Fitzpatrick v. State , 194 Mont. 310 ( 1981 )

CHIEF JUSTICE HASWELL

delivered the opinion of the court.

State of Montana appeals from the Big Horn County District Court’s denial of the State’s motion to dismiss a petition for post-conviction relief. Petitioner cross-appeals from the District Court’s denial of his request for an evidentiary hearing on his post-conviction petition.

Bernard Fitzpatrick (petitioner) was convicted of deliberate homicide, aggravated kidnapping, robbery, and sentenced to death in 1975. This Court reversed and remanded for a new trial. State v. Fitzpatrick (1977), 174 Mont. 174, 569 P.2d 383. After a second trial, petitioner was convicted of the same offenses and again sentenced to death. This Court affirmed. State v. Fitzpatrick (1980), [186 Mont. 187,] 606 P.2d 1343, 37 St.Rep. 194, cert. denied, 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 118. Fitzpatrick petitioned the United States Supreme Court and was denied certiorari on the above case and on Fitzpatrick v. Sentence Review Division of the Supreme Court of Montana (1980), 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 119.

On November 6, 1980, petitioner filed a post-conviction relief petition in District Court, Big Horn County. The State moved to dismiss, alleging that post-conviction relief, pursuant to § 46-21-101 et seq., MCA, is not available to a defendant who has been sentenced to death. The district judge denied the State’s motion to dismiss on that ground, but did dismiss the petition on all claims of petitioner except as to his claim in “paragraph 8(c)” of the petition, which alleged ineffective assistance of counsel. The district judge granted petitioner leave to amend “8(c)” in order to set out his claim more specifically. On February 4, 1981, the District Court denied petitioner’s request for an evidentiary hearing on the question of ineffective assistance, ruling that the allegations in the proposed amended petition were conjectural and speculative.

The State appeals from the District Court’s ruling which in effect allows post-conviction relief to persons under sentence of death. Petitioner cross-appeals from the denial of an evidentiary hearing and the denial of relief from his conviction and sentence.

The State raises one issue on appeal:

1)To what extent may a person sentenced to death challenge his conviction and sentence under Montana’s Post-conviction Relief Act when he has previously been afforded a direct appeal of his conviction under the automatic review provisions of §§ 46-18-307 through 46-18-310, MCA?

Petitioner raises 14 issues in his cross-appeal which we will address as follows:

1) Does the doctrine of res judicata bar reconsideration of constitutional claims raised by petitioner on direct appeal to this Court?

2) Did the District Court err in dismissing seven claims on their merits (discussed below) without requiring an evidentiary hearing?

3) Did the District Court err in ruling that six claims (discussed below) should be dismissed as a matter of law?

The district judge ruled as a matter of law that death row prisoners are not precluded from bringing a post-conviction petition pursuant to §§ 46-21-101 et seq., MCA. The State argues that the automatic review provisions of §§ 46-18-307 through 46-18-310, MCA, take the place of the post-conviction statutes and lend the finality to review which must exist if a defendant sentenced to death is ever to have his statutory sentence imposed. Petitioner points out that the statute, on its face, declares that post-conviction relief is available to anyone “adjudged guilty of an offense.” He also argues that to hold otherwise would deny petitioner the equal protection of the laws. We find petitioner’s arguments persuasive.

This precise issue was raised by Dewey Coleman in his appeal to this Court from a Rosebud County District Court’s dismissal of his petition for post-conviction relief. In that appeal, decided by this Court August 28, 1981 [38 St.Rep. 1352], [194 Mont. 428,] we held that the statute is clear on its face in providing this remedy to any “person adjudged guilty of an offense.” We discussed there the interest that the State has in the finality of a sentence, but we also recognized that had the legislature intended that the post-conviction statutes apply only to defendants convicted of non-capital offenses, the legislature would have expressed that intent in the statute. See Coleman v. State (1981) [194 Mont. 428,] [38 St.Rep. 1352], 633 P.2d 624.)

Based on the foregoing, we conclude that the district judge in this case properly denied the State’s motion to dismiss petitioner’s post-conviction relief petition.

The district judge granted the State’s motion to dismiss six of petitioner’s claims on the ground that the claims had been previously decided on the merits and were res judicata. Petitioner admits that the issues have been adjudicated but contends that res rudicata should not apply here because:

“(1) The Due Process clause of the Fourteenth Amendment requires greater reliability of judgments in capital cases; and (2) the previously adjudicated issues were decided incorrectly.”

This Court has not specifically held that res judicata does not apply to post-conviction relief procedures but the Court did note in dictum in In re William McNair (1980), [189 Mont. 321,] 615 P.2d 916, 917, 37 St.Rep. 1487, 1489, that in post-conviction procedures “as in habeas corpus, there is no statute of limitations, no res judicata, and ... the doctrine of laches is inapplicable,” citing Heflin v. United States (1959), 358 U.S. 415, 420, 79 S.Ct. 451, 454, 3 L.Ed.2d 407, 411 (Stewart, J. concurring) and Connors v. United States (9th Cir. 1970, 431 F.2d 1207. But despite the fact that res judicata does not prevent the bringing of repeated petitions in federal court, the doctrine does apply insofar as it precludes inquiry into previously litigated grounds. The United States Supreme Court set out the considerations which go into determining those situations in which res judicata may preclude further litigation:

