State v. Brander

Decision Date02 January 1997
Docket NumberNo. 96-389,96-389
Citation930 P.2d 31,280 Mont. 148,53 St.Rep. 1340
PartiesSTATE of Montana, Plaintiff and Respondent, v. Jerry Walter BRANDER, Defendant and Appellant.
CourtMontana Supreme Court

Edmund F. Sheehy, Cannon & Sheehy, Helena, for Appellant.

Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; Michael T. Menahan, Deputy Lewis and Clark County Attorney, Helena, for Respondent.

NELSON, Justice.

This is an appeal from an order of the First Judicial District Court, Lewis and Clark County, denying the defendant's motion to dismiss Count I of an Information filed against him. We reverse and remand for further proceedings consistent with this opinion.

Factual and Procedural Background

Having waived preliminary examination of the same charges filed in Justice Court, Jerry Walter Brander (Jerry) was bound over to District Court and was subsequently charged by Information on November 24, 1995, with one count of driving or being in actual physical control of a motor vehicle while under the influence of alcohol (DUI), fourth offense, a felony, in violation of § 61-8-401, MCA 1, (Count I) and one count of driving while the privilege to do so is suspended or revoked, a misdemeanor, in violation of § 61-5-212(1), MCA, (Count II). These charges were alleged to have been committed on October 30, 1995, west of Helena, Montana, at the intersection of Highway 12 and Colorado Gulch Road. Jerry had been previously convicted of DUI on November 24, 1986, November 15, 1993 and May 5, 1994.

On January 4, 1996, Jerry filed a motion to dismiss Count I of the Information. As grounds for his motion, Jerry contended that the application of § 61-8-714(6), MCA, which became effective October 1, 1995, violated his constitutional right not to be subjected to ex post facto laws. The State opposed the motion and on February 9, 1996, following the submission of briefs, the District Court issued its memorandum and order denying Jerry's motion to dismiss.

On February 22, 1996, Jerry entered a plea of guilty to the charges, reserving his right to appeal the court's denial of his motion. Section 46-12-204(3), MCA. On May 16, 1996, the District Court sentenced Jerry to the Montana Department of Corrections for ten years, with five years suspended on conditions, for the felony DUI conviction and to a six-month jail term, suspended on conditions, for the misdemeanor charge. This appeal followed.


The issue on appeal is whether the District Court erred in denying Jerry's motion to dismiss.

There are no facts in dispute. Whether the ex post facto clauses of the federal and Montana Constitutions are implicated in charging a criminal offense is a question of law. Therefore, our review is plenary; we simply determine whether the District Court's interpretation of the law is correct. See State v. Schnittgen (1996), 277 Mont. 291, ----, 922 P.2d 500, 503, 53 St.Rep. 710, 712 (citations omitted). Moreover, even without the constitutional question, the grant of or denial of a motion to dismiss in a criminal case is a question of law which is subject to de novo review. See City of Helena v. Danichek (1996), 277 Mont. 461, ----, 922 P.2d 1170, 1172, 53 St.Rep. 767, 768 (citing State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195).

By way of background, the 1995 Montana Legislature enacted comprehensive revisions to Montana's laws prohibiting driving after having consumed intoxicating amounts of alcohol. See Chs. 447, 546 and 567, L.1995. Among other changes, the Legislature created a felony sanction for repetitive DUI offenders. A new subsection, § 61-8-714(4), MCA, provides:

On the fourth or subsequent conviction, the person is guilty of a felony offense and shall be punished by imprisonment for a term of not less than 1 year or more than 10 years and by a fine of not less than $1,000 or more than $10,000. Except as provided in subsection (8), notwithstanding any provision to the contrary providing for suspension of execution of a sentence imposed under this subsection, the imposition or execution of the first 6 months of the imprisonment sentence imposed for a fourth or subsequent offense may not be suspended.

In implementing this sanction, the Legislature also amended § 61-8-714(6), MCA, (formerly subsection (5)). This subsection now provides, in pertinent part:

An offender is considered to have been previously convicted for the purposes of sentencing if less than 5 years have elapsed between the commission of the present offense and a previous conviction, unless the offense is the offender's fourth or subsequent offense, in which case all previous convictions must be used for sentencing purposes. If there has not been an additional conviction for an offense under this section for a period of 5 years after a prior conviction under this section, then all records and data relating to the prior conviction are confidential criminal justice information, as defined in 44-5-103, and public access to the information may only be obtained by district court order upon good cause shown. [Italics indicates newly added language; minor style changes in the last sentence are not italicized.]

