State v. Lynch
| Citation | 2005 MT 337,330 Mont. 74,125 P.3d 1148 |
| Decision Date | 23 December 2005 |
| Docket Number | No. 05-225.,05-225. |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Jeff R. LYNCH, Defendant and Appellant. |
| Court | Montana Supreme Court |
Meghan Lulf Sutton, Great Falls, Montana, for Appellant.
Hon. Mike McGrath, Attorney General; Kathy Seeley, Carlo Canty, Assistant Attorneys General, Helena, Montana, for Respondent.
¶ 1 Jeff R. Lynch appeals from the judgment and order deferring imposition of sentence entered by the Eighth Judicial District Court, Cascade County, upon his plea of nolo contendere to the felony offense of criminal endangerment. We affirm.
¶ 2 The restated issue on appeal is whether the District Court erred in denying Lynch's assertion of the affirmative defense of renunciation with respect to the charge of solicitation to commit deliberate homicide.
¶ 3 In January of 2004, the State of Montana charged Lynch by Information with the felony offense of solicitation to commit deliberate homicide. In the supporting affidavit, the State alleged that on December 22, 2003, Clifford Wagner sent a "kite" from the Cascade County jail to a sheriff's deputy, stating he had information "on someone trying to hire me to kill their wife." The affidavit further stated Wagner later told deputies Lynch had asked him to "take care of his wife" in exchange for Lynch acting as his attorney in certain criminal and civil matters.
¶ 4 Law enforcement arranged for Wagner's release so he could make the following recorded call to Lynch, a transcript of which appeared in the affidavit:
¶ 5 Lynch initially pled not guilty. He subsequently filed a notice that he would "rely on the affirmative defense of RENUNCIATION/WITHDRAWAL." After a hearing, the District Court denied Lynch's assertion of the affirmative defense.
¶ 6 In December of 2004, Lynch and the State executed a plea agreement, pursuant to which Lynch would plead nolo contendere to the amended charge of criminal endangerment, a felony. Lynch reserved the right to appeal the denial of his assertion of the affirmative defense of renunciation/withdrawal. At a hearing, Lynch pled nolo contendere to the criminal endangerment charge and the District Court accepted the plea. After a separate hearing, the court entered judgment, deferred sentencing for two years subject to conditions, and ordered Lynch's probation officer to submit a report with recommendations in one year. Lynch appeals.
¶ 7 The District Court's determination that Lynch was not entitled to assert the affirmative defense of renunciation is a legal conclusion. We review conclusions of law for correctness. See State v. Polaski, 2005 MT 13, ¶ 10, 325 Mont. 351, ¶ 10, 106 P.3d 538, ¶ 10 (citation omitted).
¶ 8 Did the District Court err in denying Lynch's assertion of the affirmative defense of renunciation with respect to the original charge of solicitation?
¶ 9 A person commits the offense of solicitation when, with the purpose that an offense be committed, he or she commands, encourages, or facilitates the commission of that offense. Section 45-4-101(1), MCA. Lynch concedes the Montana Legislature has not codified renunciation as an affirmative defense to a solicitation charge. He asserts, however, that he "should have been entitled to assert the affirmative defense of renunciation as it certainly applied in his case, and imposed no additional burden on the State to prove any element."
¶ 10 Relying on State v. Bullock (1995), 272 Mont. 361, 382, 901 P.2d 61, 74, Lynch contends states must afford their citizens protections equal to or greater than those afforded by the federal Constitution. The portion of Bullock advanced by Lynch concerned constitutional, rather than statutory, issues. See Bullock, 272 Mont. at 382, 901 P.2d at 74. Bullock does not require that the Montana Legislature must enact statutes to "match" federal statutes. Therefore, Lynch's reliance on Bullock is misplaced.
¶ 11 Lynch also asserts that Arizona has enacted Ariz.Rev.Stat. § 13-1005, a state statute that, like the federal statute 18 U.S.C. § 373, recognizes renunciation as an affirmative defense to a solicitation charge. We acknowledge that, like Arizona, several states have enacted statutes setting forth "voluntary" and "complete" renunciation as an affirmative defense to a charge of solicitation. See, e.g., Ark.Code Ann. § 5-3-302; Colo.Rev.Stat. § 18-2-301(4); Del.Code Ann. tit. 11, § 541; Haw.Rev.Stat. § 705-530(2); Idaho Code § 18-2003; Kan. Stat. Ann. § 21-3303(c). State legislatures are free to adopt a wide variety of statutory affirmative defenses. The Montana Legislature, however, has not enacted the affirmative defense of renunciation with respect to a charge of solicitation.
¶ 12 Lynch also observes that a person charged with an offense under a theory of accountability may assert a defense similar to renunciation. Section 45-2-302(3)(b), MCA, provides, in part, that a person charged with an offense under a theory of accountability is not so accountable if:
...
(b) before the commission of the offense, he terminates his effort to promote or facilitate such commission and does one of the following:
(i) wholly deprives his prior efforts of effectiveness in such commission;
(ii) gives timely warning to the proper law enforcement authorities; or
(iii) otherwise makes proper effort to prevent the commission of the offense.
In this regard, we note that § 45-4-103(4), MCA, sets forth an affirmative defense involving "voluntary and complete renunciation" with respect to a charge of attempt.
¶ 13 Here, the State did not charge Lynch with deliberate homicide under a theory of accountability; nor did it charge him with attempt. In any event, the State has broad discretion in making charging decisions and, when the facts of a case support more than one possible charge, the crime to be charged is a matter of prosecutorial discretion. See State v. Cameron, 2005 MT 32, ¶ 17, 326 Mont. 51, ¶ 17, 106 P.3d 1189, ¶ 17 (...
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