“Where a trial or appellate court has determined the federal prisoner’s claim, discretion may in a proper case be exercised against the grant of a § 2255 [post-conviction relief] hearing. Section 2255 provides for hearing ‘[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief...’ In Sanders v. United States, 373 U.S. 1 (1963), we announced standards governing the determination whether a hearing should be ordered in the case of a successive motion under § 2255. Similarly, where the trial or appellate court has had a ‘say1 on a federal prisoner’s claim, it may be open to the § 2255 court to determine that on the basis of the motion, files, and records, ‘the prisoner is entitled to no relief.’ See Thornton v. United States, 125 U.S.App.D.C. 114, 125, 368 F.2d 822, 833 (1966) (dissenting opinion of Wright, J.).” Kaufman v. United States (1968), 394 U.S. 217, 227, n.8, 89 S.Ct. 1068, 1074-1075, n.8, 22 L.Ed.2d 227, 238, n.8.”

The standards as set out in Sanders provide:

Controlling weight may be given to denial of a prior application ... for § 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.” Sanders v. United States (1963), 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148, 161.

In Coleman, supra, we approved the Sanders restrictions, holding that res judicata would apply in this State insofar as the doctrine limits relitigation of previously determined issues; but it cannot be invoked by the State so as to deprive a litigant of the right to file a successive petition, if the petitioner has a new basis or ground for coming before the court. See Coleman, supra. In the case at bar, the district judge concluded that the six previously litigated issues should not be reconsidered. We will not disturb his finding absent a clear showing of abuse of discretion. Coleman, supra.

Seven claims set forth by Fitzpatrick in his post-conviction relief petition were dismissed without evidentiary hearings by the District Court. We determine that an evidentiary hearing is necessary on petitioner’s claim that he was denied effective assistance of counsel both at trial and at sentencing. In his petition, Fitzpatrick alleged that his court-appointed counsel failed to adequately investigate and prepare a defense, and that he was unfamiliar with critical areas of the applicable law. He cited numerous and substantial facts to support his allegations, which were found to be speculative and conjectural by the district judge.

Petitioner is entitled to have at his trial “effective assistance of counsel acting within the range of competence demanded of attorneys in criminal cases.” State v. Rose (1980), [187 Mont. 74,] 608 P.2d 1074, 1081, 37 St.Rep. 642, 649-50. From the Information presented in Fitzpatrick’s petition, we cannot say, as the district judge did, that “the files and records of the case conclusively show that the petitioner is entitled to no relief...” Section 46-21-201(1), MCA. Many of the errors of which petitioner complains involve failures of counsel to act, i.e., omissions rather than commissions, and a mere review of the record cannot show that petitioner is entitled to no relief on these grounds.

We find an abuse of discretion in the district judge’s dismissal of these claims. We do not hold that petitioner was denied effective assistance of counsel, but we do find that his allegations were sufficient to require an evidentiary hearing on the issue.

The next claim set forth by petitioner is that he was denied his right to a fair and impartial jury. The district judge ruled that a hearing was not necessary on this issue, in that the claim was based only on conjecture and speculation with no basis in the record. The judge’s review of the claims set forth in the petition indicate that the specific errors alleged by petitioner narrowed down to prejudicial publicity of petitioner’s previous conviction, and that one juror had sat on the previous trial of petitioner. The State contends that the jury passed muster under Irvin v. Dowd (1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751.

Irvin, supra, requires that the jury render a verdict based only on the evidence presented in court. However, the Supreme Court recognized that many jurors come into court with preconceived notions based on prior publicity. This, according to the court, does not prevent a fair trial if the jurors can lay aside these notions. Irvin, supra, 366 U.S. at 722-723, 81 S.Ct. at 1642-1643, 6 L.Ed.2d at 756.

The district judge reviewed the transcript of voir dire in this case, and determined that the publicity did not have a prejudicial effect. The jurors were questioned as a whole, and many individually, as to their attitudes resulting from the trial’s publicity. The apparent result of the questioning was that nearly all jurors had heard of the case, but all agreed that they could decide the case on the evidence presented. No specific instance of a prejudiced juror was presented with the petition for post-conviction relief. This Court will not presume prejudice; it is incumbent on defendant to bring specific evidence of prejudice before the Court. State v. LaMere (1980), [190 Mont. 332,] 621 P.2d 462, 465, 37 St.Rep. 1936, 1940.

Petitioner also alleges error in that one juror had served on his first jury. This reference to an earlier trial came out when jurors were being questioned as to knowledge of any witnesses. The questions show that one juror — who was eliminated from sitting in this trial — had been a juror in the trial of Gary Radi, a codefendant of Fitzpatrick; she had not been involved in Fitzpatrick’s first trial. The fact that there was an earlier trial of Fitzpatrick was clearly before the jury, and the State questioned the jurors as to the effect of this information. Individual jurors expressed concern for the problems of possible prejudice from knowing that Fitzpatrick had been previously tried, but no juror expressed the view that he or she could not make an impartial decision. And again, petitioner sets forth no facts showing actual prejudice existing in any one juror. What he wanted the court to do, according to the district judge, was to “pierce the veil of the jury deliberations” to try to find that the decision was based on bias and prejudice. Such an inquiry is not proper in this case. See State v. O’Brien (1907), 35 Mont. 482, 503, 90 P. 514, 521; McDonald v. Pless (1914), 238 U.S. 264, 267-269, 35 S.Ct. 783, 784-785, 59 L.Ed. 1300, 1302-1303.

