author: JUSTICE GRAY JUSTICE NELSON JUSTICE LEAPHART,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. THOMAS ZABAWA, Defendant and Appellant.
    No. 95-349.
    Submitted June 27, 1996.
    Rehearing Denied January 2, 1997.
    Decided November 21, 1996.
    53 St.Rep. 1162.
    279 Mont. 307.
    928 P.2d 151.

      For Appellant: Daniel P. Buckley (argued); Berg, Lilly, Andriolo & Tollefsen, Bozeman.

      For Respondent: Hon. Joseph P. Mazurek, Attorney General, Micheál Wellenstein (argued), Ass’t Attorney General, Helena; Michael Salvagni, Gallatin County Attorney, Gary Balaz, Deputy County Attorney, Bozeman.
   JUSTICE GRAY

delivered the Opinion of the Court.

Thomas Zabawa (Zabawa) appeals from the judgment and sentence entered by the Eighteenth Judicial District Court, Gallatin County, on his guilty plea to the offense of felony assault. We affirm.

Zabawa raises the following issues on appeal:

1. Did the District Court err in concluding that application of § 46-18-221, MCA, commonly referred to as the weapon enhancement statute, did not subject Zabawa to multiple punishments in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution?

2. Did the District Court abuse its discretion in failing to apply the exceptions to the mandatory minimum sentence contained in § 46-18-222, MCA?

The State of Montana (State) charged Zabawa with felony assault, in violation of § 45-5-202(2)(a) or (b), MCA, in February of 1995. Zabawa subsequently pled guilty to felony assault under § 45-5-202(2)(b), MCA, for pointing a rifle at his ex-wife, thereby causing her reasonable apprehension of serious bodily injury.

Zabawa filed a sentencing memorandum challenging the constitutionality of applying the weapon enhancement statute when the underlying offense requires proof of use of a weapon as an element of the offense. Specifically, Zabawa contended that application of the weapon enhancement statute would subject him to multiple punishments for the same offense in violation of the Double J eopardy Clause of the Fifth Amendment to the United States Constitution. He also argued that, if the District Court rejected his constitutional argument, his sentence under the weapon enhancement statute should be suspended pursuant to § 46-18-222, MCA, which provides for exceptions to mandatory minimum sentences.

The District Court concluded that applying the weapon enhancement statute did not subject Zabawa to multiple punishments in violation of the Double Jeopardy Clause and that the § 46-18-222, MCA, exceptions to mandatory minimum sentences were inapplicable. The court sentenced Zabawa to a three-year commitment to the Department of Corrections and Human Services (Department) for the felony assault and an additional three-year commitment for use of a firearm in commission of the assault, with the sentences to run consecutively. Zabawa appeals.

1. Did the District Court err in concluding that application of § 46-18-221, MCA, commonly referred to as the weapon enhancement statute, did not subject Zabawa to multiple punishments in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution?

Zabawa argues on appeal that the District Court erred in concluding that application of the weapon enhancement statute did not subject him to multiple punishments for the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Article II, Section 25 of the Montana Constitution. We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. State v. Gould (1995), 273 Mont. 207, 219, 902 P.2d 532, 540.

At the outset, we note that Zabawa cites the Double Jeopardy Clauses of both the United States Constitution and the Montana Constitution for his argument that enhancing his felony assault sentence by applying the weapon enhancement statute constitutes a prohibited multiple punishment for the same offense because the use of a weapon is an element of the felony assault offense for which he was convicted. He claims no greater protection from double jeopardy under Article II, Section 25 of the Montana Constitution than under the Fifth Amendment to the United States Constitution, however, and relied entirely on federal interpretations under the United States Constitution during oral argument; in Zabawa’s view, those interpretations supported his argument under that Constitution. Accordingly, we address only the double jeopardy protection afforded under the United States Constitution, leaving for resolution in a future case which may present it the issue of whether Article II, Section 25 of the Montana Constitution provides greater protection from double jeopardy than is provided by the United States Constitution. Given the posture in which this case is presented, we are bound by the double jeopardy interpretations of the United States Supreme Court.

In this regard, the dissent’s characterization of State v. Nelson (1996), 275 Mont. 86, 910 P.2d 247, and Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 730 P.2d 380, is misleading. In Nelson, a unanimous opinion issued less than ten months ago, we deemed the Double Jeopardy Clauses of the Montana Constitution and the United States Constitution coextensive, for purposes of the case, because no greater protection from double jeopardy was claimed therein under the Montana Constitution. Nelson, 910 P.2d at 250. Pointedly, Nelson left for another day — in a case presenting it — the issue of whether the Montana Constitution affords greater double jeopardy protection than the United States Constitution.

Nor is Buckman relevant here. There, the appellant relied on the Contracts Clauses of both the Montana and United States Constitutions for the same measure of protection in both the trial court and this Court. We simply~and properly-chose to address the issue under the Montana Constitution first and to turn to the United States Constitution only in the event the case could not be resolved on adequate and independent state grounds. Buckman, 730 P.2d at 384. For this Court to uphold the fundamental proposition that the Montana Constitution “provides protection of rights separate from the protection afforded by the federal constitution” (see Buckman, 730 P.2d at 384) is a markedly different matter than for this Court to sua sponte create — and then resolve — the issue of whether the Montana Constitution provides greater protection, as the dissent would have us do here. Thus, in this case, where Zabawa claimed no greater protection from double jeopardy under the Montana Constitution than under the United States Constitution, we address only the federal constitutional issue presented.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, generally protects against three distinct abuses: a second prosecution for the same offense following an acquittal; a second prosecution for the same offense following a conviction; and multiple punishments for the same offense. Nelson, 910 P.2d at 250. Double jeopardy cases often focus on the “same offense” issue. See, e.g., State v. Wolfe (1991), 250 Mont. 400, 821 P.2d 339; State v. Crowder (1991), 248 Mont. 169, 810 P.2d 299; State v. Palmer (1983), 207 Mont. 152, 673 P.2d 1234. Here, however, Zabawa contends that application of the weapon enhancement statute is a multiple punishment prohibited by the Double Jeopardy Clause.

Missouri v. Hunter (1983), 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535, is the United States Supreme Court’s seminal case on the multiple punishment aspect of the Double Jeopardy Clause. In Hunter, the defendant robbed a convenience store in Kansas City, Missouri, with a handgun. An off-duty police officer arrived at the store and ordered the defendant and two accomplices to stop; the defendant fired a shot at the officer and he and his accomplices fled. Hunter, 459 U.S. at 360-61, 103 S.Ct. at 675-76.

The defendant was apprehended, tried and convicted of robbery in the first degree, armed criminal action and assault with malice. Hunter, 459 U.S. at 361, 103 S.Ct. at 675. A Missouri statute provided a minimum sentence of five years’ imprisonment for any person convicted of robbery in the first degree “ hy means of a dangerous and deadly weapon.’ ” Under another Missouri statute, any person who committed a felony “ “by, with, or through the use, assistance, or aid of a dangerous or deadly weapon [was] also guilty of the crime of armed criminal action’ ” with a mandatory minimum sentence of three years’imprisonment. Hunter, 459 U.S. at 362, 103 S.Ct. at 675-76.

The Missouri Court of Appeals, relying on Missouri Supreme Court decisions, concluded that the defendant’s sentences for both robbery in the first degree and armed criminal action violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and reversed the defendant’s sentence for armed criminal action. The Missouri Supreme Court denied review. Hunter, 459 U.S. at 362-63, 103 S.Ct. at 676-77.

The United States Supreme Court noted that the Missouri Supreme Court previously had construed the two statutes at issue as “defining the same crime” and that the Missouri court recognized that the legislature intended to provide for cumulative punishments pursuant to these statutes. Hunter, 459 U.S. at 368, 103 S.Ct. at 679. The Supreme Court properly deferred to the Missouri court’s interpretation of the Missouri statutes at issue; however, the Supreme Court pointed out that it was not bound by the Missouri court’s legal conclusion that the statutes violated the Double Jeopardy Clause. Hunter, 459 U.S. at 368, 103 S.Ct. at 679.

The Supreme Court concluded that the Missouri Court of Appeals had misperceived the nature of the Double Jeopardy Clause’s protection against multiple punishments. Hunter, 459 U.S. at 366, 103 S.Ct. at 678. The Supreme Court held:

Where, as here, a legislature specifically authorizes cumulative punishment under two statutes ... a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

Hunter, 459 U.S. at 368-69, 103 S.Ct. at 679. Thus,

[w]ith respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.

Hunter, 459 U.S. at 366, 103 S.Ct. at 678.

In Hunter, therefore, the Supreme Court unequivocally held that, where legislative intent is clear, cumulative punishments imposed in a single trial do not violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. While this holding appears to be at odds with long-held perceptions regarding the double jeopardy prohibition against multiple punishments, we are bound by it. Therefore, resolution of Zabawa’s double jeopardy argument depends on whether, in enacting § 46-18-221, MCA, the Montana legislature intended to impose multiple punishments where the underlying offense requires proof of the use of a weapon as an element of the offense.

