State v. Becker

• Decision Date: 29 March 2005
• Docket Number: No. 02-491.,02-491.
• Citation: 110 P.3d 1,326 Mont. 364,2005 MT 75
• Parties: STATE of Montana, Plaintiff and Respondent, v. Justin Dale BECKER, Defendant and Appellant.
• Court: Montana Supreme Court

110 P.3d 1

2005 MT 75

326 Mont. 364

STATE of Montana, Plaintiff and Respondent, v. Justin Dale BECKER, Defendant and Appellant.

No. 02-491.

Supreme Court of Montana.

Submitted on Briefs January 27, 2004.

Decided March 29, 2005.

Rehearing Denied May 3, 2005.

For Appellant: Kristina Guest, Assistant Appellate Defender, Helena, Montana.

For Respondent: Mike McGrath, Montana Attorney General, John Paulson, Assistant Attorney General, Helena, Montana; Brant Light, Cascade County Attorney, John Parker and Joel Thompson, Deputy County Attorneys, Great Falls, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Justin Dale Becker appeals his conviction in the District Court for the Eighth Judicial District, Cascade County, of criminal possession of dangerous drugs, accountability for the criminal production or manufacture of dangerous drugs, and criminal possession of precursors to dangerous drugs. We affirm in part, reverse in part and remand for further proceedings consistent with this Opinion.

¶ 2 We restate Becker's issues on appeal as follows:

¶ 3 1. Whether Becker's convictions for criminal possession of dangerous drugs and criminal possession of precursors to dangerous drugs in addition to criminal production or manufacture of dangerous drugs by accountability violated his double jeopardy protections under the United States and Montana Constitutions and under § 46-11-410, MCA.

¶ 4 2. Whether Becker's sentence for criminal possession of dangerous drugs is twice the statutory maximum.

¶ 5 3. Whether Becker's sentence for criminal production or manufacture of dangerous drugs by accountability is illegal.

Factual and Procedural Background

¶ 6 On the morning of March 16, 2001, Mike Smith went to the home of his estranged wife, Nora. Upon entering the garage, Mike discovered what he suspected was a methamphetamine lab which he immediately reported to the Great Falls Police Department. Thereafter, several law enforcement officers set up surveillance of the home and garage. The officers observed Becker and Huston Curran moving items from the house into the garage and then loading items into the trunk of a white Ford Taurus owned by Sharon Olson. After loading the car, Becker, Curran and Olson got into the car and drove away. The officers stopped the car a short distance from the house. Becker was found to be carrying several pairs of rubber gloves, several pairs of athletic gloves, and a glass pipe with a rubber tube used for smoking methamphetamine. In addition, Becker's clothing was wet and emitted a chemical odor. One of the officers who touched Becker had a physical reaction and was required to undergo decontamination.

¶ 7 After obtaining a search warrant for Smith's home and garage and Olson's car, officers found items they believed to be consistent with the production of methamphetamine and a mason jar with a solvent at the top that contained methamphetamine. Based on these findings, the State charged Becker with criminal production or manufacture of dangerous drugs by accountability in violation of §§ 45-2-302(3) and 45-9-110, MCA (1999), and felony criminal possession of dangerous drugs in violation of § 45-9-102, MCA (1999). The State also charged Smith, Olson and Curran with numerous drug offenses.

¶ 8 On June 22, 2001, Becker filed a motion to suppress all of the evidence obtained by the officers on the grounds that the search warrant application did not adequately establish the reliability and credibility of the informant; the search warrant application was legally invalid because it contained inaccurate and misleading information; the search warrant application lacked probable cause; the officers lacked particularized suspicion to stop Olson's car; and the statements made by Olson at the time of the traffic stop were taken in violation of her right to remain silent. The District Court denied Becker's motion to suppress after conducting a hearing on the matters raised in the motion.

¶ 9 The District Court had set Becker's trial to begin on November 19, 2001, however, six days prior to that date, the State filed an Amended Information adding the charge of criminal possession of precursors to dangerous drugs in violation of § 45-9-107(1)(n), MCA (1999). Defense counsel subsequently filed a motion to dismiss this charge as a violation of the prohibition against double jeopardy claiming that the course of conduct supporting this charge and the charge of criminal production or manufacture of dangerous drugs was the same. Defense counsel relied on Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, for this argument. However, defense counsel made no argument regarding the specific protections against double jeopardy provided by the Montana Constitution or § 46-11-410, MCA. The District Court denied Becker's motion and the case proceeded to trial. The jury convicted Becker on all three charges.

