State v. Cech

Decision Date06 August 2007
Docket NumberNo. DA 06-0111.,DA 06-0111.
Citation2007 MT 184,167 P.3d 389,338 Mont. 330
PartiesSTATE of Montana, Plaintiff and Respondent, v. Casey Lee CECH, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Jeffrey T. Renz and Daniela E. Pavuk, Intern, School of Law, University of Montana, Missoula, Montana.

For Respondent: Honorable Mike McGrath, Attorney General; Ilka Becker, Assistant Attorney General, Helena, Montana, George H. Corn, County Attorney; Geoffrey Mahar, Chief Deputy County Attorney, Hamilton, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Casey Cech (Cech) appeals from the order of the Twenty-First Judicial District Court, Ravalli County, denying his motion to dismiss on grounds of double jeopardy. We reverse.

¶ 2 We consider the following issue on appeal:

¶ 3 Did the District Court err by ruling that Cech's conviction of possession of stolen property in Washington did not bar a subsequent prosecution for theft of the property in Montana?

BACKGROUND

¶ 4 On October 15, 2004, Cech test-drove a silver 2001 Honda Accord, reportedly valued at $25,000, belonging to SFE Auto Sales (SFE) of Corvallis, Montana. Cech failed to return the vehicle, and SFE reported the theft. On October 17, 2004, the Ravalli County Sheriff's Office learned from the Grant County Sheriff's Office in Ephrata, Washington, that the stolen vehicle had been recovered and that Cech, who was driving the vehicle, had been arrested and charged under Washington law.

¶ 5 On January 18, 2005, Cech was convicted in Washington of assault in the third degree, attempting to elude pursuing police vehicle, and, with regard to the stolen Honda, possessing stolen property in the first degree. Cech was sentenced to sixteen months in jail in Grant County, Washington. On June 28, 2005, Cech was charged by information in the Twenty-First Judicial District Court, Ravalli County, with felony theft in violation of § 45-6-301, MCA. The information alleged Cech "purposely or knowingly obtained or exerted unauthorized control over a vehicle belonging to SFE Auto Sales. . . ." At his initial appearance on July 20, 2005, Cech entered a plea of not guilty.

¶ 6 On August 29, 2005, Cech filed a motion to dismiss on grounds of double jeopardy, which the District Court denied. Thereafter, Cech changed his plea to guilty pursuant to a plea bargain agreement which did not reserve, under § 46-12-204(3), MCA, Cech's right to appeal the double jeopardy issue. Cech was sentenced to serve ten years in the Montana State Prison. He appeals.

STANDARD OF REVIEW

¶ 7 A district court's denial of a defendant's motion to dismiss a charge on the basis of double jeopardy presents a question of law that this Court reviews for correctness. State v. Beavers, 1999 MT 260, ¶ 21, 296 Mont. 340, ¶ 21, 987 P.2d 371, ¶ 21.

DISCUSSION

¶ 8 Did the District Court err by ruling that Cech's conviction of possession of stolen property in Washington did not bar a subsequent prosecution for theft of the property in Montana?

¶ 9 As a preliminary matter, Cech offers that his appeal is properly before this Court even though he did not reserve this issue for appeal when he entered his guilty plea because, while a voluntary guilty plea usually constitutes a waiver of non-jurisdictional defects and defenses that occurred prior to the plea, the issue he raises is a jurisdictional one which cannot be waived, citing Hagan v. State, 265 Mont. 31, 873 P.2d 1385 (1994). In Hagan, we stated that "[i]t is well established that a plea of guilty which is voluntary and understandingly made constitutes a waiver of nonjurisdictional defects and defenses, including claims of constitutional violations which occurred prior to the plea." Hagan, 265 Mont. at 35, 873 P.2d at 1387. We further explained that the jurisdictional grounds exception applies to "those cases in which the district court could determine that the government lacked the power to bring the indictment at the time of accepting the guilty plea from the face of the indictment or from the record." Hagan, 265 Mont. at 36, 873 P.2d at 1388 (quoting U.S. v. Cortez, 973 F.2d 764, 767 (9th Cir.1992)).

¶ 10 Applying this standard to a double jeopardy issue in Stilson v. State, 278 Mont. 20, 924 P.2d 238 (1996), which had not been raised prior to Stilson's guilty plea, we reasoned as follows:

[W]e conclude that at the time the Eighth Judicial District Court accepted Stilson's guilty plea the record before it contained his two prior convictions and was sufficient for the court to determine whether the government lacked the power to bring the charges at issue due to the constitutional prohibitions against placing a person twice in jeopardy. We conclude that Stilson has not waived his double jeopardy claim and therefore proceed to address the merits of his claim.

