State v. Maldonado

• Decision Date: 12 April 1978
• Docket Number: No. 13883,13883
• Citation: 35 St.Rep. 420,578 P.2d 296,176 Mont. 322
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Johnny MALDONADO, Defendant and Appellant.
• Court: Montana Supreme Court

Page 296

578 P.2d 296

176 Mont. 322

The STATE of Montana, Plaintiff and Respondent, v. Johnny MALDONADO, Defendant and Appellant.

No. 13883.

Supreme Court of Montana.

Submitted Nov. 15, 1977.

Decided April 12, 1978.

Johnny Maldonado pro se.

Michael T. Greely, Atty. Gen., Helena, Harold F. Hanser, County Atty., Billings, for plaintiff and respondent.

HARRISON, Justice.

Defendant, Johnny Joe Maldonado, appeals from an order of the District Court, Yellowstone County, denying his petition for post-conviction relief.

On September 11, 1970, defendant entered a guilty plea to a charge of second degree assault, a felony under sections 94-602(5) and 94-114, R.C.M.1947. The district judge deferred imposition of sentence for a period of three years.

On August 25, 1971, the State filed a petition to revoke defendant's deferred imposition of sentence, alleging that during the period of his probation, defendant had been charged with the crime of receiving stolen property, had left the state and absconded from supervision, and had failed to report to his probation officer as required.

At the September 22, 1971, hearing on the petition to revoke, defendant admitted the second and third allegations in the petition, but denied he had been charged with receiving stolen property. The District Court ordered that the terms of the deferred imposition of sentence remain in effect, except that defendant was required to serve six months in the county jail on a work-release program. The court order was modified on November 29, 1971, to provide that defendant serve only weekends in jail.

On December 8, 1972, the State filed a second petition to revoke defendant's deferred imposition of sentence, alleging defendant committed the offenses of burglary and criminal possession of dangerous drugs on October 25, 1972. At the revocation hearing held on January 25, 1973, the State presented evidence that when police responded to a burglary alarm at a local hardware store at about 2:00 a. m., October 25, 1972, defendant was found inside the store with another individual, near a gun case which was broken and several guns removed. Upon receiving this evidence at the January 25, 1973, revocation hearing, the District Court revoked the originally deferred imposition of sentence on the second degree assault conviction, and sentenced defendant to five years and nine months in the Montana state prison.

On July 25, 1975, after serving approximately one-half of his sentence on the second degree assault charge, defendant was paroled. While still on parole, on April 4, 1976, a Billings police officer arrested defendant in a local bar on a charge of carrying a concealed weapon. The District Court granted the Yellowstone County attorney leave to file an Information, charging defendant with carrying a concealed weapon within the city limits of Billings, Montana, in violation of section 94-8-210, R.C.M.1947. The county attorney filed a notice to increase punishment pursuant to section 95-1506, R.C.M.1947, alleging defendant was a prior convicted felon under section 95-1507, R.C.M.1947, due to his previous conviction for second degree assault.

In his affidavit in support of the Information charging defendant with carrying a concealed weapon, the deputy county attorney alleged that at approximately 12:30 a. m., April 4, 1976, Officer Hatfield of the Billings Police Department was flagged down by an anonymous person and informed that defendant was inside the Empire Bar in Billings, carrying a concealed weapon. Affiant stated Officer Hatfield and Officer Trimbo entered the bar and observed defendant; upon searching defendant the officers discovered and seized a .38 caliber Smith & Wesson pistol with a two inch barrel, which defendant was carrying in a shoulder holster concealed by his brown leather jacket.

These facts alleged in the affidavit were largely corroborated by defendant himself at his arraignment on the concealed weapon charge. Defendant admitted he was carrying a concealed and loaded .38 caliber Smith & Wesson revolver in a shoulder holster while he was in the Empire Bar. Defendant stated that he understood he was subject, as a persistent felony offender, to increased punishment up to 100 years imprisonment. Defendant pleaded guilty and the District Court sentenced defendant to serve twenty years in the state prison.

