Background
Bobby Francis Lowry faced prosecutions in Lewis and Clark County and Missoula County arising from residential construction and roofing work. The State alleged that Lowry solicited customers, collected substantial deposits, and performed incomplete or substandard work. Charging affidavits in both counties referenced a transaction involving C.W. and a roof replacement at a Seeley Lake property.
In Lewis and Clark County, Lowry entered an Alford plea to deceptive practices by common scheme under § 45-6-317(1)(b), MCA, after the State amended the charge and presented an offer of proof that did not identify C.W. He later pleaded no contest in Missoula County to theft by deception and deceptive practices under § 45-6-317(1)(a), MCA, both by common scheme. The Missoula court imposed consecutive sentences and ordered them to run consecutively to Lowry’s existing sentences and to a sentence not yet imposed in a pending Gallatin County case.
The Court’s Holding
The Montana Supreme Court exercised plain-error review of Lowry’s unpreserved constitutional double-jeopardy claim but rejected it on the merits. Even assuming both prosecutions encompassed the C.W. transaction, the offenses were not the same under the governing same-elements test: each Missoula offense required an element absent from the Lewis and Clark County offense, while the Lewis and Clark County offense required a sales-promotion element absent from the Missoula offenses.
The court declined to review Lowry’s separate, unpreserved statutory claims under §§ 46-11-503 and -504, MCA, because they required a fact-dependent same-transaction inquiry that had not been developed in the trial court. It also declined to decide on direct appeal whether counsel was ineffective for failing to seek statutory dismissal because the record did not disclose counsel’s reasoning or eliminate every plausible justification. The court affirmed the convictions and sentence in all other respects, struck the provisions making the Missoula sentences consecutive to a future Gallatin County sentence, and remanded solely for entry of an amended judgment.
Key Takeaways
- Factual overlap between successive prosecutions does not establish constitutional double jeopardy when each offense contains a distinct statutory element.
- The court will not ordinarily use plain-error review to decide an undeveloped statutory former-prosecution claim requiring a fact-specific same-transaction analysis.
- A sentencing court may not order a sentence to run consecutively to a sentence that another court has not yet imposed.
Why It Matters
The decision distinguishes constitutional double-jeopardy analysis, which turns on statutory elements, from Montana’s statutory protections against successive prosecutions, which may require closer examination of the transactions and conduct involved. Defendants must adequately develop and preserve those statutory grounds in the trial court.
The memorandum opinion is noncitable and does not serve as precedent. Lowry may still pursue his ineffective-assistance claim through a properly filed petition for postconviction relief.