¶ 10 Prior to his sentencing hearing, Becker filed a Sentencing Memorandum in which he argued that the maximum sentence he could receive for the charge of criminal production or manufacture of dangerous drugs by accountability was six months incarceration in the county jail. Becker contended that there was no penalty in the statutes for a first-time offense of manufacturing methamphetamine. Thus, he argued that § 46-18-212, MCA, a sentencing default statute, applied. Becker also filed an objection to the State seeking to sentence him as a persistent felony offender.

¶ 11 At sentencing, the District Court rejected Becker's sentencing argument and determined that pursuant to § 45-9-110(4), MCA, it could, and did, sentence Becker to ten years in prison for the charge of criminal production or manufacture of dangerous drugs by accountability. The court also sentenced Becker to ten years in prison for the charge of criminal possession of dangerous drugs and five years in prison for the charge of criminal possession of precursors to dangerous drugs. The court ordered that all of the sentences were to run consecutively. In addition, the court declared Becker to be a persistent felony offender, but chose not to sentence him as such. Becker appeals his conviction and sentence.

Issue 1.

¶ 12 Whether Becker's convictions for criminal possession of dangerous drugs and criminal possession of precursors to dangerous drugs in addition to criminal production or manufacture of dangerous drugs by accountability violated his double jeopardy protections under the United States and Montana Constitutions and under § 46-11-410, MCA.

¶ 13 Becker argues on appeal that he should only have been convicted of the charge of criminal production or manufacture of dangerous drugs by accountability because the other two charges were part of the process of manufacturing methamphetamine and were included within the manufacturing charge. He claims that his convictions for possession of precursors and possession of methamphetamine in addition to his conviction for production or manufacture of methamphetamine violated his federal and state constitutional protections and his state statutory protection against double jeopardy.

¶ 14 A district court's decision to deny a defendant's motion to dismiss on the basis of double jeopardy presents a question of law that this Court reviews on appeal to determine whether the district court's interpretation of the law is correct. State v. Beavers, 1999 MT 260, ¶ 21, 296 Mont. 340, ¶ 21, 987 P.2d 371, ¶ 21 (citing State v. Barker (1993), 260 Mont. 85, 88, 858 P.2d 360, 362; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).

¶ 15 Becker concedes on appeal that his motion to dismiss in the District Court dealt exclusively with his federal constitutional rights and that he did not address the double jeopardy protections provided by the Montana Constitution or Montana's statutory protection against double jeopardy found at § 46-11-410, MCA, which provides:

Multiple charges. (1) When the same transaction may establish the commission of more than one offense, a person charged with the conduct may be prosecuted for each offense.

(2) A defendant may not, however, be convicted of more than one offense if:

(a) one offense is included in the other;

(b) one offense consists only of a conspiracy or other form of preparation to commit the other (c) inconsistent findings of fact are required to establish the commission of the offenses;

(d) the offenses differ only in that one is defined to prohibit a specific instance of the conduct; or

(e) the offense is defined to prohibit a continuing course of conduct and the defendant's course of conduct was interrupted, unless the law provides that the specific periods of the conduct constitute separate offenses. [Emphasis added.]

¶ 16 Additionally, Becker concedes that he did not object on double jeopardy grounds in the lower court that the offense of possession of methamphetamine was included within the offense of production or manufacture of methamphetamine. Instead, his double jeopardy argument was based on the claim that the offense of possession of precursors was included within the offense of production or manufacture of methamphetamine.

¶ 17 The State argues that because Becker raised a statute-based double jeopardy theory for the first time on appeal, this Court should decline to address the new theory under the Court's discretionary power of plain error review or through Becker's claims of ineffective assistance of counsel. We agree with the State that plain error review is inappropriate in this case, however, we conclude that it is appropriate to analyze this case under Becker's ineffective assistance of counsel claim.

¶ 18 A criminal defendant is denied effective assistance of counsel if his counsel's conduct falls short of the range reasonably demanded in light of the Sixth Amendment to the United States Constitution and counsel's failure is prejudicial. State v. Rose, 1998 MT...