                                                                                             March 22 2016


                                          DA 15-0409
                                                                                          Case Number: DA 15-0409

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 71N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CHAD K. REIMER,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Twelfth Judicial District,
                        In and For the County of Hill, Cause No. DC-89-010
                        Honorable John C. McKeon, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad K. Reimer (self-represented), Deer Lodge, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General, Helena, Montana

                        Gina Dahl, Hill County Attorney, Havre, Montana



                                                    Submitted on Briefs: February 17, 2016
                                                               Decided: March 22, 2016


Filed:

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

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     In 1989, the Twelfth Judicial District Court, Hill County, convicted Chad K.

Reimer of mitigated deliberate homicide pursuant to a plea agreement and sentenced him

to forty years in prison with an additional fifteen years for his designation as a persistent

felony offender (PFO) and an additional four years for a weapons enhancement. In 2015,

this Court granted Reimer’s habeas corpus petition and ordered resentencing due to the

separate PFO sentence.        After holding a new sentencing hearing and considering

extensive evidence, the District Court resentenced Reimer to fifty-five years in prison,

and modified the weapons enhancement to eight years with four years suspended.

Reimer appeals, challenging the modification to the weapons enhancement sentence on

two constitutional grounds.

¶3     We review de novo whether a district court violated a defendant’s constitutional

rights at sentencing. State v. Haldane, 2013 MT 32, ¶ 17, 368 Mont. 396, 300 P.3d 657.

¶4     Reimer argues that the District Court’s resentencing on the weapons enhancement

violated Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). A violation of

Apprendi is a violation of a defendant’s Due Process right to have a jury determine that

he “‘is guilty of every element of the crime with which he is charged, beyond a

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reasonable doubt.’” Apprendi, 530 U.S. at 476–77, 120 S. Ct. 2356–57 (citing United

States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 2313 (1995)). Apprendi requires

that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury . . . .”

Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362–63. The United States Supreme Court has

clarified “that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a

judge may impose solely on the basis of the facts reflected in the jury verdict or admitted

by the defendant.” Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537

(2004) (emphasis in original). When, as here, the defendant admits to using a firearm

when committing a crime, Apprendi permits a district court to subject a defendant to an

additional sentence for a weapons enhancement. Blakely, 542 U.S. at 303, 124 S. Ct. at

2537. Reimer admitted to using a firearm in his plea agreement. The District Court

relied on Reimer’s admission in applying the weapons enhancement sentence. Therefore,

the court did not increase the penalty beyond the prescribed statutory maximum in

violation of Apprendi.

¶5     Reimer claims that the District Court’s resentencing on the weapons enhancement

violates the Double Jeopardy Clause of the United States and Montana Constitutions

because the court failed to articulate a reason for increasing the sentence. The United

States Supreme Court has addressed whether a defendant can receive a harsher sentence

when being sentenced for a second time. North Carolina v. Pearce, 395 U.S. 711,

89 S. Ct. 2072 (1969). The Court held that “neither the double jeopardy provision nor the

Equal Protection Clause imposes an absolute bar to a more severe sentence upon

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reconviction.” Pearce, 395 U.S. at 723, 89 S. Ct. at 2079. The Due Process Clause of

the Fourteenth Amendment to the United States Constitution, however, prevents a court

from imposing a harsher sentence vindictively, that is, in retaliation for the defendant’s

choice to pursue an appeal. Pearce, 395 U.S. at 725, 89 S. Ct. at 2080; State v. Hubbel,

2001 MT 31, ¶ 26, 304 Mont. 184, 20 P.3d 111 (overruled on other grounds by State v.

Hendricks, 2003 MT 223, 317 Mont. 177, 75 P.3d 1268) (reviewing a district court’s

imposition of a harsher sentence following retrial and finding that the resentencing was

not vindictive and not a violation of Due Process). A court rebuts the presumption of

vindictiveness when increasing a sentence if the court affirmatively offers objective

reasons to justify the increased sentence. Pearce, 395 U.S. at 726, 89 S. Ct. at 2081.

¶6     As the appellant, Reimer has a duty to provide this Court “with a record sufficient

to enable it to rule upon the issues raised.” M. R. App. P. 8(2). Reimer failed to provide

a transcript of the sentencing hearing. Therefore, he has not presented this Court with a

record sufficient to determine whether the District Court acted vindictively in increasing

the weapons enhancement sentence. The clerk of court’s minutes from the sentencing

hearing show that the District Court considered factors such as Reimer’s criminal history,

his behavior in prison, the circumstances of the crime, and psychological evaluations.

These are appropriate factors to consider and indicate that the court did not act

vindictively in resentencing on the weapons enhancement. Hubbel, ¶¶ 29–30 (providing

examples of “constitutionally legitimate” reasons for increasing a sentence upon

reconviction). Therefore, in the absence of a record showing otherwise, Reimer has not

established a Due Process violation.

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¶7     Finally, Reimer asserts that resentencing on the weapons enhancement violates

§ 46-1-401(1)(a), MCA, because the enhancing fact did not appear in the amended

information. Reimer waived his right to bring this challenge when he failed to raise it in

the District Court. Section 46-20-104, MCA; State v. Kotwicki, 2007 MT 17, ¶ 22,

335 Mont. 344, 151 P.3d 892 (holding that the Court will not review an unpreserved

objection to a sentence).

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. This appeal

decides no constitutional issues, no issues of first impression, and does not establish new

precedent or modify existing precedent.

¶9     The District Court did not violate Reimer’s constitutional rights when it

resentenced him. Its judgment is affirmed.


                                                 /S/ BETH BAKER

We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ MICHAEL E WHEAT




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