State v. Parks , 2015 MT 32N ( 2015 )

February 3 2015
DA 14-0047
Case Number: DA 14-0047
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 32N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
TERRY D. PARKS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 10-371
Honorable Karen Townsend, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Robin A. Meguire, Attorney at Law; Great Falls, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General; Katie F. Schulz,
Assistant Attorney General; Helena, Montana
Jesse Laslovich, Special Deputy Attorney General, Office of
Commissioner of Securities and Insurance; Helena, Montana
Kristen Pabst, Missoula County Attorney; Missoula, Montana
Submitted on Briefs: January 7, 2015
Decided: February 3, 2015
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Terry Parks was charged by Amended Information with three counts of security
fraud pursuant to § 30-10-301(1)(b), MCA. After a jury trial, Parks was found guilty of
the three counts and sentenced to three consecutive ten-year terms, with the second and
third terms suspended. Prior to sentencing, Parks filed a motion arguing that imposition
of a sentence for each of the three counts violated § 46-11-410(2)(a), MCA, as they were
included offenses arising from the same transaction. The District Court denied the
motion and Parks subsequently appealed to this Court. State v. Parks, 2013 MT 280, 372
Mont. 88, 310 P.3d 1088 (Parks I).
¶3 In Parks I, we concluded that the District Court should have granted Parks’ motion
and vacated two of his convictions. Parks I, ¶ 31. We reversed two of Parks’
convictions, affirmed the judgment with regard to a single conviction, and remanded the
case with instructions that the District Court “resentence Parks on the one conviction,”
because “the District Court may have fashioned a different sentence had it correctly
sentenced Parks based on only one conviction.” Parks I, ¶ 36. We also dismissed Parks’
claims of ineffective assistance of trial counsel without prejudice to raising those claims
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in a postconviction proceeding, because the record was insufficient to analyze the reasons
for the actions of trial counsel. Parks I, ¶ 35.
¶4 Justice Cotter wrote a special concurrence to the Court’s opinion in which she
concluded that the offense at issue was not an absolute liability crime, but because the
State had taken that position before the District Court, it should have been limited to
prosecution of an offense punishable by a fine not exceeding $500 under § 45-2-104,
MCA. Parks I, ¶¶ 40-41 (Cotter, J., concurring). However, because this issue had not
been raised, Justice Cotter did not urge reversal of Parks’ conviction on this premise and
wrote “only to suggest” that future felony prosecutions of this offense may face such a
challenge. Parks I, ¶ 42 (Cotter, J., concurring).
¶5 Following remand, Parks, represented by new counsel, raised the issue discussed
in the concurrence, arguing the remaining conviction should be vacated or limited to a
fine of $500. His appellate briefing asserts that he also raised ineffective assistance
claims against his trial counsel, as he did in his first appeal. The State disputes that such
claims were raised on remand. The District Court rejected Parks’ arguments and
resentenced him to 10 years in prison with 5 years suspended for the single count of
securities fraud.
¶6 On appeal, Parks argues the offense at issue was not an absolute liability offense,
and because the State did not prove, and the jury was not instructed, on mental state, the
conviction fails and must be reversed; that he was deprived of effective assistance of
counsel in the handling of the issue at trial; or, alternatively, that his sentence is illegal
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because, as an absolute liability offense, the sentence was limited to imposition of a fine
not exceeding $500.
¶7 Trial court proceedings on remand are to comport with the mandate and the result
contemplated by the appellate court’s decision. Brown & Brown of MT, Inc., v. Raty,
2013 MT 338, ¶ 10, 372 Mont. 463, 313 P.3d 179; see also Haines Pipeline Constr. v.
Montana Power Co., 265 Mont. 282, 290, 876 P.2d 632, 637 (1994). Here, Parks has lost
sight of our decision in Parks I and the remand instructions. In Parks I, we affirmed his
felony conviction, dismissed his ineffective assistance claims without prejudice to
pursuing postconviction relief, and remanded with instructions to the District Court to
impose a new sentence on Parks’ single felony conviction. Parks I, ¶ 36. Thus, the
issues of whether § 30-10-301, MCA, is an absolute liability offense requiring reversal or
whether Parks’ counsel rendered ineffective assistance were not left open by our decision
and could not be raised on remand. These issues are also improperly raised here, but
Parks may raise them in a postconviction proceeding. Likewise, Parks’ alternative
argument that his felony sentence is illegal because, as an absolute liability offense, the
sentence is limited to a fine not exceeding $500 under § 45-2-104, MCA, was not raised
in Parks I. Our remand for imposition of a new felony sentence foreclosed consideration
of this issue on remand.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions. The
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issues in this case are legal and are controlled by settled Montana law, which the District
Court correctly interpreted.
¶9 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
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