Section 46-18-221, MCA, provides in pertinent part:

(1) A person who has been found guilty of any offense and who, while engaged in the commission of the offense, knowingly displayed, brandished, or otherwise used a firearm, destructive device, as defined in 45-8-332(1), or other dangerous weapon shall, in addition to the punishment provided for the commission of such offense, be sentenced to a term of imprisonment in the state prison of not less than 2 years or more than 10 years, except as provided in 46-18-222.

Our role in construing statutes is to “ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted. ...” Section 1-2-101, MCA. The intention of the legislature is to be pursued. Section 1-2-102, MCA. We do so by interpreting the plain meaning of the words used by the legislature in the statute. Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d 1085, 1088. Where the language is clear and unambiguous, the statute speaks for itself and we will not resort to other means of interpretation. Clarke, 897 P.2d at 1088.

Zabawa does not dispute that the “in addition to the punishment provided for the commission [of the underlying offense]” language contained in § 46-18-221(1), MCA, indicates an intent bythe Montana legislature to impose multiple sentences when a weapon is used in the commission of the underlying offense. He argues, in essence, that the “any offense” language contained in the statute does not include offenses which require proof of the use of a weapon as an element of the offense. We disagree.

“Any” is defined as — and commonly understood to mean — “one, no matter what one: EVERY[.]” Webster’s Third New International Dictionary, 97 (1971). Thus, the plain meaning of “any offense” is “one offense, regardless of which one.” Adoption of Zabawa’s interpretation of the “any offense” language contained in § 46-18-221(1), MCA, would require us to insert language limiting the “any offense” language to “any offense which does not have as an element the use of a weapon.” We may not insert language which has been omitted from a statute; therefore, adding such a limitation would exceed our proper role in construing statutes. See § 1-2-101, MCA.

Moreover, “we presume that the legislature enacts a law with full knowledge of all existing laws on the same subject. ...” Blythe v. Radiometer America, Inc. (1993), 262 Mont. 464, 475, 866 P.2d 218, 225. Here, the legislature used the “any offense” language in § 46-18-221, MCA, with full knowledge that numerous offenses have the use of a weapon as an element. See, e.g., §§ 45-5-202(2), 45-5-206(1)(b), and 45-5-211(1)(b), MCA. Despite that knowledge, the legislature affirmatively chose to use the “any offense” language without limitation. Accordingly, we conclude that the “any offense” language used in § 46-18-221, MCA, includes offenses in which the use of a weapon is an element as well as offenses which do not contain such an element.

During oral argument, Zabawa cited to State v. Trimmer (1985), 214 Mont. 427, 694 P.2d 490, in support of his position that the “any offense” language contained in § 46-18-221(1), MCA, is ambiguous. His reliance on Trimmer is misplaced.

In Trimmer, the defendant was convicted of misdemeanor assault and sentenced to six months in jail and a $500 fine. The district court also sentenced the defendant to two years in prison, to be served consecutively to the six-month jail sentence, under the weapon enhancement statute. Trimmer, 694 P.2d at 490-91.

On appeal, we interpreted the weapon enhancement statute according to its plain language. See Trimmer, 694 P.2d at 491-92. We noted that the weapon enhancement statute does not convert a misdemeanor conviction into a felony conviction, but simply provides for an additional sentence “tacked on to whatever sentence is imposed for the conviction.” Trimmer, 694 P.2d at 493. Because a misdemeanor conviction can result in incarceration only in a county jail, however, we determined that the requirement in the weapon enhancement statute that the additional sentence be served in a state prison indicated that the legislature intended the statute to apply to felonies and not to misdemeanors. Trimmer, 694 P.2d at 493. We concluded that the language “in addition to” referred to an underlying felony conviction over which a district court has jurisdiction to sentence a defendant to a term in the state prison. Trimmer, 694 P.2d at 493.

Our holding in Trimmer that the weapon enhancement statute applies only to felonies was based on the plain and unambiguous language contained therein. See Trimmer, 694 P.2d at 492. Contrary to Zabawa’s assertion here, we concluded that “any offense” was clear and unambiguous when read in the context of the entire statute. See Trimmer, 694 P.2d at 492. Nothing in Trimmer supports limiting the “any offense” language in § 46-18-221, MCA, to only those underlying felonies in which the use of a weapon is not an element.

Zabawa also relies on Simpson v. United States (1978), 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70, in support of his double jeopardy argument. Simpson is inapplicable to the present case.

The petitioners in Simpson robbed two banks using handguns to intimidate bank employees. They were convicted of aggravated bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), and using firearms to commit a felony, in violation of 18 U.S.C. § 924(c). The issue on appeal to the United States Supreme Court was whether, in the case of bank robbery committed with a gun, Congress intended to authorize not only the imposition of an increased penalty under 18 U.S.C. § 2113(d), but also the imposition of an additional penalty under 18 U.S.C. § 924(c). Simpson, 435 U.S. at 8, 98 S.Ct. at 910-11.

Simpson is a statutory construction case in which the Supreme Court considered legislative history in determining Congressional intent in enacting 18 U.S.C. § 924(c). Simpson, 435 U.S. at 13-15, 98 S.Ct. at 913-14. It was not decided on double jeopardy grounds. Indeed, having observed that the Blockburger test provides guidance for determining whether two separately defin ed crimes constitute the “same offense” for double jeopardy purposes, the Supreme Court concluded that a Blockburger analysis is unnecessary where Congress’ intent regarding cumulative punishments is clear. See Simpson, 435 U.S. at 11-12, 98 S.Ct. at 912-13. Based on the legislative history, the Supreme Court ultimately concluded that Congress did not intend for a defendant to be sentenced cumulatively for aggravated bank robbery and for the use of firearms to commit a felony in a prosecution growing out of a bank robbery committed with the use of firearms. Simpson, 435 U.S. at 16, 98 S.Ct. at 914-15. The Supreme Court’s conclusion, based on the legislative history of federal statutes, is not relevant to this Court’s interpretation of the Montana legislature’s intent in enacting § 46-18-221, MCA.

Zabawa also relies on Simpson for the principle that ambiguities concerning the scope of criminal statutes should be resolved in favor of lenity. We need not address Zabawa’s lenity argument because, as concluded above, the language contained in, and the meaning of, § 46-18-221, MCA, are clear.

In summary, neither Trimmer nor Simpson supports Zabawa’s argument that application of the weapon enhancement statute in this case results in impermissible multiple punishments in violation of the Double Jeopardy Clause. The plain meaning of the language used in § 46-18-221, MCA, reflects the Montana legislature’s intent to impose cumulative punishments where a firearm or other dangerous weapon is used during the commission of an underlying offense. Pursuant to Hunter, therefore, we conclude that, because the legislature’s intent is clear, the imposition of cumulative sentences under § 45-5-202(3), MCA, and § 46-18-221(1), MCA, is not prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. We hold that the District Court correctly concluded that application of the weapon enhancement statute did not subject Zabawa to multiple punishments in violation of that Double Jeopardy Clause.

2. Did the District Court abuse its discretion in failing to apply the exceptions to the mandatory minimum sentence contained in § 46-18-222, MCA?

The mandatory minimum sentence under the weapon enhancement statute is two years in the state prison, and that minimum can be deferred or suspended only as provided in § 46-18-222, MCA. Sections 46-18-221(1) and (3), MCA. Zabawa argued that the mandatory minimum under the weapon enhancement statute should be suspended pursuant to the exceptions to mandatory minimum sentences contained in §§ 46-18-222(2) and (3), MCA. The District Court determined that the exceptions were inapplicable and sentenced Zabawa to three years’ commitment to the Department under the weapon enhancement statute. Zabawa asserts that the court erred.

District courts have broad discretion in sentencing criminal defendants. We review sentences only to determine whether the court abused its discretion. State v. Graveley (1996), 275 Mont. 519, 521, 915 P.2d 184, 186 (citing State v. DeSalvo (1995), 273 Mont. 343, 346, 903 P.2d 202, 204).

Zabawa argues that he presented evidence to the District Court which warranted application of the exceptions to mandatory minimum sentences which are contained in §§ 46-18-222(2) and (3), MCA. The exceptions contained in those subsections apply when, at the time of the commission of the offense, a defendant’s mental capacity was significantly impaired or the defendant was acting under unusual and substantial duress. Sections 46-18-222(2) and (3), MCA. We need not address the merits of Zabawa’s argument, however.

The statutory exceptions to mandatory minimum sentences allow a sentencing court which would otherwise be required to impose the minimum sentence to sentence a defendant to less than the minimum sentence when the exceptions apply to the facts. State v. Nichols (1986), 222 Mont. 71, 82, 720 P.2d 1157, 1164. The exceptions do not apply unless the sentencing court is initially predisposed to sentence the defendant to the mandatory minimum sentence; when a sentence greater than the mandatory minimum is imposed, the statutory exceptions have no bearing. See Graveley, 915 P.2d at 188; Nichols, 720 P.2d at 1164.

Here, the District Court did not sentence Zabawa to the mandatory minimum sentence of two years required by the weapon enhancement statute; rather, it sentenced Zabawa to three years’ commitment to the Department. We conclude, therefore, that the exceptions contained in § 46-18-222, MCA, are inapplicable in this case.

