                                                                                       December 30 2014


                                          DA 13-0543
                                                                                       Case Number: DA 13-0543

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2014 MT 346



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

PRESTON JAMES HANNA,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DC 12-433
                       Honorable Edward P. McLean, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Jeanne M. Walker, Hagen & Walker, PLLC, Billings, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; C. Mark Fowler, Appellate
                       Bureau Chief, Helena, Montana

                       Fred R. VanValkenburg, Missoula County Attorney; Jason Marks,
                       Jennifer Clark, Deputy County Attorneys, Missoula, Montana



                                                  Submitted on Briefs: October 22, 2014
                                                             Decided: December 30, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     A jury in the Fourth Judicial District Court convicted Preston Hanna of

accountability for robbery. The court sentenced Hanna to thirty years in Montana State

Prison with ten years suspended and awarded restitution in an unspecified amount. We

restate the issues on appeal as follows:

       1. Whether Hanna is entitled to a new trial because the District Court
       improperly instructed the jury on accountability for robbery.

       2. Whether the District Court erred in denying Hanna’s motion to dismiss for
       insufficient evidence.

       3.   Whether the District Court erred in sentencing Hanna.

¶2     We affirm on the first two issues. On the third, we remand to the District Court to

determine the amount of restitution Hanna owes for the victim’s medical expenses.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     At approximately 3:00 a.m. on September 7, 2012, a masked man entered Ole’s

convenience store in East Missoula dressed in all black and carrying a .22 caliber rifle.

Store clerk Adam Gallegos was cleaning soda machines on the opposite side of the store

from the front doors where the man entered. The man demanded that Gallegos give him

money out of the register. Gallegos recognized the man as Chris Burch by his voice and

shoes. Gallegos had met Burch on previous occasions through mutual friends and Burch

had been a customer at Ole’s. Gallegos told Burch no, that he would not give Burch the

money out of the register, and turned his back to continue cleaning. Burch took the rifle




                                           2
to his shoulder, aimed, and fired. The bullet hit Gallegos in the upper right chest,

entering his lung. Burch ran out the front doors. Gallegos survived.

¶4      Detectives located Burch in the morning. Burch said that he had been out drinking

with Preston Hanna the night before and that Hanna was the one who entered Ole’s with

the rifle.

¶5      Detectives interrogated Hanna later that day after Hanna signed a form waiving his

Miranda rights.     Hanna acknowledged having been out with Burch and another

acquaintance, Josh Smith, the night before. Burch was wearing black pants and a black

shirt, Smith was in his supermarket work uniform, and Hanna was wearing a black shirt

and swim shorts. Hanna stated that the three decided to drive up Deer Creek to go

“plinking”—essentially, shooting random objects with Hanna’s rifle. Hanna admitted to

the detectives that he removed the temporary tag from his girlfriend’s car before the three

got in with Hanna driving. After the three started on their way, Burch asked Hanna to

stop by Ole’s. Because they were out of alcohol and it was past the hour when they could

purchase beer, Hanna reported thinking that Burch might want to do a “beer run”

(essentially, Burch would run into the store, grab a case of beer, and run out without

paying). Hanna parked the car in front of Ole’s. According to Hanna, Burch told him to

shut off the headlights, and Burch tied black pants around his face to create a mask before

exiting the car carrying Hanna’s rifle. Hanna told the detectives that this was when he

realized that Burch was doing something more than a beer run. Burch went into the store

with the rifle and Hanna remained in the driver’s seat with the car parked. A short time

                                         3
later, Burch came out of the store, got in the car, and told Hanna that he had shot the clerk

and to “drive, drive, drive.” Hanna recounted that he sped off to his place, where he

parked the car and decided to wait until the morning before figuring out what to do.

¶6     When detectives interviewed Burch again, he admitted that he was the one who

entered Ole’s and shot Gallegos.