We find that the district judge properly denied an evidentiary hearing on this issue. No evidence presented to the court showed any bias or prejudice existing in the jury verdict.

The next issue which requires an evidentiary hearing, according to petitioner, is that of whether petitioner was denied meaningful appellate sentence review. He contends that this Court, in its review of his sentence pursuant to § 46-18-307, MCA, failed to look at the transcript of the sentencing hearing. He also faults this Court for not considering the evidence submitted by petitioner, which set out a compilation of sentences imposed for crimes committed throughout the State. Based on the foregoing, he claims that his sentence should be overturned for being arbitrary and disproportionate.

The State argues that petitioner received meaningful review through the Court’s comparison of petitioner’s sentence with that of other capital defendants. See State v. Fitzpatrick, supra, 606 P.2d at 1361-1363, 37 St.Rep. at 217-218. Such a comparison is sufficient, according to the State. We agree and find that our review of petitioner’s sentence was sufficient.

The Montana Codes require this Court to automatically review the imposition of a death sentence. Section 46-18-307, MCA. The Court is required to look at the following factors in determining the propriety of the death sentence:

“(1) whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;

“(2) whether the evidence supports the judge’s finding of the existence or nonexistence of the aggravating or mitigating circumstances enumerated in 46-18-303 and 46-18-304; and

“(3) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. The court shall include in its decision a reference to those similar cases it took into consideration.” Section 46-18-310, MCA.

Petitioner does not attack the statutes, but rather disputes that this Court adequately considered the proportionality of his sentence. He directs us to the language of the United States Supreme Court in Gregg v. Georgia (1976), 428 U.S. 153, 198, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859, 888, wherein the Court set forth the importance of appellate review in

“comparing] each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate.”

The district judge who considered the petition for post-conviction relief noted in his findings:

“The Court [Montana Supreme Court] considered the only two Montana cases involving aggravated kidnapping resulting in the death of the victim, and found that the defendant’s case was not excessive or disproportionate to the penalty imposed in similar cases. The Court noted that its comparison of cases was limited to an examination of McKenzie and Coleman, as they are the only cases arising in Montana since the effective date of the aggravated kidnapping statute.”

We noted in our first review of petitioner’s sentence, as did the district judge, that there were few comparable cases, but that our review procedure encompassed those cases. Such a comparison is adequate. See Gregg, supra, 428 U.S. at 204, n 56, 96 S.Ct. at 2940, n.56, 49 L.Ed.2d 892, n.56; Proffitt v. Florida (1975), 428 U.S. 242, 259, n.16, 96 S.Ct. 2960, 2970, n.16, 49.L.Ed.2d 913, 927, n.16; Spinkellink v. Wainwright (5th Cir. 1978), 578 F.2d 582, 604-606; cert. denied 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796; State v. Coleman (1979), [185 Mont. 299,] 605 P.2d 1000, 1020-1021, 36 St.Rep. 1134, 1155-1156, cert. denied, 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831. The compilation of data submitted by petitioner from other district courts in the State was not relevant to our sentencing inquiry. The data did not include cases comparable to McKenzie, (1978) 177 Mont. 280, 581 P.2d 1205, Coleman, or the instant case, which formed the basis for our consideration. It was not error to consider only these cases.

We also dispute petitioner’s allegation that this Court did not review the transcript from the sentencing hearing. The district judge correctly noted that “the Montana Supreme Court directed the District Court to transmit the transcript of the sentencing proceedings in this cause.” The record of that hearing was before us, and was considered by this Court in reviewing the sentence. There was no error.

Petitioner next claims that his sentence was imposed arbitrarily and discriminatorily, and that an evidentiary hearing was necessary in order to elicit the facts to show that arbitrary sentencing exists in Montana. He also contends that the statutes apply discriminatorily against “impoverished male defendants accused of killing Caucasians,” and thus are violative of his Eighth and Fourteenth Amendment rights. The district judge held that the statutes are constitutional, as drawn, based on our decisions in McKenzie, supra, Coleman, supra and on Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. He further found that petitioner had not alleged sufficient facts to require an evidentiary hearing on the question of discriminatory sentencing. We agree.

The death penalty statutes, as drawn, were enacted to cure the arbitrariness that was found to be inherent in the Georgia statutes, as identified in Furman, supra. See State v. McKenzie (1978), 177 Mont. 280, 318, 581 P.2d 1205, 1227. Alater Georgia statute, and one similar to Montana’s was found to preclude arbitrary and capricious sentencing. The Supreme Court noted in Gregg, supra, 428 U.S. 195, 96 S.Ct. at 2935, 49 L.Ed. at 887, that concerns for arbitrariness can be met “by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance.”

The Florida statute was found to be constitutional on its face by the same court in Proffitt, supra:

“Under Florida’s capital-sentencing procedure, in sum, trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life. Moreover, their decisions are reviewed to ensure that they are consistent with other sentences imposed in similar circumstances. Thus, in Florida, as in Georgia, it is no longer true that there is ‘ “no meaningful basis for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.” ’ Gregg v. Georgia, at 188, 49 L.Ed.2d 859, 96 S.Ct. 2909, quoting Furman v. Georgia, 408 U.S. at 313, 33 L.Ed.2d 346, 92 S.Ct. 2726 (White, J., concurring). On its face the Florida systems thus satisfies the constitutional deficiencies identified in Furman.” Proffitt, supra, 428 U.S. at 253, 96 S.Ct. at 2967, 49 L.Ed.2d at 923.

