                                                                                        February 25 2014


                                          DA 12-0257

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 48



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

THOMAS L. ZINK,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DC 09-018(A)
                        Honorable Ted O. Lympus, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Wright Legal, P.C., Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                        Attorney General, Helena, Montana

                        Ed Corrigan, Flathead County Attorney, Travis Ahner, Deputy County
                        Attorney, Kalispell, Montana



                                                    Submitted on Briefs: January 15, 2014
                                                               Decided: February 25, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

                                      BACKGROUND

¶1     The State of Montana charged Thomas Zink (Zink) by Information with aggravated

assault against his wife pursuant to § 45-5-202(1), MCA. The State later moved to amend

the Information to add a criminal endangerment charge pursuant § 45-5-207(1), MCA.

Before trial, Zink moved to dismiss the endangerment charge as a lesser-included offense of

aggravated assault. The District Court denied that motion.

¶2     At trial, the State presented testimony from Zink’s wife, Elizabeth Zink (Elizabeth).

Elizabeth testified that she was in the midst of bathing one of her children when Zink called

her into the hallway, “grabbed me and threw me into the wall and held me up against the

wall by my wrists,” then “shoved me into the floor” and “hit me on my back.” Elizabeth got

up and went to the kitchen, where Zink “came at me with both hands, and he squeezed hard

right away, he squeezed really hard.” Elizabeth heard a “crunching gurgle” come from her

neck, followed by Zink squeezing harder and telling her to die. “I thought, God, is this really

going to happen, am I really going to die?”

¶3     The District Court instructed the jury on criminal endangerment, aggravated assault,

and assault as a lesser-included offense of aggravated assault. The jury convicted Zink on

the criminal endangerment count and the lesser offense of assault.

¶4     At sentencing, Mr. Hinchey (Hinchey), Zink’s counsel, argued for a probationary

sentence on the grounds that Zink was not convicted on aggravated assault, a violent felony.

Hinchey repeatedly emphasized that the jury chose the lesser offense, and thus found that

Elizabeth did not suffer reasonable apprehension of serious bodily injury. Hinchey also

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referred to Zink’s testimony to show that he was a loving father and that Elizabeth and her

children were not in danger from Zink upon his release.            Hinchey did not invoke

§ 46-18-225, MCA, which requires a sentencing court to evaluate specific criteria when

assessing imprisonment alternatives for non-violent offenders. The State argued for

imprisonment in Montana State Prison based on Zink’s past convictions for partner assault,

the severity of the assault, and his attempt to justify and minimize the assault. The District

Court sentenced Zink to ten years on the criminal endangerment count and a concurrent six

months on the assault count.

¶5     Zink appeals from the District Court’s order, arguing that criminal endangerment is a

lesser-included offense of aggravated assault and thus charging both crimes is prohibited by

statute. Zink also argues that he received ineffective assistance of counsel when Hinchey

failed to invoke § 46-18-225, MCA.

¶6     The following issues are presented for review:

¶7     Did the District Court err in denying Zink’s pre-trial motion to dismiss the charge of

criminal endangerment as a lesser-included offense of aggravated assault?

¶8     Did Zink receive ineffective assistance of counsel when his attorney failed to raise the

statutory criteria for alternatives to imprisonment for sentencing non-violent offenders?

                               STANDARDS OF REVIEW

¶9     The denial of a motion to dismiss in a criminal case is a conclusion of law which we

review de novo. State v. Dixon, 2000 MT 82, ¶ 10, 299 Mont. 165, 998 P.2d 544 (citing

State v. Weaver, 1998 MT 167, ¶ 43, 290 Mont. 58, 964 P.2d 713). Ineffective assistance of



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counsel (IAC) claims present mixed questions of law and fact that we review de novo. State

v. Gunderson, 2010 MT 166, ¶ 66, 357 Mont. 142, 237 P.3d 74.

                                      DISCUSSION

¶10    Did the District Court err in denying Zink’s pre-trial motion to dismiss the charge of

criminal endangerment as a lesser-included offense of aggravated assault?

¶11    Zink invokes Montana’s statutory prohibition on multiple convictions as well as the

federal prohibition of multiplicitous charges under the Double Jeopardy Clause. Under both

protections, Zink argues that criminal endangerment is a lesser-included offense of

aggravated assault.

       A. Statutory Prohibition on Multiple Convictions

¶12    Zink contends that criminal endangerment is a lesser-included offense of aggravated

assault, and thus the State may not charge him with both. Zink cites to State v. Tellegen,

2013 MT 337, ¶ 23, 372 Mont. 454, 314 P.3d 902 for the proposition that a defendant may

not be charged with both a greater and lesser offense.1 That case concerned a defendant’s

conviction on both a lesser and greater offense, which is prohibited under § 46-11-410(2)(a),

MCA. Tellegen, ¶ 26. The same statute specifically provides that, “[w]hen the same

transaction may establish the commission of more than one offense, a person charged with

the conduct may be prosecuted for each offense.” Section 46-11-410(1), MCA. Montana




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law also specifically authorizes charging in the alternative. Section 46-11-404(3), MCA

(“The prosecution is not required to elect between the different offenses set forth in the

charging document, and the defendant may be convicted of any number of the offenses

charged except as provided in 46-11-410.”).