¶7     The State charged Hanna by Information with accountability for attempted

deliberate homicide and accountability for robbery. At a hearing on February 25, 2013,

the State moved to dismiss the accountability for attempted deliberate homicide charge

with prejudice. The State explained that its motion to dismiss the charge was unrelated to

a plea agreement it had reached with Hanna. Hanna and the State presented their plea

agreement to the court: Hanna would plead guilty to accountability for robbery and agree

to testify against Burch in exchange for a twenty-year sentence to Montana State Prison

with fifteen years suspended. Accordingly, Hanna pleaded guilty in open court and the

District Court ordered a presentence investigation report. On May 1, 2013, the court and

parties reconvened for sentencing. The District Court advised the parties that it would

not follow the plea agreement and would instead impose a twenty-year sentence to

Montana State Prison with no time suspended. The court asked Hanna if he wished to

withdraw his guilty plea now that the court had rejected the agreement. Hanna decided to

withdraw his plea and to proceed to trial.

¶8     At trial, neither Hanna nor Burch testified. The State called Josh Smith, the third

person in the car on the night of the shooting. Smith testified that Hanna jokingly

                                             4
suggested robbing Ole’s and that, before the three went to Ole’s, Hanna removed the

temporary tag from the car. After Hanna parked outside Ole’s, Smith said Hanna went to

the back of the car, came back with the rifle, and handed it to Burch. Burch masked

himself, went into the store, and returned a few moments later, telling Hanna to drive,

and that he had shot the clerk after the clerk refused to give him money. Smith said

Hanna sped off. During cross examination, Smith admitted that he acted as a lookout

when Burch went into the store, that he blacked out for at least a portion of the night, and

that, when originally questioned by the detectives, he did not disclose some information

until they threatened him with prosecution.

¶9     The State also played a recording of Hanna’s interrogation for the jury. At the

close of the State’s case, Hanna moved for a directed verdict, arguing that the State had

presented insufficient evidence to convict him. The court denied the motion.

¶10    In his defense, Hanna presented two witnesses who testified that Hanna had been

cited for “plinking” in the past. In closing, defense counsel emphasized that Hanna was

drunk the night of the crime, that everything happened very fast once Hanna realized

Burch was going into the store with the rifle, and that Hanna did not have time to

extricate himself from the situation once the shooting occurred unexpectedly. Defense

counsel argued that Hanna may have intended to facilitate a theft, but he did not intend to

facilitate a robbery.

¶11    The jury returned a guilty verdict. The court sentenced Hanna to thirty years in

Montana State Prison with ten years suspended, ordered Hanna to register as a violent

                                         5
offender, and requested that “the Board of Pardons and Adult Probation Office review

restitution due to Mr. Gallegos prior to [Hanna’s] release.”

¶12    Hanna appeals his conviction and sentence.

                              STANDARDS OF REVIEW

¶13    We review preserved jury instruction challenges for an abuse of discretion coupled

with a showing of prejudice to the defendant’s substantial rights. State v. Cybulski, 2009

MT 70, ¶ 34, 349 Mont. 429, 204 P.3d 7. If a defendant had the opportunity but failed to

object to a jury instruction at trial, we will not examine the issue unless it qualifies for

plain error review. State v. Birthmark, 2013 MT 86, ¶ 11, 369 Mont. 413, 300 P.3d 1140.

¶14    We review de novo a district court’s denial of a motion to dismiss for insufficient

evidence. State v. Kirn, 2012 MT 69, ¶ 8, 364 Mont. 356, 274 P.3d 746. We determine

whether, after viewing the evidence presented at trial in a light most favorable to the

prosecution, a reasonable juror could have convicted the defendant. Kirn, ¶ 10.

¶15    A district court’s compliance with sentencing statutes is generally a question of

law that we review de novo. State v. Cerasani, 2014 MT 2, ¶ 11, ___ Mont. ___, 316

P.3d 819.

                                      DISCUSSION

¶16 1. Whether Hanna is entitled to a new trial because the District Court
improperly instructed the jury on accountability for robbery.