See also Spinkellink, supra, 578 F.2d at 604-606, which interprets the United States Supreme Court decision in Proffitt, supra, to mean that by instituting sentencing procedures which focus on the character of the defendant and the circumstances of the crime, the arbitrariness is conclusively removed from sentencing and no case by case review need be made on this question.

The Montana sentencing statutes are likewise drawn so as to prevent arbitrary sentencing. We reaffirm our holding that they are constitutional. McKenzie, 177 Mont. at 320, 581 P.2d at 1228-29; Coleman, _Mont. at_, 605 P.2d at 1015-1017, 36 St.Rep. at 1148-1151.

As to the claim that the death penalty statutes are discriminatory, we find the reasoning of the Fifth Circuit in Spinkellink, supra; to be persuasive. That court discussed the cases of Washington v. Davis (1976), 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597, and Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977), 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 and noted that disproportionate impact of a facially neutral law will not make the law unconstitutional, unless a discriminatory intent or purpose is found. Spinkellink, supra, 578 F. 2d at 614-616, and footnote 42. The Montana law is facially neutral, and petitioner makes no allegations that the law has a discriminatory intent. Further, the district judge here held that petitioner set forth no facts showing any evidence of discriminatory application of the statutes. See Coleman, _Mont. at_, 605 P.2d at 1019, 36 St.Rep. at 1153.

Finding that no evidence was presented which required a further factual hearing, the district judge properly dismissed petitioner’s claim.

Petitioner alleges that the death penalty is imposed so rarely that it does not deter and serves no legitimate state interest. He contends that this is a factual issue which demanded that the judge grant an evidentiary hearing. The State contends that this is a legal issue, and further, that petitioner presented nothing but vague opinions and conclusions on this issue.

In assessing penalties under the Eighth Amendment, the Supreme Court has determined that the death penalty is not cruel and unusual per se. Gregg, 428 U.S. at 169, 96 S.Ct. at 2923, 49 L.Ed.2d at 872. The Court further noted that “inhumane” punishment is forbidden, as is punishment which does not suit the crime. In making these determinations, the Court will look to “objective indicia that reflect the public attitude toward a given sanction,” because an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the Eighth Amendment. Public perceptions are not conclusive, but if a penalty also accords, “with the dignity of man,” the punishment will be upheld. Gregg, 428 U.S. at 169-173, 96 S.Ct. at 2923-2925, 49 L.Ed.2d 872-875.

The district judge found it indicative of public attitude that the electorate of Montana voted in 1972 to retain capital punishment. In addition, the State points out that the legislature has continued throughout the 1970’s to make Montana’s death penalty statutes conform to the requirements of the United States Supreme Court. Also the State notes that the 1981 legislature rejected an attempt to change the penalty to a different means of inflicting death (other than hanging), which reflects the fact that the legislature still sees death by hanging as legitimate, and not so rare to have no application to deterrence. In Gregg, supra, the Supreme Court noted that there is not significant evidence either supporting or opposing capital punishment as a deterrent. For that reason, the Court determined that the issue was better left to State legislatures, which could evaluate the effects in their own states better than the courts could. Gregg, 428 U.S. at 184-187, 96 S.Ct. at 2931, 49 L.Ed.2d 881-882.

In sum, the State appears to have retained a legitimate interest in capital punishment Indeed, it is invoked rarely, but few crimes reach the levels where such punishment is even considered. In an area such as this one, which is left to the State legislatures for a factual determination, the district judge correctly dismissed petitioner’s claim.

A final issue which petitioner argues was one demanding an evidentiary hearing was whether death by hanging constitutes cruel and unusual punishment. He argues that death by hanging is slow and painful, and that because so few people are hanged, there are no competent hangmen in Montana.

We have not determined that any particular means of punishment offends the constitutional provision against cruel and unusual punishment. Thus we shall defer to the legislature in this matter. See State v. Coleman (1979); [185 Mont. 299,] 605 P.2d 1000, 1058-1059, 36 St.Rep. 2237, 2247. The district judge properly dismissed this claim.

Petitioner next raises six issues which he alleges the district judge decided incorrectly on the merits. Because these issues involve questions of law and not of fact, both sides agreed that an evidentiary hearing on these issues was not necessary.

In “paragraph 8(e)” of his petition for post-conviction relief, petitioner alleges that he was denied his constitutionally required unanimous jury verdict because the jury was instructed on the crimes in the disjunctive, e.g.:

"... it was allowed to convict if it found he ‘purposely or knowingly performed, or aided or abetted in performing, the acts causing the death ...or ... the death ... was caused while [he] was engaged in or was an accomplice to the commission of or flight after ... robbery or kidnapping.’ ” (Instruction No. 24) (Emphasis added by petitioner.)

With this type of instruction, petitioner argues, 12 people may never have agreed on exactly which crimes were committed. The State argues that the jury instructions also told the jury that all 12 of them had to agree, and further, that the district judge found substantial evidence to support all alternatives.

