State v. Wardell
| Decision Date | 18 October 2005 |
| Docket Number | No. 03-787.,03-787. |
| Citation | 2005 MT 252,122 P.3d 443 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Kim Conrad WARDELL, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Kristina Neal, Assistant Appellate Defender, Helena, Montana.
For Respondent: Hon. Mike McGrath, Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana, Ed Corrigan, Flathead County Attorney, Kalispell, Montana.
¶ 1 Kim Wardell (Wardell) was convicted by a Flathead County jury for failing to register as a sex offender. Wardell had previously been convicted of a felony in South Dakota, and was sentenced as a persistent felony offender. He was originally sentenced to forty-five years in prison with thirty years suspended. He appealed; however, this Court concluded his counsel had not properly preserved the issues for appeal and declined to address Wardell's arguments. State v. Wardell, 2001 MT 148N, 306 Mont. 534, 2001 WL 894308. Wardell then filed a petition for post-conviction relief alleging ineffective assistance of counsel. The District Court granted his petition and vacated his sentence. Wardell was re-sentenced to five years for failure to register and twenty years, suspended, as a persistent felony offender. Wardell appeals, challenging his second sentence.
¶ 2 We restate the issues before us as follows:
¶ 3 1. Whether the persistent felony offender statute, § 46-18-501, MCA, violates double jeopardy protections when it is applied to a subsequent conviction for failure to register as a sex offender, and the previous conviction is for the sex offense which triggered the registration requirement?
¶ 4 2. Whether application of the persistent felony offender statute to increase Wardell's sentence by twenty years, for a total of twenty-five years with twenty years suspended, creates a sentence so disproportionate that it violates the prohibition against cruel and unusual punishment?
¶ 5 We affirm.
¶ 6 Wardell was convicted in South Dakota of the felony offense of sexual contact with a child under sixteen. In 1997 Wardell was charged with failure to register as a sex offender, a felony, in violation of § 46-23-507, MCA; three counts of sexual intercourse without consent; and two counts of sexual assault.
¶ 7 The State filed a timely notice of intent to seek treatment of Wardell as a persistent felony offender pursuant to § 46-18-501, MCA, based upon Wardell's prior sex offense.1
¶ 8 A Flathead County jury found Wardell guilty of failure to register as a sex offender, and not guilty of one count of sexual intercourse without consent and one count of sexual assault. The jury could not reach a verdict on the two remaining counts of sexual intercourse without consent and the remaining count of sexual assault. The State later dismissed those charges. The District Court entered judgment and sentenced Wardell to five years in the Montana State Prison for failing to register.
¶ 9 Pursuant to the State's request, the District Court also designated Wardell a persistent felony offender under § 46-18-501, MCA, and sentenced him to an additional, consecutive, sentence of forty years in the Montana State Prison, with thirty years suspended.
¶ 10 Wardell appealed his sentence to this Court. We declined to address Wardell's contentions, because his counsel had failed to properly preserve the issues for appeal. Wardell filed a petition for postconviction relief and the District Court granted his petition and vacated his sentence. Thereafter, the District Court re-sentenced Wardell to the Montana State Prison for a term of five years for failure to register as a sex offender and an additional, consecutive, twenty years, pursuant to the persistent felony offender statute. The prior offense that qualified Wardell as a persistent felony offender was the South Dakota sex offense that triggered the requirement that he register. It is from this second sentence that Wardell now appeals.
¶ 11 A district court's decision to deny a defendant's motion to dismiss a charge on the basis of double jeopardy presents a question of law that this Court reviews for correctness. State v. Beavers, 1999 MT 260, ¶ 21, 296 Mont. 340, ¶ 21, 987 P.2d 371, ¶ 21.
