State v. Guillaume

Citation975 P.2d 312,1999 MT 29
Decision Date16 September 1998
Docket NumberNo. 97-291,97-291
PartiesSTATE of Montana, Plaintiff and Respondent, v. George Paul GUILLAUME, Defendant and Appellant. . Heard
CourtUnited States State Supreme Court of Montana

Ronald L. Bissell, Cascade County Public Defender's Office, Great Falls, Montana, for Appellant.

Joseph P. Mazurek, Attorney General, Carol Schmidt, Assistant Attorney General, Helena, Montana; Brant Light, Cascade County Attorney, Michael Rausch, Deputy Cascade County Attorney, Great Falls, Montana, for Respondent.

Justice WILLIAM E. HUNT, SR. delivered the Opinion of the Court.

¶1 Following a jury trial in the Eighth Judicial District Court, Cascade County, George Paul Guillaume (Guillaume) was found guilty of felony assault and criminal trespass to property, a misdemeanor. The District Court sentenced Guillaume to ten years in prison for felony assault, an additional five years in prison for use of a weapon, and six months in prison for criminal trespass to property, the six-month term to run concurrently with the fifteen-year term. Guillaume appeals that part of the court's order sentencing him to ten years in prison for felony assault and an additional five years in prison for use of a weapon on the basis of double jeopardy. We reverse and remand for resentencing.

¶2 The sole issue on appeal is whether application of the weapon enhancement statute, § 46-18-221, MCA, to a conviction for felony assault, a violation of § 45-5-202(2)(b), MCA, violates the double jeopardy provision of Article II, Section 25 of the Montana Constitution?

¶3 The following facts are not disputed. On July 6, 1996, at approximately 3:15 a.m., Jodi Vellucci (Vellucci), a neighbor of Robert Bielen (Bielen), observed through her window a light in the unattached garage of Bielen. She also noticed that the walk-in door to the garage was open. Vellucci immediately told Bielen what she had seen, and Bielen went to the garage to investigate. As Bielen approached the garage, Guillaume exited the garage. Guillaume saw Bielen, held up a hammer that he had taken from the garage, and exclaimed, "I'll kill you." Guillaume swung the hammer at Bielen's head. Bielen reacted in such a way that the hammer missed his head but struck his hand. A struggle ensued and Guillaume escaped by jumping the fence. Guillaume was later apprehended by the police. Bielen told the police that he thought Guillaume was going to kill him when Guillaume swung the hammer at his head.

¶4 Guillaume was charged by information with felony assault, a violation of § 45-5-202(2)(b), MCA, and criminal trespass to property, a misdemeanor, a violation of § 45-6-203, MCA. A jury trial was held on January 27-28, 1997, and Guillaume was found guilty on all counts. On February 27, 1997, the District Court held a sentencing hearing. The court sentenced Guillaume to ten years in prison for felony assault, an additional five years in prison for use of a weapon pursuant to § 46-18-221, MCA (hereinafter the weapon enhancement statute), and six months in prison for criminal trespass to property, the six-month term to run concurrently with the fifteen-year term. The court stated that the reasons for the sentence were Guillaume's prior criminal history and the severity of the offense. The court emphasized the fact that Guillaume threatened and tried to kill Bielen with a hammer.

¶5 On March 11, 1997, Guillaume filed a motion to reconsider sentencing on the ground that application of the weapon enhancement statute to his felony assault conviction violated the double jeopardy provision of the Montana Constitution. The court denied Guillaume's motion and issued its sentencing order on March 21, 1997. This appeal followed.

¶6 Does application of the weapon enhancement statute, § 46-18-221, MCA, to a conviction for felony assault, a violation of § 45-5-202(2)(b), MCA, violate the double jeopardy provision of Article II, Section 25 of the Montana Constitution?

¶7 The denial of Guillaume's motion for reconsideration of his sentence involves a legal question that we review de novo to determine whether the District Court's interpretation of the law is correct. State v. Zabawa(1996), 279 Mont. 307, 310, 928 P.2d 151, 153.

