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                                                               No. 00-001

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                            2001 MT 186N


                                                     STATE OF MONTANA,

                                                     Plaintiff and Respondent,

                                                                      v.

                                                    JASPER LEVI PHILLIPS,

                                                     Defendant and Appellant.




                        APPEAL FROM: District Court of the Eighteenth Judicial District,

                                                In and for the County of Gallatin,

                                    The Honorable Thomas A. Olson, Judge presiding.

                                                    COUNSEL OF RECORD:

                                                             For Appellant:

  Alfred F. Avignone, Lisa A. Banick, Garrity, Avignone, Banick & Whetstone, Bozeman, Montana

                                                            For Respondent:

    Joseph P. Mazurek, Montana Attorney General, Tammy K. Plubell, Assistant Montana Attorney
               General; Marty Lambert, Gallatin County Attorney, Bozeman, Montana

                                             Submitted on Briefs: August 2, 2001
                                                Decided: September 7, 2001

                                                                   Filed:

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                                    __________________________________________

                                                                    Clerk



Justice James C. Nelson delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the
following decision shall not be cited as precedent. It shall be filed as a public document with the Clerk
of the Supreme Court and shall be reported by case title, Supreme Court cause number and result to the
State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued
by this Court.

¶2 Jasper Levi Phillips (Phillips) appeals from an order entered by the Eighteenth Judicial
District Court, Gallatin County, denying his Motion to Correct Sentence. We affirm.

¶3 The following issues are presented on appeal:

¶4 1. Is Phillips' sentence illegal because the District Court erred in interpreting and
applying Montana's correctional and sentencing statutes?

¶5 2. Do the procedures used by Montana's courts in maintaining sentencing data violate
Phillips' constitutional rights to due process under the Montana and U.S. Constitutions?

¶6 3. Do Phillips' convictions and sentences for conspiracy and theft violate Montana
statutes and the Montana and U.S. Constitutions?


                                                         BACKGROUND

¶7 By the time Phillips was convicted of burglary in 1995, he had been involuntarily
dismissed from high school and the Job Corps. The District Court deferred sentencing
Phillips on condition he participate successfully in a community-based alternative, which
provided housing and mentoring to Phillips. Within a year, he was involved in a physical
altercation, provided a BB gun for use in a robbery, and failed to complete his chemical
dependency regimen. The State moved to revoke Phillips' deferred sentence, but the
District Court arranged for inpatient treatment in Phillips' mother's home. This program


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failed and he was placed in a pre-release center. This, too, failed and Phillips was placed
in the Montana State Prison (MSP) for 16 months. While at MSP, he received 15
disciplinary reports. He was discharged in June of 1998.

¶8 A year later, Phillips entered guilty pleas to charges of robbery, conspiracy to commit a
second robbery, theft and felony assault resulting from offenses committed only months
after his discharge from prison. Phillips had conspired with others to rob a Pizza Hut in
January 1999. Two other conspirators actually robbed the Pizza Hut while Phillips and
another person stole a pickup. After being stopped by sheriff's deputies, Phillips fired
approximately four shots from his handgun at the officers. On August 31, 1999, the
District Court sentenced Phillips to serve a total of 50 years in MSP, with no time
suspended: 15 years for robbery; 15 years for conspiracy to commit robbery; 10 years for
theft; and 10 years for assault, all sentences to be served consecutively. Phillips replaced
his counsel following the entry of his guilty pleas.

¶9 On October 13, 1999, Phillips filed a motion to correct his sentence with the trial court,
pursuant to § 46-18-117, MCA, asserting that the sentences imposed by the court were in
error or illegal. Phillips claimed: 1) that the District Court failed to sentence him in
accordance with Montana's correctional and sentencing statutes; 2) that the failure to
maintain statutorily-required sentencing data violated his due process rights; and 3) that
his convictions and consecutive sentences for conspiracy to commit robbery of the
Bozeman Pizza Hut and for theft of a vehicle to be used as a getaway car violated
prohibitions against double jeopardy found in § 46-11-410, MCA, and the Montana and U.
S. Constitutions. The District Court denied Phillips' motion and he appeals.