Petitioner cites the case of United States v. Gipson (5th Cir. 1977), 553 F.2d 453, in which a federal defendant was convicted of “selling” or “receiving” pursuant to 18 USC § 2313. That statute provided that the defendant should be convicted if he did one of the enumerated acts: receiving; concealing, storing, bartering, selling, or disposing. The court found that these six acts fell into two groups, which are conceptually different. The court held that there could not be a unanimous verdict if some jurors found defendant guilty of an act in the other group. The verdict lacked unanimity of the “actus reus”. Gipson, 553 F.2d at 457-459. This case is clearly distinguishable. While the jury in Gipson was deliberating, they asked the judge if they could convict if all twelve of them did not agree to the specific act done, i.e., one of the six statutory acts. The judge answered in the affirmative. No such event occurred here. The jurors were specifically instructed that all twelve had to agree in order to convict.

Petitioner also cites a recent Washington case, State v. Green (1980), 94 Wash.2d 216, 616 P.2d 628, in which the Washington Supreme Court reversed a guilty verdict, citing nonunanimity of the jury verdict. That case involved a jury instruction that “defendant caused the death of [victim] in the course of or in furtherance of rape in the first degree or kidnapping in the first degree.” The jury found only that defendant was guilty of aggravated murder. The court reversed, finding that it was impossible to determine whether the jury unanimously agreed that defendant committed either rape or kidnapping, and ruled that there was not substantial evidence to support kidnapping. The court noted that rape and kidnapping are separate and distinct criminal offenses and must be proved as to all elements because one of these offenses is necessary to sustain the more serious offense, i.e., aggravated murder in the first degree. State v. Green (1980, 94 Wash.2d 216, 616 P.2d at 637-638.

We find no error under the facts of this case. The jury was instructed as to the requirement of a unanimous verdict, which many courts have found to be sufficient. The Second Circuit, in upholding a verdict of guilty on a conspiracy charge which the jury could have determined to have been committed in several ways, noted:

"... ‘[I]t is assumed that a general instruction on the requirement of unanimity suffices to instruct the jury that they must be unanimous on whatever specifications they find to be the predicate of the guilty verdict.’ United States v. Natelli, 527 F.2d 311, 325 (2d Cir.1975, cert. denied, 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 175.” United States v. Murray (2d Cir. 1980), 618 F.2d 892, 898.

Moreover, a review of the transcript satisfies us, as it did the district judge, that there was substantial evidence to support all of the alternatives set forth in the instructions. See State v. Arndt (1976), 87 Wash.2d 374, 553 P.2d 1328, 1330. See also, State v. Souhrada (1949), 122 Mont. 377, 385, 204 P.2d 792, 796. Therefore we find that the requirement of unanimity, as guaranteed by the Montana Constitution, was satisfied.

Petitioner claims that he was denied his rights under the Sixth, Eighth and Fourteenth Amendments by reason of the fact that a jury was not involved in the sentencing determination. The district judge determined that this issue had been decided adversely to petitioner by implication in this Court’s decisions in Coleman and McKenzie. We agree.

The United States Supreme Court has not required that the fact-finding leading to sentencing be done by a jury. That Court has said that a jury provides “a significant and reliable objective index of contemporary values”, Gregg, 428 U S. at 181, 96 S.Ct. at 2929, 49 L.Ed.2d at 879, but the Court also upheld the Florida sentencing scheme whereby a jury was advisory only, with the judge making the final determination. In Proffitt, supra, 428 U S. at 252, 96 S.Ct. at 2966, 49 L.Ed.2d at 922-923, the Court stated:

“The basic difference between the Florida system and the Georgia system is that in Florida the sentence is determined by the trial judge rather than by the jury. This Court has pointed out that jury sentencing in a capital case can perform an important societal function, Witherspoon v. Illinois, 391 U.S. 510, 519 n.15, [20 L.Ed.2d 776,] 88 S.Ct. 1770, 46 Ohio Op.2d 368 (1968), but it has never suggested that jury sentencing is constitutionally required. And it would appear that judicial sentencing should lead, if anything, to even greater consistency in the imposition at the trial cotut level of capital punishment, since a trial judge is more experienced in sentencing than a jury, and therefore is better able to impose sentences similar to those imposed in analogous cases.

Although in the later case of Lockett v. Ohio (1978), 438 U.S. 586, 609, n.16, 98 S.Ct. 2954, 2967, n.16, 57 L.Ed.2d 973, 992, n.16, the Supreme Court reserved judgment on whether the Constitution required a jury to determine death penalty sentencing, the decision in Proffitt convinces us that at this time the Montana statutory scheme is constitutional. What appears to be of overriding importance is that the trial and sentencing are bifurcated, with different factors considered at each. Gregg, 428 U.S. at 190-192, 96 S.Ct. at 2933-2934, 49 L.Ed.2d at 884-885.

Petitioner points out that Montana and Idaho are now the only states which take the factual matters involved in sentencing away from the jury. Oregon recently struck down its statute, finding that judicial sentencing was unconstitutional. That case is distinguishable: in order for the death sentence to be imposed, the judge, not the jury, had to determine that the murder was deliberate, thereby giving the judge the task of determining one of the elements of the crime. See State v. Quinn (1981), 290 Or. 383, 623 P.2d 630, 639-644.

The Montana situation is not analogous. The factors to be considered by the judge in imposing the death penalty are not elements of the crime. See §§ 46-18-303 and 46-18-304, MCA. The Montana scheme is more like an “enhanced penalty statute”, which the Oregon Court agreed was a permissible situation in which to deny the input of a jury. The court found that “the facts which constitute the crime are for the jury and those which characterize the defendant are for the sentencing court.” Quinn, 623 P.2d at 643. See also State v. Stewart (1977), 175 Mont. 286, 299-300, 573 P.2d 1138, 1145-1146.