Zabawa also argues in this regard that the District Court erred in failing to include in the judgment a written statement of its reasons for declining to apply the exceptions to mandatory minimum sentences, as required by § 46-18-223(3), MCA. The State contends, on the other hand, that the statute is inapplicable in this case.

Section 46-18-223(3), MCA, provides:

If it appears by a preponderance of the information, including information submitted during the trial, during the sentencing hearing, and in so much of the presentence report as the court relies on, that none of the exceptions at issue apply, the court shall impose the appropriate mandatory sentence. The court shall state the reasons for its decision in writing and shall include an identification of the facts relied upon in making its determination. The statement shall be included in the judgment.

We previously have concluded that it is not error for a district court to fail to make findings on the exceptions to mandatory minimum sentences when the court imposes a greater sentence than the mandatory minimum. See State v. Stroud (1984), 210 Mont. 58, 78, 683 P.2d 459, 469 (citing State v. Zampich (1983), 205 Mont. 231, 667 P.2d 955). Accordingly, we conclude that Zabawa’s procedural argument under § 46-18-223, MCA, is without merit.

We hold that the District Court did not abuse its discretion in failing to apply the statutory exceptions to the mandatory minimum sentence contained in § 46-18-221(1), MCA.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON and ERD-MANN concur.

JUSTICE NELSON

specially concurs.

I agree with Justice Leaphart’s position that we are not bound to interpret Montana’s Constitution in the same fashion that the United States Supreme Court has interpreted similar or identical counterparts in the federal constitution. I, nevertheless, also believe that it is our obligation to decide the cases filed in this Court on the basis of the issues and arguments raised by the parties. In my view the best decisions result where both sides have had the opportunity to vigorously argue and challenge the positions and authorities of the other side. While the temptation is often great to decide a case on the basis of the argument that “should have been made,” but was not, in blind-siding an issue we run the very real risk of substituting advocacy for neutrality.

While referring to both the federal and state constitutions, neither Zabawa nor Nelson advanced any argument or authority that the protections afforded by the two constitutions, on the matter at issue, were any different. Contrary to Justice Leaphart’s dissent, I fail to see how this Court can be accused of “refusing” to address the merits of an issue that was neither raised nor argued. We did not do that in Nelson and we do not do that here. The merits of the different protections afforded by the federal and Montana Constitutions, if any, remains open.

That said, it follows that if there are legitimate bases for interpreting Montana’s Constitution in a manner different than that suggested by federal precedent, then it is incumbent upon the party advocating that position to specifically raise that issue in the trial court, and in this Court, and to support that position with persuasive authority and reasoned argument.

This Court has historically evidenced its willingness not to “march lock-step” with federal authority in the interpretation of our own Constitution. That is necessary and proper. That willingness, however, must find its genesis in the arguments of the parties, and not, sua sponte, in our own perceptions of how things ought to be.

I concur in our opinion.

* * *

JUSTICE LEAPHART,

dissenting.

I dissent from the Court’s back-handed analysis of the Montana Constitution. The Court characterizes the question presented as solely one of whether application of the weapon enhancement statute, § 46-18-221, MCA, violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. In framing the issue thusly, the Court overlooks the fact that Zabawa claims that the weapon enhancement statute violates both the Fifth Amendment of the United States Constitution and Article II, Section 25 of the Montana Constitution.

The Court limits its analysis of Zabawa’s double jeopardy claim to the Fifth Amendment on the basis that Zabawa failed to claim greater protection under the Montana Constitution than under the Fifth Amendment. In Justice Nelson’s concurring opinion he agrees with this reasoning and asserts that the absence of “persuasive authority and reasoned argument” in Zabawa’s Montana constitutional claim prohibits the Court from addressing an otherwise laudable distinction between the Montana Constitution and the United States Constitution.

Neither the Court’s nor Justice Nelson’s approach withstands scrutiny. In challenging the weapon enhancement statute, Zabawa clearly relied on both the Fifth Amendment and the Montana Constitution, Article II, Section 25. Accordingly, Zabawa raised an issue as to what protections are afforded under Article II, Section 25 of the Montana Constitution. While recognizing that Zabawa did invoke the Montana Constitution, the Court takes the position that we are somehow bound by defense counsel’s interpretation of Article II, Section 25, as being co-extensive with the Fifth Amendment. I disagree entirely. Since counsel has raised and relied upon a provision of the Montana Constitution, it is incumbent upon this Court to interpret the meaning of that provision regardless of whether we agree with counsel’s interpretation or not.

As mentioned above, the Court purports to interpret only the Fifth Amendment and not the Montana Constitution. However, unless the Court is completely ignoring the fact that Zabawa invoked Article II, Section 25, as well as the Fifth Amendment, we have to assume that the Court, sub silento, addresses the state constitutional issue by interpreting Article II, Section 25, as co-extensive with the Fifth Amendment and that it is therefore “bound” by the double jeopardy interpretations of the United States Supreme Court. Despite its protestations to the contrary, the Court has, by necessary implication, interpreted Article II, Section 25, as being co-extensive with the Fifth Amendment.

If, as I believe, Article II, Section 25, in contrast to the Fifth Amendment, actually affords some protection against multiple punishments, it is time that we stop perpetuating this case-by-case line of authority to the effect that Article II, Section 25, and the Fifth Amendment are co-extensive. It is fast becoming a self-fulfilling prophecy.

I vehemently disagree with the proposition that we are bound to interpret our constitutional prohibition against double punishment in the same fashion that the United States Supreme Court has interpreted the Fifth Amendment to the United States Constitution. In particular I disagree with the interpretation that multiple punishments for the same offense are not prohibited by the Double Jeopardy Clause if that is what the legislature clearly intended.

Not until State v. Nelson (1996), 275 Mont. 86, 90, 910 P.2d 247, 250, has this Court refused to distinguish protections afforded under the Montana Constitution from those afforded under the United States Constitution for the sole reason that an appellant failed to claim greater protection under the Montana Constitution. In Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 730 P.2d 380, which involved the constitutionality of applying a new statutory scheme to lump-sum payments under the Workers’ Compensation Fund, the appellant did not argue that the Montana Constitution’s contract clause afforded her any greater protection than the United States Constitution’s Contract Clause. Nevertheless, the Court recognized that the State Constitution provides protection of rights separate from the protection afforded by the Federal Constitution. Buckman, 730 P.2d at 384 (citing State v. Johnson (1986), 221 Mont. 503, 513, 719 P.2d 1248, 1254-55; Pfost v. State (1985), 219 Mont. 206, 215, 713 P.2d 495, 500-501 (overruled on other grounds); Madison v. Yunker (1978), 180 Mont. 54, 60, 589 P.2d 126, 129).

The Buckman Court examined the Montana contract clause before examining the United States Constitution’s Contract Clause to ascertain if there were independent state grounds to resolve the issue. Buckman, 730 P.2d at 384. Acknowledging that the Court in the past had generally interpreted the state and federal contract clauses as interchangeable guarantees of individual rights, the Court nevertheless chose to interpret the Montana contract clause independently of the United States Constitution’s Contract Clause. The appellant in Buckman did not claim greater protection under the Montana Constitution and yet the Court analyzed the contractual implications on state constitutional grounds before turning to federal interpretations of constitutional protection. Buckman, 730 P.2d at 384.

Whether or not an appellant claims greater protection under the Montana Constitution than under the United States Constitution in any given case should not be dispositive of whether this Court examines the individual rights guaranteed under the Montana Constitution independently of the guarantees in the United States Constitution. The Montana Supreme Court has the inherent power and obligation to interpret the Montana Constitution and to protect individual rights. See, e.g., State v. Finley (1996), 276 Mont. 126, 915 P.2d 208.

Not only does this Court have the inherent power to interpret the Montana Constitution, but it is also free to interpret the State Constitution’s provisions differently than the United States Supreme Court interprets similar provisions in the United States Constitution. As noted by the Court in Buckman: “[federal cases cited are relied on for their analytical persuasiveness but in no way mandate our decision.” Buckman, 730 P.2d at 384. In other words, in interpreting the State Constitution, we are not “bound” by federal case law interpreting similar provisions in the United States Constitution.

As I stated in my dissent to Finley in arguing against applying the United States Supreme Court’s pronouncements concerning the Fifth Amendment right against self-incrimination to Article II, Section 25 of the Montana Constitution:

As long as we guarantee the minimum rights guaranteed by the United States Constitution, we are not compelled to march lock-step with pronouncements of the United States Supreme Court if our own constitutional provisions call for more individual rights protection than that guaranteed by the United States Constitution.

Finley, 915 P.2d at 224 (citing State v. Sierra (1985), 214 Mont. 472, 476, 692 P.2d 1273, 1276).

