                                           No.04-613

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 189


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

WILLIAM PAUL AULD,

              Defendant and Appellant.



APPEAL FROM:         The District Court of the Fourth Judicial District,
                     In and For the County of Missoula, Cause DC 03-325,
                     Honorable John S. Henson, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Chad Wright, Appellate Defender, Helena, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Pamela P. Collins,
                     Assistant Attorney General, Helena, Montana

                     Fred Van Valkenburg, County Attorney; Karen S. Townsend,
                     Deputy County Attorney, Missoula, Montana


                                                       Submitted on Briefs: January 31, 2006

                                                                  Decided: August 16, 2006

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1    William Auld (Auld) appeals the judgment and sentence entered in the Fourth

Judicial District Court, Missoula County, upon a jury verdict finding him guilty of assault

and tampering with a witness. We affirm.

¶2    We consider the following issues on appeal:

¶3    Should this Court exercise plain error review to examine whether the State

improperly combined two instances of tampering with a witness into a single criminal

charge, thereby depriving Auld of his constitutional right to a unanimous jury verdict?

¶4    Did Auld’s counsel render ineffective assistance by stipulating that an official

proceeding was ongoing or about to be commenced and thus concede an element of the

witness tampering charge?

¶5    Did the District Court err by ordering that Auld’s ten-year sentence for tampering

with a witness would run consecutively to Auld’s previous criminal sentence from

Hawaii?

                                     BACKGROUND

¶6    On June 24, 2003, Auld was involved in a bar fight in Missoula’s 10th Street

Tavern with one of the bar’s regulars, George Bruun (Bruun). Auld punched Bruun and

kicked him repeatedly in the head.

¶7    Auld previously had been convicted in 1996 of burglary and theft in the first

degree in Maui County, Hawaii, and sentenced to ten years imprisonment, but he had

been released on parole on May 1, 2003. Auld was on parole at the time of the fight.

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¶8     Detective Joe Gaffney investigated the incident. On June 26, 2003, Detective

Gaffney conducted a telephone interview of Chad Onthank (Onthank), Auld’s roommate

who had witnessed the fight. A few days later, in a conversation with a third party about

the fight in Onthank’s presence, Auld related his version of events. Onthank privately

did not agree with Auld’s version, but he “went along” with it. Auld asked Onthank to

call Detective Gaffney and tell him that Auld and Onthank were not drinking at the bar

on the night of the fight and that Amy Nile, Onthank’s girlfriend who worked at the bar,

had called them there to beat up Bruun and his friend. Auld dialed Detective Gaffney’s

number and handed Onthank the telephone, but Onthank just left a message.

¶9     On July 1, 2003, Auld, having been arrested earlier that day, called Onthank from

the Missoula County jail. During that telephone call, which was recorded, Auld asked

Onthank to tell Rich Miller (Miller), Auld’s parole officer, that Auld and Onthank had

not been drinking on the night of the fight. Auld also requested that Onthank tell the

police that Bruun was about to pull a knife when Auld attacked him. According to

Onthank, neither of these things was true.

¶10    Auld was charged with criminal endangerment, tampering with witnesses or

informants, and assault (Counts I, II, and III, respectively). After a trial on February 13,

2004, Auld was found guilty of the lesser charge of assault under Count I and guilty on

Count II. He was found not guilty on Count III. Auld was sentenced to six months

imprisonment for Count I and ten years imprisonment for Count II, to run concurrently




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with each other but to run consecutively with any sentence imposed by the State of

Hawaii. Auld appeals.

                               STANDARD OF REVIEW

¶11    We articulated the standards for applying plain error review in State v. Finley

(1996), 276 Mont. 126, 137-38, 915 P.2d 208, 215, overruled on other grounds by State

v. Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817:

       [T]his Court may discretionarily review claimed errors that implicate a
       criminal defendant’s fundamental constitutional rights, even if no
       contemporaneous objection is made . . . where failing to review the claimed
       error at issue may result in a manifest miscarriage of justice, may leave
       unsettled the question of the fundamental fairness of the trial or
       proceedings, or may compromise the integrity of the judicial process. . . .
       [W]e will henceforth use our inherent power of common law plain error
       review sparingly, on a case-by-case basis . . . .

