State v. Cooney
| Decision Date | 22 September 1997 |
| Docket Number | No. 96-532,96-532 |
| Citation | 945 P.2d 891,284 Mont. 500 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. James Albert COONEY, Defendant and Appellant. |
| Court | Montana Supreme Court |
Terry G. Sehestedt, Missoula, for Defendant and Appellant.
Robert L. "Dusty" Deschamps III, Missoula County Attorney, Fred Van Valkenburg, Deputy Missoula County Attorney, Missoula; Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena, for Plaintiff and Respondent.
This is an appeal from the Fourth Judicial District Court, Missoula County. On June 26, 1996, the District Court entered an opinion and order denying Defendant Cooney's motion to dismiss both Count I, a charge of felony DUI, fourth offense, and Count II, a charge of driving while license suspended or revoked, a misdemeanor. From this opinion and order, Defendant Cooney appeals. We affirm in part, reverse in part and remand.
We restate the following issues raised on appeal:
1. Did the District Court err in denying Defendant Cooney's motion to dismiss Count I, a charge of felony DUI, fourth offense?
2. Did the District Court err in denying Defendant Cooney's motion to dismiss Count II, a misdemeanor charge of driving while license suspended or revoked?
On December 16, 1995, Defendant Cooney (Cooney) was arrested for driving while under the influence of alcohol (DUI). Cooney's driving record indicated that he had previously been convicted of DUI in October 1984, September 1986 and July 1989. Additionally, Cooney's driving record revealed that his Montana driver's license had been revoked on July 31, 1989, and had not been reinstated at the time he was arrested on December 16, 1995. On February 15, 1996, an Information was filed charging Cooney with felony DUI, fourth offense, in violation of §§ 61-8-401 and -714, MCA (1995), (Count I) and driving while license suspended or revoked, a misdemeanor, in violation of § 61-5-212, MCA (1995), (Count II). On February 23, 1996, Cooney entered pleas of not guilty to both charges.
On April 5, 1996, Cooney filed a motion to dismiss the charge of felony DUI, fourth offense (Count I), challenging the application of the felony DUI statute on ex post facto grounds and contending that his prior DUI convictions should have been expunged pursuant to the expungement provision of § 61-8-714(5), MCA. The State filed a brief in opposition and Cooney filed a reply brief. While no transcript was filed on appeal, a minute entry indicates that on May 22, 1996, Cooney moved to change his pleas and entered a plea of guilty to Count I of the Information, reserving the right to appeal from an adverse ruling on his motion to dismiss. Additionally, Cooney made an oral motion to dismiss Count II of the Information asserting that the charge violated the prohibition against ex post facto legislation, which the District Court denied. Thereafter, Cooney also entered a plea of guilty to Count II, reserving the right to appeal the court's adverse ruling. On May 23, 1996, Cooney entered a written plea of guilty and waiver of rights. On June 26, 1996, the District Court entered an opinion and order denying both Cooney's motions to dismiss Count I and Count II. Subsequently, the District Court sentenced Cooney upon Count I to the Department of Corrections for a period of five years, suspending four years of the commitment upon certain conditions. As to Count II, the court imposed a concurrent sentence of six months. From the District Court's June 26, 1996 opinion and order, Cooney appeals. We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion.
A district court's grant or denial of a motion to dismiss in a criminal case is a question of law which we review de novo. State v. Brander (1996), 280 Mont. 148, 150, 930 P.2d 31, 33 (citation omitted). Because the parties have raised no factual dispute concerning either Issue 1 or 2, we must only determine whether the District Court correctly interpreted the law when it denied Cooney's motions to dismiss.
Section 61-8-714(5), MCA (1981), provided in 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. [Emphasis added.]
In 1989 the Montana Legislature amended § 61-8-714(5), MCA, to provide that if, after five years, a defendant had no additional DUI convictions, the defendant's record would no longer be expunged, but rather the records and data relating to the prior DUI conviction would become confidential criminal justice information. Brander, 930 P.2d at 33-34 (citing § 2, Ch. 476, L.1989).
In 1995, the Montana Legislature amended § 61-8-714, MCA, to include a felony sanction for repetitive DUI offenders, which provides in pertinent part (4) 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. [Emphasis added.]
In conjunction with this new subsection, the Legislature amended § 61-8-714(6), MCA, (formerly subsection (5)), to provide in pertinent part:
(6) 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. [First emphasis indicates newly added language; second emphasis added.]
In its June 26, 1996 opinion and order, the District Court denied Cooney's motion to dismiss the charge of felony DUI, fourth offense, rejecting both Cooney's ex post facto and expungement arguments. Relying on State v. Maldonado (1978), 176 Mont. 322, 578 P.2d 296,, the District Court concluded that the application of §§ 61-8-714(4) and (6), MCA (1995), did not violate the ban on ex post facto legislation because Cooney was not being punished again for his past conduct, but rather he was being punished for an offense he committed two months after the effective date of §§ 61-8-714(4) and (6), MCA (1995), and, therefore, was only subjected to increased punishment for his present conduct.
The District Court also concluded that Cooney was not entitled to expungement of any of his three prior DUI convictions from his record. The District Court explained that Cooney's first two DUI convictions did not satisfy the expungement provision requirements of § 61-8-714(5), MCA, because after each of his first two DUI convictions he was convicted of another DUI offense before five years had elapsed. Additionally, relying on State v. Lorash (1989), 238 Mont. 345, 777 P.2d 884, the District Court explained that Cooney was not entitled to have his July 31, 1989 DUI conviction expunged from his record because the expungement provision of § 61-8-714(5), MCA, had been repealed on October 1, 1989, and, therefore, was no longer available. Furthermore, citing State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d 1343, and State v. Coleman (1979), 185 Mont. 299, 605 P.2d 1000, the District Court determined that the 1989 changes made in § 61-8-714(5), MCA (1989), were procedural or remedial in nature, and, therefore, the ban on ex post facto legislation did not apply. Based on the foregoing, the District Court held that Cooney was properly charged with felony DUI, fourth offense, in violation of § 61-8-401, MCA.
Cooney argues that the District Court erred in denying his motion to dismiss the charge of felony DUI, fourth offense. While Cooney concurs with the State that, in light of Brander, this case should be remanded to the District Court, he still argues that the application of §§ 61-8-714(4) and (6), MCA (1995), violated the ban on ex post facto legislation and that all three of his prior DUI convictions should have been expunged pursuant to the expungement provision of § 61-8-714(5), MCA.
Cooney asserts that application of §§ 61-8-714(4) and (6), MCA (1995), violates his right to be free from the application of ex post facto legislation, as guaranteed by Article I, Section 10 of the United States Constitution and Article II, Section 31 of the Montana Constitution. Specifically, Cooney contends that the application of §§ 61-8-714(4) and (6), MCA (1995), violates the two part test used to determine whether a law is ex post facto, which we adopted in State v. Leistiko (1992), 256 Mont. 32, 844 P.2d 97. First, Cooney asserts that §§ 61-8-714(4) and (6), MCA (1995), are retrospective because they alter the legal consequences of the DUI offenses he committed before the statute's effective date. Second, Cooney asserts that §§ 61-8-714(4) and (6), MCA (1995), are more onerous than prior law because they now allow consideration of prior DUI convictions which should have been expunged pursuant to the expungement provision of § 61-8-714(5), MCA.
In this regard, Cooney argues that the District Court also erred in concluding that Cooney was not...
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