IN THE SUPREMECOURTOFTHE STATE OFMONTANA No. 96-071
MICHAEL SCOTT STILSON,

Petitioner, OPINION AND v. ORDER STATE OFMONTANA,

Respondent.

Petitioner Michael Scott Stilson has filed a petition for post-conviction relief alleging that convictions he received in the Fourth and Eighth Judicial District Courts violated his rights to not be twice put in jeopardy guaranteed by the Fourteenth and Fifth Amendments to the United States Constitution, and Article II, Section 25, of the Montana Constitution. OnMarch 26, 1991, the State filed an Information in the First Judicial District Court charging Stilson with the crime of issuing
a bad check, a felony, common scheme, for numerous bad checks written in Lewis and Clark County. Onthe same day Stilson pled guilty to the charge, and on March 27, 1991, the District Court sentenced Stilson to athree-year deferred imposition of sentence. On January 29, 1991, the State filed an Information in the Fourth Judicial District Court charging Stilson with issuing more than three bad checks in Missoula County, afelony, common scheme. OnApril 1, 1991, Stilson pled guilty to the charge, and on May 20, 1991, the District Court sentenced Stilson to asuspended sentence of six years confinement to run consecutive to the sentence imposed by the First Judicial District Court.On May 28, 1991, the State filed anInformation in the Eighth

Judicial District Court charging Stilson with issuing abad check,
a felony, commonscheme. While the Cascade County Information specifically referenced only asingle badcheck written in Cascade county, it listed aswitnesses individuals from six separate Great Falls businesses. OnJune 14, 1991, Stilson pled guilty to the charge andonthe samedaythe District Court sentenced him to ten years confinement to run consecutive to the sentences imposed in the First and Fourth Judicial District Courts. Execution of the sentence wassuspended. Thejudgment indicated that Stilson wrote 20-25 checks in the Great Falls area and that the total checks written in Cascade County totaled $2,961. Stilson also wrote badchecks in Yellowstone andButte-Silver Bow Counties. Stilson was not prosecuted in either of those counties but the judgment entered bythe Fourth Judicial District Court ordered Stilson to pay restitution for those bad checks. On February 15, 1996, Stilson filed this petition for post-conviction relief alleging his convictions in the First, Fourth, and Eighth Judicial District Courts were for the same commonschemeand, therefore, that the Fourth and Eighth Judicial District Court convictions violated his double jeopardy rights. The State argues that Stilson's double jeopardy claims are waived because hefailed to raise themprior to entering his guilty pleas. Stilson argues that hedid not waive his double jeopardy
claims whenhepled guilty because his claims are jurisdictional. It is well established that a plea of guilty which is

2voluntary and understandingly made constitutes a waiver of

nonjurisdictional defects and defenses, including claims of constitutional violations which occurred prior to the plea. Hagan

v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387 (citing State v. Turcotte (1974), 164 Mont. 426, 428, 524 P.2d 787, 788). In Haqan weheld that the jurisdictional grounds exception applies to "those cases in which the district court could determine that the government lacked the power to bring the indictment atthetimeof acceptingtheguiltypleafromthefaceoftheindictmentorfromtherecord.‘( 873 Hasan, P.2d at 1388 (quoting United States v. Cortez (9th Cir. 1992), 973 F.2d 764, 767). When Stilson pled guilty and was sentenced in Cascade County the District Court had before it a copy of the pre-sentence investigation report prepared with regard to Stilson's previous sentencing in Missoula County. The report also referenced Stilson's conviction in Lewis and Clark County. Thus, we conclude that at the time the Eighth Judicial District Court accepted Stilson's guilty plea the record before it contained his two prior convictions and was sufficient for the court to determine whether the government lacked the power to bring the charges at issue due to the constitutional prohibitions against placing aperson twice in jeopardy. Weconclude that Stilson has not waived his double jeopardy claim and therefore proceed to address the merits of his claim. Stilson claims that he engaged in one common scheme to write bad checks in five different counties and the only thing that 3separates his crime into parts is geography. He argues that

1' common scheme" is an element of the crimes charged and that nothing in the charges evidences a different continuing criminal design. Stilson maintains that since hewas convicted and punished for the common scheme in Lewis and Clark County, he cannot be prosecuted or punished again. The State argues that double jeopardy protections prohibit multiple punishments for the same offense, and that in this case the Legislature intended "issuing abad check" to be the offense, not "common scheme." The State asserts that "common scheme" is not
an element of the offense but rather a sentence enhancement provision which determines if the offense is a misdemeanor or felony. The State maintains that the offense in each county did not require proof of acts committed in the other counties and therefore they were separate and distinct offenses. According to the State, convicting a defendant of one common scheme does not foreclose convictions of additional common schemes in different counties. In State v. Crowder (1991), 248 Mont. 169, 810 P.2d 299, we stated that in examining questions of double jeopardy, this Court has consistently applied the test set forth in Blockburger v. United States (1932), 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306. Crowder, 810 P.2d at 304. Wenoted that Blockburser dealt with two different double jeopardy issues--one was whether the defendant could be convicted of violating two different statutory provisions arising from asingle sale of dangerous drugs, and the second was
4whether the defendant could beconvicted of two counts of selling