¶12    In State v. Worthan, 2006 MT 147, ¶¶ 13-14, 332 Mont. 401, ¶¶ 13-14, ___ P.3d

__, ¶¶ 13-14, we described the applicable standard for reviewing claims of ineffective

assistance of counsel:

               To prevail on a claim of ineffective assistance of counsel, a
       defendant must show that his “counsel’s performance fell below an
       objective standard of reasonableness” and he must demonstrate prejudice,
       i.e., “the existence of a reasonable probability that the result of the
       proceeding would have been different absent counsel’s unprofessional
       errors.” State v. Harris, 2001 MT 231, ¶¶ 18-19, 306 Mont. 525, ¶¶ 18-19,
       36 P.3d 372, ¶¶ 18-19 (citing Strickland v. Washington (1984), 466 U.S.
       668, 104 S.Ct. 2052, 80 L.Ed.2d 674).

              In addition, “[t]he trial record must adequately document a
       challenged act or omission of defense counsel for a defendant to raise an
       ineffective assistance claim on appeal. In addition to documenting the error,
       the record available to this Court on appeal must afford sufficient
       understanding of the reasons for counsel’s act or omission to answer the
       threshold question of whether the alleged error expresses a trial strategy or
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          tactical decision. If the record does not supply the reason for counsel’s act
          or omission, the claim must be raised by petition for post-conviction relief.”
          Harris, ¶ 21 (citations omitted).

¶13       “We review a criminal sentence for legality only.” State v. Miller, 2006 MT

159, ¶ 7, 332 Mont. 472, ¶ 7, _ P.3d _, ¶ 7.

                                         DISCUSSION

¶14       Should this Court exercise plain error review to examine whether the State

improperly combined two instances of tampering with a witness into a single

criminal charge, thereby depriving Auld of his constitutional right to a unanimous

jury verdict?

¶15       Auld contends that the State alleged multiple instances of tampering with a

witness in a single charge. Count II of the Information read as follows:

                 On or about June 24-July 8, 2003, the above-named Defendant,
          knowing that an official proceeding or investigation was pending,
          purposely or knowingly attempted to induce a witness, Chad Onthank, to
          inform falsely by trying to get him to tell authorities that he had not been
          drinking in a bar and that the man that the Defendant had kicked had started
          the fight.

Auld argues that the charge referred to two separate incidents: Auld’s request that

Onthank lie to Detective Gaffney about the circumstances of the fight and Auld’s request

that Onthank lie to Miller about drinking at the bar, in violation of the conditions of his

parole.

¶16       In addition, Auld points out that one element of tampering with a witness is that

the accused must believe that an official proceeding or investigation is ongoing or about

to be commenced. See § 45-7-206, MCA. Auld contends that there were two “official
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proceedings” at issue: the police investigation of the bar fight and the parole officer’s

oversight of Auld’s compliance with the terms of his parole. As a result of this allegedly

improper combination of separate instances of tampering with a witness into one charge,

Auld asserts that his constitutional right to a unanimous jury verdict has been violated

and that this Court should exercise plain error review.

¶17    We reemphasize that defendants should make contemporaneous objections to

perceived errors. Finley, 276 Mont. at 138, 915 P.2d at 215. Auld never raised an

objection to the Information on the basis that it improperly offered alternative means for

the jury to convict on the alleged offense—allowing this matter to proceed to trial and

verdict without bringing the issue to the attention of the District Court—and, further, he

stipulated to the jury instructions. Auld’s contentions and the record fail to persuade us

that declining to review the claimed error for plain error “may result in a manifest

miscarriage of justice, may leave unsettled the question of the fundamental fairness of the

trial or proceedings, or may compromise the integrity of the judicial process.”    Finley,

276 Mont. at 137, 915 P.2d at 215; see also State v. Hill, 2005 MT 216, ¶¶ 25-26, 328

Mont. 253, ¶¶ 25-26, 119 P.3d 1210, ¶¶ 25-26 (declining to exercise plain error review

where defendant failed to object to Information). Therefore, we decline to exercise plain

error review.

¶18    Did Auld’s counsel render ineffective assistance by stipulating that an official

proceeding was ongoing or about to be commenced and thus concede an element of

the witness tampering charge?

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¶19    The following stipulation was read into the record at trial:

       It is stipulated between the parties that in June and July of 2003, the
       defendant, William Auld, was not permitted to go into bars or consume
       alcohol.

              Rich Miller, an employee of a governmental agency was responsible
       for enforcing those rules. Rich Miller began an investigation to see if
       William Auld had violated those rules after the incident at the 10th Street
       Tavern. That investigation is considered an official proceeding as defined
       by Montana State law.

¶20    Auld argues that his trial counsel rendered ineffective assistance by entering into

this stipulation, effectively conceding in the last sentence an element of the offense of

tampering with a witness, which is defined in § 45-7-206, MCA:

             (1) A person commits the offense of tampering with witnesses and
       informants if, believing that an official proceeding or investigation is
       pending or about to be instituted, he purposely or knowingly attempts to
       induce or otherwise cause a witness or informant to:
             (a) testify or inform falsely . . . .

