State v. Scott, DA 19-0074

Citation467 P.3d 595, 400 Mont. 394, 2020 MT 178
Case DateJuly 14, 2020
CourtUnited States State Supreme Court of Montana

For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Jeffrey M. Doud, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Victoria Callender, Deputy County Attorney, Billings, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Defendant and Appellant Anthony Scott (Scott) appeals from the written Judgment issued on November 29, 2018, by the Thirteenth Judicial District Court, Yellowstone County, designating Scott as a Persistent Felony Offender (PFO) and imposing an enhanced sentence under § 46-18-502, MCA, as a PFO.

¶2 We restate the issue on appeal as follows:

Whether Scott's 1994 federal bank robbery conviction is reasonably equivalent to a Montana robbery conviction to qualify as a predicate violent offense under § 46-1-202(18), MCA, to impose a persistent felony offender sentence enhancement.

¶3 We reverse and remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 On September 12, 2018, a jury convicted Scott of two counts of distributing dangerous drugs in September 2017. The State sought to designate Scott as a PFO based on two prior felony convictions—a 2014 conviction in Montana for burglary under § 45-5-401, MCA, and a 1994 federal conviction for bank robbery in violation of 18 U.S.C. § 2113(a). At sentencing, the argument assumed the PFO designation applied and that the District Court was required to impose a PFO sentence enhancement unless it found incarceration wholly inappropriate. The District Court did not find such and sentenced Scott to the minimum PFO sentence enhancement—five years at the Montana State Prison. The written judgment erroneously reflects Scott as a PFO for sentencing purposes under repealed statute § 46-18-501, MCA. Scott appeals the legality of his sentence and seeks resentencing.

STANDARD OF REVIEW

¶5 This Court reviews a criminal sentence imposing over a year of incarceration for legality.

State v. Thomas , 2019 MT 155, ¶ 5, 396 Mont. 284, 445 P.3d 777. A PFO designation is a question of law which we review for correctness. Thomas , ¶ 5.

DISCUSSION

¶6 Whether Scott's 1994 federal bank robbery conviction is reasonably equivalent to a Montana robbery conviction to qualify as a predicate violent offense under § 46-1-202(18), MCA, to impose a persistent felony offender sentence enhancement.

¶7 Prior to July 1, 2017, all felony offenses could authorize a PFO sentence enhancement. Under the old law—§ 46-18-501, MCA, now repealed—the State could seek a PFO designation if an offender had one prior felony conviction within five years of the commission of the present offense, or had been released from a commitment imposed for the prior felony conviction within the last five years. In 2017, the Legislature repealed § 46-18-501, MCA, and revised the other definition of PFO found in § 46-1-202(18), MCA. The new PFO definition requires two predicate felony convictions before the State may seek a PFO designation upon a third felony conviction. Further, one of the three felonies must be a sexual or violent offense as defined in § 46-23-502, MCA. Section 46-1-202(18), MCA. The State concedes the 2017 version of the PFO statute applies to Scott's case and the District Court erroneously referenced the repealed statute in its written judgment.

¶8 Pursuant to the PFO definition contained in § 46-1-202(18), MCA (2017), in order to be designated a PFO, Scott must have two prior felony convictions occurring on dates other than the present offense; Scott must have either been convicted or released from custody on one of the felony convictions within five years of his most recent conviction; and one of Scott's felony convictions must have been for a sexual or violent offense as those terms are defined under Montana law. Scott does not dispute he had two prior felony convictions. Scott agrees his 2014 burglary conviction occurred within five years of his convictions herein. The State concedes Scott's felony convictions do not qualify as a sexual offense. The remaining determination is whether either of Scott's prior felonies qualify as a violent offense.