adangerous drug under asingle provision of the Narcotics Act. Crowder, 810P.2d at 304-05. Whentwo distinct statutory provisions are involved, the test to determine whether there are two offenses or only one is whether each provision requires proof of afact which the other does not. Crowder, 810 P.2d at 304 (citing Blockburser, 284 U.S. at 304). TheU.S. Supreme Court explained this "elements test" by stating that: Asingle act maybeanoffense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution andpunishment under the other. Blockburser, 284U.S. at 304. This Court has employed the "elements test" to determine whether adefendant canbe charged and convicted of violating two statutes for the same act or transaction. See State v. Wolfe (1991), 250Mont. 400, 821P.2d 339 (holding that adefendant can be convicted of both possession of explosives and criminal mischief); State v. Clawson (1989), 239 Mont. 413, 781 P.2d 267 (holding that a defendant can be convicted of both sexual intercourse without consent and aggravated kidnapping); State v. Long (19861, 223Mont. 502, 726P.2d 1364 (holding that adefendant
canbeconvicted of both misdemeanor assault andsexual assault). In Crowder, however, wedealt with asituation similar to the second Blockburser issue. Crowder wascharged with twoviolations of the samestatutory provision (possession of dangerous drugs) and
5wewere faced with the question of whether Crowder's possession of

drugs on his person and possession of drugs on his property constituted two separate acts of possession. Crowder asserted that principles of fundamental fairness required that hebecharged only
once for conduct which amounted to the sametransaction. Crowder, 810P.2d at 304. Weagain looked to the Blockburqer Court which addressed the issue as follows: Eachof several successive sales constitutes adistinct offense, however, closely they mayfollow each other. 

### iik; [Wlhen the impulse is single, but one indictment no matter how long the action may continue. If successive impulses are separately given, eventhough all unite in swelling a commonstream of action, separate indictments lie. Blockburqer, 284U.S. at 302 (citation omitted). In affirming the convictions, the U.S. SupremeCourt examined the legislative intent behind the Narcotics Act and concluded that the statute did not punish engaging in the business of selling dangerous drugs, but rather penalized anysale. Blockburser, 284U.S. at 302. Weadopted a similar analysis in Crowder and articulated a second test when only one statutory provision is involved. To determine the "allowable unit of prosecution" courts look to legislative intent since discretion is with the legislature to impose punishments, subject only to constitutional limitations. Crowder, 810P.2d at 305 (citing Bell v. United States (1955), 349 U.S. 81, 82, 75S. Ct. 620, 622, 99L. Ed. 905, 910). In Crowder
we held that the Legislature intended to punish each separate possession of dangerous drugs andconcluded that the district court
6did not err in failing to join the separate counts of possession on

the person and possession on the premises. Crowder 810 P.Zd at 305-06. The facts of the present case align themselves with Crowder in that Stilson was charged under the same statute, 5 45-6-316, MCA (1989) I and was convicted in all three different counties of issuing abad check, a felony, common scheme. Thus, the question is whether the Legislature intended that a defendant could be punished for more than one common scheme. Weacknowledge the fact that in State v. Fleming (1987), 225 Mont. 48, 730 P.2d 1178, westated that "[clommon scheme is clearly
an element to be charged and proven under §45-6-316, MCA, as it is specifically mentioned in subsection (3) of the statute." Fleminq, 730 P.2d at 1180. Therefore, we do not agree with the State's contention that "common scheme" is merely a sentence enhancement provision which determines if the crime is amisdemeanor or felony. Nevertheless, the focus of our analysis still remains whether or not a defendant may be charged with more than one common scheme. Stilson's reliance on Fleminq and State v. McHugh (1985), 215 Mont. 296, 697 P.2d 466, is misplaced. In both of those cases the defendants were charged in only one county with one count of issuing bad checks as part of a common scheme and the defendants disputed that their conduct constituted a common scheme. Weheld that the acts of issuing multiple bad checks are acommon scheme if the acts were "either individually incomplete such that they show that a single crime had been committed, or [were] acts which