¶17    Hanna was charged with and found guilty of accountability for robbery. A person

commits robbery when, “in the course of committing a theft, the person: (a) inflicts

bodily injury upon another; (b) threatens to inflict bodily injury upon any person or
                                         6
purposely or knowingly puts any person in fear of immediate bodily injury; or

(c) commits or threatens immediately to commit any felony other than theft.” Section

45-5-401(1), MCA. “[A]ccountability is not a separate or different offense from the one

charged, but rather, is ‘merely a conduit by which to find a person criminally liable for

the acts of another.’” State v. Tellegen, 2013 MT 337, ¶ 9, 372 Mont. 454, 314 P.3d 902

(citations omitted). An accomplice is accountable for another person’s robbery when

“either before or during the commission of [the robbery] with the purpose to promote or

facilitate the commission, the [accomplice] solicits, aids, abets, agrees, or attempts to aid

the other person in the planning or commission of the [robbery].” Section 45-2-302(3),

MCA.

¶18    The District Court instructed the jury that a person commits robbery if, “in the

course of committing a theft, the person: purposely or knowingly inflicts bodily injury

upon another; OR purposely or knowingly threatens to inflict bodily injury upon any

person; OR purposely or knowingly puts any person in fear of immediate bodily

injury[.]” Hanna objected to this instruction at trial and now appeals it. Hanna argues

that he was charged with accountability for robbery under a single theory: the principal’s

commission of a theft coupled with a purposeful or knowing infliction of bodily injury on

another. Hanna posits that he was not charged with accountability for robbery by means

of a theft coupled with either the threat to inflict bodily injury or the fear of immediate

bodily injury. In essence, Hanna suggests that the jury instructions permitted the jury to




                                          7
convict him of accountability for robbery under sub-elements of robbery with which he

was never charged.1

¶19    A criminal defendant has the right to notice of the crime under which he will be

prosecuted. State v. Spotted Eagle, 2010 MT 222, ¶ 9, 358 Mont. 22, 243 P.3d 402 (“An

[I]nformation must reasonably apprise the defendant of the charges against him so that he

may have the opportunity to prepare and present his defense.”). That right is violated

when the Information charges the defendant of one crime but the jury is permitted to

convict the defendant of another. Spotted Eagle, ¶ 15. In Spotted Eagle, the State

charged the defendant by Information with violating § 45-5-206, MCA—Montana’s law

prohibiting assault on a partner or family member—because the defendant “purposely or

knowingly caused bodily injury to his partner[.]” Spotted Eagle, ¶ 2. At trial, the court

instructed the jury that it could find the defendant guilty of violating § 45-5-206, MCA, if

the defendant “caused bodily injury or reasonable apprehension of bodily injury” to his

partner.   Spotted Eagle, ¶ 3 (emphasis supplied).         We held that the instruction

“improperly amended the charge” against the defendant by permitting conviction under

an offense sub-element that the defendant was never charged with violating. Spotted

Eagle, ¶ 11.

¶20    By contrast, the State’s Information in this case charged Hanna with robbery in

general, citing only § 45-5-401, MCA, and not any particular subsection of the robbery


1
  Relatedly, Hanna also briefly argues that he could not be charged with a different type of
robbery than Burch. Hanna cites no authority supporting this contention and we decline to
consider it. M. R. App. P. 12(1)(f).
                                          8
statute. Unlike the Information in Spotted Eagle that limited the charge to causing bodily

injury to the victim, the Information in this case did not so limit the robbery charge. The

charge was general, alleging that Hanna, “before and/or during the commission of the

offense of Robbery, aided or abetted Christopher Burch in the commission of the offense

of Robbery.” Further, the affidavit accompanying the Information alleged that a masked

man entered a store with a rifle, told an employee to give him the store’s money, and then

shot the employee. The affidavit also included allegations that Hanna had removed the

license plate from his car before driving Burch to Ole’s; that Hanna drove the vehicle and

waited in the parking lot with the lights out and engine running while Burch entered with

the rifle; that Hanna drove off in a hurry with Burch in the car after Burch returned and

reported that he had shot the clerk; that the robbery was Hanna’s idea; and that Hanna

had provided Burch with the rifle. The Information and affidavit provided Hanna with

reasonable notice of a charge of accountability for robbery under any of § 45-5-401’s

sub-elements. The robbery jury instruction patterned on the statute did not improperly

amend the charge against Hanna.

