Matter of Davis , 179 Mont. 196 ( 1978 )

No. 14490
IN THE SUPREME COURT OF' THE STATE OF MCMPANA
1978
IN T H E M A m o F ' F A K E. DAVIS,
RN
Petitioner.
ORIGINAL PlacExoING:
Counsel of Record:
For Petitioner:
David J. Patterson, Pbntana Defender Project, Missoula,
mntana
Daniel Howard, Student Intern argued, Defender Project,
Missoula, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Wntana
James Masar, County Attorney, D e e r Lodqe, Mntana
K e r m i t Daniels argued, D e e r I d g e , Wntana
Decided:
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Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
This is an original petition for post-conviction relief
by an inmate of the Montana State Prison. Petitioner seeks
reduction of three 20 year sentences for theft imposed upon him
as a persistent felony offender.
The issue on appeal is whether petitioner was legally
sentenced as a persistent felony offender thereby subjecting
him to an increased term of imprisonment.
In February 3, 1977, petitioner Frank E. Davis plead
not guilty to three counts of felony theft of copper wire from
the Montana Power Company in the District Court of Powell County.
While in jail awaiting trial on the theft charges peti-
tioner attempted to escape by digging a hole in the jail wall.
He was apprehended and charged with attempted escape and felony
criminal mischief. The state gave proper notice of its inten-
tion to seek increased punishment of petitioner as a persistent
felony offender pursuant to section 95-1506, R.C.M. 1947. Follow-
ing a jury trial, petitioner was convicted of both offenses and
sentenced to 15 years for attempted escape and 5 years for felony
criminal mischief. The latter sentence was subsequently vacated
by this Court for failure of the state to prove an element of the
crime. State v. Davis (1978), Mont . , 577 P.2d 375, 35
One week after sentence was imposed on the attempted escape
and felony criminal mischief convictions, petitioner withdrew his
plea of not guilty to the three theft charges and entered a plea
of guilty. Written notice was never given to petitioner that the
state would seek increased punishment against him as a persistent
felony offender on the theft charges. Nonetheless, the sentencing
judge concluded that petitioner was a persistent felony offender
and sentenced him to 20 years imprisonment on each of the three
theft charges to be served concurrently with the sentence pre-
viously imposed on the attempted escape and felony criminal
mischief convictions.
In this proceeding, petitioner seeks reduction of the
three concurrent 20 year sentences imposed against him on the
three theft charges to the statutory maximum of 10 years on each
charge for nonpersistent felony offenders. Section 94-6-302(4),
R.C.M. 1947.
The crux of petitioner's contention is simply that he
could not be sentenced to increased punishment as a persistent
felony offender where the state did not give him written notice
thereof as required by section 95-1506, R.C.M. 1947.
The state admits it gave petitioner no notice of its
intention to seek increased punishment. The state contends, how-
ever, that once petitioner was found to be a persistent felony
offender at his sentencing on the attempted escape and criminal
mischief convictions, the court was entitled to take judicial
notice of that finding in sentencing him on the theft charges.
Section 95-1506, R.C.M. 1947, provides in pertinent part:
"Procedural reauirements--~ersistent felonv
offenders. (1) ff the stateLseeks treatmentAof
the accused as a persistent felony offender
under 95-1507 or $5-2206.5 or both of those
sections, notice of that fact must be given in
writing to the accused or his attorney before
the entry of a plea of guilty by the accused ...
"(3) If the accused is convicted upon the felony
charge, the notice, together with proper proof of
timely service, shall be filed with the court be-
fore the time fixed for sentencing . ..
"(4) The hearing shall be held before the court
alone. If the court finds any of the allegations
of prior conviction true, the accused shall be
sentenced under the provisions of 95-1507 and
95-2206.5. "
This statute is clear and unambiguous. The state must
give written notice of its intention to seek increased punishment
of an accused as a persistent felony offender prior to entry
of his plea. Discretion to treat an accused as a persistent
felony offender is vested in the state, i.e. the prosecutor,
not in the sentencing court. Prior notice of such intention
must be given by the state in writing, proof of service of such
notice must be made before sentencing, and the sentencing court
must find the allegations of prior conviction true before in-
creased punishment can be imposed upon an accused as a persistent
felony offender.
The intent of the statute is clear from its plain language.
The accused must be informed of the increased sentence to which
he is subject before he pleads guilty or goes to trial. If an
accused is not so informed, an increased sentence cannot be imposed.
The county attorney in the first instance controls the decision
on whether or not to invoke the persistent felony offender stat-
ute by the notice requirements of the statute. If he fails to
give the required notice to invoke the persistent felony offender
statutes, increased punishment thereunder is not in issue before
the sentencing court. We need not determine whether the sentenc-
ing court can invoke the persistent felony offender statute on
its own initiative by ordering the information amended prior to
entry of plea or otherwise as such was not done in this case.
Here, the amended information charging petitioner with
three counts of theft stated on its face: "The maximum sentence
for each count of THEFT is imprisonment in the Montana State
Prison for any term not to exceed ten (10) years." No notice,
written or oral, by the prosecutor or the court, was given peti-
tioner that he would be sentenced to increased punishment as a
persistent felony offender. Petitioner plead guilty and was
sentenced on each count to 20 years, double the statutory maximum
for each offense standing alone. Fundamental fairness in view
of the statutory notice requirements prohibits this result.
The state argues that petitioner's status as a persis-
tent felony offender was established at the prior sentencing
on the attempted escape and criminal mischief charges of which
the court could take judicial notice. This argument misses the
point. Whether petitioner was in fact a prior felony offender
or not, he was not so charged. On the contrary, the information
expressly informed him that the maximum sentence on each count
was 10 years. Had petitioner known that he was subject to a
maximum sentence of 100 years as a persistent felony offender
(section 95-1507, R.C.M. 1947) he might well have declined to
change his plea to guilty.
It could be argued that petitioner's failure to object
to lack of notice at the time of sentencing constituted a waiver
of any objection to the sentence imposed. We reject this approach.
Statutes providing for enhanced punishment are penal in nature
and must be strictly construed. State v. State Highway Patrol
(1958), 133 Mont. 162, 321 P.2d 612; Shipman v. Todd (1957), 131
Mont. 365, 310 P.2d 300. Montana's statute requiring written
notice thereof prior to entry of plea is explicit and unambiguous.
Compliance with its requirements is a condition precedent to in-
creased punishment of a defendant as a persistent felony offender.
An implied waiver of any objection to the sentence by failure to
object at the time of sentencing is not only illusory but would
effectively undermine the intent, purpose and requirements of the
statute. We decline to find an implied waiver under these circum-
stances.
Petitioner also requests that he not be designated a per-
sistent felony offender for parole purposes. This we decline to
do. His status as a persistent felony offender for purposes of
parole eligibility is established in his sentence on the attempted
escape charges which remains uncontested.
The sentence imposed upon petitioner on April 7, 1977, in
Cause # 2 2 3 8 in the District Court of the Third Judicial District
of the State of Montana, in and for the County of Powell, is
reduced to a term of 10 years imprisonment on each count to be
served concurrently as provided in the original sentence.
Chief Justice
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