                                                                      DISCUSSION

¶10 1. Is Phillips' sentence illegal because the District Court erred in interpreting and
applying Montana's correctional and sentencing statutes?


¶11 We review a criminal sentence only for legality. State v. Montoya, 1999 MT 180,
¶ 15, 295 Mont. 288, ¶ 15, 983 P.2d 937, ¶ 15. A sentence is legal if it falls within
statutory parameters. State v. Gordon, 1999 MT 169, ¶ 45, 295 Mont. 183, ¶ 45, 983 P.2d
377, ¶ 45.

We review a trial court's interpretation of the law, including questions of statutory
interpretation, to determine whether the court's interpretation is correct. Montoya, ¶ 16

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(citations omitted).

¶12 Phillips concedes that the sentences imposed are within the statutory parameters for
sentences for the offenses of which he was convicted. He argues, however, that Montana's
sentencing and correctional policy set forth in § 46-18-101, MCA, requires the District
Court to sentence him commensurate with sentences imposed on others committing the
same offenses. The court having failed to do so, Phillips contends, his sentence is illegal.
Phillips misstates the law.

¶13 The Legislature has specified that the correctional and sentencing policy of this State
is to:

        (a) punish each offender commensurate with the nature and degree of harm caused
        by the offense;

        (b) protect the public by incarcerating violent offenders and serious repeat offenders;

        (c) provide restitution, reparation, and restoration to the victim of the offense; and

        (d) encourage and provide opportunities for the offender's self-improvement.


Section 46-18-101(2), MCA. This policy is to be achieved pursuant to certain enumerated
principles:

        (a) Sentencing and punishment must be certain, timely, consistent, and
        understandable.

        (b) Sentences should be commensurate with the punishment imposed on other
        persons committing the same offenses.

        (c) Sentencing practices must be neutral with respect to the offender's race, gender,
        religion, national origin, or social or economic status.

        (d) Sentencing practices must permit judicial discretion to consider aggravating and
        mitigating circumstances.

        (e) Sentencing practices must include punishing violent and serious repeat felony

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        offenders with incarceration.

        (f) Sentencing practices must provide alternatives to imprisonment for the
        punishment of those nonviolent felony offenders who do not have serious criminal
        records.

        (g)Sentencing and correctional practices must emphasize that the offender is
        responsible for obeying the law and must hold the offender accountable for the
        offender's actions.

        (h) Sentencing practices must emphasize restitution to the victim by the offender. A
        sentence must require an offender who is financially able to do so to pay restitution,
        costs as provided in 46-18-232, costs of court-appointed counsel as provided in 46-8-
        113, and, if the offender is a sex offender, costs of any chemical treatment.


Section 46-18-101(3), MCA.

¶14 Even a casual reading of § 46-18-101(3), MCA, reflects that all but one of the
sentencing principles are mandatory; that is, they "must" be followed by the sentencing
court. The only exception is the commensurate sentencing factor, which is a "should."
"Should," when used in connection with an obligation or duty, is somewhat weaker than
"ought" and appreciably weaker than "must" and "have to." See Montco v. Simonich
(1997), 285 Mont. 280, 287, 947 P.2d 1047, 1051 (for purposes of statutory construction,
both "shall" and "must" are mandatory); State v. Bartlett (1995), 271 Mont. 429, 432-33,
898 P.2d 98, 100 (the word "shall" in a statute is compulsory). See also Webster's New
American Dictionary 369, 480 (1995) ("ought" expresses obligation or advisability;
"should" expresses obligation or propriety).

