State v. M. Payne ( 2020 )

12/09/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 19-0370
DA 19-0370
STATE OF MONTANA, OEC 0 9 2020
Bowen Greenwood
Plaintiff and Appellee, C!erk of Supreme Courk:
State of Montana
v. ORDER
MICKEY RODNEY PAYNE,
Defendant and Appellant.
Appellant Mickey Rodney Payne appeals from his April 22, 2019 judgment of
conviction in the Montana Thirteenth Judicial District Court, Yellowstone County, on the
offenses of: (1) felony Criminal Mischief (Count I) in violation of § 45-6-101, MCA;
(2)felony Criminal Mischief(Count II) in violation of§ 45-6-101, MCA;(3) misdemeanor
Assault (Count III) in violation of § 45-5-201, MCA;(4) misdemeanor Criminal Mischief
(Count IV) in violation of § 45-6-101, MCA; and (5) misdemeanor Criminal Mischief
(Count V) in violation of § 45-6-101, MCA. Payne asserts, inter alia, that the District
Court erroneously designated and sentenced him in this case on Counts I and II as a
persistent felony offender pursuant to § 46-18-501, MCA (repealed 2017 Mont. Laws ch.
321, § 40), based on a predicate felony conviction that did not occur until after he
committed the felonies at issue in this case.
By notice, filed November 30, 2020, the State concedes pursuant to State v.
Running Wolf, 2020 MT 24, 398 Mont. 403, 457 P.3d 218, that the District Court
erroneously sentenced Payne as a persistent felony offender on the offenses offelony
Criminal Mischief (Counts I and II) in this case. The State accordingly concedes to
vacation of those sentences and remand for resentencing.
Upon consideration ofPayne's Opening Brief and the State's Notice of Concession,
and finding good cause thereon,
IT IS HEREBY ORDERED that Payne's sentences on the offenses of felony
Criminal Mischief(Counts I and II), as imposed in this matter under his April 22, 2019
judgment of conviction in the underlying rnatter ofState v. Payne, Cause No. 15-0517, are
hereby vacated and this matter is remanded for resentencing on Counts I and II and entry
of a conforming amended judgment of conviction and sentence on Counts I through V.
The Clerk of this Court is hereby respectfully ordered to serve copies of this order
on counsel of record for both parties and the presiding judge of the District Court.
Dated this fth day of Decernber, 2020.
Chief Justice
/YI
Justices
2