¶8 The double jeopardy provision of Article II, Section 25 of the Montana Constitution provides in part: "No person shall be again put in jeopardy for the same offense previously tried in any jurisdiction." This provision protects defendants from both multiple prosecutions for offenses arising out of the same transaction, and multiple punishments imposed at a single prosecution for the same offense. State v. Savaria (1997), 284 Mont. 216, 222, 945 P.2d 24, 28. See also State v. Vargas (1996), 279 Mont. 357, 360, 928 P.2d 165, 167; State v. Nelson (1996), 275 Mont. 86, 90, 910 P.2d 247, 250. In the instant case, Guillaume maintains that application of the weapon enhancement statute to his conviction for felony assault violated his right to be free from multiple punishments for the same offense.

¶9 Guillaume was sentenced to ten years in prison for commission of felony assault. The statute defining felony assault provides in relevant part:

A person commits the offense of felony assault if the person purposely or knowingly causes ... reasonable apprehension of serious bodily injury in another by use of a weapon.

Section 45-5-202(2)(b), MCA. Guillaume's sentence was enhanced by five years pursuant to the weapon enhancement statute. That statute provides in relevant part:

A person who has been found guilty of any offense and who, while engaged in the commission of the offense, knowingly ... used a ... 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.... An additional sentence prescribed by this section shall run consecutively to the sentence provided for the offense.

Section 46-18-221(1) and (4), MCA. Guillaume asserts that had he not used a weapon in the struggle with Bielen, his actions would have fit the charge of misdemeanor assault, the penalty for which is imprisonment of no more than six months or a fine of no more than $500. See Section 45-5-201(1)(d) and(2), MCA ("A person commits the offense of assault if he ... purposely or knowingly causes reasonable apprehension of bodily injury in another"). Guillaume asserts that the only factor raising his charge from misdemeanor assault to felony assault was his use of a weapon. Based on this distinction between misdemeanor and felony assault, Guillaume argues that the felony assault statute provides by its own terms for enhanced punishment for use of a weapon, and that application of the weapon enhancement statute to his conviction for felony assault effectively punished him twice for use of a weapon. This, Guillaume argues, is exactly what the double jeopardy provision was designed to prohibit.

¶10 In arguing his position, Guillaume does not dispute that the weapon enhancement statute is constitutional on its face. Guillaume acknowledges that this Court has repeatedly held that Montana's weapon enhancement statute is a sentencing factor, and does not create a separate crime or element of a crime in violation of the protection against double jeopardy. State v. Krantz (1990), 241 Mont. 501, 512, 788 P.2d 298, 305 (citing State v. Forsyth (1988), 233 Mont. 389, 423, 761 P.2d 363, 384; State v. Spurlock(1987), 225 Mont. 238, 241, 731 P.2d 1315, 1317; State v. Davison (1980), 188 Mont. 432, 445, 614 P.2d 489, 497). However, Guillaume argues that the weapon enhancement statute is unconstitutional as applied to him. See State v. Crisp (1991), 249 Mont. 199, 202, 814 P.2d 981, 983 (A defendant may challenge a statute's constitutionality by arguing that it is unconstitutional on its face or that it is unconstitutional as applied to his particular situation). Specifically, Guillaume argues that when use of a weapon is an element of the underlying offense, as it is in this case, it is a violation of double jeopardy to also apply the weapon enhancement statute.

¶11 Guillaume acknowledges that in Zabawa, a case involving facts nearly identical to the instant case, this Court held that application of the weapon enhancement statute to a conviction for felony assault did not violate the double jeopardy provision of the Fifth Amendment to the United States Constitution. Zabawa, 279 Mont. at 316, 928 P.2d at 156-57. However, Guillaume notes that we left unresolved in Zabawa the question whether application of the weapon enhancement statute to a conviction for felony assault violates the double jeopardy provision of Article II, Section 25, of the Montana Constitution. Zabawa, 279 Mont. at 310, 928 P.2d at 153. Our reasons for not addressing Zabawa's double jeopardy challenge under the Montana Constitution were as follows:

[Zabawa] 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.... [Zabawa has] 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 ... whether Article II, Section 25 of the Montana Constitution provides greater protection from double jeopardy than is provided by the United States Constitution.

Zabawa, 279 Mont. at 310, 928 P.2d at 153.

¶12 Guillaume states that the instant case now presents the question left open in Zabawa. Guillaume claims that Article II, Section 25 of the Montana Constitution affords greater protection from double jeopardy than does the Fifth Amendment to the United States Constitution. In support of his claim,...

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