State v. Zabawa

Decision Date02 January 1997
Docket NumberNo. 95-349,95-349
PartiesSTATE of Montana, Plaintiff and Respondent, v. Thomas ZABAWA, Defendant and Appellant.
CourtMontana Supreme Court

Daniel P. Buckley (argued), Berg, Lilly, Andriolo & Tollefsen, Bozeman, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, Michael Wellenstein (argued), Ass't Attorney General, Helena, Michael Salvagni, Gallatin County Attorney, Gary Balaz, Deputy County Attorney, Bozeman, for Plaintiff and Respondent.

GRAY, Justice.

Thomas Zabawa (Zabawa) appeals from the judgment and sentence entered by the Eighteenth Judicial District Court, Gallatin County, on his guilty plea to the offense of felony assault. We affirm.

Zabawa raises the following issues on appeal:

1. Did the District Court err in concluding that application of § 46-18-221, MCA, commonly referred to as the weapon enhancement statute, did not subject Zabawa to multiple punishments in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution?

2. Did the District Court abuse its discretion in failing to apply the exceptions to the mandatory minimum sentence contained in § 46-18-222, MCA?

The State of Montana (State) charged Zabawa with felony assault, in violation of § 45-5-202(2)(a) or (b), MCA, in February of 1995. Zabawa subsequently pled guilty to felony assault under § 45-5-202(2)(b), MCA, for pointing a rifle at his ex-wife, thereby causing her reasonable apprehension of serious bodily injury.

Zabawa filed a sentencing memorandum challenging the constitutionality of applying the weapon enhancement statute when the underlying offense requires proof of use of a weapon as an element of the offense. Specifically, Zabawa contended that application of the weapon enhancement statute would subject him to multiple punishments for the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. He also argued that, if the District Court rejected his constitutional argument, his sentence under the weapon enhancement statute should be suspended pursuant to § 46-18-222, MCA, which provides for exceptions to mandatory minimum sentences.

The District Court concluded that applying the weapon enhancement statute did not subject Zabawa to multiple punishments in violation of the Double Jeopardy Clause and that the § 46-18-222, MCA, exceptions to mandatory minimum sentences were inapplicable. The court sentenced Zabawa to a three-year commitment to the Department of Corrections and Human Services (Department) for the felony assault and an additional three-year commitment for use of a firearm in commission of the assault, with the sentences to run consecutively. Zabawa appeals.

1. Did the District Court err in concluding that application of § 46-18-221, MCA, commonly referred to as the weapon enhancement statute, did not subject Zabawa to multiple punishments in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution?

Zabawa argues on appeal that the District Court erred in concluding that application of the weapon enhancement statute did not subject him to multiple punishments for the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Article II, Section 25 of the Montana Constitution. We review a district court's conclusions of law to determine whether the court's interpretation of the law is correct. State v. Gould (1995), 273 Mont. 207, 219, 902 P.2d 532, 540.

At the outset, we note that Zabawa cites the Double Jeopardy Clauses of both the United States Constitution and the Montana Constitution for his argument that enhancing his felony assault sentence by applying the weapon enhancement statute constitutes a prohibited multiple punishment for the same offense because the use of a weapon is an element of the felony assault offense for which he was convicted. He claims no greater protection from double jeopardy under Article II, Section 25 of the Montana Constitution than under the Fifth Amendment to the United States Constitution, however, and relied entirely on federal interpretations under the United States Constitution during oral argument; in Zabawa's view, those interpretations supported his argument under that Constitution. Accordingly, we address only the double jeopardy protection afforded under the United States Constitution, leaving for resolution in a future case which may present it the issue of whether Article II, Section 25 of the Montana Constitution provides greater protection from double jeopardy than is provided by the United States Constitution. Given the posture in which this case is presented, we are bound by the double jeopardy interpretations of the United States Supreme Court.