¶21    Hanna maintains that the robbery instruction was improper because it did not

instruct the jury that it must reach unanimity with regard to the specific element of

robbery that it determined Hanna purposefully aided or abetted. Hanna cites State v.

Hardaway, 2001 MT 252, 307 Mont. 139, 36 P.3d 900. In that case, the court instructed

the jury that it could convict the defendant of burglary for entering a home “to commit

either the offense of theft or the offense of sexual assault,” but did not instruct the jury

                                         9
that it would have to reach a unanimous verdict on either alternative. Hardaway, ¶¶ 9,

71. We reversed the verdict because “[u]nanimity requires more than a conclusory

agreement that the accused is guilty of some charged offense; the jury must be in

agreement as to the principal factual elements underlying a specific offense.” Hardaway,

¶¶ 70, 72.

¶22    Hanna failed to object to the robbery instruction’s lack of a unanimity

requirement. We refrain from considering issues raised for the first time on appeal. State

v. Robertson, 2014 MT 279, ¶ 16, 376 Mont. 471, 336 P.3d 367. Under § 46-16-410(3),

MCA, “[a] party may not assign as error any portion of the instructions or omission from

the instructions unless an objection was made specifically stating the matter objected to,

and the grounds for the objections, at the settlement of instructions.” As addressed

above, Hanna’s objection to instruction number twelve—the robbery instruction—was

based on the purported lack of notice of the robbery sub-elements found in the

instruction. Hanna never mentioned, much less “specifically stat[ed],” that there was a

unanimity problem with the instruction. Section 45-16-410(3), MCA. Accordingly,

Hanna’s objection to the robbery instruction was insufficient to preserve the unanimity

issue for appeal.

¶23    We do occasionally review unpreserved issues under the doctrine of plain error

review, but only when (1) “the claimed error implicates a fundamental right,” and

(2) “the claimed error would result in a manifest miscarriage of justice, leave unsettled




                                        10
the question of the fundamental fairness of the trial or proceedings, or compromise the

integrity of the judicial process.” Robertson, ¶ 32 (citation omitted).

¶24    The State argues that there was no error because this case involves accountability

rather than principal liability. But accountability is “merely a conduit” for liability and

not a “separate or different offense.” Tellegen, ¶ 9. Thus, charging someone with

accountability for a substantive offense does not affect the elements of the substantive

offense. Whether charged as a principal or an accomplice, a defendant is entitled to a

unanimous verdict on each principal element of the offense. See Hardaway, ¶ 72. While

the District Court instructed the jury broadly that the “law requires a jury verdict in this

case that is unanimous,” the court did not instruct the jury that it had to agree on the

principal elements of Hanna’s robbery offense. Even though the jury was not instructed

in this regard, we conclude that plain error review is not warranted. Viewing the claimed

error in the context of the evidence presented at trial and the arguments of the parties, we

are not convinced that the failure to provide a unanimity instruction compromised the

“justness, fairness, or integrity of [Hanna’s] trial.” Robertson, ¶ 40. No one disputed that

Burch purposely or knowingly caused bodily injury to Gallegos, and no one claimed that

Hanna intended for Gallegos to be shot. Hanna’s defense was that he did not know about

Burch’s plan until after the shooting and did not have a chance to withdraw from the

criminal enterprise after that occurred.      The instruction on the three methods of

committing robbery did not compromise the integrity of Hanna’s trial, which focused on




                                         11
Hanna’s intention to facilitate the commission of the robbery even after the store clerk

had been shot and even though Hanna did not know in advance that was going to happen.

