State v. Anderson

• Decision Date: 18 February 2009
• Docket Number: No. DA 08-0280.,DA 08-0280.
• Citation: 349 Mont. 245,2009 MT 39,203 P.3d 764
• Parties: STATE of Montana, Plaintiff and Appellee, v. Margaret Susan ANDERSON, Margaret "Peggy" Almendinger, Defendant and Appellant.
• Court: Montana Supreme Court

203 P.3d 764

2009 MT 39

349 Mont. 245

STATE of Montana, Plaintiff and Appellee, v. Margaret Susan ANDERSON, Margaret "Peggy" Almendinger, Defendant and Appellant.

No. DA 08-0280.

Supreme Court of Montana.

Submitted on Briefs January 7, 2009.

Decided February 18, 2009.

For Appellant: Jim Wheelis, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana. Lewis K. Smith, Powell County Attorney, Deer Lodge, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Margaret Susan Anderson (Anderson) appeals the judgment of the Third Judicial District Court sentencing her as a "persistent felony offender" (PFO). We affirm.

ISSUE

¶ 2 A restatement of the issue on appeal is:

¶ 3 Did the District Court correctly sentence Anderson as a persistent felony offender?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 Anderson worked as a deputy treasurer for Powell County, Montana, for over eight years. In mid-May 2007, she confessed to committing forgery in November 2004 and October 2005, and tendered her resignation. Over the next several days, it was brought to the attention of authorities that Anderson had told various people she had also embezzled money from the treasurer's office. This prompted an investigation which eventually revealed that Anderson had embezzled approximately $250,000 over seven years.

¶ 5 In June 2007, while the embezzlement investigation proceeded, an Information was filed charging Anderson with felony forgery and a misdemeanor charge. She pled guilty to these charges on August 7, 2007, and was sentenced to a three-year suspended sentence.

¶ 6 Subsequently, in consensual interviews with the Powell County Sheriff on October 10 and October 12, 2007, Anderson described how she embezzled county and state funds. On October 19, 2007, the State filed an Information charging Anderson with felony embezzlement. On November 5, 2007, the State issued notice of its intent to seek treatment of Anderson as a PFO based on her August 7, 2007 felony forgery conviction. Anderson entered a guilty plea to felony embezzlement on January 22, 2008, and on April 11, 2008, was sentenced to twenty-five years at the Montana Women's Prison with fifteen years suspended. The written sentence was amended in June 2008 to accurately reflect the sentencing court's oral pronouncement and to indicate that Anderson's sentence was enhanced under the PFO statute. Anderson filed a timely appeal of the court's decision to treat her as a PFO.

STANDARD OF REVIEW

¶ 7 We review criminal sentences that include at least one year of actual incarceration for legality only. Our review is confined to determining whether the sentencing court had statutory authority to impose the sentence, whether the sentence falls within the parameters set by the applicable sentencing statutes, and whether the court adhered to the affirmative mandates of the applicable sentencing statutes. This determination is a question of law; as such, our review is de novo. State v. Rosling, 2008 MT 62, ¶ 59, 342 Mont. 1, 180 P.3d 1102 (citation omitted).

DISCUSSION

¶ 8 Did the District Court correctly sentence Anderson as a PFO?

¶ 9 Section 46-18-501, MCA, defines persistent felony offender as follows:

A "persistent felony offender" is an offender who has previously been convicted of a felony and who is presently being sentenced for a second felony committed on a different occasion than the first. An offender is considered to have been previously convicted of a felony if:

(1) the previous felony conviction was for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed;

(2) less than 5 years have elapsed between the commission of the present offense and either:

(a) the previous felony conviction; or

(b) the offender's release on parole or otherwise from prison or other commitment imposed as a result of the previous felony conviction; and

(3) the offender has not been pardoned on the ground of innocence and the conviction has not been set aside in a postconviction hearing.

¶ 10 The case before us raises the question of whether a defendant can be sentenced as a PFO when she had no felony convictions at the time she committed her second felony. Anderson argues that linguistically the statute requires that a defendant have a felony conviction on her record at the time she commits her second felony. She opines that given the definition of "previous" and its location in the statute, the correct interpretation is that she had to have been convicted of a felony "previous" to committing her second felony. She maintains that by the time she received her first felony conviction for forgery in August 2007 she had already completed the conduct that constituted her second felony, i.e., embezzlement that had ceased in May 2007, and therefore she is not eligible for PFO status. Anderson asserts that the two cases in which this Court has held otherwise, State v. Hamm, 250 Mont. 123, 818 P.2d 830 (1991), and State v. Williamson, 218 Mont. 242, 707 P.2d 530 (1985), are "manifestly wrong" and should be overturned.

¶ 11 The State counters that the plain language of the statute unambiguously defines offenders who commit a second felony before being convicted of their first felony as persistent felony offenders. It furthers asserts that Hamm and Williamson correctly interpreted the plain language of the statute and are not "manifestly wrong"; therefore this Court must follow them as precedent under the doctrine of stare decisis.

¶ 12 In Williamson, Williamson was charged with arson alleged to have been committed on January 11, 1983, and with theft alleged to have occurred between January 10 and February 12, 1983. Williamson, 218 Mont. at 243, 707 P.2d at 530-31. He eventually pled guilty to both charges and was sentenced. He later moved to withdraw his guilty pleas and the district court denied his motion. The issue on appeal was whether the district court erred in denying the motion to withdraw his pleas. Williamson, 218 Mont. at 244, 707 P.2d at 531. Analysis of this issue, however, led this Court to discuss the application of the PFO statute. Williamson argued that his sentence could not be enhanced by the PFO statute because both of his crimes were committed at approximately the same time and his guilty pleas were entered at the same time; therefore, there was no "previous" felony conviction. In affirming the district court's conclusion that the PFO statute was applicable to such a case, we quoted extensively from the district court's opinion which stated:

The prisoner urges that 46-15-501 be construed to ban the use of the statute where the second offense was committed prior to the conviction on the first one. If construction of the statute is required, it must be, if at all possible, construed in favor of the defendant. The statutory definition of the term is crystal clear and needs no construction: "A `persistent felony offender' is an offender who has previously been convicted of a felony and who is presently being sentenced for a second felony committed on a different occasion than the first." (46-18-501) This definition, standing alone, would not permit the question now raised by the prisoner. It simply requires a past conviction and sentencing on a subsequent one ...

But then the same statute goes on to define a previous felony conviction. It...