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State v. Martin

Supreme Court of Montana

February 19, 2019

STATE OF MONTANA, Plaintiff and Appellee,
ZACHARY TUCKER MARTIN, Defendant and Appellant.

          Submitted on Briefs: January 23, 2019

          District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 16-0639 Honorable Rod Souza, Presiding Judge.

          For Appellant: Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Christopher D. Abbott, Assistant Attorney General, Helena, Montana

          Scott D. Twito, Yellowstone County Attorney, Julie R. Patten, Assistant County Attorney, Billings, Montana



         ¶1 Defendant Zachary Tucker Martin appeals from the sentence and judgment of the Thirteenth Judicial District Court, Yellowstone County, designating him a repeat persistent felony offender (PFO) and sentencing him under the requirements of § 46-18-502(2), MCA.

         ¶2 We address the following issue on appeal:

         Whether the District Court erred by sentencing Martin as a repeat persistent felony offender under § 46-18-502(2), MCA.

         We affirm.


         ¶3 Following an incident on June 19, 2016, the State charged Martin with: (1) robbery by accountability, a felony in violation of § 45-5-401(1)(a), MCA; (2) assault with a weapon, a felony in violation of § 45-5-213(1)(b), MCA; and (3) three misdemeanor offenses.

         ¶4 On July 11, 2016, the State filed a Notice that it would seek treatment of Martin as a PFO upon conviction. The State's Notice stated:

Please take notice pursuant to § 46-13-108, [MCA, ] that the State of Montana will seek treatment of [Martin] as a [PFO] as provided in § 46-18-501 et seq., [MCA]. . . . The previous felony conviction [criminal possession of dangerous drugs] detailed in the Notice meets the definition required in § 46-18-501, [MCA].[1]

         The Notice did not indicate whether the State would seek sentencing under § 46-18-502(1), MCA, or § 46-18-502(2), MCA. The Notice did not explicitly state that Martin was designated a PFO in his 2012 conviction for criminal possession of dangerous drugs (DC 11-0146). However, the State attached the Judgment in Martin's 2012 conviction to the Notice. The Judgment ordered that Martin be "designated as a [PFO] for sentencing under § 46-18-501 and § 46-18-502, MCA." At the omnibus hearing, Martin did not challenge the applicability, validity, or accuracy of the 2012 conviction or the PFO designation with that conviction.

         ¶5 On December 23, 2016, the District Court held a change-of-plea hearing. Martin pled guilty to robbery by accountability and assault with a weapon. As part of the plea agreement, Martin admitted that his guilty plea established a violation of the conditions of his sentence in another case, DC 07-0491. The State agreed to dismiss the three misdemeanor charges in the present case and a pending felony charge in another case (DC 16-1208). The State recommended a ten-year sentence on the robbery count and a ten-year sentence on the assault count, with five years suspended, for a total of twenty years with five years suspended.

         ¶6 During the hearing, the District Court instructed Martin that if he were to be designated a PFO on the counts of robbery by accountability and assault with a weapon, Martin would be sentenced to a "minimum [of] five years in prison up to 100 years in prison . . . ." Later, the District Court referred to the robbery by accountability charge, saying, "you are a PFO on that . . . ." Martin's counsel acknowledged, "this plea agreement contemplates him being designated a persistent felon. . . . we've had extensive discussions about the subsequent [PFO] designation that he would be subject to . . . ." The District Court then accepted Martin's guilty plea.

         ¶7 Following the change-of-plea hearing, Martin was released on bond but twice violated the conditions of his release. As a result, on May 30, 2017, the District Court held a revocation hearing to determine whether Martin's previous sentence should be revoked.[2] After determining that revocation was proper, the District Court held a disposition hearing and resentenced Martin. The State revised its sentencing recommendation in DC 16-0639 to fifteen years for the robbery by accountability charge and fifteen years for the assault charge, for a total of thirty years with no time suspended. Martin requested a total sentence of twenty years in DC 16-0639 and for his probation violation sentence in DC 07-0491 to run concurrently.

         ¶8 After the parties made their sentencing recommendations, the District Court told Martin:

[Y]ou have been designated as a [PFO] in this case. There was no objection raised to the [PFO] status. I note that in our previous case, DC [11-0146 in 2012], you were designated and sentenced as a [PFO] in that case . . . therefore, pursuant to § 46-18-501 and -502, [MCA, ] you must be sentenced as a [repeat] persistent felony offender, which requires a mandatory minimum of [ten] years on each particular count, and those must run consecutive to any other cases.

         ¶9 Martin objected to being sentenced as a repeat PFO. Martin argued the State failed to provide notice that it would seek that designation, and that based on the State's previous recommendation of five years, the State must have assumed Martin was a "single PFO," not a repeat PFO. Martin requested the District Court sentence him as "a single PFO, ...

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