¶25    Hanna also argues that instruction number thirteen was improper. Instruction

number thirteen directed the jury that, “The ensuing flight is considered part and parcel of

the robbery until such time as the criminal purpose is completed. A person acting as a

getaway driver may become liable for robbery.” Hanna argues that the instruction’s

second sentence derives from dicta in State v. Case, 190 Mont. 450, 621 P.2d 1066

(1980) and was thus inappropriate to use in a jury instruction. The State responds that

Hanna waived this issue on appeal by failing to object to it at trial.        As the State

apparently recognizes, however, Hanna was in the process of objecting to the instruction

when the District Court cut him off. Thus, we will review the issue.

¶26    In reviewing a claim of instructional error, “we determine whether the instructions

taken as a whole fully and fairly instructed the jury on the law applicable in the case.”

Tellegen, ¶ 5. Hanna does not challenge the instruction’s first sentence directing that

“[t]he ensuing flight is considered part and parcel of the robbery until such time as the

criminal purpose is completed.” Nor could he: this instruction is essentially identical to

one we upheld in State v. Kills on Top, 243 Mont. 56, 63-64, 793 P.2d 1273, 1298 (1990).

Viewed in context, the getaway driver sentence merely extrapolates upon the preceding

sentence and the principle that a person is accountable if he purposefully facilitates a

crime by aiding or abetting it. Section 45-5-401(3), MCA, is explicit that “in the course

of committing a theft” includes acts that occur “in flight after the attempt or

                                         12
commission . . . .” The getaway driver sentence was a full and fair explication of the law

in the context of this case. The District Court did not abuse its discretion by giving

instruction number thirteen.

¶27 2. Whether the District Court erred in denying Hanna’s motion to dismiss for
insufficient evidence.

¶28    Hanna argues that the District Court erred in denying his motion for a directed

verdict.2 Hanna argues that the State failed to present sufficient corroborating evidence

showing that Hanna was an accomplice to the robbery. Hanna admits that he drove

Burch away from the scene of the crime, but argues that this admission does not support

holding him liable for the robbery because the robbery already had ended by the time he

drove away. In his reply brief, Hanna also cites United States v. Rosemand, ___ U.S.

___, 134 S. Ct. 1240 (2014), for the proposition that he needed to have known in advance

that Burch was armed to be convicted as an accomplice to Burch’s crime.

¶29    “A person may not be found guilty of an offense on the testimony of one

responsible or legally accountable for the same offense . . . unless the testimony is

corroborated by other evidence that . . . tends to connect the defendant with the

commission of the offense.” Section 46-16-213, MCA. Corroborative evidence must

“‘(1) be independent, (2) point toward the defendant’s guilt, and (3) provide a legally

sufficient connection between the defendant and the offense.’” State v. Berger, 1998 MT

170, ¶ 28, 290 Mont. 78, 964 P.2d 725 (citation omitted).


2
 Under § 46-16-403, MCA, this is better termed a motion to dismiss for insufficient evidence.
See Kirn, ¶ 8.
                                         13
¶30    Hanna argues that because Smith admitted that he acted as a lookout and thus as

an accomplice to the robbery, Smith’s testimony could not stand alone in convicting

Hanna. But Smith’s testimony did not stand alone. The jury heard the recording of

Hanna’s interrogation. In his interview with the detectives, Hanna admitted that he

removed the temporary tag from the car; that he knew that something other than a simple

beer run was happening when Burch got out of the vehicle with a rifle and a mask; that he

remained outside the store in the car while Burch went inside; that he would have made

Burch split the proceeds of the crime had Burch come out of Ole’s with money; and that

Burch told Hanna that he had shot the clerk before Hanna sped off from the scene of the

crime with Burch in the car.

¶31    After hearing these admissions, a reasonable juror could infer that Hanna knew

Burch entered Ole’s with a rifle in hand, intending to commit a theft. A reasonable juror

could infer that when a person enters a convenience store with a rifle in hand intending to

steal, that person is threatening to inflict bodily injury on anyone who stands in his way.