This Court in the past has refused to “march lock-step” with the United States Supreme Court where constitutional issues are concerned, even if the applicable State Constitution provisions are identical or nearly identical to those of the United States Constitution. State v. Johnson (1986), 221 Mont. 503, 512, 719 P.2d 1248, 1254. In Johnson, this Court held that a defendant had invoked his right to counsel under the Montana Constitution when he asked an arresting officer, after being read his rights, if he had “the right to address somebody,” and subsequently stated that he “would like to talk to somebody.” This holding deviated from the United States Supreme Court’s decision in Fare v. Michael C. (1979), 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197, which held that only a specific request for counsel invokes a defendant’s constitutional right to counsel. In Johnson, the Court recognized that in previous criminal law decisions the Court had held that when a Montana constitutional provision tracts the federal counterpart (e.g., privilege against self-incrimination), the decisions of the United States Supreme Court delineate the maximum breadth of the right. Nevertheless, the Court noted that in the civil arena it had,

forged ahead independent of the United States Supreme Court in civil matters which involve constitutional issues, even where our constitutional provisions are identical or nearly identical to those of the United States Constitution.

Johnson, 719 P.2d at 1254. Thus, in Johnson, the Court saw no reason not to pursue its own resolution of constitutional matters in criminal cases, finding that “[w]here state and federal constitutional provisions are identical, each is enforceable in its own respective sphere ....” Johnson, 719 P.2d at 1255 (citing Emery v. State (1978), 177 Mont. 73, 79, 580 P.2d 445, 448; Madison v. Yunker (1978), 180 Mont. 54, 60, 589 P.2d 126, 129).

Thus, states may interpret their own constitutions to afford greater protections than the Supreme Court of the United States has recognized in its interpretations of the federal counterparts to state constitutions.

Johnson, 719 P.2d at 1254 (citing City and County of Denver v. Nielson (Colo. 1977), 572 P.2d 484). The Court went on to say that federal rights are considered minimal and a state constitution may be more demanding than the equivalent federal constitutional provision and this is true even though our state constitutional language is substantially similar to the language of the United States Constitution. Johnson, 719 P.2d at 1254-55 (citing Deras v. Myers (Or. 1975), 535 P.2d 541, 549 n.17; Pfost, 713 P.2d at 500-501 (overruled on other grounds)).

Other state courts have declined to follow the United States Supreme Court’s interpretation of double jeopardy protection where its interpretation does not adequately preserve the rights and interests sought to be protected. See Hawai’i v. Lessary (1994), 865 P.2d 150. The Hawai’i Supreme Court held that it was not bound to give the Hawai’i Constitution the same interpretations as those given under the United States Constitution despite the fact that the Hawai’i double jeopardy clause was virtually identical to the United States Constitution’s Double Jeopardy Clause. Lessary, 865 P.2d at 154. The Hawai’i Supreme Court interpreted the Hawai’i Constitution as affording the defendant greater protection against multiple prosecutions than the defendant would have been afforded under United States v. Dixon (1993), 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556. The Hawai’i Court agreed with the dissenters in Dixon that individuals should be protected against multiple prosecutions even when multiple punishments are permissible under the “same elements” test and therefore the Court held that the decision in Dixon did not adequately protect individuals from being “subject for the same offense to be twice put in jeopardy.” Lessary, 865 P.2d at 155.

Just as the Hawai’i Court declined to adopt federal interpretations of the Double Jeopardy Clause in Dixon, I would decline to adopt the United States Supreme Court’s interpretation of the “multiple punishment” element of the Double Jeopardy Clause in Missouri v. Hunter (1983), 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535. Instead, I interpret the double jeopardy clause of Article II, Section 25 of the Montana Constitution, as providing substantive protection against multiple punishments irrespective of any legislative enactments.

In Hunter, the United States Supreme Court upheld two sentences imposed in a single trial under two separate state statutes, one that punished armed robbery, and one that punished “armed criminal action.” Hunter, 459 U.S. at 362, 103 S.Ct. at 676. Using the test from Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309, the Court held that the statutes were presumptively the “same offense” because neither provision required proof of a fact which the other did not, but the Court also found that the state legislature had nevertheless specifically authorized cumulative punishment under the two statutes. Hunter, 459 U.S. at 368-69, 103 S.Ct. at 679-80.

The Court held that the Double Jeopardy Clause of the Fifth Amendment merely prevents the sentencing court from prescribing greater punishment than the legislature intended. Hunter, 459 U.S. at 366, 103 S.Ct. at 678. In interpreting the Fifth Amendment, the Court in Hunter held that, where legislative intent is clear, cumulative punishments imposed in a single trial do not violate the Double Jeopardy Clause.

In my view, we do a grave disservice to the framers of the Montana Constitution when we hold that a constitutional provision means nothing more than what the legislative branch intends it to mean. Constitutional guarantees are not mere vessels to be left empty or filled at the whim of the legislative branch. Rather, they have intrinsic meaning which is independent of any legislative intent. Contrary to this Court’s characterization of the issue, the question is not whether Article II, Section 25 of the Montana Constitution provides “greater protection” from double punishment than does the Fifth Amendment, the question is whether it provides any protection independently of what the legislature chooses to provide.

This Court, in following the lead of the United States Supreme Court in Hunter, has, in effect, held that the question of whether cumulative punishments for the same offense are permissible is merely a question of legislative intent. In other words, there is no constitutional prohibition whatsoever. In the view of this Court, the question of whether multiple punishments are permitted is resolved through statutory rather than constitutional interpretation. The Court has rewritten the constitution so that it proscribes multiple punishments for the same offense unless the legislature provides to the contrary. The legislative intent exception swallows the constitutional guarantee. I reject the notion that our constitutional guarantee against multiple punishments for the same offense means nothing more than what the most recent legislative body has decreed it to mean.

The question of whether the weapon enhancement provision violates the constitution is not a question of legislative intent. Rather, it is a question of whether enhancement constitutes punishment for the “same offense” as the underlying offense of felony assault. This requires application of the Blockburger test to determine whether the elements of the weapon enhancement statute are subsumed within the elements of the felony assault statute. The “element” or constituent part of the weapon enhancement statute, § 46-18-221, MCA, is singular; that is, it merely requires that the defendant display, brandish, or use a firearm, destructive device, or other dangerous weapon in the commission of any offense. The requirement that he be convicted of “any offense” is merely a prerequisite of the sentencing enhancement.

The underlying charge in this case was felony assault under § 45-5-202(2)(b), MCA, which provides as follows:

(2) Aper son commits the offense of felony assault if he purposely or knowingly causes:
(b) reasonable apprehension of serious bodily injury in another by use of a weapon ... .

Thus, given the charge of felony assault, the State was required to prove that Zabawa used a weapon to cause reasonable apprehension of serious bodily injury. Use of a weapon is the exact same conduct required to enhance Zabawa’s sentence under § 46-18-221, MCA. Because the State would not be required to prove any additional facts in order to have Zabawa’s sentence enhanced, it is apparent that the weapon enhancement statute is subsumed within the offense of felony assault.

Under the Blockburger test, when the same act violates two different statutes, the inquiry for determining if there are two offenses or only one is “whether each provision requires proof of a fact which the other does not .’’Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. Clearly, the weapon enhancement statute does not require proof of a fact which is not required under the charge of felony assault. Since the weapon enhancement statute is subsumed within the felony assault charge, the two are the same for double jeopardy purposes and punishment cannot be had for both.

Not only is this Court not required to “march lock-step” with the United States Supreme Court’s interpretation of the constitutional protection against double jeopardy in Hunter, but where a federal interpretation fails to afford adequate constitutional protection and is also subject to faulty analysis, this Court should turn to the Montana Constitution in an effort to afford adequate protection on independent state grounds. The Supreme Court’s rule in Hunter, that legislative intent controls the parameters of the protection of the Double Jeopardy Clause, rests on unconvincing precedent.

Hunter relied primarily on two United States Supreme Court decisions, one of which is Whalen v. United States (1980), 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715. In Whalen, the defendant was convicted of first degree “felony murder” on the theory that he murdered his victim during the perpetration of a rape. He was also convicted of the rape. The United States Supreme Court held that consecutive sentences could not be imposed for both crimes on the ground “that Congress did not authorize consecutive sentences for rape and for a killing committed in the course of the rape ....” Whalen, 445 U.S. at 693, 100 S.Ct. at 1438. Further, “[t]he Double Jeopardy Clause at the very least precludes federal courts from imposing consecutive sentences unless authorized by Congress to do so.” Whalen, 445 U.S. at 689, 100 S.Ct. at 1436-37 (emphasis added). “This is not to say that there are not constitutional limitations upon this [legislative] power.” Whalen, 445 U.S. at 689 n.3, 100 S.Ct. at 1436 n.3 (citations omitted). Contrary to the suggestion in Hunter, Whalen does not hold that had Congress intended consecutive punishments for both the rape and the murder it would have been constitutionally permissible.