¶15 The Legislature chose a word with a significantly different meaning for § 46-18-101(3)
(b), MCA, regarding commensurate sentences, than it did for the other seven factors that
"must" be considered by sentencing courts, clearly reflecting its intent to ascribe a lesser
weight to the commensurate sentences factor. We give words their common meaning and
may not insert into a statute that which has been omitted. Sections 1-2-101 and 106, MCA.

¶16 Moreover, the District Court's failure to assign the commensurate sentences factor the
weight desired by Phillips does not equate to the court giving it no meaningful effect,
Phillips' assertion to the contrary notwithstanding. Indeed, Phillips acknowledges, and the

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record reflects, that the District Court considered the commensurate sentences factor in
sentencing Phillips. Finally, Phillips mistakenly argues that information regarding
commensurate sentences could only be gained from the sentencing data that has never
been maintained under § 46-18-604, MCA, when in fact the statute establishes no such
link.

¶17 Phillips next requests that this Court take judicial notice, pursuant to Rule 201, M.R.
Evid., of certain "facts," which consist of information he compiled and submitted to the
District Court post-sentencing regarding sentences imposed on others for similar crimes.

¶18 Rule 201, M.R.Evid., addresses judicial notice of facts, and provides in pertinent part:

        (b) Kinds of facts. A fact to be judicially noticed must be one not subject to
        reasonable dispute in that it is either (1) generally known within the territorial
        jurisdiction of the trial court or (2) capable of accurate and ready determination by
        resort to sources whose accuracy cannot be reasonably questioned.

        (c) When discretionary. A court may take judicial notice, whether requested or not.

        (d) When mandatory. A court shall take judicial notice if requested by a party and
        supplied with the necessary information.

¶19 Taking judicial notice is generally the act of recognizing the existence and truth of
certain facts. Phillips' facts, as he refers to them, do not meet the criteria set forth in the
statute, if for no other reason than none of the defendants he refers to were charged
collectively with the same crimes as was he, nor is there any information regarding other
statutory factors involved in their sentencing. His interpretation of the information is, as a
result, subject to reasonable dispute, and is, therefore, not capable of accurate and ready
determination from sources whose accuracy cannot be reasonably questioned. While
Phillips asks this Court to take judicial notice of the sentencing data he provided, we will
not do so for the above reasons.

¶20 Moreover, Phillips' sentences were supported by other evidence in that the sentences
were consistent with Montana's correctional and sentencing statutes. Phillips contends the
court refused to take notice of the sentencing information he compiled, but this very
information was presented in his briefs to the courts, and the record shows the information
regarding other participants was the subject of the sentencing court's Reasons for


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Sentence, and later an extended discussion with the court regarding Phillips' motion to
correct sentence. We conclude the information Phillips compiled did not meet the
standards set forth in Rule 201, M.R.Evid. But even if it did, the District Court did not err
when it sentenced Phillips consistent with the policies and factors set forth in § 46-18-101,
MCA, and the statutes setting forth the sentences for the specific crimes to which Phillips
pleaded guilty.

¶21 We conclude from the record that the District Court gave all the sentencing factors
proper consideration as required under § 46-18-102(3)(b), MCA, and sentenced Phillips to
terms of incarceration within statutory parameters. Nothing more is required. Because the
District Court did not err in interpreting and applying Montana's correctional and
sentencing statutes, we hold that Phillips' sentences are legal and not in error.

¶22 Because we review sentences only for legality, and because we have determined these
sentences are legal, further arguments relating to sentencing equity must be made to the
Sentence Review Division. See §§ 46-18-901 through 905, MCA; State v. Montoya, 1999
MT 180, ¶ 15, 295 Mont. 288, ¶ 15, 983 P.2d 937, ¶ 15.

¶23 2. Do the procedures used by Montana's courts in maintaining sentencing data violate
Phillips' constitutional rights to due process under the Montana and U.S. Constitutions?