In this regard, the dissent's characterization of State v. Nelson (1996), 275 Mont. 86, 910 P.2d 247, and Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 730 P.2d 380, is misleading. In Nelson, a unanimous opinion issued less than ten months ago, we deemed the Double Jeopardy Clauses of the Montana Constitution and the United States Constitution coextensive, for purposes of the case, because no greater protection from double jeopardy was claimed therein under the Montana Constitution. Nelson, 910 P.2d at 250. Pointedly, Nelson left for another day--in a case presenting it--the issue of whether the Montana Constitution affords greater double jeopardy protection than the United States Constitution.

Nor is Buckman relevant here. There, the appellant relied on the Contracts Clauses of both the Montana and United States Constitutions for the same measure of protection in both the trial court and this Court. We simply--and properly--chose to address the issue under the Montana Constitution first and to turn to the United States Constitution only in the event the case could not be resolved on adequate and independent state grounds. Buckman, 730 P.2d at 384. For this Court to uphold the fundamental proposition that the Montana Constitution "provides protection of rights separate from the protection afforded by the federal constitution" (see Buckman, 730 P.2d at 384) is a markedly different matter than for this Court to sua sponte create--and then resolve--the issue of whether the Montana Constitution provides greater protection, as the dissent would have us do here. Thus, in this case, where Zabawa claimed no greater protection from double jeopardy under the Montana Constitution than under the United States Constitution, we address only the federal constitutional issue presented.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, generally protects against three distinct abuses: a second prosecution for the same offense following an acquittal; a second prosecution for the same offense following a conviction; and multiple punishments for the same offense. Nelson, 910 P.2d at 250. Double jeopardy cases often focus on the "same offense" issue. See, e.g., State v. Wolfe (1991), 250 Mont. 400, 821 P.2d 339; State v. Crowder (1991), 248 Mont. 169, 810 P.2d 299; State v. Palmer (1983), 207 Mont. 152, 673 P.2d 1234. Here, however, Zabawa contends that application of the weapon enhancement statute is a multiple punishment prohibited by the Double Jeopardy Clause.

Missouri v. Hunter (1983), 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535, is the United States Supreme Court's seminal case on the multiple punishment aspect of the Double Jeopardy Clause. In Hunter, the defendant robbed a convenience store in Kansas City, Missouri, with a handgun. An off-duty police officer arrived at the store and ordered the defendant and two accomplices to stop; the defendant fired a shot at the officer and he and his accomplices fled. Hunter, 459 U.S. at 360-61, 103 S.Ct. at 675-76.

The defendant was apprehended, tried and convicted of robbery in the first degree, armed criminal action and assault with malice. Hunter, 459 U.S. at 361, 103 S.Ct. at 675. A Missouri statute provided a minimum sentence of five years' imprisonment for any person convicted of robbery in the first degree " 'by means of a dangerous and deadly weapon.' " Under another Missouri statute, any person who committed a felony " 'by, with, or through the use, assistance, or aid of a dangerous or deadly weapon [was] also guilty of the crime of armed criminal action' " with a mandatory minimum sentence of three years' imprisonment. Hunter, 459 U.S. at 362, 103 S.Ct. at 675-76.

The Missouri Court of Appeals, relying on Missouri Supreme Court decisions, concluded that the defendant's sentences for both robbery in the first degree and armed criminal action violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and reversed the defendant's sentence for armed criminal action. The Missouri Supreme Court denied review. Hunter, 459 U.S. at 362-63, 103 S.Ct. at 676-77.

The United States Supreme Court noted that the Missouri Supreme Court previously had construed the two statutes at issue as "defining the same crime" and that the Missouri court recognized that the legislature intended to provide for cumulative punishments pursuant to these statutes. Hunter, 459 U.S. at 368, 103 S.Ct. at 679. The Supreme Court properly deferred to the Missouri court's interpretation of the Missouri statutes at issue; however, the Supreme Court pointed out that it was not bound by the Missouri court's legal conclusion that the statutes violated the Double Jeopardy Clause. Hunter, 459 U.S. at 368, 103 S.Ct. at 679.

The Supreme Court concluded that the Missouri Court of Appeals had misperceived the nature of the Double Jeopardy Clause's protection against multiple punishments. Hunter, 459 U.S. at 366, 103 S.Ct. at 678. The Supreme Court held:

Where, as...

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