The district judge was correct in determining that petitioner’s claim should be dismissed. There is no constitutional requirement that a jury make the determination to impose the death penalty.

Petitioner next alleges error in that he was required to prove that his life should be spared, because the burden rests on him to show mitigation. The State points out that this Court has upheld the Montana sentencing procedures in Coleman and McKenzie and that the statutes conform with the United States Supreme Court’s guidelines.

As the district judge recognized, the United States Supreme Court has declined to decide the constitutionality of “require[ing] defendants to bear the risk of nonpersuasion as to the existence of mitigating circumstances.in capital cases .’’ Lockett, 438 U.S. at 609, n.16, 98 S.Ct. at 2967, n.16, 57 L.Ed.2d at 992, n.16. He also noted that the cases relied on by petitioner in support of his position all relate to the guilt phase of prosecution, in which the burden is necessarily on the State to prove every element of the crime. In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368; State v. Stewart, 175 Mont. at 299-301, 573 P.2d at 1145-1146. See also State v. Pierre (1977), _Utah_, 572 P.2d 1338, 1346. 1347, cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194.

This is an issue of first impression in Montana, with regard to the death penalty statutes. Section 46-18-305, MCA, provides that “the court... shall impose a sentence of death if it finds one or more of the aggravating circumstances and finds that there are no mitigating circumstances sufficiently substantial to call for leniency.” This statute undoubtedly places the burden on the defendant to show that his life should be spared, but we find this to be constitutionally permissible. In State v. Stewart, supra, we discussed the United States Supreme Court case of Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281, noting that Patterson relieves the state of the burden of proving facts which do not constitute elements of the crime. We stated in Stewart that it is permissible to allow facts pertinent only to the question of punishment to be determined by a judge rather than by a jury, and the State need not prove such facts beyond a reasonable doubt:

“Here, we are concerned with a statute having a bifurcated sentencing provision rather than a statute that separately allocates the burden of proof, as in Patterson. However, the present case and Patterson, both, focus on the status of a fact neither by tradition nor by statute a necessary element of the crime charged. The majority decision and Justice Powell’s dissent in Patterson indicate that when the presence or absence of such a fact determines only the severity of punishment, it need not be proved by the state beyond a reasonable doubt. The release or nonrelease of a kidnapper’s victim is such a fact, and it is within the power of the state to allow the trial court, rather than the jury, to make this factual determination.” State v. Stewart, 175 Mont. at 301, 573 P.2d at 1146.

The mitigating factors in the death penalty statutes have no bearing on guilt or innocence. Thus it is permissible to require the defendant to bring forth the evidence pertinent to the question of mitigation.

The next alleged error raised by petitioner is that the death penalty is violative of petitioner’s constitutional rights because the death penalty is disproportionate to the crime of kidnapping, and the penalty was imposed here without a finding by the jury that petitioner deliberately took a life. Petitioner cites Coker v. Georgia (1977), 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982, and Eberheart v. Georgia (1977), 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104, for the holdings that the death penalty cannot be constitutionally imposed for rape or kidnapping.

The State argues that these cases are inapplicable because this case involves a death that is a result of an aggravated kidnapping, § 46-18-303(7), MCA, which is clearly distinguishable from the kidnapping involved in Eberheart, supra. We agree.

The United States Supreme Court has ruled that the death penalty is permissible for the crime of homicide when a life has been deliberately taken by the defendant. Gregg, supra. But that Court has reserved judgment on whether more than a deliberate act which results in the taking of a life is necessary in imposing the death penalty, i.e., whether there must be a specific purpose to take the life of the victim. Lockett, 438 U.S. at 609, n.16, 98 S.Ct. at 2967, n.16, 57 L.Ed.2d at 992, n.16.

This Court found in Fitzpatrick, _Mont. at_, 606 P.2d at 1356, 37 St.Rep. at 209, “[defendant purposely kidnapped, robbed, and caused the death of Monte Dyckman.” There was no finding of a specific intent to kill. Thus, petitioner argues, his death sentence may have been imposed for a death which resulted from the commission of a felony, or for his role only as an aider or abettor.

Justices White and Marshall concurred in Lockett, supra, but condemned the imposition of the death penalty in felony murder situations. They pointed out that about half the states have foreclosed the death penalty for those who do not specifically intend death, finding the penalty grossly out of proportion for any other crime, and having little deterrent value in these situations. Lockett, supra, 438 U.S. at 619-621, and 624-628, 98 S.Ct. at 2972-2974 and 2983-2985, 57 L.Ed. at 998-1000, and 1002-1004.

The legislature in Montana has not seen fit to foreclose this sentence for the intentional crime of aggravated kidnapping which results in death. Section 46-18-303(7), MCA. We do not find the death penalty to be disproportionate to the crime committed here, and we will defer to the legislature where we find no constitutional violation.

Petitioner further objects to the imposition of sentence based on a judge’s findings, rather than a jury’s. As we indicated, supra, we find it constitutionally permissible to give the sentencing judge the discretion to make the factual findings which form the basis for the death sentence. State v. Stewart, 175 Mont. at 301, 573 P.2d at 1146. Since there is no constitutional requirement for a finding of a specific intent to kill, it is permissible for the sentencing judge to impose the death penalty in this case in which the jury found a deliberate act by petitioner and the judge made the findings relevant to imposition of the death penalty.