On October 12, 1976, defendant filed a petition for post-conviction relief, pursuant to section 95-2601, R.C.M.1947, in District Court, Yellowstone County. Defendant raises the following issues on his appeal from the District Court's April 26, 1977, order denying post-conviction relief:

1. Did section 95-1507, R.C.M.1947, the persistent felony offender statute, as applied to defendant, violate constitutional safeguards dealing with ex post facto laws and equal protection?

2. Is section 95-1507 unconstitutional under Article II, Section 28, 1972 Montana Constitution?

3. Did the District Court abuse its discretion in revoking defendant's deferred imposition of sentence on the second degree assault conviction?

4. Did the court's mistaken belief in sentencing that defendant had entered his guilty plea to the second degree assault charge on January 25, 1973 rather than on September 11, 1970, constitute reversible error?

5. Was section 94-8-210, R.C.M.1947, as in effect when defendant committed the crime of carrying a concealed weapon, an unconstitutionally vague statute?

6. Was defendant sufficiently informed, prior to entering his plea, of the possible sentences he could receive as a persistent felony offender upon conviction of carrying a concealed weapon?

7. did the District Court abuse its discretion in finding that defendant was not denied effective assistance of counsel?

8. Was the twenty year sentence defendant received so excessive and disproportionate to the offense as to constitute cruel and unusual punishment?

On September 11, 1970, when defendant plead guilty to second degree assault, a felony, Montana's persistent felony offender statute, section 94-4713, R.C.M.1947, allowed a district judge to sentence a defendant to a maximum sentence of ten years imprisonment for a subsequent felony conviction of carrying a concealed weapon. Section 94-4713, was repealed by the legislature in 1973 and replaced with the present section 95-1507. Defendant committed the carrying of a concealed weapon offense on April 4, 1976, when section 95-1507, was in effect. The District Court judge sentenced defendant to twenty years in the state prison as a persistent felony offender under section 95-1507. Under section 95-1507(2), the maximum penalty for conviction of the felony of carrying a concealed weapon, for one who has "previously been convicted of a felony" is 100 years in the state prison.

Defendant alleges that, because the felony second degree assault conviction occurred prior to the enactment of section 95-1507, the District Court's use of the assault conviction to increase punishment under section 95-1507 on the felony of carrying a concealed weapon charge constituted an ex post facto law. Defendant contends he could be constitutionally sentenced only under section 94-4713, the persistent felony offender statute in effect when he committed the second degree assault.

Defendant misconstrues the constitutional prohibitions against ex post facto laws. Both the United States and Montana Constitutions prohibit the Montana legislature from passing ex post facto laws. Article I, Section 10, United States Constitution; Article II, Section 31, 1972 Montana Constitution. Ex post facto laws are prohibited on the theory no one should be punished for conduct which the law did not give him advance warning was criminal. Section 95-1507, was enacted in 1973 prior to defendant's commission of the carrying a concealed weapon felony in 1976. The law did not punish defendant for past conduct, but merely notified defendant he was subject to increased punishment, if he in the future committed an additional felony crime. In rejecting a claim similar to defendant's, the United States Supreme Court stated:

"Nor do we think the fact that one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act was passed, makes the Act invalidly retroactive * * *. The sentence as a * * * habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one." Gryger v. Burke, (1948), 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683.

See also: McDonald v. Massachusetts, (1901), 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542.

Defendant contends section 95-1507 violates the equal protection and due process clauses of the Fourteenth Amendment because only a minority of repeat felony offenders are prosecuted under the persistent felony offender statute. Defendant alleges that section 95-1507 is in general unconstitutionally selectively applied, and was selectively applied in the instant case, due to the county attorney's animosity toward defendant and defendant's counsel. Nothing in the record supports defendant's assertion that he was singled out for persistent felony prosecution due to the prosecutor's feelings of personal enmity. Nor does a showing of selective enforcement of a criminal law, without more, constitute a constitutional violation. " * * * the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation" absent an allegation and showing that " * * * the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification * * * " such as sex, or the exercise of the First Amendment right to free speech. Oyler v. Boles, (1962), 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446, 453.

Defendant next claims that, because section...