Moreover, a reasonable juror could infer that Hanna knew Burch inflicted bodily injury

on another while committing the theft because Burch told Hanna as much when he got

back in the car. A reasonable juror also could conclude that Hanna purposely facilitated

the commission of the robbery by participating in the flight after commission of the

attempted theft.

¶32    We see no conflict between these conclusions and the recent Rosemand case. In

Rosemand, the Supreme Court held that a defendant could be convicted of aiding and

                                        14
abetting a violation of 18 U.S.C. § 924(c)—which criminalizes carrying or using a gun in

connection with a drug trafficking offense—only when the defendant knew that one of

his confederates would carry a gun at the offense. Rosemand, ___ U.S. at ___, 134 S. Ct.

at 1249. This holding followed from the general accomplice liability principle that an

accomplice’s intent to facilitate the substantive offense’s commission “must go to the

specific and entire crime charged[.]” Rosemand, ___ U.S. at ___, 134 S. Ct. at 1248

(citing, e.g., Wayne R. Lafave, Substantive Criminal Law ¶ 13.2(c) (2d ed. 2003)).

Applying that principle to robbery under § 45-5-401, MCA, means that, either before or

during Burch’s crime and with the purpose to facilitate it, Hanna had to have knowledge

that Burch was going to inflict, threaten to inflict, or cause someone to fear infliction of

bodily injury. Unlike the statute at issue in Rosemand, carrying or using a gun is not an

element of robbery under § 45-5-401, MCA. As noted, a reasonable juror could infer that

Hanna had the requisite knowledge after he saw Burch go into Ole’s with the rifle and

then heard Burch explain that he had shot Gallegos.

¶33    A reasonable juror could take Hanna’s act of driving Burch away from the scene

of the crime—executed after Hanna knew what had occurred—as aiding or abetting the

commission of the crime. As the jury properly was instructed, “[t]he ensuing flight is

considered part and parcel of a [r]obbery until such time as the criminal purpose,

including carrying away of the spoils of the crime, is completed.” Kills on Top, 243

Mont. at 63, 793 P.2d at 1298. There were no spoils here, but there was a robbery and a

flight, and Hanna facilitated Burch’s getaway only a few moments after Burch shot

                                         15
Gallegos and before Burch had reached a point of “seeming security.” Case, 190 Mont.

at 455, 621 P.2d at 1069. The jury could consider Hanna’s actions as the getaway driver

as evidence that Hanna aided and abetted the robbery, and that he did so with the purpose

of facilitating the robbery’s commission.

¶34    3.   Whether the District Court erred in sentencing Hanna.

¶35    Hanna has three issues with his sentence. First, Hanna argues that the District

Court erred by failing to specify the amount of restitution Hanna owes to Gallegos for

medical expenses. The State concedes the District Court’s error on this point. At the

post-trial sentencing hearing, the District Court requested that, upon Hanna’s eventual

release from prison, “the Board of Pardons and Adult Probation Office . . . look at the

restitution that is due to Mr. Gallegos.” The court repeated this request in its written

judgment.

¶36    “[A] sentencing court shall, as part of the sentence, require an offender to make

full restitution to any victim who has sustained a pecuniary loss . . . .”         Section

46-18-241(1), MCA. “Pecuniary loss” includes “future medical expenses that the victim

can reasonably be expected to incur as a result of the offender’s criminal conduct . . . .”

Section 46-18-243(1)(c), MCA. “[T]he amount of restitution must be stated as a specific

amount of money.” State v. Heafner, 2010 MT 87, ¶ 7, 356 Mont. 128, 231 P.3d 1087;

see § 46-18-244(1), MCA. The District Court’s request that correctional authorities

determine restitution upon Hanna’s release lacks statutory basis. With the help of a

presentence investigation and report, a court must determine a definitive amount of

                                        16
restitution while permitting Hanna to “assert any defense” that he could raise in a civil

action. Sections 46-18-242(1), -244(2), MCA. We therefore remand to the District Court

to specify the amount of restitution Hanna owes Gallegos, including the amount of future

medical expenses that Gallegos reasonably may be expected to incur as a result of the

robbery.