Auld contends that the last sentence of the stipulation “transformed” the stipulation “from

an agreement on the facts to a legal conclusion equivalent to a jury instruction.” In

addition, Auld argues that “[r]ather than shielding the jury from his prior criminal history,

the vague information from the stipulation left the jury to guess about the nature of

Auld’s prior crimes.” The ineffective assistance was exacerbated, Auld posits, because

Miller was permitted to testify at trial.

¶21    Auld’s argument is unavailing. The record reveals that the stipulation was entered

into for strategic reasons, namely so that the jury would not hear that Auld was on parole

at the time the offenses took place. “Counsel’s trial tactics and strategic decisions cannot

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be the basis upon which to find ineffective assistance of counsel.”        Worthan, ¶ 21

(quoting State v. Grixti, 2005 MT 296, ¶ 25, 329 Mont. 330, ¶ 25, 124 P.3d 177, ¶ 25).

Therefore, we affirm the judgment of conviction.

¶22    Did the District Court err by ordering that Auld’s ten-year sentence for

tampering with a witness would run consecutively to Auld’s previous criminal

sentence from Hawaii?

¶23    Auld asserts that the “plain language of the consecutive sentence statute does not

allow a consecutive sentence to be imposed when the previous conviction originates from

a court in another state . . . .”

¶24    The statute at issue is § 46-18-401, MCA, which reads as follows:

              (1) Unless the judge otherwise orders:
              (a) whenever a person serving a term of commitment imposed by a
       court in this state is committed for another offense, the shorter term or
       shorter remaining term may not be merged in the other term; and
              (b) whenever a person under suspended sentence or on probation for
       an offense committed in this state is sentenced for another offense, the
       period still to be served on suspended sentence or probation may not be
       merged in any new sentence of commitment or probation.

               ....

             (4) Separate sentences for two or more offenses must run
       consecutively unless the court otherwise orders.

Auld maintains that the key statutory language in support of his argument is the phrase

“in this state” found in subsections (1)(a) and (1)(b), contending that the statute “simply

permits the imposition of a consecutive sentence in relation to offenses committed in this

state, and sentences imposed by Montana courts.”

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¶25      We disagree that subsection (1) contains the decisive language on this issue.

Instead, we read subsection (4) as clearly indicating that the public policy of Montana is

to have sentences, wherever imposed, run consecutively unless otherwise ordered by a

court. Cf. Miller, ¶ 10 (§ 46-18-401(4), MCA, does not provide that defendant should

receive credit on suspended commitment in Montana for time spent in an Indiana prison

on a separate conviction). Therefore, we affirm the sentence imposed by the District

Court.

¶26      Affirmed.

                                                         /S/ JIM RICE

We concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS



Justice James C. Nelson dissents and concurs.

¶27      I dissent from the Court’s Opinion as to issues one and three and I concur with the

Court’s decision as to issue two.

¶28      Consistent with my positions in State v. Weaver, 1998 MT 167, ¶¶ 22-40, 290

Mont. 58, ¶¶ 22-40, 964 P.2d 713, ¶¶ 22-40; State v. Harris, 1999 MT 115, ¶¶ 35-36, 294

Mont. 397, ¶¶ 35-36, 983 P.2d 881, ¶¶ 35-36 (Nelson, J., concurring); State v. Allum,

2005 MT 150, ¶¶ 59-64, 327 Mont. 363, ¶¶ 59-64, 114 P.3d 233, ¶¶ 59-64 (Nelson, J.,

dissenting); and State v. Gallagher, 2005 MT 336, ¶ 35, 330 Mont. 65, ¶ 35, 125 P.3d
                                          9
1141, ¶ 35 (Nelson, J., concurring), I would reach the specific unanimity instruction issue

via plain error review. Accordingly, to that extent, I do not agree with the Court’s

resolution of issue one.

¶29    As to issue three, I also disagree with the Court’s analysis. It is perfectly clear that

under § 46-18-401(1)(a) and (b), MCA, the only commitments and offenses which are

encompassed within the statute are, respectively, those imposed by a court in this State

and those committed in this State. If the Legislature had envisioned that out-of-state

offenses would be included in the requirements of the statute, it would have said so. The

Court reads § 46-18-401(4), MCA, in isolation from subsection (1). In so doing, the

Court ignores the admonition of § 1-2-101, MCA, that requires that “[w]here there are

several provisions or particulars [of a statute], such a construction is, if possible, to be

adopted as will give effect to all.”

¶30    For these reasons I dissent as to issues one and three. As noted, I concur as to

issue two.


                                                          /S/ JAMES C. NELSON




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