¶24 Section 46-18-604, MCA, sets forth detailed sentencing data which must be forwarded
to the clerk of this Court by the clerks of Montana's district courts. The clerk of this Court
is then required to compile the reports and distribute the data to district court clerks and
other interested parties annually. These statutory requirements have never been met.

¶25 Phillips argues that the failures to compile and submit the statutorily required
sentencing data to a central repository, and of the District Court to consider the data,
violate his federal and state constitutional rights to due process. For Phillips to prevail on
this argument we would have to agree with his premise under Issue 1 that the courts must
consider and then impose sentences consistent with this data at sentencing. We have
rejected Phillips' arguments in that regard.

¶26 Phillips mistakenly argues that § 46-18-101, MCA, confers a constitutional right to a
commensurate sentence. As we concluded in Issue 1, the commensurate sentence factor is
but one of eight broad sentencing factors to achieve the correctional and sentencing
policies set forth by the Legislature, and is singularly to be accorded the least weight of


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the eight factors.

¶27 In support of his argument, Phillips cites State v. Goulet (1996), 277 Mont. 308, 921
P.2d 1245, for the premise that it is fundamentally unfair for a state to fail to afford its
citizens rights provided by that state's statutory laws. Goulet actually stands more for a
validation by the U.S. Supreme Court of this Court's historic enforcement of Montana's
sentencing parameters, which is what we are faced with here, and militates in favor of the
State's position in this case. In Goulet, the defendant committed the offense of felony
escape and pleaded guilty thereto. The sentence imposed was consistent with
recommendations of the probation officer and prosecutor, and within the statutory
parameters for his crimes. The trial court took into consideration Goulet's prior record and
long history of contact with the legal system as a juvenile, and this Court affirmed the
sentence imposed by the District Court. Goulet, 277 Mont. at 311-12, 921 P.2d at 1247.
Here, Phillips committed the crimes for which he was charged and to which he pleaded
guilty. The sentence imposed was consistent with the recommendations of the probation
officer and within the statutory parameters for his crimes. The District Court noted his
prior record and long history with the legal system as a juvenile.

¶28 Goulet is underpinned by our decision in State v. Krantz (1990), 241 Mont. 501, 788
P.2d 298, cert. denied by Krantz v. Montana (1990), 498 U.S. 938, 111 S.Ct. 341, 112 L.
Ed.2d 306. In Krantz, the U.S. Supreme Court declined to grant certiorari to review this
Court's application of federal and Montana constitutional due process analysis. In that
case, we adopted the rule that the State need not prove beyond a reasonable doubt every
fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or
mitigating circumstance affecting the degree of culpability or the severity of punishment.
Krantz, 241 Mont. at 508-10, 788 P.2d at 302-04 (citing McMillan v. Pennsylvania (1986),
477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67) (emphasis added). While various aspects of
McMillan have since been refined, this principle has not been modified. It has most
recently been reaffirmed by the U.S. Supreme Court when it denied certiorari in United
States v. Segien (1997), 114 F.3d 1014, cert. denied by Segien v. United States (1998), 523
U.S. 1024, 118 S.Ct. 1310, 140 L.Ed.2d 474. The Segien court also noted that "the Due
Process Clause protects [criminal defendants] against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with which he is
charged." In re Winship (1970), 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed. 2d 368
(emphasis added). "However, facts impacting the severity of a sentence need not be
proven beyond a reasonable doubt . . . ." Patterson v. New York (1977), 432 U.S. 197, 210,
214 & n.15, 97 S.Ct. 2319, 2327, 2329 & n.15, 53 L.Ed.2d 281.

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¶29 The unwillingness of the U.S. Supreme Court to deem sentencing information worthy
of the level of due process protection Phillips requests is consistent with our own. We
have also stated, entirely consistent with this analysis, that Montana recognizes that due
process applies to sentencing, but the defendant's liberty interest during sentencing is less
than that interest during trial. The process that is due, therefore, is not as great as that
required by the substantive criminal charges. The defendant is entitled to reasonable notice
and an opportunity to be heard during sentencing.