In “paragraph 9(g)” of his post-conviction petition, petitioner contends that he was sentenced on erroneous information and constitutionally impermissible evidence. The district judge dismissed the claim. We find that he was correct in doing so.

Petitioner claims that there was no evidence to support the findings of the sentencing judge that the killing was committed by “lying in wait or ambush”, and that the crime of kidnapping had resulted in the death of the victim. Section 46-18-303, MCA. This Court had the sentencing file and the trial transcript before it on the last appeal, but this issue was not specifically raised. However, at that time, we reviewed the sentence, as we were compelled to do, § 46-18-307, MCA, and found that “the evidence in the record clearly proves sufficient aggravating circumstances exist in this case to warrant imposition of the death penalty.” Fitzpatrick, _Mont. at_, 606 P.2d at 1360, 37 St.Rep. at 215. We need not review this issue further.

Petitioner also claims that the sentence was based partially on a constitutionally infirm conviction. Petitioner had been convicted of murder prior to this case, but the conviction was overturned because of inadequate counsel and lack of speedy trial. The sentencing judge noted that under Burgett v. Texas (1967), 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319, the Court should not consider convictions which are constitutionally infirm because of Gideon violations. The record from sentencing indicates that the judge was well aware that he should not consider this, and he so stated:

“The reversal of this conviction nullifies this incident as evidence aggravation, but is nevertheless material in demonstrating that the defendant’s conduct in prison is not a source of mitigation with respect to the sentencing issue ...” Court’s Finding (f).

This Court determined in State v. Olsen (1980), [189 Mont. 43,] 614 P.2d 1061, 37 St.Rep. 1313, that a defendant is entitled to a conviction based on substantially correct information, and that infirm convictions should not be considered. However, this Court also stated in that opinion that if it is obvious from the record that the judge did not rely on that conviction, and that the sentence would not have been different had the judge disregarded that prior conviction totally, the Court will find no prejudice to the defendant. The Olsen court also noted that in view of that defendant’s extensive criminal background, a look at those past convictions is not prejudicial. State v. Olsen, _Mont. at_, 614 P.2d at 1064-1065, 37 St.Rep. at 1316-1317. Petitioner here had a substantial record.

Here the judge declared that he could not and would not rely on the prior conviction. We find this to be sufficient to safeguard petitioner’s interest in an appropriate and constitutional sentence.

Petitioner disputes one other item apparently considered by the judge in sentencing: that defense counsel informed the court that petitioner had admitted to the homicide of which he had previously been convicted, but claimed self-defense. Petitioner asserts now that he had no involvement in that offense. This issue is not discussed in his brief, but appears to refer to the conviction, discussed above, which was disregarded by the judge. As we noted, we find no error in the sentencing judge’s treatment of that conviction.

Next, petitioner challenges his sentence on the basis of the allegedly vague guidelines used in finding aggravating and mitigating circumstances. He asserts that they allow too much discretion in sentencing, which injects unconstitutional arbitrariness into death penalty decisions. The State counters by pointing out that certain factors similar to those set out in the Montana statutes (§§ 46-18-303 and 46-18-304, MCA) have been found to be constitutional in Gregg, 428 U.S. at 165, n.9, 96 S.Ct. at 2921, n.9, 49 L.Ed.2d at 870, n.9; in Proffitt, 428 U.S. at 248, n.6, 96 S.Ct. at 2965, n. 6, 49 L.Ed.2d at 921, n.6; and in Jurek v. Texas, (1976), 428 U.S. 262, 265, n.1, 96 S.Ct. 2950, 2953, n.1, 49.L.Ed.2d 929, 934-935, n.1. Also, this Court has specifically upheld the Montana statutes in McKenzie and Coleman, supra, in light of the United States Supreme Court decisions.

Since these cases have been decided, the United States Supreme Court has criticized the Georgia Court’s interpretation of one factor set out in the Georgia statute. The Supreme Court found that the Georgia Court had adopted such a broad construction of their statutory aggravating circumstance of “outrageously or wantonly vile, horrible or inhuman in that it involved torture”, that sentencing had become arbitrary and capricious. That Court noted the necessity of having “ ‘clear and objective standards,’ ” which provide “ ‘specific and detailed guidance’ ”, allowing for rational review of the imposition of the death sentence. Godfrey v. Georgia (1980), 446 U.S. 420, 428, 100 S.Ct. 1759, 1764-1765, 64 L.Ed.2d 398, 406.

The Montana statutes do not contain the provision which was relied on by the Georgia Court in imposing a death sentence. But more importantly, we note that the Montana statutes have been upheld by this Court as being facially sufficient to withstand an attack of arbitrariness. And we find no evidence that the application of the factors set out in the death penalty statutes has been so broad that there is no longer “any inherent restraint on the arbitrary and capricious infliction of the death sentence.” Godfrey, supra. Despite the fact that “lying in wait”, and “significant history of prior criminal activity,” §§ 46-18-303, 46-18-304, MCA, have not been previously defined by this Court and were not elaborated upon during sentencing, we find no error in the findings of the sentencing judge that the factors applied in this case.

