State v. Savaria
| Decision Date | 19 August 1997 |
| Docket Number | No. 96-207,96-207 |
| Citation | 945 P.2d 24,284 Mont. 216 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Richard Arnold SAVARIA, Defendant and Appellant. |
| Court | Montana Supreme Court |
William F. Hooks, Appellate Defender, Helena, for Defendant and Appellant.
Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General; Helena, Robert L. "Dusty" Deschamps III, Missoula County Attorney; Missoula, for Plaintiff and Respondent.
On November 7, 1994, Richard Arnold Savaria was sentenced by the Fourth Judicial District Court, Missoula County, to a term of ten years in the Montana State Prison for each of the charged seven counts of felony theft. Savaria appealed. This Court affirmed his conviction, but reversed the District Court's sentence and remanded the case to the District Court for resentencing pursuant to §§ 46-18-201(10) and -225, MCA. State v. Savaria (1995), 274 Mont. 197, 906 P.2d 215. On remand for resentencing, the District Court ordered that Savaria be committed to the Department of Corrections for a term of ten years on Count I. The District Court further sentenced Savaria to a term of ten years in the Montana State Prison on each of the remaining six counts, with the sentence on these counts suspended subject to certain terms and conditions. The sentences are to be served consecutively. Savaria appeals from this judgment. Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
The issues on appeal are:
1. Did the District Court err in treating the "Affidavit--In Support of Motion to Vacate Set Aside Sentence" as a petition for post-conviction relief, and in entering an order on that basis?
2. Did the District Court deny Savaria his constitutional right to the assistance of counsel on direct appeal?
3. Did the District Court err in imposing consecutive sentences in violation of the protection against multiple punishments afforded by state and federal constitutional provisions?
4. Did the District Court lack statutory authority to "reserve" the right to attach conditions to Savaria's suspended sentence?
On June 30, 1994, Savaria was charged by information filed in the Fourth Judicial District
Court, Missoula County, with seven counts of felony theft pursuant to § 45-6-301(2)(a), MCA. The alleged offenses arose from Savaria's issuance of checks to retail merchants on a nonexistent checking account during a five-day period in April 1994. The information provided:
COUNT I
On or about April 19, 1994, the above-named Defendant [Savaria] purposely or knowingly obtained by deception control over property, jewelry property of Gold Rush Jewelry in Southgate Mall, with the purpose to deprive the owner of the property. The value of the property is in excess of $500.
COUNT II
On or about April 19, 1994, the above-named Defendant purposely or knowingly obtained by deception control over property, clothing and stereo property of Sears in Southgate Mall, with the purpose to deprive the owner of the property. The value of the property is in excess of $500 and the theft was part of a common scheme.
COUNT III
On or about April 18 and 19, 1994, the above-named Defendant purposely or knowingly obtained by deception control over property, food and other items property of Costco, with the purpose to deprive the owner of the property. The value of the property is in excess of $500 and the theft was part of a common scheme.
COUNT IV
On or about April 16 to 18, 1994, the above-named Defendant purposely or knowingly obtained by deception control over property, jewelry, watches and sports equipment property of Bob Wards, with the purpose to deprive the owner of the property. The value of the property is in excess of $500 and the theft was part of a common scheme.
COUNT V
On or about April 18, 1994, the above-named Defendant purposely or knowingly obtained by deception control over property, cassette player, tuner, speakers and other stereo equipment, property of Stereo Plus, with the purpose to deprive the owner of the property. The value of the property is in excess of $500 and the theft was part of a common scheme.
COUNT VI
On or about April 16 and 18, 1994, the above-named Defendant purposely or knowingly obtained by deception control over property, automobile parts, property of Champion Auto, with the purpose to deprive the owner of the property. The value of the property is in excess of $500 and the theft was part of a common scheme.
COUNT VII
On or about April 15 through 19, 1994, the above-named Defendant purposely or knowingly obtained by deception control over property, clothing and other property of Maurice's, the Altogether, Traditions, Western Sportsman, and Western Outfitters in Southgate Mall; shoes, clothing, purse and backpack, property of Ogg Shoes on North Higgins and Southgate Mall; and household items, property of Ace Hardware and Ernst with the purpose to deprive the owner of the property. The value of the property is in excess of $500 and the theft was part of a common scheme.