¶13    Even if criminal endangerment is a lesser-included offense of aggravated assault, Zink

was not convicted on both charges, so § 46-11-410, MCA, is not implicated. The jury

convicted Zink on criminal endangerment and misdemeanor assault instead of aggravated

assault. Zink does not argue that simple assault and criminal endangerment are lesser or

included in one another. Rather, he argues that because the criminal endangerment charge is

a lesser-included offense of aggravated assault, the endangerment charge should have been

dismissed at the outset and he should not have been tried on both counts. As expressly stated

in the statute, however, a defendant may be charged in the alternative, so long as he is

convicted of only one offense. Section 46-11-410, MCA. Montana’s statutory prohibition

on multiple convictions was not violated, so we need not address whether criminal

endangerment is a lesser-included offense of aggravated assault.

       B. Multiplicity of Charges

¶14    Zink also argues that the charges here were multiplicitous because they address one

crime with multiple charges. As discussed above, Montana law specifically allows charging



1
  Tellegen inaccurately summarized § 46-11-410, MCA, but was later amended to correct that
inaccuracy in State v. Tellegen, 2013 MT 337A, ¶ 23, ___Mont. ___, ___ P.3d___. The amended
portion follows, with strikeouts deleted and additions underlined: “Montana law prohibits charging
convicting a defendant with on multiple offenses when one offense is included in the other. Section
46-11-410(2)(a), MCA. This restriction The prohibition on double jeopardy bars both multiple

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in the alternative, and prohibits only convictions on multiplicitous charges. Sections

46-11-404(3), 410, MCA. Instead, Zink cites to federal law for the proposition that “[u]nless

each offense requires proof of an element that the other does not, a defendant may not be

charged with both.” U.S. v. Woerner, 709 F.3d 527, 539 (5th Cir. 2013) (citations omitted).

¶15    Federal jurisprudence, however, only protects a defendant from conviction on

multiplicitous charges. “[A] defendant has no constitutional right to elect which of two

applicable federal statutes shall be the basis of his indictment and prosecution,” United States

v. Batchelder, 442 U.S. 114, 125, 99 S. Ct. 2198, 2205 (1979), nor does the Double Jeopardy

Clause act as a “bar to the Government’s proceeding with prosecution simultaneously under

the two statutes.” Ball v. United States, 470 U.S. 856, 860, 105 S. Ct. 1668, 1671 (1985).

The reason for concern with multiplicity of charges is that it creates the potential for multiple

punishments or convictions in violation of the Double Jeopardy Clause. State v. Robbins, 32

P.3d 171,182 (Kan. 2001). Thus, courts may cure any double jeopardy problems with

multiplicitous indictments by vacating those convictions that are multiplicitous. See United

States v. Kerley, 544 F.3d 172, 179 (2d Cir. 2008); United States v. Ehle, 640 F.3d 689, 699

(6th Cir. 2011); United States v. Lynn, 636 F.3d 1127, 1139 (9th Cir. 2011); United States v.

Bonilla, 579 F.3d 1233, 1246 (11th Cir. 2009).

¶16    Zink was not subjected to multiple convictions or punishments, so he was not placed

in jeopardy by the allegedly multiplicitous charges. Even if Zink had been convicted on

multiplicitous charges, the District Court could have cured that problem by vacating the


prosecutions and multiple punishments for the same offense. State v. Guillaume, 1999 MT 29, ¶¶ 8,
19, 293 Mont. 224, 975 P.2d 312.”

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offending conviction. Accordingly, Zink’s double jeopardy claim is without merit, and we

need not address whether criminal endangerment is a lesser-included offense of aggravated

assault.

¶17    Did Zink receive ineffective assistance of counsel when his attorney failed to raise the

statutory criteria for alternatives to imprisonment for sentencing non-violent offenders?

¶18    To determine whether an individual has received ineffective assistance of counsel, we

use the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984).      Under this test, the defendant must demonstrate that counsel’s

performance was deficient, and that counsel’s deficient performance prejudiced the

defendant. State v. Miner, 2012 MT 20, ¶ 11, 364 Mont. 1, 271 P.3d 56. Under Strickland’s

second prong, we examine whether there is a reasonable probability that counsel’s lack of

reasonable professional conduct renders the trial result unreliable or the proceedings

fundamentally unfair. Miner, ¶ 12. If an insufficient showing is made regarding one prong

of the test, there is no need to address the other prong. Dawson v. State, 2000 MT 219, ¶ 21,

301 Mont. 135, 10 P.3d 49 (quoting Strickland, 466 U.S. at 697, 104 S. Ct. at 2069). “If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . .

that course should be followed.” Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

¶19    Section 46-18-225, MCA, provides that a sentencing court must weigh alternatives to

imprisonment for non-violent felony offenders, taking into account whether:

               (a) the interests of justice and the needs of public safety truly require
       the level of security provided by imprisonment of the offender in a state
       prison;
               (b) the needs of the offender can be better served in the community or
       in a facility or program other than a state prison;

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               (c) there are substantial grounds tending to excuse or justify the offense,
       though failing to establish a defense;
               (d) the offender acted under strong provocation;
               (e) the offender has made restitution or will make restitution to the
       victim of the offender’s criminal conduct;
               (f) the offender has no prior history of conviction for a criminal act or,
       if the offender has a prior history of conviction for a criminal act, the offender
       has led a law-abiding life for a substantial period of time before the
       commission of the present crime;
               (g) the offender’s criminal conduct was the result of circumstances that
       are unlikely to recur;
               (h) the character and attitude of the offender indicate that the offender is
       likely to commit another crime;
               (i) the offender is likely to respond quickly to correctional or
       rehabilitative treatment; and
               (j) imprisonment of the offender would create an excessive hardship on
       the offender or the offender’s family.

Section 46-18-225(2), MCA.

¶20    Courts have an affirmative duty to consider the § 46-18-225 criteria in sentencing a

non-violent offender. State v. Nelson, 274 Mont. 11, 20, 906 P.2d 663, 668 (1995). While

we would prefer “[e]xplicit, rather than implicit consideration of the criteria,” an absence of

explicit consideration does not render a sentence illegal or incorrect. Nelson, 52 Mont. at 20,

906 P.2d at 668. “The point is not to require some mechanical nod toward § 46-18-225,

MCA, but rather to insure that in the appropriate case the District Court gives real

consideration to . . . a sentence other than imprisonment.” State v. Weisweaver, 2010 MT

198, ¶ 15, 357 Mont. 384, 239 P.3d 952. In State v. Wilson, 2011 MT 277, ¶ 35, 362 Mont.

416, 264 P.3d 1146, a sentencing court did not specifically address the § 46-18-225 criteria

but did address a number of concerns related to the criteria, such as likelihood of

reoccurrence, prior criminal history, and the likelihood of correctional or rehabilitative



                                                8
success. Because those facts spoke directly to the § 46-18-225 criteria, we held that formal

reference to the statute would not have resulted in a different sentence. Wilson, ¶ 35.

¶21    We applied the same reasoning in Weisweaver, where the sentencing court failed to

formally reference § 46-18-225 criteria and counsel did not object to that omission.

Weisweaver, ¶¶ 6, 16. Because the sentencing court considered Weisweaver’s criminal

history, the severity of his addiction, and his need for intensive treatment, we concluded that

the court gave “adequate consideration to the relevant circumstances . . . and to his

susceptibility to alternative sentencing.” Weisweaver, ¶ 16. Since further consideration of

the § 46-18-225 criteria would not have resulted in a different sentence, the defendant could

not show prejudice from counsel’s failure to object on those grounds. Weisweaver, ¶¶ 19-20.

¶22    We conclude that Zink cannot show prejudice from Hinchey’s failure to formally

invoke § 46-18-225, MCA.          Hinchey argued for a probationary sentence instead of

imprisonment and pointed to facts relating to the § 46-18-225 criteria. Although Zink

presented testimony on his good character from co-workers and the potential impact of

Zink’s imprisonment on his elderly parents, the District Court also considered evidence that

Zink had previously been charged with partner assault on Elizabeth and that she feared harm

from him in the future. The Pre-Sentence Investigation report indicated that Zink tried to

justify and minimize his responsibility for the assault, and Zink testified at sentencing that

his actions towards Elizabeth were simply a misunderstanding.                 During the oral

pronouncement of sentence, the court specifically recognized the severity of Zink’s crime.

These facts all speak directly to the criteria in § 46-18-225(2), MCA. Nothing in the record

indicates that the court failed to properly consider facts relevant to those criteria. Zink fails

                                               9
to show how formal invocation of those criteria would have had any chance of success in

changing the court’s decision. Zink suffered no prejudice as a result of Hinchey’s failure to

invoke the statutory criteria in question, and therefore, his IAC claim fails the second prong

of Strickland. Because this claim is easily disposed on Strickland’s second prong, we need

not evaluate whether Hinchey’s representation of Zink was deficient. Strickland, 466 U.S. at

697, 104 S. Ct. at 2069; Dawson, ¶ 21.

                                      CONCLUSION

¶23    Zink was not simultaneously convicted on a lesser and greater offense, and has

suffered no prejudice from his counsel’s conduct at sentencing. Zink’s conviction and

sentence are affirmed.


                                                  /S/ MICHAEL E WHEAT

We Concur:

/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ BETH BAKER




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