STATE OF MONTANA v. BOBBY FRANCIS LOWRY (2026)

¶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 Bobby Francis Lowry appeals from the Fourth Judicial District Court's judgment convicting him of theft by deception and deceptive practices, both by common scheme. He contends that his earlier Lewis and Clark County conviction barred the Missoula County prosecution and that counsel rendered ineffective assistance by failing to seek dismissal. We affirm Lowry's convictions and sentence in all other respects, modify the judgment by striking an unlawful future-consecutive sentencing provision, and remand solely for entry of an amended judgment. We decline to address his ineffective assistance claim on direct appeal.

¶3 On appeal, we consider three primary issues regarding the validity of Lowry's convictions. First, we determine whether Lowry has established a basis for plain-error review of his unpreserved claim that his Missoula County convictions violate the federal and Montana constitutional protections against double jeopardy. Second, we address whether this Court should review his separate unpreserved claim that §§ 46-11-503 and -504, MCA, statutorily barred the underlying prosecution. Third, we consider whether the record permits us to resolve Lowry's claim that he received ineffective assistance of counsel when his trial attorney failed to move to dismiss the charges under §§ 46-11-503 and -504, MCA. We also correct the District Court's unlawful order that the Missoula County sentences run consecutively to a sentence not yet imposed in Gallatin County.

¶4 This case arises from criminal prosecutions of Lowry in Lewis and Clark County and Missoula County, both for alleged theft and deceptive practices involving residential construction and roofing work. The State alleged that Lowry operated under the names “BTE Construction” and “Bob the Electrician,” solicited clients via local advertisements, collected substantial upfront deposits, and performed substandard or incomplete work.

¶5 On April 15, 2021, the State charged Lowry in Lewis and Clark County with felony theft and felony deceptive practices, both by common scheme, alleging conduct between September 4, 2019, and December 24, 2020. The supporting affidavit described an agreement involving a Helena resident, C.W., whose property manager contracted with Lowry in Helena to replace a roof on a Seeley Lake property for $15,000 plus additional property. According to that original affidavit, Lowry failed to complete the work properly, allowing rain and snow to enter the structure and cause additional damage.

¶6 While the Lewis and Clark County proceedings were underway, the State charged Lowry in Missoula County on March 21, 2022, with felony theft by deception under § 45-6-301(2), MCA, and felony deceptive practices under § 45-6-317(1)(a), MCA, both by common scheme. The State alleged conduct occurring throughout 2020 and into the spring of 2021. The Missoula charging affidavit identified several alleged victims, including C.W., and described the same Seeley Lake roof transaction, the $15,000 payment, and the resulting weather damage.

¶7 On March 7, 2024, the Lewis and Clark County District Court held a change of plea and sentencing hearing. The State moved to amend Count II from deceptive practices by common scheme under § 45-6-317(1)(a), MCA, to deceptive practices by common scheme under § 45-6-317(1)(b), MCA. The prosecutor's offer of proof outlined Lowry's alleged fraudulent representations and identified specific victims, including Christiansen, Hanson, Soria, Betancourt, and Dunbar, without naming or relying upon C.W. Lowry entered an Alford plea to the amended count, which the court accepted. The court immediately proceeded to sentencing, imposing a five-year commitment to the Department of Corrections, all suspended, to run concurrently with Lowry's sentence in Lewis and Clark County. The court dismissed the theft count with prejudice and ordered no restitution.

¶8 On April 25, 2024, before entering his pleas to the Missoula charges, Lowry filed a pro se petition for a writ of habeas corpus with this Court. He specifically raised the inclusion of C.W.’s transaction in both counties’ charging affidavits. Although the factual basis presented at the Lewis and Clark County plea hearing did not identify C.W., an April 26, 2024 written judgment listed C.W. among the people protected by a no-contact condition. On May 15, 2024, this Court denied habeas relief because the Missoula court had not yet entered a final judgment and advised Lowry that he could seek relief through a direct appeal of his convictions.

¶9 On May 22, 2024, Lowry pleaded no contest to both Missoula charges pursuant to a plea agreement. The parties relied on the Missoula charging affidavit, including its account of the C.W. transaction, to establish the factual basis for the pleas. On June 19, 2024, the court sentenced Lowry to eight years in the Montana State Prison, with five years suspended, for theft, followed by five years, all suspended, for deceptive practices. The court ordered both sentences to run consecutively to his existing sentences and to the sentence to be imposed in his pending Gallatin County case. The court also ordered $49,584.23 in restitution and entered its written judgment on July 1, 2024. For purposes of the constitutional analysis, we assume without deciding that both prosecutions encompassed the C.W. transaction.