State v. Miller, 1998 MT 177, ¶ 42, 290 Mont. 97, ¶ 42, 966 P.2d 721, ¶ 42.

¶30 The sentencing information at issue here relates solely to the severity of sentencing,
and has no bearing on Phillips' actual conviction. Phillips received adequate notice and
was heard during sentencing. Moreover, under § 46-18-101, MCA, the sentencing
information at issue here is to be assigned the least weight of all sentencing factors. The
statute in no way implies or states that the only possible source for commensurate sentence
information is the information called for under § 46-18-604, MCA. The court referenced
its familiarity with the sentences imposed on others perpetrating these crimes and did not
err in the way it did so. The court stated in its Order:

        The undersigned judge, having presided over criminal sentencings for almost 17
        years, has both recollections of sentencing other defendants in Gallatin County and a
        strong sense of the type and length of sentences meted out against other defendants
        in the state of Montana. . . . [T]he court considered in this case, among other factors,
        the length of sentence to be imposed on defendant. . . . The availability of statewide
        sentencing statistics would not have changed the court's reasons for sentencing this
        defendant.

The lack of the sentencing information called for under § 46-18-604, MCA, does not
implicate Phillips' constitutional rights to due process as he asserts. As a result, we
conclude that the procedures used by Montana's courts in maintaining sentencing data do
not violate Phillips' constitutional rights to due process under either the Montana or U.S.
Constitutions.

¶31 Moreover, Phillips has failed to demonstrate that any prejudice resulted from the fact
that the State has not compiled sentencing data under § 46-18-604, MCA. Again, the trial
court specifically noted that additional data regarding sentences imposed on others around
the State would not have affected in any way the sentences earned by Phillips for his

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crimes, for which he entered voluntary and intelligent pleas of guilty, and which fall
within statutory parameters. The court properly reviewed the requisite sentencing factors
and properly exercised its statutory discretion.

¶32 Finally, the record does not reflect that Phillips requested the information required by
§ 46-18-604, MCA, at the time of his original sentencing, but rather that he raised the
issue for the first time when he challenged the correctness and legality of his sentence
under § 46-18-117, MCA. Arguably, and notwithstanding that we have addressed Phillips'
arguments, he has not even properly preserved this issue for appellate review.

¶33 We conclude that Phillips' constitutional rights to due process under the Montana and
U.S. Constitutions have not been violated by the manner in which the State maintains
sentencing data.

¶34. Do Phillips' convictions and sentences for conspiracy and theft violate Montana
statutes and the Montana and U.S. Constitutions?

¶35 Phillips contends that his convictions and sentences for conspiracy and theft violate §
46-11-410(2), MCA, which prohibits convictions of more than one offense under certain
circumstances. He also contends that his convictions violate the double jeopardy
provisions of both the Montana and U.S. Constitutions.

¶36 Phillips argues that his claims that his convictions and sentences for the crimes of
conspiracy and theft violate provisions of the state and federal constitutions, and § 46-11-
410(2)(b), MCA, were not waived because they raise jurisdictional defects or defenses
which could be determined from the face of the record before the court. Phillips does not
clearly articulate the jurisdictional defects or defenses he claims are present, and only
raises this issue for the first time in his reply brief to this Court. However, since the
defects would be obvious from the record, we will address his claims.

¶37 The core of Phillips' argument is that he was sentenced once for the theft of the pickup
when he was sentenced for conspiracy to commit robbery of the pizza parlor and a second
time for the same theft when he was sentenced on his conviction for the substantive
offense of theft of the pickup. His argument as a whole is circular and would lead to
absurd results. Under his reasoning, had he committed murder while stealing the pickup,
as he nearly did when he shot at the deputies in pursuit of him, he would be immune from
prosecution for the murder as it was merely an act in furtherance of the conspiracy.