Stilson, 278 Mont. at 22-23, 924 P.2d at 239. The State offers no substantive argument on this issue, and we note that, when Cech pled guilty, the District Court had before it a copy of the pre-sentence investigation report prepared for Cech's previous sentencing in Washington State. As in Stilson, the record before the District Court at the time it accepted Cech's guilty plea was sufficient for the court to determine whether the government lacked the power to bring the charges at issue due to the constitutional prohibitions against double jeopardy. We therefore conclude that Cech has not waived his double jeopardy claim and that it is properly before the Court.

¶ 11 Cech argues that the District Court's order should be reversed because Cech's prosecution for theft in Montana was barred on double jeopardy grounds as a result of his conviction for possession of stolen property in Washington. Cech contends that his prosecution was barred under (1) Montana's double jeopardy statute, § 46-11-504, MCA; (2) the double jeopardy clause of the Fifth Amendment to the United States Constitution, because the theft offense has the same elements as the Washington possession of stolen property offense, thus satisfying the elements test set out in Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); and (3) Article II, Section 25, of the Montana Constitution.

¶ 12 The State responds that its prosecution of theft of the vehicle was not precluded by Washington's previous prosecution under any of Cech's three theories because (1) Cech cannot establish elements one and three of the Montana statute's double jeopardy test as set forth in State v. Tadewaldt, 277 Mont. 261, 264, 922 P.2d 463, 465 (1996); (2) under the dual sovereignty doctrine as defined by the United States Supreme Court, Cech committed two distinct offenses when he stole a vehicle in Montana and then possessed that vehicle in Washington; and (3) Cech was not subjected to the multiple prosecutions for the same offense which is prohibited under the Montana Constitution. Because we conclude that Cech's first argument, under Montana statute, is meritorious, we do not reach the second and third arguments.

¶ 13 Section 46-11-504(1), MCA, provides:

Former prosecution in another jurisdiction. When conduct constitutes an offense within the jurisdiction of any state or federal court, a prosecution in any jurisdiction is a bar to a subsequent prosecution in this state if: (1) the first prosecution resulted in an acquittal or in a conviction and the subsequent prosecution is based on an offense arising out of the same transaction. . . .

We have noted that this statute provides criminal defendants with greater protection against double jeopardy than under the United States Supreme Court's application of the federal constitutional prohibition in Blockburger, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. Tadewaldt, 277 Mont. at 268, 922 P.2d at 467; State v. Sword, 229 Mont. 370, 747 P.2d 206 (1987). In Tadewaldt, this Court deduced a three-part test from the statute to determine whether a subsequent prosecution is barred, setting forth the factors as follows:

(1) a defendant's conduct constitutes an offense within the jurisdiction of the court where the first prosecution occurred and within the jurisdiction of the court where the subsequent prosecution is pursued;

(2) the first prosecution resulted in an acquittal or a conviction; and

(3) the subsequent prosecution is based on an offense arising out of the same transaction [as that term is defined in § 46-1-202(23), MCA].

Tadewaldt, 277 Mont. at 264, 922 P.2d at 465. "Due to the conjunctive nature of the statute, all three factors must be met in order to bar subsequent prosecution." State v. Gazda, 2003 MT 350, ¶ 12, 318 Mont. 516, ¶ 12, 82 P.3d 20, ¶ 12.

¶ 14 Washington charged Cech, with regard to the Honda, with possession of stolen property in the first degree in violation of R.C.W. § 9A.56.150. That statute provides that "[a] person is guilty of possessing stolen property in the first degree if he or she possesses stolen property . . . which exceeds one thousand five hundred dollars in value." R.C.W. § 9A.56.150.

"Possessing stolen property" means knowingly to receive, retain, possess, conceal, or dispose of stolen property knowing that it has been stolen and to withhold or appropriate the same to the use of any person other than the true owner or person entitled thereto.

R.C.W. § 9A.56.140. "`Stolen' means obtained by theft, robbery, or extortion[.]" R.C.W. § 9A.56.010(14). In turn, "theft" means "[t]o wrongfully obtain or exert unauthorized control over the property or services of another . . . with intent to deprive him or her of such property or services. . . ." R.C.W. § 9A.56.020(1)(a).

¶ 15 Montana subsequently charged Cech with theft, in violation of § 45-6-301(1), MCA, which provides in relevant part:

Theft. (1) A person commits the offense of theft when the person purposely or knowingly obtains or exerts unauthorized control over property of the owner and:

(a) has the purpose of depriving the...

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