hawkins1two felonycrimes occurredondifferentoccasions. Thedrugpossession charge is a crime against the state which occurred prior to Hawkinstarrest 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 intime, place, and victim that they cannotbe said to have occurred on the
same occasion. The second persistent felony offender designation
was appropriate.11. Danserous Offender Status Theappellantargues that therecord doesnot containsubstantial 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 theMatter of McFadden (1980), 185Mont. 220, 222, 605 P.2d 599, 600. The District Court has amply satisfied theMcFadden 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 littleelaborationand 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. Thequestion of double jeopardy iseasily settled; itdoesnot arise when the state charges the defendant with felony escape and felonyassault. Statev. 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 judicatamay be a defense to a criminalprosecution. The doctrine "operatesto conclude those matters in issue which the [previous] verdict determined though the offenses be different." Sealfonv. 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 competentjurisdiction is conclusive as to 

# . . . issues thereby litigated



# .... Coleman v. State (Mont. 1981), 633 P.2d 624, 629, 38 St.Rep. 1352, 1357-58. Thepivotal 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 StatesSupreme Court looked to the facts necessarilyadduced 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 strangleOfficer 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 ifHawkinsassaulted OfficerDostal,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 assertswithout explanation that since Hawkins was not convicted of felony escape, he cannot be charged with the lesser included offense of felony assault. Wehave previouslyheld that felony escape and felony assault are not inclusive, State v. Thornton (1985), 218Mont. 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 suppressingthemarijuana evidence found inHawkins' truckbecause the evidence was the result of a warrantless search by parole officers. The appellant apparently contends that evidence discovered during a parole officerlssearch of a parolee should be restricted to parole revocationproceedings. We disagree. The search in this case is controlledby our holding in State


### v. Burke. Inthat casewe followed theUnited States SupremeCourt 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 andprobation 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 officerswere available in this case, and the cooperation and communicationwere appropriate. Hawkins1 parole officerwas notified early in the incidentand the information he provided insured an uneventful arrest. The police waited for theparole officer tomake the decision to conduct a search of thevehicle. Theparole officer determined thathe 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 officers1testimonythatHawkinsparadoxicallygavethempermission to securethepickup truckby removing thekeys. Hawkins testified that he never authorized removal of the keys. The District Court,
as the finder of fact in the suppressionhearing, 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 Hawkins1parole officer acted as a mere "pawnnof thepolice in searchingHawkins' 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.Weconcur:

(ices

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