Hunter also relied on Albernaz v. United States (1981), 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275. The dissent in Hunter correctly points out that the majority relied on dicta in Albernaz for the basis of its holding that cumulative punishment does not violate the Constitution so long as it is authorized by the legislature. Hunter, 459 U.S. at 371 n.3, 103 S.Ct. at 680 n.3 (Marshall, J. dissenting). In Alhernaz, the Court held that multiple punishments for convictions for conspiracy to import marijuana and conspiracy to distribute marijuana did not violate the Double Jeopardy Clause because Congress intended to permit the imposition of consecutive sentences under the two statutes at issue. Albernaz, 450 U.S. at 344, 101 S.Ct. at 1144-45. Albernaz, like Blockburger, involved a case where one transaction resulted in the defendants’ convictions for more than one crime. The crimes were distinguishable on the basis that each required an element the other did not. The offenses were not subsumed one within the other. Thus, Albernaz presented a different situation than Hunter or the present case wherein one of the statutes (Missouri’s “armed criminal action” statute and Montana’s dangerous weapon enhancement statute) is subsumed within the other. The issue in Hunter and in the case before us is whether the double jeopardy prohibition precludes punishing a defendant under a separate statute whose only element is a necessary element of the underlying crime. In light of its misapplication of precedent and its conclusion that the constitutional prohibition against multiple punishments is merely a matter of legislative intent, I would hold that Hunter is not persuasive, and certainly not binding, precedent as far as Article II, Section 25 of the Montana Constitution is concerned. Instead I would hold that the Article II, Section 25 prohibition against multiple punishments has inherent meaning, irrespective of any expression of legislative intent. The double jeopardy clause in Article II, Section 25, limits the power of all branches of government, including the legislature. Whether the legislature intends multiple punishments or not, as a matter of state constitutional law, such cumulative punishment is proscribed under the double jeopardy clause.

If weapon enhancement of Zabawa’s sentence for assault “with a weapon” does not constitute double punishment for the same offense, I cannot envision any circumstance which would.

II

Even assuming, arguendo, that the Court is correct in abdicating its responsibility to the legislature to interpret the state constitution, it should only do so when the expression of legislative intent is clearly indicated. Hunter, 459 U.S. at 366, 103 S.Ct. at 678.

I seriously question whether the legislature, in enacting § 46-18-221, MCA, clearly intended to apply weapon enhancement to an offense such as this. Section 46-18-221, MCA, on its face, applies to “any offense.” Literally, there is no question but that, this all encompassing language includes felony assault. However, since the legislature failed to distinguish between offenses which do not require use of a weapon and those which do, I question whether it is “clear” that the legislature intended to apply weapon enhancement to an offense which itself requires proof of a weapon.

This Court has already had occasion to decide whether the phrase “any offense” in § 46-18-221, MCA, means literally “any” offense and we held that it did not. In State v. Trimmer (1985), 214 Mont. 427, 694 P.2d 490, we held that “any offense” applies to felonies but not to misdemeanors since an enhancement of two to ten years in the state prison would be internally inconsistent with the definition of a misdemeanor as an offense which is punishable by imprisonment in the county jail. Thus, Trimmer establishes that “any’ does not literally mean “any” offense; it means any “felony offense.”

The majority rejects the notion that Trimmer stands for the proposition that the “any offense” language in § 46-18-221(1), MCA, is ambiguous and claims that the Court in Trimmer interpreted the weapon enhancement statute according to its plain language. However, the majority does not interpret the weapon enhancement statute solely according to its “plain language.” Rather it resorts to § 45-2-101(41), MCA, which defines a misdemeanor offense as one which is punishable by imprisonment in the state prison for a term of one year or less to conclude that “any offense” only applies to felony offenses. Reading the weapon enhancement statute in conjunction with this state’s constitutional guarantee against multiple punishment does not deviate from a plain reading of the statute any more than does a reading in conjunction with the statutory definition of misdemeanor.

I submit that, if the definition of misdemeanor compels a narrowing of the phrase “any offense,” certainly Article II, Section 25’s prohibition against double punishment demands the same deference. That is, that “any offense” means any offense which does not itself require use of a weapon.

In determining whether the legislature intended to impose cumulative punishments for the same conduct, the United States Supreme Court has consistently relied on the test of statutory construction stated in Blockburger. The assumption underlying the Blockburger rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Ball v. United States (1985), 470 U.S. 856, 861, 105 S.Ct. 1668, 1671, 84 L.Ed.2d 740, 746; Whalen, 445 U.S. at 692, 100 S.Ct. at 1437-38.

Accordingly, where two statutory provisions proscribe the “same offense,” they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.

Whalen, 445 U.S. at 692, 100 S.Ct. at 1438.

In Ball, the Court examined the statutory language and the legislative histoiy and held that Congress did not intend a convicted felon caught with a weapon to be punished under separate statutes, one for receiving a firearm, and one for possessing it. Applying the Blockburger rule, the Court found that proof of illegal receipt of a firearm necessarily includes proof of illegal possession of that weapon and that, therefore, Congress did not intend to subject felons to two convictions. Ball, 470 U.S. at 862, 105 S.Ct. at 1672. Because one offense was entirely subsumed within the other, the Cotut presumed that Congress did not intend cumulative punishments for the same offense.

Another canon of statutory construction used by the United States Supreme Court to divine legislative intent identifies the social evils sought to be addressed by each offense. See, e.g., United States v. Woodward (1985), 469 U.S. 105, 109, 105 S.Ct. 611, 613, 83 L.Ed.2d 518, 522 (currency reporting and false statement statutes directed to separate evils); Albernaz, 450 U.S. 333, 343, 101 S.Ct. at 1137-1144 (separate statutes proscribing conspiracy to import and to distribute marijuana are directed to separate evils). This method assumes the legislature would intend statutes to apply separately only if each statute prohibits a distinct evil.

In the present case, Zabawa is being punished for felony assault under § 45-5-202(2)(b), MCA, because he used a weapon when he purposely or knowingly caused his ex-wife reasonable apprehension of serious bodily injury. If he had caused his ex-wife to suffer reasonable apprehension of bodily injury without use of a weapon he would have been charged with misdemeanor assault under § 45-5-201(l)(d), MCA, punishable by amaximum of a six-month county jail sentence or a $500 fine, or both.

The Montana legislature has already addressed the separate evils of assault with or without a weapon and has provided different punishments for the separate offenses. Assault with a weapon is a felony offense carrying the possibility of twenty years in the state prison compared to assault without a weapon carrying a maximum jail sentence of six months. The legislature clearly intended to address these separate crimes by creating two distinct assault offenses. The legislature has already provided punishment for the evil inherent in the use of a weapon in an assault. It cannot be said that the weapon enhancement statute is designed to address any separate or distinct evil. On the contrary, it addresses precisely the same evil, use of a weapon.

The majority has cited the proposition that “we presume that the legislature enacts a law with full knowledge of all existing laws on the same subject....” The United States Supreme Court did not decide Hunter until 1983. Thus, when the Montana legislature enacted the weapon enhancement statute in 1977, it would not have assumed that Article II, Section 25, allows cumulative punishments if so intended by the legislature. Rather, in that pre-Hunter time period, the legislature would have assumed that the state constitutional prohibition against multiple punishments was exactly that: i.e. — an absolute prohibition against multiple punishments for the same offense.

Another indication that the Montana legislature did not intend to circumvent citizens’ rights to be free from double jeopardy is the fact that the legislature has afforded defendants greater protection from double jeopardy in the double prosecution context. In State v. Tadewaldt (1996), 277 Mont. 261, 922 P.2d 463, this Court recognized that § 46-11-504(1), MCA, affords defendants greater protection from double punishment than afforded by the United States Constitution as interpreted in Blockburger. Tadewaldt, 922 P.2d at 467. The fact that the legislature provided Montana citizens greater protection from double jeopardy in the double prosecution context belies the Court’s assumption that the legislature clearly intended to deprive Montanans of protection from “double punishment” through application of the weapon enhancement statute to offenses which necessarily include use of a weapon.

The weapon enhancement statute should, and could, be interpreted to apply only to offenses which do not themselves require proof of use of a weapon. Such an interpretation would leave the statute intact and would not offend the double jeopardy clause.

JUSTICES HUNT and TRIEWEILER join in the foregoing dissent.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MARTIN C. MOORMAN, Defendant and Appellant.
    No. 96-051.
    Submitted on Briefs September 26, 1996.
    Rehearing Denied January 2, 1997.
    Decided November 21, 1996.
    53 St.Rep. 1173.
    279 Mont. 330.
    928 P.2d 145.

      For Appellant: Jeffrey T. Renz, Montana Defender Project, Missoula.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Patricia Jordan, Assistant Attorney General, Helena; Deborah Kim Christopher, County Attorney, Poison.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Martin Moorman was convicted and sentenced by the Twentieth Judicial District Court, Lake County, for robbery and was designated a dangerous offender. Moorman contested his dangerous offender designation in a petition for post-conviction relief, which the District Court denied. Moorman appeals the denial of his petition for post-conviction relief. We affirm.

The following dispositive issues are raised on appeal:

1. Did the District Court properly apply the procedural bar rule of § 46-21-105(2), MCA, to dismiss Moorman’s petition for post-conviction relief?

2. Did the District Court possess jurisdiction pursuant to § 46-18-404(3), MCA (1981) (repealed 1995), upon revocation of Moorman’s suspended sentence, to continue his dangerous offender designation which it had imposed in the original sentence?

BACKGROUND

Moorman was convicted of robbery in Lake County on November 10,1982. He had a previous record of thefts and burglaries as well as drug- and alcohol-related offenses, and a 1977 conviction for assault on a police officer. On November 17, 1982, the District Court sentenced Moorman to a term of twenty years in the Montana State Prison, with fifteen years suspended. The court also designated Moorman a dangerous offender for purposes of parole eligibility.