On August 10, 1994, Savaria entered a plea of guilty to all seven charges of felony theft as alleged in the information. Prior to sentencing, Savaria's counsel filed a sentencing memorandum in which she argued that the prosecutor divided the checks arbitrarily in the information and charged Savaria with seven counts of common scheme when only one common scheme actually occurred. Savaria's counsel stated that she did not object to this action at the plea hearing because she believed the District Court would rule that it was a matter of prosecutorial discretion and that the common scheme issue should more appropriately be addressed at sentencing since Savaria pled guilty to all seven counts. In the memorandum, Savaria's counsel urged the court to impose seven concurrent sentences, rather than seven consecutive sentences.
The District Court sentenced Savaria to ten years at the Montana State Prison on each count, and ordered that the sentences run consecutively. The court's judgment suspended the sentences imposed on Counts II through VII upon certain conditions, including the requirement that Savaria pay a total of $16,976.20 in restitution. Savaria appealed this judgment, challenging the failure of the District Court to state why alternatives to imprisonment were not selected pursuant to § 46-18-201(10), MCA. The State filed a notice of concession, and this Court affirmed Savaria's conviction and remanded for resentencing. Savaria, 274 Mont. 197, 906 P.2d 215.
On January 24, 1996, Savaria was resentenced by the District Court. At the sentencing hearing, Savaria's counsel deferred to Savaria who argued that the thefts were committed as part of one common scheme and, therefore, he should not be sentenced on each charge. Savaria argued that if the District Court sentenced him on each count individually with the sentences to run consecutively, it would constitute multiple punishments in violation of the prohibition against double jeopardy.
The District Court rejected Savaria's argument, stating that each count was itself a felony theft, as the property taken in each count exceeded $500. The District Courts stated:
Let's ignore the common scheme. If you steal property in Montana that is valued at over five hundred dollars, it is a felony. That is the definition of felony theft, and the State has alleged that in each of these counts.
It has also alleged common scheme, which would make it a felony. Either one of those would make it a felony if they were charged in the alternative.
I agree with you that if you were being sentenced under the common scheme of things, that all sentences should run concurrent.
The court then sentenced Savaria to a term of ten years with the Department of Corrections on Count I, and to terms of ten years imprisonment in the Montana State Prison each on Counts II through VII, to run consecutively to each other and to the term in Count I. The terms were suspended on a number of conditions.
On February 13, 1996, Savaria filed a pro se document entitled "Affidavit--In Support of Motion to Vacate Set Aside Sentence" in which he again presented his double jeopardy argument. Savaria specifically requested that the court resentence him "to no more than the maximum sentence allowed by law under the charge of theft as specified in Section 45-6-301 M.C.A. of which is ten (10) years; for one common scheme." The State responded to this document by stating that it was not an affidavit, but should be treated as a petition for post-conviction relief, as it viewed this to be Savaria's only avenue for relief. The State asked the District Court to treat the document as a petition for post-conviction relief and asked the court to dismiss it for failure to state a claim for relief.
On April 8, 1996, the District Court issued an order in response to Savaria's affidavit, noting that Savaria's notice of appeal filed on March 15, 1996, divested the court of jurisdiction to rule on any pending motions. The court concluded, however, thatit had jurisdiction to entertain a petition for post-conviction relief, as it was civil proceeding independent of the underlying criminal matter. The District Court then denied Savaria's petition for post-conviction relief. Savaria appeals.
Did the District Court err in treating the "Affidavit--In Support of Motion to Vacate Set Aside Sentence" as a petition for post-conviction relief, and in entering an order on that basis?
Savaria raises this issue in an effort to have this Court treat this matter as a direct appeal of his sentence, rather than an appeal from the denial of his petition for post-conviction relief. The State submits it is willing to concede that the present appeal should be considered a direct appeal of his sentence, rather than an appeal from a denial of his post-conviction petition. Therefore, we do not...
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