¶ 12 Whether a prior conviction can be used to enhance a criminal sentence is a matter of law. State v. Bingman, 2002 MT 350, ¶ 55, 313 Mont. 376, ¶ 55, 61 P.3d 153, ¶ 55 (citing State v. Jackson, 2002 MT 212, ¶ 7, 311 Mont. 281, ¶ 7, 54 P.3d 990, ¶ 7). Our standard of review for a district court's conclusion of law is plenary and we must determine whether the court's conclusion was correct. Bingman, ¶ 55 (citing Jackson, ¶ 7).
¶ 13 It is possible that a sentence, though it be within the maximum sentence allowed by statute, may be so excessive and disproportionate to the circumstances of the offense as to constitute cruel and unusual punishment. State v. Maldonado (1978), 176 Mont. 322, 337, 578 P.2d 296, 304-305; Weems v. United States, (1910), 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793. However, the general rule is that a sentence within the maximum authorized by statute is not cruel and unusual punishment. Maldonado, 176 Mont. at 337, 578 P.2d at 305; State v. Karathanos (1972), 158 Mont. 461, 468, 493 P.2d 326, 330.
¶ 14 Whether the persistent felony offender statute, § 46-18-501, MCA, violates double jeopardy protections when it is applied to a subsequent conviction for failure to register as a sex offender, and the previous conviction is for the sex offense which triggered the registration requirement?
¶ 15 Wardell argues that his conviction for failure to register, and his sentencing as a persistent felony offender, constitute double jeopardy because each relies on the same underlying conviction.
¶ 16 Conversely, the State argues that independent elements are required for each offense and thus Wardell's conviction and sentence do not constitute double jeopardy.
¶ 17 The Fifth Amendment to the United States Constitution and Article II, § 25 of the Montana Constitution prohibit placing a person in jeopardy more than once for the same offense. State v. Minez, 2003 MT 344, ¶ 33, 318 Mont. 478, ¶ 33, 82 P.3d 1, ¶ 33. Montana law provides greater double jeopardy protection than that guaranteed under federal law. See State v. Tadewaldt (1996), 277 Mont. 261, 268, 922 P.2d 463, 467.
¶ 18 In Montana, a single act may be an offense against two statutes. If each statute requires proof of a fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. State v. Savaria (1997), 284 Mont. 216, 222, 945 P.2d 24, 28 (quoting Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309). It follows that if a person may be convicted of two crimes, he may be punished for both.
¶ 19 Wardell was convicted and punished in South Dakota for sexual contact with a child under sixteen, a felony. Later, he was convicted and punished in Montana for failure to register as a sexual offender, a felony. Wardell's punishment in Montana was enhanced pursuant to § 46-18-501, MCA, because of the commission of two separate felonies within a specified period of time. A sentence as an habitual criminal is not to be viewed as a new jeopardy. State v. Farnsworth (1989), 240 Mont. 328, 334, 783 P.2d 1365, 1369; Maldonado, 176 Mont. at 328, 578 P.2d at 300; Gryger v. Burke, (1948), 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683, 1687. The enhanced sentence Wardell received was for commission of the second crime. It did not violate the double jeopardy provisions of either the United States or Montana constitutions.
¶ 20 In support of his position Wardell relies on authority from other states which prohibit the dual use of a prior conviction as both an element of the present conviction and for sentence enhancement purposes. Some of these states have express statutory language prohibiting the dual use of a prior conviction, other states interpret their statutes to prohibit the dual use. See State v. Pottoroff (2004), 32 Kan.App.2d 1161, 96 P.3d 280, 284 (); Wisdom v. State (Tex.Crim.App. 1986), 708 S.W.2d 840, 845 ().
¶ 21 Other states have concluded that their respective legislatures intended that all felony offenders, even those offenders whose subsequent felony is dependent on the underlying felony conviction, be punished under the state's persistent or habitual felony offender statute. See People v. Tillman (1999), 73 Cal.App.4th 771, 782, 86 Cal.Rptr.2d 715 (); Gholston v. State (Ala., 1993), 620 So.2d 719, 723 (); Woodson v. State (1990), 302 Ark. 10, 786 S.W.2d 120, 120 (...
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