State v. Cleary, DA 11–0650.

• Decision Date: 29 May 2012
• Docket Number: No. DA 11–0650.,DA 11–0650.
• Citation: 2012 MT 113,365 Mont. 142,278 P.3d 1020
• Parties: STATE of Montana, Plaintiff and Appellee, v. William Dennis CLEARY, Defendant and Appellant.
• Court: Montana Supreme Court

365 Mont. 142

278 P.3d 1020

2012 MT 113

STATE of Montana, Plaintiff and Appellee,

v.William Dennis CLEARY, Defendant and Appellant.

No. DA 11–0650.

Supreme Court of Montana.

Submitted on Briefs March 21, 2012.

Decided May 29, 2012.

For Appellant: Bradley J. Finn, Attorney at Law, Billings, Montana.

For Appellee: Steve Bullock, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Scott Twito, Yellowstone County Attorney, Victoria Callendar, Deputy County Attorney, Billings, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

[365 Mont. 142]¶ 1 On September 25, 2009, while driving his motorcycle in Yellowstone County, William Dennis Cleary struck a deer. Cleary was transported to the hospital, where a consensual blood alcohol content test revealed a BAC of .18. On March 26, 2010, the State of Montana filed an Information charging Cleary with felony Driving a Motor Vehicle Under the Influence of Alcohol or Drugs (DUI). The felony charges were based upon Cleary's Montana driving record which reported three previous DUIs—two in Montana and one in South Dakota. Cleary moved to have the felony dismissed, arguing that he should not be subject to the enhanced felony charges because the DUI issued in South Dakota was not a “prior conviction.” The Thirteenth Judicial District Court denied his motion. We reverse and remand.

ISSUE

¶ 2 A restatement of Cleary's issue on appeal is:

¶ 3 Did the District Court err in concluding that the “suspended imposition of sentence” which Cleary received pursuant to South Dakota Codified Laws (SDCL) § 23A–27–13 on August 7, 2007, following his “guilty” plea to a Per Se offense under SDCL § 32–23–1(1), constitutes a “conviction” under § 45–2–101(16), MCA, for purposes of enhancing his charges to “felony” status under § 61–8–731, MCA?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 In March 2010, Cleary was charged by Information with felony DUI, or in the alternative, felony BAC based upon his September 2009 motorcycle accident. The Affidavit for Leave to File Information stated “The Defendant was convicted of DUI or Per Se on: August 7, 2007; July 9, 2004; and October 21, 1991.” Therefore, pursuant to § 61–8–731, MCA (2007),¹ Cleary was charged with a “fourth” lifetime alcohol-related driving offense and charged with a felony.

¶ 5 After pleading not guilty, Cleary moved to have the felony charge dismissed in District Court, arguing that the DUI recorded in South Dakota was not a “conviction” and should not have been considered in determining the number of Cleary's past DUI convictions. Cleary argued that the South Dakota Magistrate Court did not enter a judgment of “guilty;” rather, it exercised judicial clemency as allowed by SDCL § 23A–27–13. Cleary also argued, with limited legal analysis, that because his 2009 DUI was his first DUI in 5 years, it should be charged as a “first offense” under Montana law.

¶ 6 Cleary expressly appeals the District Court's ruling on his South Dakota offense as reflected in his issue statement above. He also suggests that this Court should remand the matter to the District Court with instruction that he be charged and sentenced for a “first offense.” However, Cleary's failure to present any analysis of applicable law and application of such law to the facts of his case, precludes us from addressing this latter issue. We therefore confine our analysis and resolution to Cleary's primary issue. M.R.App. P. 12(f).

¶ 7 Cleary received his South Dakota DUI on August 5, 2007, and pled guilty two days later on August 7. On August 8, 2007, the South Dakota Magistrate Court issued an “Order Suspending Imposition of Sentence” (Suspension Order). This Suspension Order, issued pursuant to SDCL § 23A–27–13, stated that the court “does not enter a judgment of guilt but exercises its judicial clemency under SDCL 23A–27–13 and with the consent of [Cleary] suspends the imposition of the sentence....” Also under the Suspension Order, Cleary was required to pay a fine and court costs and to obey all laws during a six-month probation period.

¶ 8 Six months later, on February 7, 2008, the South Dakota Magistrate Court entered an “Order of Dismissal and Discharge” of Cleary's “suspended imposition of sentence.” The court dismissed the action and discharged Cleary based upon Cleary's compliance with the conditions of the Suspension Order. The order of dismissal further provided that “all official records, in this action be sealed, along with all recordation relation to [Cleary's] arrest, indictment, trial, and dismissal and discharge.” Despite the court order sealing the records in accordance with SDCL § 23A–27–17, the South Dakota Driver's Licensing Program mistakenly transmitted Cleary's charge, plea and suspended imposition of sentence to the State of Montana and it was posted to his Montana driving record as a DUI.