Section 8, Ch. 447, L.1995, effective October 1, 1995.

At the time of Jerry's DUI conviction on November 24, 1986, § 61-8-714(5), MCA (1985), provided, in pertinent part:

An offender is considered to have been previously convicted for the purposes of this section if less than 5 years have elapsed between the commission of the present offense and a previous conviction. If there has been no additional conviction for an offense under this section for a period of 5 years after a prior conviction hereunder, then such prior offense shall be expunged from the defendant's record.

The 1989 Legislature amended § 61-8-714(5), MCA, to provide, as subsection (6) does now, that after 5 years, there being no additional DUI convictions, records and data related to a prior DUI conviction would become confidential criminal justice information, rather than the conviction being expunged. Section 2, Ch. 476, L.1989. The significance of this amendment is explained below.

Jerry argued before the trial court, and now argues on appeal, that prior to October 1, 1995, his November 24, 1986 DUI conviction could not have been counted on or after five years from the date of that conviction--i.e., on or after November 24, 1991. Jerry further argues that because the 1986 conviction was no longer countable as a DUI conviction at the time he was charged in November 1995, resurrecting the earlier conviction for purposes of charging and sentencing his latest DUI as a felony violates his constitutional guarantee from the application of ex post facto laws. Jerry contends that counting the 1986 DUI conviction is an ex post facto application of law because counting the earlier conviction makes more burdensome the punishment for the 1986 crime after its commission.

Jerry argues that the two-part test which we adopted in State v. Leistiko (1992), 256 Mont. 32, 844 P.2d 97, to determine whether a law is ex post facto, is violated. He maintains that application of § 61-8-714(6), MCA, violates the ex post facto ban because first, the 1995 amendment is retrospective in that it changes the legal consequences of the 1986 DUI conviction and second, he was disadvantaged by his inability to foresee, in 1986, that his conviction could be used against him some nine years later to subject him to a possible ten-year prison sentence.

The District Court rejected Jerry's interpretation of the law. Basing its decision on Leistiko, State v. Maldonado (1978), 176 Mont. 322, 578 P.2d 296, and Gryger v. Burke (1948), 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed 1683, the court concluded that § 61-8-714(6), MCA, being in effect at the time Jerry committed the instant DUI, was not an additional penalty for the 1986 DUI, but rather put Jerry on notice that if he committed the offense of DUI, he would be subject to increased punishment. We agree with the District Court's legal conclusion based on the ex post facto argument advanced by Jerry in that court.

Ex post facto laws are prohibited by Article I, Section 10 of the United States Constitution and by Article II, Section 31 of the Montana Constitution. We have stated that:

[A]ny statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.

State v. Suiste (1993), 261 Mont. 251, 253, 862 P.2d 399, 400 (quoting Leistiko, 844 P.2d at 99-100 (quoting Beazell v. Ohio (1925), 269 U.S. 167, 169-70, 46 S.Ct. 68, 68, 70 L.Ed. 216, 216-17)).

In Leistiko, we observed that banning ex post facto legislation serves two purposes: (1) it entitles people to a fair warning of what conduct is punishable; and (2) it prevents federal and state governments from passing arbitrary and potentially vindictive laws. Leistiko, 844 P.2d at 100. To determine whether a statute violates the prohibition against ex post facto legislation, we determine, first, whether the law is retrospective in nature--i.e., whether it changes the legal consequences of actions committed before its effective date. Leistiko, 844 P.2d at 100 (citing Miller v. Florida (1987), 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351, 360-61). Second, we determine whether the law disadvantages the offender affected by it--i.e., is the law more burdensome than the previous law. Leistiko, 844 P.2d at 100 (citing Dobbert v. Florida (1977), 432 U.S. 282, 294, 97 S.Ct. 2290, 2299, 53 L.Ed.2d 344, 357).

In Maldonado, we adopted the reasoning of the U.S. Supreme Court in Gryger. In Gryger, the defendant claimed that his being charged as a habitual offender...

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