We noted previously that the evidence supports the findings that the homicide was committed by “lying in wait”, as was found by the district judge. The evidence shows that the robbery was contemplated well in advance of the events which led to the killing of Monte Dyckman, and that immediately before the robbery petitioner sat in his car watching the Safeway Store and then the drive-in bank, waiting for the victim. It also shows that of all the participants in the crime, petitioner was the one who made the decision to escalate the crime to murder and he fired the shots at the victim. Although the petitioner may or may not have actually pulled the trigger while “lying in wait”, the entire chain of events leading to the homicide came as a result of lying in wait. Whereas the mischief found by the Supreme Court in Godfrey, supra, was that “a person of ordinary sensibility could fairly characterize almost every murder as ‘outrageously or wantonly vile, horrible and inhuman’,” because there is nothing in those “few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death penalty,” Godfrey, supra, 446 U.S. at 428, 100 S.Ct. at 1765, 64 L.Ed.2d at 406, such a criticism cannot be made about the term “lying in wait”. It can apply in but few circumstances and it is not subject to the abuse noted in Godfrey. The words themselves contain their own restraint, they have not been applied to allow standardless and unchanneled sentencing, and they are not unconstitutionally vague.

For the same reasons, petitioner disputes the judge’s finding that he had a “significant history of criminal activity”. Section 46-18-304, MCA. Again, this phrase has not been defied by this court, but we find that it is particular enough by its own terms to prevent allegations of vagueness and to allow for rational review of the sentence. We set out defendant’s prior criminal history in the previous appeal of this case. See Fitzpatrick, _Mont. at_, 606 P.2d at 1360-1361, 37 St.Rep. at 216. By any stretch of the imagination, his past activity is “significant”, and this finding by the judge was clearly within the bounds of the statute. It would be frivolous to attempt to define that phrase in a case such as this. Petitioner’s argument is totally without merit.

One further issue in this case deserves comment, although it was not raised by petitioner or the State in the original proceedings. Since the time of argument of this case, the United States Supreme Court has decided the case of Bullington v. Missouri (1981), 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270, which petitioner argues requires a reversal of his death sentence on the charge of deliberate homicide.

In Bullington, the defendant was tried for murder, and was sentenced to life imprisonment. His conviction was later set aside by reason of a Supreme Court decision, and defendant was scheduled to be retried on the same charge. The prosecution notified the defense that the State would seek the death penalty. The defendant argued that the double jeopardy clause of the Fifth Amendment precluded imposition of the death penalty in a second trial when the first sentencing jury had declined to impose the death penalty. Petitioner here makes the same argument, pointing to the fact that the sentencing judge refused to impose the death penalty for deliberate homicide following the first conviction, but that it was imposed on that charge after retrial. (The death penalty was imposed for the crime of aggravated kidnapping following both trials; that sentence is not being challenged on this particular ground.)

The United States Supreme Court agreed with the defendant in Bullington because of the nature of the Missouri sentencing procedure. While reaffirming the holding that the double jeopardy clause “imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside,” the Court noted that such a prohibition does exist if the sentencing proceeding has “the hallmarks of the trial on guilt or innocence”. Bullington, 451 U.S. at 439, 101 S.Ct. at 1857-1858, 68 L.Ed.2d at 278-279.

In all respects the Missouri sentencing procedure resembles a trial on the question of guilt or innocence. The State is required to prove beyond a reasonable doubt the facts on which the sentence is based. Additionally, as the Court noted:

“At the statutorily-prescribed presentence hearing, counsel make opening statements, testimony is taken, evidence is introduced, the jury is instructed, and final arguments are made. The jury then deliberates and returns its formal punishment verdict. § 565.006.2. See n.4, supra. All these steps were taken at petitioner’s presentence hearing following his first trial.

“We think, it not without some significance that the pertinent Missouri statute itself speaks specifically of the presentence hearing in terms of a continuing ‘trial.’ Section 565.006.2 states that after the verdict of guilty of capital murder is returned, ‘the court shall resume the trial and conduct a presentence hearing.’ (Emphasis added.)” Bullington, 451 U.S. at 438, n.10, 101 S.Ct. at 1858, n.10, 68 L.Ed.2d at 279, n.10.

Further, the Court found it significant that the sentencing jury was given but two choices in imposing the sentence for capital murder: Death or imprisonment without eligibility for probation or parole for 50 years. By not imposing death, the jury was in effect “acquitting” the defendant of what was necessary to impose a death sentence, and the double jeopardy clause forbids retrial of a defendant who has been acquitted of a crime charged. Bullington, supra.

The Montana sentencing procedure is radically different from the procedure in Missouri. Here the sentencing hearing is clearly separate from the trial, and it is far removed from a mere continuance of the trial on guilt or innocence. See Section 46-18-301, MCA. Sentencing is done by the court, not by a jury. Facts forming the basis for the sentence imposed do not have to be proved beyond a reasonable doubt. Additionally, the sentencing judge, although subject to specific guidelines in making the decision to impose a death sentence, has wider discretion in imposing a sentence other than death. Section 46-18-305, MCA. In sum, we do not find that the Montana statutes, unlike the Missouri statutes, require the State to “prove its case” as to one punishment, thus “acquitting a defendant on other possible punishments. Thus we reject petitioner’s argument that his sentence should be vacated.

Based on the foregoing, we affirm the District Court except as to its ruling on effective assistance of counsel. We remand to the District Court for an evidentiary hearing on petitioner’s claims that he had ineffective assistance of counsel at trial and at sentencing.

JUSTICES WEBER, DALY and HARRISON and HON. W. W. LESSLEY, District Judge, sitting for JUSTICE SHEEHY, concur.