¶9 The Legislature has provided a list of Montana offenses that qualify as violent offenses and the State concedes none of Scott's Montana offenses are on that list. See § 46-23-502, MCA. For an offense from another jurisdiction to qualify as a violent offense under Montana law, the offense must be "reasonably equivalent to" one of Montana's enumerated violent offenses under § 46-23-502(13), MCA. Scott asserts the only plausible violent offense to compare the bank robbery conviction to is robbery under § 45-5-401, MCA. The State concedes Scott is correct in this regard—"the only issue that must be resolved by this Court is whether Mr. Scott's federal bank robbery conviction is reasonably equivalent to a Montana robbery conviction to qualify as a predicate violent offense."

¶10 Scott argues his 1994 conviction under 18 U.S.C. § 2113(a) does not show him to have committed a violent offense but rather covers non-violent conduct akin to burglary. The State contrarily argues the bank robbery conviction is reasonably equivalent to Montana's robbery statute.

¶11 Section 45-5-401, MCA, provides:

(1) A person commits the offense of robbery if in the course of committing a theft, the person:
(a) inflicts bodily injury upon another;
(b) threatens to inflict bodily injury upon any person or purposely or knowingly puts any person in fear of immediate bodily injury; or
(c) commits or threatens immediately to commit any felony other than theft.

¶12 18 U.S.C. § 2113(a) provides:

Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny[.]

¶13 The State asserts Montana's robbery statute is broader than the federal bank robbery statute. In examining these statutes, we conclude bank robbery under the federal statute is not reasonably equivalent to robbery under § 45-5-401, MCA. Robbery under Montana law requires either a violent act, or threat of a violent act, or theft-plus—theft + another felony. Whereas, bank robbery under the federal statute only requires a felony be committed in a bank. In order to commit a non-violent robbery in Montana under § 45-5-401(1)(c), MCA, a person must "in the course of committing a theft ... commit[ ] or threaten[ ] immediately to commit any felony other than theft." Bank robbery, however, only requires entering the bank and committing any felony affecting such bank, thus making the federal statute on its face different than Montana's robbery statute. By way of example, if an individual enters a jewelry store with the intent to steal a $1,600 watch, under Montana law, that individual cannot be convicted of robbery under § 45-5-401, MCA, because the individual did not commit a separate felony in the course of committing the theft of the watch. However, if an individual enters a bank with the intent to steal a $1,600 watch from a safety deposit box in essentially the same manner, that alone is sufficient to convict that individual of bank robbery under 18 U.S.C. § 2113(a) because he or she entered the bank with the intent to commit "any felony." A person does not have to actually commit a felony offense under the federal bank robbery statute, whereas, to be convicted of robbery under Montana law, a person has to actually commit a felony offense. Thus, the federal bank robbery statute is not reasonably equivalent to the offense of robbery under Montana law.

¶14 The Dissent misconstrues the issues on appeal. Scott asserts his sentence to be illegal as the District Court designated Scott as a PFO using a repealed and inapplicable PFO definition, which the State concedes. The District Court cited to repealed statute § 46-18-501, MCA, and did not consider the new PFO definition and how it related to the State's PFO notice. Although the State asserted Scott objected to the PFO notice on procedural rather than substantive grounds, it did not argue Scott waived his right to challenge the PFO designation and legality of his sentence.1 Rather, the State argued the District Court's error to be harmless—arguing 18 U.S.C. § 2113(a), on its face, was reasonably equivalent to § 45-5-401, MCA, such that Scott's sentence was legal. Further, the State's amended PFO notice did not set forth the violent conduct it was required to prove when it sought to use an offense which we have found not to be reasonably equivalent to Montana's robbery statute to impose a PFO sentence enhancement. Scott conceded his previous convictions existed, he did not concede the issue of whether those convictions made him eligible for a PFO sentence enhancement.

¶15 While we find that on its face the federal bank robbery statute is not reasonably equivalent to Montana's robbery statute, the federal bank robbery statute does—in part—prohibit violent conduct which could potentially be used as a predicate offense for a PFO sentence in Montana....

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