¶37      Second, Hanna argues that, by imposing a greater sentence after trial than it said it

would impose before trial, the District Court punished Hanna for exercising his right to

go to trial.   Hanna invokes our decisional law that “when a [d]istrict [c]ourt becomes

involved in the plea negotiations and an offer is made, any difference in the sentencing

after trial must point out the factors [that] justify the increased sentence.” State v. Hall,

2003 MT 253, ¶ 42, 317 Mont. 356, 77 P.3d 239. Here, at Hanna’s sentencing hearing

following the entry of his guilty plea, the court notified the parties that it would “not

follow the plea bargain agreement,” and would impose “a twenty-year sentence to the

Montana State Prison” with no time suspended. In light of its rejection of the plea

agreement, the court permitted Hanna to withdraw his plea and proceed to trial. See

§ 46-12-211(4), MCA (directing that, upon rejecting a plea agreement that exchanges a

guilty plea for a specific sentence, a court permit the defendant to withdraw his plea and

advise the defendant that the case’s disposition may be less favorable than was

contemplated in the plea agreement). Hanna elected to withdraw his plea and proceed to

trial.




                                           17
¶38    Simply because there is a disparity between the sentence offered and the sentence

imposed after a withdrawn plea does not mean that the defendant has been punished for

exercising his right to a jury trial. State v. Baldwin, 192 Mont. 521, 526, 629 P.2d 222,

225 (1981). We require that a district court justify an increased sentence following trial

only if (1) the district court did increase the sentence following trial, and (2) the district

court became “involved in the plea negotiations.” Hall, ¶ 42. On the first requirement,

the State argues that the pre-trial and post-trial sentences are consistent because, in either

case, Hanna would serve twenty years in prison. But there is a discrepancy between the

two sentences.    At the pre-trial sentencing hearing, the court told Hanna that “the

sentence, that the [c]ourt would impose, is a twenty-year sentence to Montana State

Prison.” At the post-trial sentencing hearing, the court sentenced Hanna to “thirty years

at the Montana State Prison” and specified that “[t]he last ten years of that sentence is

suspended.” Suspended time is nonetheless sentenced time. See Alabama v. Shelton, 535

U.S. 654, 662, 122 S. Ct. 1764, 1770 (2002) (holding that “[a] suspended sentence is a

prison term imposed for the offense of a conviction” and thus implicates the Sixth

Amendment right to counsel). The facts of this case satisfy the first requirement.

¶39    Regarding the second requirement, we have considered whether a district court

became involved in plea negotiations in four cases. In Hall, at a pre-trial omnibus

hearing, the court indicated that it was aware of ongoing plea negotiations and offered the

defendant a sentence in exchange for a guilty plea. The court then imposed a greater

sentence after the defendant went to trial. Hall, ¶ 40. In State v. Tate, 196 Mont. 248,

                                          18
639 P.2d 1149 (1982), the defendant informed the judge mid-trial that he was having

second thoughts about whether he should proceed or plead guilty. The court offered the

defendant a sentence in exchange for pleading guilty yet imposed a greater sentence after

the defendant chose to proceed with the trial. Tate, 196 Mont. at 249, 639 P.2d at 1149.