Moorman was released on parole on September 17,1985, and was subject to the terms and conditions established by the Montana Department of Institutions. After he failed to make his initial and monthly reports to his parole officer, the State petitioned to revoke his suspended sentence on June 28,1990. Moorman fled to California and had to be extradited. At a revocation hearing held on December 19, 1990, Moorman admitted to violating the conditions of his suspended sentence. On December 27, 1990, the District Court revoked Moorman’s suspended sentence, and sentenced him to serve twenty years in prison, with all but five years and twenty days suspended. The court credited Moorman with five years and twenty days for time already served, and also ordered him to be placed on parole with the same conditions as his original 1982 sentence.

On November 4, 1991, Moorman’s parole officer filed a parole violation report stating that Moorman had stopped reporting to the parole office and had moved without obtaining permission. The State petitioned to revoke Moorman’s suspended sentence on November 5, 1991. Moorman was extradited from Texas and admitted to the violations. On March 9, 1992, the District Court granted the State’s petition and sentenced Moorman to fifteen years at the Montana State Prison, but suspended the sentence on the condition, among others, that he serve ninety days in jail.

In September 1992, Moorman moved to Washington and failed to report to his parole officer. Moorman’s parole officer filed a third parole violation report on September 11,1992. He alleged that Moor-man had violated three conditions of his parole because he had failed to report to the parole office since May, had failed to pay restitution, and had failed to obtain chemical dependency counseling. The State again petitioned to revoke Moorman’s suspended sentence. Moorman waived extradition from Washington and admitted to the parole violations.

On July 7,1994, the District Court revoked Moorman’s suspended sentence and ordered him to serve fifteen years in the Montana State Prison with no time suspended. The court credited Moorman with 126 days for time already served but ordered that he not receive credit for any other time due to his parole violations. In its judgment and commitment, the court ordered:

that the Defendant shall continue to be designated a dangerous offender for purposes of his parole under MCA 46-18-404. The Court finds that due to the Defendant’s uncontrolled behavior at the time of the offense, and his unwillingness to abide by the terms of his probation, that the Defendant represents a substantial danger to other persons and society, due to the likelihood that he will further victimize persons by illegal activity.

Moorman did not appeal the legality of his sentence pursuant to §§ 46-20-101 through -104, MCA. Instead, he petitioned the Sentence Review Division of the Supreme Court of Montana to review his dangerous offender designation pursuant to §§ 46-18-901 through -905, MCA. The Sentence Review Division denied the petition, ruling that the District Court had considered the underlying requirements to impose the dangerous offender designation.

Moorman then petitioned the District Court for relief pursuant to the Montana Post-Conviction Hearing Act contained at §§ 46-21-101 through -203, MCA (1993). He argued: (1) that the District Court engagedin an ex post facto application of § 46-18-404(4), MCA (1993) (repealed 1995); (2) that his dangerous offender designation terminated upon his release in 1985; (3) that the dangerous offender designation imposed in 1994 was not supported by substantial evidence; and (4) that the District Court violated § 46-18-102(3)(b), MCA (1993), when it failed to state its reasons for imposing the most severe sentence. Moorman also claimed that the District Court lacked jurisdiction to designate him a dangerous offender.

The District Court denied Moorman’s petition for post-conviction relief, concluding that the issues raised in his petition were procedurally barred by § 46-21-105(2), MCA. The court also found that it had imposed Moorman’s dangerous offender designation pursuant to § 46-18-404(3), MCA (1981) (repealed 1995). Therefore, the court found no ex post facto application of § 46-18-404(4), MCA (1993) (repealed 1995). Finally, the court found that the July 7, 1994 judgment and third revocation of Moorman’s suspended sentence continued the dangerous offender designation for the reasons contained in the judgment. Moorman appeals from the District Court’s denial of his petition for post-conviction relief.

1. Did the District Court properly apply the procedural bar rule of § 46-21-105(2), MCA, to dismiss Moorman’s petition for post-conviction relief?

The standard of review for denial of post-conviction relief is whether substantial evidence supports the findings and conclusions of the district court. Walker v. State (1993), 261 Mont. 1, 6, 862 P.2d 1, 4.

Moorman argues that the procedural bar rule contained at § 46-21-105(2), MCA, does not apply to jurisdictional issues, and that an application to the Sentence Review Division should be considered an appeal under § 46-21-105(2), MCA. It is undisputed that Moorman did not file a direct appeal to the Montana Supreme Court challenging his conviction, his dangerous offender designation, or any of his three subsequent sentence revocations.

A. Jurisdictional Issues

Section 46-21-105(2), MCA, states: “When a petitioner has been afforded a direct appeal of the petitioner’s conviction, grounds for relief that could reasonably have been raised on direct appeal may not be raised in the original or amended petition.” The purpose of this waiver provision is to preserve the integrity of the trial and direct appeal and to prevent abuse of the post-conviction relief process. State v. Gorder (1990), 243 Mont. 333, 335, 792 P.2d 370, 371.

Moorman cites Smith v. State (1980), 186 Mont. 52, 606 P.2d 153, as authority for his argument that the procedural bar rule does not apply to jurisdictional issues. However, the procedural bar rule was not raised by the State nor addressed by this Court in Smith because subsection (2) was not added to § 46-21-105, MCA, until 1981. In Smith we held that, at a revocation hearing, the sentencing judge lacked statutory authority to designate a defendant as dangerous, where the dangerous offender designation had not been made in the original sentence. Smith, 606 P.2d at 155. As the State correctly argues in its brief, Moorman’s situation differs from Smith. Unlike the court in Smith, the District Court designated Moorman as a dangerous offender in his original 1982 sentence.

Moorman also cites State v. Akers (1938), 106 Mont. 43, 74 P.2d 1138, in support of his jurisdictional argument. An objection that a court lacks subject matter jurisdiction is never waived and may be raised at any stage of the proceedings. Akers, 106 Mont. 43, 74 P.2d at 1145. “Jurisdiction is the power to hear and determine the particular action or proceeding as well as to make such orders and render such judgment therein as the law authorizes in the class of actions or proceedings to which it belongs.” State v. District Court of Eighteenth Judicial Dist. (1966), 147 Mont. 263, 267, 410 P.2d 933, 935.

Montana has not directly answered the issue raised by Moorman. However, other jurisdictions with post-conviction relief statutes similar to Montana’s have. In Maxfield v. State (Idaho App. 1985), 700 P.2d 115, the defendant petitioned for post-conviction relief. The Court of Appeals of Idaho declined to review several claims, holding that post-conviction relief cannot be used to correct mere errors or irregularities in trial court proceedings which are not jurisdictional and which, at the most, render a judgment merely voidable. Maxfield, 700 P.2d at 121 (citing 39 Am.Jur.2d, HABEAS CORPUS § 30 (1968)). However, the Idaho court explained an exception to the general rule. Post-conviction relief is available “to cure fundamental errors occurring at the trial which affect either the jurisdiction of the court or the validity of the judgment, even though these errors could have been raised on appeal.” Maxfield, 700 P.2d at 121.

In State v. Ohnmacht (Iowa 1983), 342 N.W.2d 838, 843, the Iowa Supreme Court reviewed a jurisdictional issue which had not been previously raised on direct appeal. The court held that “[v]oid sentences are not subject to the usual concepts of waiver, whether from a failure to seek review or other omissions of error preservation.” Ohnmacht, 342 N.W.2d at 843.

Moorman’s jurisdictional argument challenges the District Corut’s authority to impose his dangerous offender designation. If the District Court lacked the statutory authority to impose the dangerous offender designation on Moorman, then Moorman’s sentence is void. Therefore, we hold that the procedural bar rule contained at § 46-21-105(2), MCA, does not apply in a petition for post-conviction relief when the sentencing court lacked subject matter jurisdiction to impose the particular sentence.

The remainder of Moorman’s claims contained in his petition for post-conviction relief reasonably could have been raised on direct appeal. Therefore, these claims are procedurally barred from consideration in a post-conviction proceeding. See §§ 46-20-104, 46-21-105(2), MCA; Petition of Slice (1995), 271 Mont. 337, 338, 896 P.2d 1125, 1126. The District Court properly applied the procedural bar rule when it declined to address the issues that Moorman raised for the first time in his petition for post-conviction relief.

B. Sentence Review

As an additional argument, Moorman also asserts that an application to the Sentence Review Division of the Supreme Court of Montana initiated pursuant to § 46-18-903, MCA, should be considered a “direct appeal” according to § 46-21-105(2), MCA. Therefore, he argues, the District Court should have considered the merits of the arguments he made for the first time in his petition for post-conviction relief.

In interpreting a statute, we look first to the plain meaning of the words it contains. Weere v. David (1996), 275 Mont. 376, 385, 913 P.2d 625, 631. When the language of the statute is clear and unambiguous, the statute speaks for itself and we will not resort to other means of interpretation. Weere, 913 P.2d at 631.

