State v. Krantz

Citation788 P.2d 298,47 St.Rep. 454,241 Mont. 501
Decision Date27 March 1990
Docket NumberNo. 88-129,88-129
PartiesSTATE of Montana, Plaintiff and Respondent, v. Thomas Frederick KRANTZ, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

William Boggs (argued), Missoula, Wendy Holton (argued), Helena, for defendant and appellant.

Marc Racicot, Atty. Gen., Patti Powell (argued), Asst. Atty. Gen., Helena, Robert L. Deschamps, III, County Atty., Fred Van Valkenburg, Deputy, Missoula, for plaintiff and respondent.

TURNAGE, Chief Justice.

Thomas Krantz appeals his criminal conviction and sentence for robbery and accountability for robbery following a jury trial in the Fourth Judicial District Court, Missoula County. We affirm.

ISSUES

1. Did the District Court err in allowing repeated references to a series of similar crimes in the Missoula area after the State agreed at the omnibus hearing not to introduce other crimes evidence?

2. Did the District Court abuse its discretion by failing to provide adequate reasons to justify the sentence and the dangerous offender designation?

3. Did the District Court violate the appellant's due process rights in applying the weapon enhancement statute and the dangerous offender statute?

FACTS

Near midnight on May 24, 1987, a masked gunman using a rusted chrome or stainless steel pistol held up the Missoula Domino's Pizza. One week later at about 1:30 a.m. on June 2, an armed robber held up the Missoula Orange Street Inn. Near the Inn, responding sheriff's officers spotted a car matching the description of a vehicle seen at a prior robbery. The officers stopped the car and detained the passenger, Greg Jellison, and the driver, appellant Thomas Krantz. A search of the suspects and their car produced rolls of coins taken from the Orange Street Inn and a chrome-plated, .38 special handgun. Witnesses later identified the appellant as the Domino's Pizza robber.

Between May 19 and June 2, 1987, five other robberies following a common pattern had occurred in the Missoula area. In addition to Domino's Pizza and the Orange Street Inn, Pickle-O-Pete's, the Snow King Restaurant, the Village II, the Campus Inn Motel, and the Executive Motor Inn were also robbed. The State charged Krantz with the Domino's Pizza, Pickle-O-Pete's, and the Snow King robberies and with accountability in the Orange Street Inn holdup.

At the pretrial omnibus hearing, the State agreed not to introduce other crimes The jury found the appellant guilty of accountability in the Orange Street Inn holdup and guilty of robbery in the Domino's Pizza holdup, but not guilty of the robbery of Pickle-O-Pete's and the Snow King Restaurant. The District Court sentenced the appellant to thirty years on each conviction and added ten years to each for use of a weapon. The court ordered the forty-year sentences to run concurrently and designated the appellant a dangerous offender. The defendant now appeals the conviction, sentence enhancement, and dangerous offender designation.

                evidence.  Prior to trial, the State informed the District Court that it would elicit testimony concerning the series of robberies to help explain the actions of police officers and victims.  The [241 Mont. 504] court held that the testimony did not fall within the definition of other-crimes evidence and, therefore, did not trigger the procedures set out in State v. Just (1979), 184 Mont. 262, 269, 602 P.2d 957, 961.    During trial, witnesses and state prosecutors referred repeatedly to the series of robberies without defense objection.  The court admonished the jury on several occasions about the limited purposes of such evidence
                

OTHER CRIMES EVIDENCE

The appellant contends that the State's references during trial to the series of Missoula robberies violated both the substantive and procedural requirements of Just. We decline to reach this issue because the appellant failed to object to the controverted evidence at any time before or during trial. Failure to object to alleged other crimes evidence precludes consideration of the issue on appeal. State v. Warnick (1982), 202 Mont. 120, 125, 656 P.2d 190, 193.

The appellant cites State v. Brown (1984), 209 Mont. 502, 680 P.2d 582, for the proposition that the appellant's failure to object is not a defense when the omnibus order prohibited the introduction of other crimes evidence. Brown is distinguishable. In Brown, we held that the defendant's motion in limine to exclude evidence of prior acts and the trial court's order requiring ten days notice of such evidence were sufficient to preserve the issue for appeal. Brown, 209 Mont. at 506-07, 680 P.2d at 584-85. Here, the appellant at no time disapproved of the evidence or disagreed with the District Court's finding that it was not other crimes evidence. The record shows that the appellant declined the trial court's offer to instruct the jury on other crimes evidence. The objection requirement prevents the defendant from consciously planting errors in the trial proceedings and then raising those errors as grounds of appeal. State v. Stroud (1984), 210 Mont. 58, 73, 683 P.2d 459, 467. The appellant cannot now complain of prejudice from other crimes evidence when he did not discern any prejudice at trial.