¶ 9 Cleary immediately sought to have reference to the South Dakota proceeding removed from his Montana driving record. When the Montana Motor Vehicle Division (MVD) declined to revise Cleary's record, Cleary and the South Dakota Magistrate Court embarked upon a circuitous remedial route. First, on February 1, 2010, the South Dakota Magistrate Court issued an order vacating the August 8, 2007 Suspension Order, stating the “matter is hereby vacated, and shall have no further legal effect. The judgment shall be stricken from the record....” Then, a week later, the South Dakota court entered a nunc pro tunc order under a new file number again suspending the sentence associated with Cleary's August 2007 DUI.

¶ 10 Meade County, South Dakota, provided the Montana MVD with the South Dakota court's February 1, 2010 order vacating Cleary's original suspended imposition of sentence. On February 17, 2010, Cleary received a letter from MVD informing him that the South Dakota DUI was “expunged” from his record. Shortly thereafter, in March 2010, Cleary was arraigned on the DUI arising from his September 2009 motorcycle accident. On July 23, 2010, the South Dakota Department of Public Safety sent Cleary an “Order of Dismissal” notifying him that the DUI had been removed from his South Dakota driving record and that record of it had been sealed by the court.

¶ 11 Against this backdrop, Cleary moved the District Court for dismissal of the felony DUI charges. He argued that because both Montana and South Dakota had removed the South Dakota DUI from his driving record, there were insufficient predicate DUI convictionsto support a felony DUI. The State opposed his motion, arguing that the South Dakota DUI could be used for sentence enhancement purposes. The District Court agreed with the State and denied Cleary's motion to dismiss the felony charges.

¶ 12 After comparing South Dakota and Montana DUI statutes, the District Court determined that Cleary's South Dakota DUI could be used to enhance his sentence for his 2009 Montana DUI. The court relied upon SDCL § 23A–27–15 and State v. Winchester, 438 N.W.2d 555 (S.D.1989). It explained that the South Dakota law—SDCL § 23A–27–13—allowing suspended sentences to individuals who have not previously been convicted of a felony, is countered in some instances by another South Dakota law, SDCL § 23A–27–15, which allows that same suspended sentence to later be considered a conviction in the event the individual commits another crime. The court stated:

South Dakota does not allow a repeat, habitual criminal to reap the benefit of a “suspended imposition of sentence.” [SDCL § 23A–27–13] is designed to give one second chance to a specific group of individuals not previously convicted of a felony. By statute [SDCL § 23A–27–15] and the Winchester case, the South Dakota Supreme Court has unequivocally prevented a defendant convicted of multiple crimes from using a “suspended imposition of sentence” as a sword against the State.

The District Court concluded that SDCL § 23A–27–15 applied not only to any subsequent DUI Cleary might get in South Dakota but also to Cleary's subsequent DUI in Montana.

¶ 13 On June 16, 2011, Cleary entered into a plea bargain agreement in which he entered a plea of guilty to the felony charge but reserved his right to appeal the District Court's denial of his motion to dismiss. He was sentenced in September 2011 to the Department of Corrections (DOC) for thirteen months and upon successful completion of the DOC's residential alcohol treatment program, the remainder of his sentence would be served on probation. Cleary was also sentenced to the DOC for 3 years, all suspended, to run consecutively to the thirteen-month term. Following sentencing, Cleary moved for a stay of execution of sentence which the District Court granted. Cleary filed his appeal on October 31, 2011.

STANDARD OF REVIEW

¶ 14 This Court reviews the denial of a motion to dismiss in criminal cases de novo to determine whether the district court's conclusions of law are correct. State v. Sidmore, 286 Mont. 218, 223, 951 P.2d 558, 562 (1997).

DISCUSSION

¶ 15 Did the District Court err in concluding that the “ suspended imposition of sentence ” which Cleary received pursuant to SDCL § 23A–27–13 on August 7, 2007, following his “ guilty ” plea to a Per Se offense under SDCL § 32–23–1(1), constitutes a “ conviction ” under § 45–2–101(16), MCA, for purposes of enhancing his charges to “ felony ” status under § 61–8–731, MCA?

¶ 16 Like South Dakota, Montana disciplines DUI offenders differently based upon how many DUI convictions an offender has received. The penalties for three or fewer DUIs are not as harsh as the penalties for four or more DUI offenses. Sections 61–8–714 and 61–8–722, MCA (2007). For a fourth or greater DUI, the State shall pursue a felony charge and sentence rather than a misdemeanor charge and sentence against the defendant. Section 61–8–731, MCA (2007). Additionally, § 61–8–734, MCA (2007), provides that convictions in other states may be used to determine the number of previous...