¶10 We generally decline to address issues raised for the first time on appeal. State v. Reim, 2014 MT 108, ¶ 38, 374 Mont. 487, 323 P.3d 880. However, we retain the discretion to review unpreserved claims that implicate fundamental constitutional rights under the common law plain-error doctrine, provided that failing to do so could result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process. State v. Taylor, 2010 MT 94, ¶ 12, 356 Mont. 167, 231 P.3d 79. We exercise this power sparingly, on a case-by-case basis, considering the totality of the circumstances. State v. Williams, 2015 MT 247, ¶ 16, 380 Mont. 445, 358 P.3d 127.

¶11 We review questions of constitutional double jeopardy de novo. State v. Valenzuela, 2021 MT 244, ¶ 7, 405 Mont. 409, 495 P.3d 1061. The threshold decision to invoke plain-error review is distinct from the merits of the underlying claim. Here, Lowry's claim implicates a fundamental constitutional right, and, if valid, would establish that he stands convicted and sentenced in violation of the constitutional prohibition against double jeopardy. We conclude that failing to review this claim could result in a manifest miscarriage of justice. We therefore exercise our discretion to conduct plain-error review and address the merits of his claim. Valenzuela, ¶¶ 10-12.

¶12 We decline to apply the common law plain-error doctrine to Lowry's unpreserved, independent statutory double jeopardy claims for the reasons discussed below. See State v. Becker, 2005 MT 75, ¶ 17, 326 Mont. 364, 110 P.3d 1. We separately consider whether the record permits us to resolve his ineffective assistance claim on direct appeal. State v. Wittal, 2019 MT 210, ¶¶ 13-14, 397 Mont. 155, 447 P.3d 1039.

¶13 We exercise de novo review over claims of ineffective assistance of counsel because they present mixed questions of law and fact. Whitlow v. State, 2008 MT 140, ¶ 9, 343 Mont. 90, 183 P.3d 861; see also Becker, ¶ 18. When assessing counsel's performance, we distinguish between record-based and non-record-based assertions. Wittal, ¶ 13. If the record fails to explain the reasons behind counsel's strategic choices or omissions, we generally decline to resolve the claim on direct appeal unless counsel's acts or omissions lacked any plausible justification. State v. Sartain, 2010 MT 213, ¶¶ 30-31, 357 Mont. 483, 241 P.3d 1032.

Lowry's Missoula County Convictions Do Not Violate Double Jeopardy Protections on the Grounds Lowry Asserts

¶14 The Fifth Amendment to the United States Constitution and Article II, Section 25, of the Montana Constitution both protect a defendant from being placed twice in jeopardy for the same offense. To determine whether separate convictions under distinct statutory provisions violate these protections, we apply the “same elements” test under both Constitutions. Valenzuela, ¶¶ 14-15. Under this framework, we compare the statutory elements of the offenses rather than the particular evidence or factual overlap presented in an individual case. Valenzuela, ¶¶ 14-15; see also State v. Ritchson, 193 Mont. 112, 116, 630 P.2d 234, 237 (1981).

¶15 Assuming without deciding that both the Lewis and Clark County and Missoula County prosecutions encompassed the same underlying C.W. transaction, Lowry's convictions survive scrutiny under the Blockburger same-elements test. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182 (1932). In Lewis and Clark County, Lowry pleaded guilty to deceptive practices under § 45-6-317(1)(b), MCA, which requires purposely or knowingly making or directing another to make a false or deceptive statement “addressed to the public or any person for the purpose of promoting or procuring the sale of property or services.” In Missoula County, Lowry pleaded no contest to deceptive practices under § 45-6-317(1)(a), MCA, which requires purposely or knowingly causing another person, “by deception or threat,” to execute a document disposing of property or incurring a pecuniary obligation. He also pleaded no contest in Missoula County to theft by deception under § 45-6-301(2), MCA, which requires purposely or knowingly obtaining control over an owner's property through threat or deception and satisfying one of the deprivation requirements in subsections (2)(a)-(c).