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¶38 The conspiracy to commit the robbery and the theft were two separate criminal acts.
The conspiracy charge did not stem from a conspiracy to steal the pickup. The conspiracy
charge stemmed from the conspiracy to rob the pizza parlor. That the theft of the pickup
was listed as one of ten overt acts in furtherance of the conspiracy does not negate the
import of the other nine acts in furtherance of the conspiracy, nor does it somehow convert
the substantive offense of the pickup theft into a legally inconsequential act as argued by
Phillips. Phillips and another individual stole the truck without the knowledge of the
robbery actually occurring at the Pizza Hut. Two other individuals completed the robbery
without the benefit of the stolen get-away vehicle. The fact that there was an agreement to
steal a vehicle to effectuate a successful escape from the robbery does not mean that
Phillips cannot be held accountable for this separate conduct. More importantly, Phillips
was convicted of the conspiracy to commit robbery of the Pizza Hut, not the robbery itself.
The District Court correctly concluded that § 46-11-410(2), MCA, was not violated
because the conspiracy to rob the Pizza Hut was not a form of preparation to commit theft
of the pickup.

¶39 Phillips also argues that his convictions and sentences for conspiracy and theft violate
the double jeopardy provisions of both the Montana and U.S. Constitutions. To that end,
Phillips correctly points out that Article II, Section 25 of the Montana Constitution
protects persons from multiple prosecutions for offenses arising out of the same
transaction and multiple punishments imposed at a single prosecution for the same
offense. See State v. Guillaume, 1999 MT 29, ¶ 8, 293 Mont. 224, ¶ 8, 975 P.2d 312, ¶ 8
(citations omitted). However, Phillips incorrectly claims that his convictions for
conspiracy and theft constitute multiple punishments for the same offense.

¶40 Phillips claims that he was made to suffer twice for the single act of the theft of the
pickup and he relies on Guillaume for his contention that this was a violation of the double
jeopardy provision. Guillaume, however, does not lend support to Phillips' argument. We
held in Guillaume that the application of a weapon enhancement statute to a felony
conviction where the underlying offense required proof of the use of a weapon violated the
double jeopardy provision of Article II, Section 25 of the Montana Constitution.
Guillaume, ¶ 16. We noted in Guillaume that the only fact which raised Guillaume's
charge from a misdemeanor assault to a felony assault was the use of a weapon. Thus,
when the weapon enhancement statute was applied to Guillaume's felony assault
conviction, he was subjected to double punishment for the use of a weapon: once when the
charge was elevated from misdemeanor assault to felony assault, and again when the
weapon enhancement statute was applied. Guillaume, ¶ 18.

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¶41 In the case sub judice, the District Court correctly concluded that the offense of theft
and the offense of conspiracy to commit robbery have distinct elements which require
proof of a fact that the other does not. To convict Phillips of conspiracy, the State had to
prove that Phillips, with the purpose that an offense be committed, agreed with another to
the commission of that offense and either Phillips or his co-conspirator completed an act
in furtherance of that offense. Section 45-4-102, MCA. To convict Phillips of theft, the
State had to prove that Phillips obtained or exerted unauthorized control over the property
of another. Section 45-6-301, MCA. Hence, as the District Court noted, Phillips' conduct
in committing conspiracy went beyond the one act of stealing the pickup and he could be
convicted of the conspiracy without considering the act of stealing the pickup. Likewise,
stealing the pickup was a separate and completed act which did not require proof of any
agreement between Phillips and others.

¶42 Accordingly, we hold that Phillips' convictions and sentences for conspiracy and theft
do not violate § 46-11-410(2), MCA, and the double jeopardy provisions of the Montana
and U.S. Constitutions.

¶43 Affirmed.


                                                         /S/ JAMES C. NELSON

                                                                   We Concur:


                                                              /S/ JIM REGNIER

                                                   /S/ W. WILLIAM LEAPHART

                                                         /S/ PATRICIA COTTER

                                                                  /S/ JIM RICE




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