And in State v. Baldwin, 192 Mont. 521, 629 P.2d 222 (1981), the court sent a letter to

the defendant offering a sentence in exchange for a guilty plea but then imposed a greater

sentence after the defendant proceeded to trial. Baldwin, 192 Mont. at 522-24, 629 P.2d

at 223-24. In each of these cases, we held that the court became involved in plea

negotiations. Hall, ¶ 43; Tate, 196 Mont. at 251, 639 P.2d at 1150; Baldwin, 192 Mont.

at 527-28, 629 P.2d at 226. By contrast, in State v. Brown, 2003 MT 166, 316 Mont. 310,

71 P.3d 1215, we determined that “[e]xcept for being apprised of the plea negotiations at

a pretrial conference, there is no evidence that the District Court was involved in the plea

negotiation process.” Brown, ¶ 27. Thus, we concluded that the court was not required

to justify a harsher sentence after trial. Brown, ¶¶ 31-32.

¶40    The principle that we deduce from these cases is that a district court is not

“involved in plea negotiations” if those negotiations already have concluded before the

court offers a sentence. Here, without any apparent involvement by the court, Hanna and

the State bargained and reached a plea agreement. The District Court’s only involvement

was to inform Hanna that it rejected the terms of that agreement and would instead

impose a twenty-year sentence with no time suspended. By then, plea negotiations

already had ended. A district court’s rejection of a negotiated plea agreement is not

                                         19
involvement in plea negotiations. Accordingly, the District Court was not required to

explain specifically why the sentence was greater after trial. The District Court gave

specific reasons for the sentence imposed, both during the sentencing hearing and in the

written judgment, in compliance with § 46-18-115(6), MCA.

¶41    The third sentencing issue that Hanna raises is whether it was proper for the

District Court to order Hanna to register as a violent offender. The Sexual or Violent

Offender Registration Act [SVORA] mandates that a “sexual or violent offender” report

personal information to be kept in a registry. Section 46-23-504(1), MCA. A “sexual or

violent offender” is a person who has been convicted of a “sexual or violent offense.”

Section 46-23-502(10), MCA. A “violent offense” means “any violation of or attempt,

solicitation, or conspiracy to commit a violation of” a number of enumerated crimes,

including robbery.     Section 46-23-502(13)(a), MCA.          Hanna argues that because

“accountability” is not listed in this definition of a violent offense, his accountability for

robbery conviction does not qualify as a violent offense requiring registration.

¶42    As stated, however, accountability is not a “separate or different offense,” but

“merely a conduit by which to find a person criminally liable for the acts of another.”

Tellegen, ¶ 9.     Accordingly, the term “violation” incorporates the liability of an

accomplice just as it incorporates a principal’s liability. Section 46-23-502(13)(a), MCA.

¶43    Hanna cites State v. Ferguson, 2005 MT 343, 300 Mont. 103, 126 P.3d 463, to

argue that the District Court was required to find that Hanna used or possessed a “deadly

weapon” in order to sentence Hanna as a violent offender. Ferguson, ¶ 112. This

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argument is misplaced. In Ferguson, we considered whether the defendant’s conviction

for attempted robbery qualified under § 46-18-104(2)(a)(i), MCA, as a “crime of

violence.” That section defines a “crime of violence” as a “crime in which an offender

uses or possesses and threatens to use a deadly weapon during the commission or

attempted commission of a crime[.]”           Section 46-18-104(2)(a)(i), MCA (emphasis

added). A § 46-18-104(2)(a)(i) “crime of violence” and a § 46-23-502(13)(a) “violent

offense” are different terms with different definitions and significances. Specifically, if a

person commits a “crime of violence”—which requires the use of a deadly weapon—he

or she no longer may qualify as a nonviolent offender for sentencing purposes and a court

therefore need not consider alternatives to imprisonment.           Sections 46-18-104(3),

-225(1), MCA. Commission of a “violent offense”—which does not require the use of a

deadly weapon—determines whether the offender must register under SVORA. Section

46-23-504(1), MCA. The issue here is whether it was proper to require Hanna to register

under SVORA. Because Hanna committed a “violent offense,” it was proper.

                                     CONCLUSION

¶44    We affirm Hanna’s conviction and remand the District Court’s judgment with

instructions to enter an amended judgment specifying the total amount of restitution.


                                                  /S/ BETH BAKER
We concur:

/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ JIM RICE
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