This Court has previously explained the difference between an application to the Sentence Review Division and a direct appeal. Section 46-18-903, MCA, allows a defendant to apply to the Sentence Review Division to challenge the inequity or disparity of his sentence. State v. Evans (1990), 247 Mont. 218, 231, 806 P.2d 512, 520. The Sentence Review Division may increase or decrease the original sentence. Section 46-18-904, MCA. However, the Sentence Review Division does not review errors of law resulting in an illegal sentence. State v. Simtob (1969), 154 Mont. 286, 288, 462 P.2d 873, 874. Sentence reviews are final. Section 46-18-905, MCA.

In contrast, a direct appeal to the Montana Supreme Court, initiated pursuant to §§ 46-20-101 through -105, MCA, allows a defendant to challenge the legality of a sentence. This Court only reviews sentences to determine if they are legal. State v. Lloyd (1984), 208 Mont. 195, 199, 676 P.2d 229, 231.

Moorman’s argument fails to distinguish between the different purposes of post-conviction relief and sentence review. Post-conviction relief provides defendants with a “procedure to address claims that would have been raised by means of a petition for writ of habeas corpus or a petition for writ of error coram nobis.” Renz, Post-Conviction Relief in Montana, 55 Mont. L. Rev. 331, 336 (1994). On the other hand, the Sentence Review Division reviews the equity of a sentence.

The Montana Post-Conviction Relief Hearing Act, when read in conjunction with § 46-20-104, MCA, and § 46-18-903, MCA, difierentiates a direct appeal from an application for sentence review. A defendant may appeal his conviction to the Montana Supreme Court pursuant to § 46-20-104, MCA. A defendant may also apply for a review of his sentence with the Sentence Review Division pursuant to §§ 46-18-901 through -905, MCA. However, nowhere in the language of §§ 46-18-901 through -905, MCA, does the word “appeal” appear.

The plain language of § 46-21-105(2), MCA, is clear and unambiguous. Therefore, we hold that “an application for review of the sentence” as contained in § 46-18-903(1), MCA, is not a “direct appeal” within the context of § 46-21-105(2), MCA. Because Moorman did not directly appeal his claimed errors to this Court, he is procedurally barred from raising them in a petition for post-conviction relief. Section 46-21-105(2), MCA. Moorman had the opportunity in 1982, 1990, 1992, and 1994 to appeal his sentence, subsequent revocations of the sentence, and the dangerous offender designation to this Court. He chose not to do so. He cannot apply to the Sentence Review Division, fail to raise issues there, and preserve those issues in a petition for post-conviction relief.

Moorman argues even though he did not object to his dangerous offender designation at the district court level, that the plain error doctrine applies. In State v. Finley (1996), 276 Mont. 126, 915 P.2d 208, 215, we discussed the circumstances under which we will review issues of plain error. We held that we would review claimed errors that implicate a criminal defendant’s fundamental constitutional rights under the plain error rule where failing to do so may result in a manifest miscarriage of justice, leave the question of the fundamental fairness of the proceedings unsettled, or compromise the integrity of the judicial process. Finley, 915 P.2d at 215. The plain error rule is of limited application and is to be used sparingly. State v. Arlington (1994), 265 Mont. 127, 152, 875 P.2d 307, 322. We decline to extend the common law rule of plain error to cases such as Moorman’s, where the defendant had the opportunity to challenge his dangerous offender designation on direct appeal but chose not to.

With the exception of the jurisdictional issue, the District Court properly applied the procedural bar rule of § 46-21-105(2), MCA, to dismiss Moorman’s petition for post-conviction relief. Therefore, we decline to address whether Moorman’s dangerous offender designation terminated in 1985, whether his 1994 dangerous offender designation is supported by substantial evidence, or whether the District Court failed to adequately state its reasons for imposing the most severe sentence on Moorman when it revoked his suspended sentence for the third time in 1994.

However, because we conclude that the District Court improperly applied the procedural bar rule when it declined to address Moor-man’s jurisdictional argument, we address that issue.

2. Did the District Court possess jurisdiction pursuant to § 46-18-404(3), MCA (1981) (repealed 1995), upon a revocation of Moorman’s suspended sentence, to continue his dangerous offender designation which it had imposed in the original sentence?

Moorman argues that the District Court lacked jurisdiction to continue his dangerous offender designation when it revoked his suspended sentence in 1994. The State contends that the court had no alternative but to continue the conditions of Moorman’s original sentence. We agree with the State.

District courts have broad discretion in their sentencing decisions. State v. Alexander (1994), 265 Mont. 192, 203, 875 P.2d 345, 352. However, a district court has no power to impose a sentence in the absence of specific statutory authority. State v. Hatfield (1993), 256 Mont. 340, 346, 846 P.2d 1025, 1029.

In reviewing the District Court’s jurisdiction to continue Moor-man’s dangerous designation, we look to § 46-18-404, MCA (1981) (repealed 1995), because it was the statute in effect at the time the crime was committed. See State v. Azure (1978), 179 Mont. 281, 282, 587 P.2d 1297, 1298.

At the time of Moorman’s initial sentencing, § 46-18-404, MCA (1981) (repealed 1995), did not allow a district court in a revocation proceeding to add new terms or conditions to a defendant’s original sentence. Finley, 915 P.2d at 221. A district court could not impose a dangerous offender designation upon revocation of a suspended sentence where the original sentence was silent on the issue or designated the defendant as nondangerous. Smith, 606 P.2d at 154-55; Petition of Arledge (1988), 232 Mont. 450, 756 P.2d 1169, 1170.

In Smith, the original judgment was silent as to whether the defendant was designated as dangerous or nondangerous. We found that by implication the district court had not found that the defendant was a substantial danger to the community. Here, however, when Moorman was originally sentenced in 1982, the sentencing court specifically designated him as a dangerous offender. The District Court, under the 1981 version of § 46-18-203, MCA, had the authority “to revoke the suspension or impose sentence and order the person committed.” It did not have the authority to modify the sentence. Therefore, Moorman’s original dangerous designation remained a part of his sentence upon all subsequent revocations of his suspended sentence.

We hold that the District Court possessed statutory authority, and thus had jurisdiction, upon a revocation of Moorman’s suspended sentence, to continue his dangerous offender designation imposed in the original sentence. Substantial evidence supports the District Court’s findings and conclusions that Moorman’s claims are prohibited by the procedural bar rule, and that Moorman was properly designated as a dangerous offender. The District Court’s order denying Moorman’s petition for post-conviction relief is affirmed.

JUSTICES NELSON, ERDMANN, TRIEWEILER and GRAY concur.


author: JUSTICE GRAY

text:
    ANNETTE JONES, Plaintiff and Appellant, v. CITY OF BILLINGS, an Incorporated Municipality, Defendant and Respondent.
    No. 96-250.
    Submitted on Briefs August 29, 1996.
    Decided November 21, 1996.
    53 St.Rep. 1178.
    279 Mont. 341.
    927 P.2d 9.

      For Appellant: Paul E. Toennis; Oliver, Graves, Toennis & Gustafson, Billings; Patrick E. Kenney; Kenney Law Firm, Billings.
    For Respondent: K. D. Peterson; Peterson & Schofield, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

Annette Jones (Jones) appeals from the order of the Thirteenth Judicial District Court, Yellowstone County, denying her postjudgment motion for attorney fees. We affirm.

The sole issue on appeal is whether the District Court abused its discretion in denying Jones’ motion for attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

Jones was employed by Mountain Harvest, a pizza crust factory in Billings, Montana. On October 15, 1993, she left work in her vehicle shortly after 3:00 p.m., accompanied by a passenger, Anthony Payton (Payton). Jones proceeded north on South 24th Street West. As she approached the intersection of South 24th Street West and Monad Road, she moved her vehicle into the left turn lane, intending to turn left and head west on Monad Road.

The intersection of South 24th Street West and Monad Road was controlled by a so-called ‘lagging protected/permissive” traffic light. At the end of the traffic light cycle, the northbound, eastbound and westbound lights would all be red, but the southbound light would remain green for a preset amount of time or until southbound traffic turning left to head east on Monad Road cleared the intersection. The car ahead of Jones in the left turn lane completed its turn and, while the northbound light was still green, Jones pulled into the intersection, waiting to turn left. While she waited for oncoming traffic to clear the intersection, the northbound light turned yellow and then red. Seeing no southbound traffic approaching at a distance close enough to concern her, Jones began to clear the intersection. Her vehicle was struck broadside by a car traveling south on South 24th Street West which had proceeded through the intersection at Monad Road on a green light.

Jones and Payton were injured in the accident and Jones’ vehicle was totaled. Jones submitted a claim to the City of Billings (City) for damages resulting from the City’s alleged negligence in improperly timing the traffic light at the intersection of South 24th Street West and Monad Road. The City denied the claim and Jones filed suit. In answering the complaint, the City denied that it was negligent and affirmatively alleged that Jones’ negligence caused her injuries and damages.

After a four-day trial, the jury found that the City negligently established and maintained the traffic signal system at the intersection and that its negligence was a proximate cause of the accident. The jury also found that Jones acted negligently, but that her negligence was not a proximate cause of the accident. Finally, the jury awarded Jones $20,000 for the personal injuries she sustained as a result of the accident.