SENTENCING COURT'S STATEMENT OF REASONS

The appellant argues that in sentencing the District Court failed to consider the presentence report and gave inadequate reasons for the sentence and the dangerous offender designation.

During sentencing the District Court stated,

[Y]ou have ... shown a consistent pattern of endangering other people. Therefore, on the basis of your record and the nature of these crimes, I sentence you on each of the two counts to thirty years in the Montana State Prison, ten extra consecutive to those on each of those two counts for the use of a weapon, and designate you a dangerous offender....

The written judgment stated,

A Pre-sentence Investigation Report was ordered and the Court having received and reviewed the report and being fully advised as to the facts of this case....

....

Reasons for the sentence are:

1. Defendant's criminal record;

2. Serious nature of offense; and

3. Consistent pattern of endangering other people.

The sentencing court is required by statute to state for the record its reasons when imposing sentence. Section 46-18-102(3)(b), MCA. This rule complies with basic fairness by acknowledging the defendant's right to be informed of the reasons for his sentence. It also facilitates review by this Court and the Sentence Review Board. State v. Petroff (1988), 232 Mont. 20, 22, 757 P.2d 759, 761.

We have generally upheld minimal statements of sentencing reasons. In State v. Petroff we held that, "[t]he recommendations of the Pre-sentence Investigation [and] [t]he Defendant's prior criminal record" provided a sufficient statement. Petroff, 757 P.2d at 761. In State v. Johnson, we upheld a sentence based on the "[d]efendant's history of alcohol and driving offenses" coupled with the presentence report. Johnson (1986), 221 Mont. 503, 518, 719 P.2d 1248, 1257.

We hold that the District Court's statement of reasons in this case is sufficient. Whether the sentence and dangerous offender status are supported by the presentence investigative report is a question more properly raised before the Sentence Review Division. See Rule 16, Rules of the Sentence Review Division of the Montana Supreme Court.

CONSTITUTIONALITY OF SENTENCE ENHANCEMENT
Standing

The State contests the appellant's standing to challenge the constitutionality of the procedure used to enhance his sentence for use of a weapon and to designate him a dangerous offender. To challenge the constitutionality of a criminal statute or procedure, the defendant must show a direct, personal injury resulting from application of the law in question. State v. Bruns (1984), 213 Mont. 372, 380-81, 691 P.2d 817, 822. The State argues that because the appellant's sentence, including enhancement, did not exceed the maximum possible sentences for robbery and accountability, the appellant suffered no injury.

We disagree with the State and hold that the appellant has standing to challenge both the weapon enhancement statute and the dangerous offender statute. 1 The appellant faces direct injury to his liberty interest. See State v. Nichols (1986), 222 Mont. 71, 78, 720 P.2d 1157, 1162. Under the weapon enhancement statute, he faces ten years in prison in addition to thirty years for the underlying crimes. See Sec. 46-18-221(1), MCA. Under the dangerous offender statute, he will spend up to ten extra years in prison prior to parole eligibility. See Sec. 46-23-201(2), MCA.

Separate Crimes and Elements

The appellant argues that under several United States Supreme Court decisions the Montana statute proscribing use of a weapon in the commission of a crime, Sec. 46-18-221, MCA, and the statute restricting parole eligibility, Sec. 46-18-404 MCA, are distinct crimes separate from the underlying offense or are elements of the underlying offense. As such, the prosecution must charge use of a weapon and dangerous offender status in the information or indictment, they are questions of fact for the jury, and they must be proven beyond a reasonable doubt. The appellant asserts that because the State failed to meet any of these criteria, his enhanced sentence violated the United States constitutional guarantee of trial by jury under the Sixth Amendment and guarantee of due process under the Fourteenth Amendment.

In Specht v. Patterson (1967), 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326, the Supreme Court addressed the due process ramifications of using sentence-enhancement factors in place of elements of a crime. The State of Colorado convicted Specht of indecent liberties under a statute which carried a maximum penalty of ten years, but sentenced him without further notice or hearing under Colorado's Sex Offenders Act. The Act provided that after...

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