7closely followLed one another evidencing a continuing criminal

design." Fleminq, 730 P.2d at 1180. Even though we upheld the convictions and concluded that the defendants' conduct constituted
a common scheme, wedid not address nor foreclose the possibility that a defendant could, under the appropriate facts and circumstances, be convicted of more than one common scheme. Stilson argues that the Legislature did not intend to allow the State to divide one common scheme into multiple common schemes and multiple felony violations. According to Stilson, the Legislature did not provide in 545-6-316, MCA, or anywhere else in the Code, abasis to divide asingle common scheme of issuing bad checks into multiple common schemes. While weagree with Stilson that the Code does not provide for multiple common schemes, we conclude that neither has the legislature foreclosed such apossibility. Under the appropriate facts and circumstances, we conclude that double jeopardy protections do not necessarily prevent a defendant who has been convicted of acommon scheme in one county from being convicted of another common scheme in a different county. In this case Stilson was charged in each county for only those checks written in that particular county and the bad checks written in each county were separate and distinct "common scheme" offenses. Stilson wrote bad checks to anumber of different vendors in each county and, when taken together, such aseries of acts provides the basis for the charge of felony common scheme in each county. The evidence required for the State to prove the offense in each countywasdifferent andspecific to eachcounty andthe series of acts or

transactions in each county were different from those in the other jurisdictions, both individually andas agroup. Thus, under the specific facts andcircumstances of this case, Stilson committed the crime of writing a bad check, a felony,
commonscheme, in each of the jurisdictions for which he was charged andwehold that the convictions hereceived in the Fourth and Eighth Judicial District Courts did not violate his double jeopardy rights. Therefore, IT IS HEREBYORDEREDthat Stilson's petition for postconviction relief is DENIED. TheClerk is directed to mail acopyof this opinion andorder to all counsel of record andto the Clerks of Court for the First, Fourth, ant

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1Eiqhth Judicial District Courts DATEDthis

Justices 9Justice W.William Leaphart, dissenting

I would grant the Petition for Post-Conviction relief on double jeopardy grounds with regard to the conviction of Issuing a BadCheck, a Felony in the Eighth Judicial District Court, Cause No.ADC-91-56. Under State v. Hagan (1994), 265Mont. 31, 873P.2d 1385, this Court held that jurisdictional claims are narrowly limited to "those cases inwhich the district court could determine that the government lacked the power to bring the indictment at the time of accepting the guilty plea from the face of the indictment
or from the record." Haqan, 265Mont. at 36 (citing United States

V. Brace (1989), 488 U.S. 563. The State does not contest Petitioner's assertion that the Eighth Judicial District Court accepted Mr. Stilson's guilty plea on the same day that it sentenced him. Onthat sameday, the Eighth Judicial District Court had before it the Pre-Sentence Investigation Report (PSI) prepared with regard to Stilson's previous conviction in Missoula County for the samecheck writing scheme. TheMissoula County PSI in turn references the fact that Stilson wasconvicted in Lewis & Clark County with regard to the samecheck writing scheme. Thus, it is clear to methat when the Eighth Judicial District Court accepted Stilson's plea of guilty onJune 14, 1991, the "record" of the twoprior convictions wasboth available andsufficient for the court to determine that, due to the constitutional prohibitions against placing aperson twice in jeopardy, the government lacked the power to bring the charges at issue.
10Asto whether defendant's state-wide checkwriting conduct can

be broken into separate "common schemestt in which each county charges a commonscheme limited to the checks written in that particular county, I note that the Cascade County Information CDC 91-096, charges defendant with Issuing a Bad Check, a Felony, a commonscheme. TheInformation then makesreference to onecheck which wasissued in Cascade County. It is axiomatic that morethan
one check is necessary in order to constitute a "commonscheme." Onecannot tell from the face of the Information whether the other checks necessary to constitute the "commonscheme"were written in Cascade County orwere the samechecks which were the basis for the charges in Lewis &Clark andMissoula Counties. TheCascade County Judgment does, however, reference the fact that the defendant was convicted for writing bad checks in Missoula andHelena. Accordingly, I cannot conclude that the Cascade County charge of "commonscheme" wasbased solely upon checks issued in Cascade County and that it did not encompass checks from other counties wherein the defendant had already been put in jeopardy.

Justice Terry N. Trieweiler andJustice William E. Hunt, Sr., join in the foregoing dissent of Justice W.William Leaphart.

Justices 11CERTIFICATEOFSERVICE

IherebycertifythatthefollowingcertifiedorderwassentbyUnitedStates mail,prepaid,tothe followingnamed: JeffreyT.Rena,Director Jonath: mKudrna,LegalIntern Montana Defender Project UniversityofMontana

School ofLaw Missoula,MT59812 Hon.J oseph P.Mazurek,A.G. CreggCoughlin,

Assistant Justice Bldg. Helena, MT59620 RobertDeschamps,

III Count) fAttorney Missot daCountyCourthouse Missoula, MT59802 BrantLight CountyAttorney 1214thStreetNorth GreatFalls,MT59401 ’ MikeMcGrath L&CCountyAttorney 228Broadway,

Courthouse Helena, MT59624 Dennis Paxinos Yellowstone

CountyAttorney P.O.Box35025 Billings,MT59107

EDSMITHClLERK OFTHE SUPREME COURT STATE OFMONTANA BY: Dep