¶16 Each of the Missoula offenses requires proof of a distinct element that the Lewis and Clark County offense does not: subsection (1)(a) requires the execution of a document; and the theft statute requires obtaining control of property under the circumstances specified in that statute. Conversely, subsection (1)(b), which applied in the Lewis and Clark County prosecution, requires a false or deceptive statement made for the purpose of promoting or procuring a sale of property or services, which neither Missoula offense requires. The common-scheme allegations do not eliminate these differences in the statutory elements. Lowry concedes in his opening brief that his convictions do not violate the traditional same-elements test. Instead, he argues that the Montana Constitution affords broader protection against these successive prosecutions.

¶17 Lowry asks this Court to hold that the shared C.W. transaction constitutionally bars the later common-scheme prosecution despite the distinct statutory elements. Valenzuela expressly directs us to compare statutory elements rather than case-specific evidence when determining whether convictions under distinct statutory provisions constitute the same offense. Valenzuela, ¶¶ 14-15, 23. Stilson held that a prior common-scheme conviction in one county does not necessarily bar a common-scheme conviction in another county where the offenses are supported by different and county-specific evidence. Stilson v. State, 278 Mont. 20, 26, 924 P.2d 238, 241 (1996); see also State v. Savaria, 284 Mont. 216, 222-25, 945 P.2d 24, 28-30 (1997) (recognizing that distinct conduct can support separate common schemes). Stilson and Savaria addressed multiple violations of the same statutory provision supported by distinct conduct. Their reasoning does not resolve Lowry's asserted overlap. Here, we assume that overlap and apply the elements test to the distinct statutory provisions under which Lowry was convicted.

¶18 Lowry's reliance on State v. Guillaume, 1999 MT 29, ¶¶ 16-18, 293 Mont. 224, 975 P.2d 312, does not compel a different outcome. Guillaume recognizes that Article II, Section 25, affords greater protection than the Fifth Amendment against multiple punishments for the same offense. Guillaume, ¶ 16. Guillaume addressed cumulative punishments in a single prosecution where the same weapon use both elevated the underlying offense and triggered a mandatory weapon enhancement. It did not adopt a same-conduct test for offenses carrying distinct statutory elements. The convictions here do not involve the duplicative weapon punishment addressed in Guillaume. Valenzuela, ¶¶ 14-15, supplies the governing elements analysis for the distinct offenses at issue here.

¶19 The convictions therefore do not violate constitutional double jeopardy protections on the ground Lowry asserts. Although we exercise plain-error review, Lowry's constitutional claim fails on the merits.

Lowry Has Not Established that the Statutory Bar Under §§ 46-11-503 and -504, MCA, Warrants Plain-Error Review

¶20 Second, we address Lowry's separate, unpreserved claim that §§ 46-11-503 and -504, MCA, statutorily barred the Missoula County prosecution. Because Lowry did not raise these statutory provisions in the District Court, we have no trial court ruling to review on this issue. Whether a plea waives a double-jeopardy challenge presents a different question from whether the defendant preserved the particular grounds for that challenge. In State v. Cech, 2007 MT 184, ¶¶ 9-10, 338 Mont. 330, 167 P.3d 389, we reviewed a double-jeopardy claim despite an unconditional guilty plea because the record available when the court accepted the plea permitted it to determine whether the government lacked the power to prosecute. That plea-waiver holding does not resolve whether we should exercise plain-error review of Lowry's unpreserved statutory grounds.

¶21 The common law plain-error doctrine provides a narrow avenue to review certain unpreserved claims implicating fundamental constitutional rights. The decision to exercise that discretion depends on the circumstances of the case. See Becker, ¶ 17 (declining to review an unpreserved statutory double jeopardy argument under plain-error review and instead considering the issue through ineffective assistance); State v. Torres, 2013 MT 101, ¶¶ 37-38, 369 Mont. 516, 299 P.3d 804 (describing the discretionary nature of plain-error review and prior decisions declining review of unpreserved statutory double-jeopardy claims).

¶22 Although Lowry relies on Valenzuela to argue that statutory and constitutional double jeopardy analyses sometimes overlap, Valenzuela addressed the multiple-charges statute, § 46-11-410, MCA, and an included-offense inquiry that tracked the constitutional elements analysis. Valenzuela, ¶¶ 16–19. Lowry's claims under §§ 46-11-503 and -504, MCA, concern former prosecutions and require a separate inquiry into whether the prosecutions arose from the same transaction. Unlike the constitutional question, which can be resolved by comparing the statutory elements of the offenses, Lowry's statutory claims would require consideration of additional circumstances concerning the prior prosecution and the relationship between the conduct charged in the two prosecutions.