The District Court entered judgment in Jones’ favor for $20,000, postjudgment interest and costs. Jones subsequently moved for attorney fees and costs pursuant to § 25-10-711, MCA. The District Court granted her motion for reasonable costs because the City did not object, but denied the motion for attorney fees. Jones appealed.

DISCUSSION

Did the District Court abuse its discretion in denying Jones’ motion for attorney fees?

Jones moved for attorney fees under § 25-10-711, MCA, contending that the City’s defense against her negligence claim was frivolous or in bad faith. Section 25-10-711, MCA, provides, in pertinent part:

(1) In any civil action brought by or against the state, a political subdivision, or an agency of the state or a political subdivision, the opposing party, whether plaintiff or defendant, is entitled to ... reasonable attorney’s fees as determined by the court if:
(a) he prevails against the state, political subdivision, or agency; and
(b) the court finds that the claim or defense of the state, political subdivision, or agency that brought or defended the action was frivolous or pursued in bad faith.

Here, Jones clearly prevailed against the City and, as a result, she satisfied § 25-10-711(l)(a), MCA. Thus, she was entitled to attorney fees pursuant to § 25-10-711(1), MCA, if the City’s defense was frivolous or in bad faith pursuant to § 25-10-711(l)(b), MCA. A claim or defense is frivolous or in bad faith under § 25-10-711(1)(b), MCA, when it is “outside ‘the bounds of legitimate argument on a substantial issue on which there is a bona fide difference of opinion.’ ” See Armstrong v. State, Dept. of Justice (1991), 250 Mont. 468, 469-70, 820 P.2d 1273, 1274 (quoting Dept. of Revenue v. New Life Fellowship (1985), 217 Mont. 192, 195, 703 P.2d 860, 862; citing Albertson’s Inc. v. Dept. of Business Regulation (1979), 184 Mont. 12, 18, 601 P.2d 43, 46).

The District Court ultimately found, pursuant to § 25-10-711(l)(b), MCA, that the City’s defense was not frivolous or in bad faith because (1) the City presented expert testimony that the traffic signal system complied in all respects with the Manual on Uniform Traffic Control Devices (CD Manual), which state law required the City to follow; (2) the jury found that Jones was negligent as the City claimed; and (3) the jury only awarded Jones approximately one-third of the damages she sought. In essence, these are findings of fact because they relate to matters of record. We review a trial court’s findings of fact under the “clearly erroneous” standard, the first part of which is whether the findings are supported by substantial evidence. Rule 52(a), M.R.Civ.P; Aasheim v. Reum (1996), [277 Mont. 471], 922 P.2d 1167, 1169 (citation omitted). Given the Armstrong test, however, it is clear that an element of discretion remains in a trial court’s § 25-10-711(l)(b), MCA, determination regarding a frivolous or bad faith defense. Thus, our usual abuse of discretion standard for reviewing a trial court’s denial of a motion for attorney fees also applies here to the District Court’s ultimate denial of Jones’ motion for attorney fees under the statutory frivolous or bad faith standard. See McKamey v. State (1994), 268 Mont. 137, 148, 885 P.2d 515, 522 (citing Armstrong, 820 P.2d at 1274).

Here, the City defended against Jones’ negligence claim on three bases: it was not negligent; Jones was negligent and her negligence caused the accident; and Jones’ damages were excessive and not proximately caused by the accident. The District Court essentially found that the City’s defenses were supported at trial.

In response to Jones’ claim that the City caused the accident by negligently establishing and maintaining a mistimed traffic light at the intersection, the City presented expert testimony that the traffic light phasing at the intersection was safe and conformed to the requirements of state law. The City’s traffic engineer testified that he considered such variables as the volume of traffic on both South 24th Street West and Monad Road and the speed limit on these streets in determining which traffic light display would be the safest to use at the intersection. He testified that when the traffic light phasing at the accident intersection was modified in 1991, he reviewed and approved the modification because it complied with the CD Manual the City was required to follow. The City’s traffic transportation engineering consultant also testified that the traffic light phasing at the accident intersection met the requirements of the CD Manual. In addition, the City’s traffic electrician advisor testified that, after the 1991 modification, he monitored the intersection for approximately six months and determined that drivers at that intersection were not experiencing problems due to the traffic signal phasing sequence. Thus, the District Court’s finding that the City presented evidence that it was not negligent in establishing and maintaining the traffic signal is supported by substantial evidence.

Jones argues that the City’s defense was frivolous and in bad faith because its expert witnesses did not claim to know the proper method of making a left turn under the circumstances confronting her at the accident intersection. This argument focuses, however, on Jones’ efforts at trial to bolster her claim that the City’s negligence in establishing and maintaining the traffic light caused the accident; it does not focus on the substantiality of the defense against negligence which the City’s evidence advanced. As a result, Jones’ argument was not within the scope of the District Court’s determination of whether the City’s defense was frivolous or in bad faith. See Weber v. State (1992), 253 Mont. 148, 154-55, 831 P.2d 1359, 1363.

In addition to its evidence relating to a lack of negligence, the City presented evidence that Jones was negligent and caused the accident by failing to yield the right-of-way to oncoming traffic. The investigating police officer testified that, if Jones did not see the oncoming car which ultimately struck her vehicle, she negligently caused the accident by turning left in front of approaching traffic. Moreover, Jones testified that she did not see the southbound car which struck her vehicle until seconds before the impact and that it was her responsibility to judge oncoming trafile to determine if it was going to stop. In addition, one of Jones’expert witnesses testified that Jones could not rely entirely on the northbound red light in order to complete her left turn, but needed to observe oncoming traffic; if she improperly judged what the oncoming traffic was going to do, then she was responsible for the accident. Thus, substantial evidence supported the City’s position that Jones’ negligence caused the accident.

As part of its defense, the City also presented evidence that Jones’ damage claim, which included substantial lost wages, was excessive and not proximately caused by the accident. Two of Jones’ supervisors — one from Mountain Harvest and one from a Billings casino where she worked as a food server and bartender for approximately eight months after leaving Mountain Harvest — testified that they did not observe any evidence that she suffered from physical injuries as a result of the accident. Her Mountain Harvest supervisor also testified that Jones continued to operate a machine on the production line and stack heavy boxes of pizza crusts until February of 1994. Jones’ own testimony was that she left both of the jobs because of stress and a painfid cervical cell growth. Thus, substantial evidence supported the City’s defense to Jones’ damage claim and, indeed, the jury ultimately awarded her less than one-third of the amount she sought.

Jones contends that the District Court improperly relied on the reduced award of damages as support for its finding that the City’s defense was not frivolous or in bad faith. She cites to no authority in support of this contention, however, and we held to the contrary in Weber. There, Weber originally valued his case at $500,000 and later offered to settle for $170,000; the jury ultimately awarded him $33,230. Weber, 831 P.2d at 1363. We observed that the district court properly pointed to those figures as demonstrating that the State’s defense was not frivolous. Weber, 831 P.2d at 1363. Here, as in Weber, the District Court properly relied on the jury’s reduced award of damages in determining that the City’s defense of the case was not frivolous or in bad faith.

Finally, Jones contends that the City was aware of an informational report, published by the Western District Institute of Transportation Engineers, which claimed that traffic signal phasing of the type used at the accident intersection was not appropriate at such intersections. Jones maintains that because the City did not implement the recommendation presented in the report, its proper timing defense was frivolous. We observe that, while Jones moved to admit this report into evidence at trial, the District Court excluded it on hearsay grounds. Jones did not appeal this evidentiary ruling. As a result, the report is not properly before us and we decline to address Jones’ argument based thereon.

We conclude that the District Court’s findings relating to the City’s defense are supported by substantial evidence and are not otherwise clearly erroneous. Here, the City presented substantial evidence in support of its bona fide differences of opinion with Jones regarding the substantial issues of whose negligence caused the accident and the amount of Jones’ damages. See Armstrong, 820 P.2d at 1274. Therefore, we further conclude, under the Armstrong test, that the District Court did not abuse its discretion in determining that the City’s defense was not frivolous or in bad faith pursuant to § 25-10-711(l)(b), MCA, and, on that basis, denying Jones’ motion for attorney fees.

Jones also contends that she is entitled to attorney fees under the private attorney general doctrine or the “justice and equity” theory. She did not raise these theories in the District Court and it is well-settled that we will not address on appeal issues not presented to the district court. Tisher v. Norwest Capital Mgt. & Trust (1993), 260 Mont. 143, 156, 859 P.2d 984, 992 (citing Duensing v. Travelers Co. (1993), 257 Mont. 376, 386, 849 P.2d 203, 209). Therefore, we decline to address Jones’ alternative theories of entitlement to attorney fees.

As a final matter, we note that the City requests attorney fees, costs and expenses for having to defend against a frivolous appeal. Jones responds that this matter is raised for the first time on appeal and, therefore, that we should not address it. Jones apparently fails to understand that a respondent’s request for fees and costs as a sanction for an appellant’s frivolous appeal can hardly be raised at any time prior to the appeal. Here, however, the City’s request consists of one sentence in the conclusion to its brief. The City does not even cite to the rule under which its request is made, much less provide an analysis supporting the request under the circumstances of this case. As a result, we will not address the City’s request.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, ERDMANN and LEAPHART concur.