¶23 The parties dispute the conduct encompassed by the Lewis and Clark County conviction and whether the charged common schemes arose from the same transaction. Lowry did not develop these statutory issues in the District Court. On this record, he has not established that independent review of those unresolved issues is necessary to prevent a manifest miscarriage of justice, resolve a question concerning the fundamental fairness of the proceedings, or protect the integrity of the judicial process. We therefore decline to exercise plain-error review of his independent statutory claims. Instead, we consider whether the record permits us to resolve his claim that trial counsel rendered ineffective assistance by failing to seek statutory dismissal.

This Record Does Not Allow Review of Whether Defense Counsel Rendered Ineffective Assistance by Failing to Seek Dismissal Under §§ 46-11-503 and -504, MCA

¶24 Finally, we consider whether the record permits us to resolve Lowry's claim that he received ineffective assistance of counsel when his trial attorney failed to move to dismiss the Missoula County charges under §§ 46-11-503 and -504, MCA. To prevail on an ineffective assistance claim, a defendant must satisfy the two-part Strickland test by establishing both objectively deficient performance and resulting prejudice. Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861; Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65 (1984).

¶25 The record does not permit us to resolve this claim on direct appeal. While the record confirms that counsel did not file a statutory motion to dismiss, it does not explain counsel's underlying reasoning. Under Wittal, we ordinarily decline to resolve a claim on direct appeal when its resolution depends on matters outside the record. Wittal, ¶ 13. We may nevertheless address such a claim when no plausible justification exists for counsel's challenged act or omission.

¶26 The record does not establish that counsel had no plausible justification not to file the motion. Defense counsel represented Lowry in both cases and was present at the Lewis and Clark County change of plea hearing. During that proceeding, counsel heard the prosecutor amend the statutory subsection and present a factual basis identifying several customers but not C.W. The State continued to allege the C.W. transaction in the pending Missoula prosecution. Those circumstances could support an understanding that the amended charge and accepted offer of proof concerned a common scheme distinct from the one charged in Missoula. We do not decide whether that understanding was legally correct or whether counsel in fact relied on it. The original affidavits, the inclusion of C.W. in the written no-contact condition, and Lowry's pre-plea habeas challenge support his contention that the prosecutions overlapped. Those circumstances do not establish what counsel investigated, what advice she gave Lowry, or why she did not seek statutory dismissal.

¶27 Because the record lacks any explanation for counsel's inaction and does not foreclose every plausible justification, we decline to resolve Lowry's ineffective assistance claim on direct appeal. Lowry may pursue the claim in a properly presented petition for postconviction relief. Wittal, ¶¶ 13-14. We express no opinion on whether counsel performed deficiently or whether Lowry suffered prejudice.

¶28 Although Lowry does not challenge this portion of his sentence, the District Court lacked authority to order his Missoula County sentences to run consecutively to a Gallatin County sentence that had not yet been imposed. State v. McGuire, 260 Mont. 386, 387-88, 860 P.2d 148, 149-50 (1993). Pursuant to § 46-20-703(1), MCA, we declare void the provision in Counts I and II that each sentence “will run consecutive to the sentence imposed in Gallatin County once that matter is adjudicated.” This modification does not disturb the order that Count II run consecutively to Count I or that the Missoula County sentences run consecutively to Lowry's preexisting sentences. We remand solely for entry of an amended judgment.

¶29 In summary, Lowry's constitutional double jeopardy claim fails because the Missoula theft and deceptive-practices offenses each require proof of an element that the Lewis and Clark County deceptive-practices offense does not, and vice versa. This conclusion holds even assuming both prosecutions encompassed the C.W. transaction. We decline to exercise common-law plain-error review of Lowry's independent statutory double jeopardy claims and do not decide their merits. Finally, we decline to resolve Lowry's ineffective assistance of counsel claim on direct appeal, without prejudice to his ability to present that claim in a properly filed petition for postconviction relief. Accordingly, we affirm Lowry's convictions and sentence in all other respects, modify the judgment by striking the unlawful future-consecutive sentencing provision from Counts I and II, and remand solely for entry of an amended judgment.

¶30 We decide this case by memorandum opinion pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review.

KATHERINE M. BIDEGARAY

We Concur: CORY J. SWANSON JAMES JEREMIAH SHEA BETH BAKER INGRID GUSTAFSON