State v. Goebel

• Decision Date: 14 August 2001
• Docket Number: No. 00-113., No. 00-086
• Citation: 2001 MT 155,31 P.3d 340,306 Mont. 83
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Appellant, v. Bryan GOEBEL, Defendant and Respondent. State of Montana, Plaintiff and Respondent, v. Joshua David Giddings, Defendant and Appellant.

31 P.3d 340

2001 MT 155

306 Mont. 83

STATE of Montana, Plaintiff and Appellant, v. Bryan GOEBEL, Defendant and Respondent.

State of Montana, Plaintiff and Respondent, v. Joshua David Giddings, Defendant and Appellant.

Nos. 00-086, 00-113.

Supreme Court of Montana.

Decided August 14, 2001.

Rehearing Denied August 14, 2001.

OPINION AND ORDER

¶ 1 On April 26, 2001, we issued opinions in the above entitled cases wherein we held that a probable cause hearing pursuant to § 46-23-1012(4), MCA (1999), is mandatory only when an offender has been arrested pursuant to a warrant issued by a judge, ___ Mont. ___, 31 P.3d 335.

¶ 2 On May 4, 2001, Bryan Goebel (Goebel) filed a petition for rehearing in State v. Goebel, Cause No. 00-086, asking this Court to look beyond the plain language of § 46-23-1012, MCA, and hold that the probable cause hearing designated in subsection (4) of that statute is mandatory only when an offender has been arrested by a probation officer rather than pursuant to a warrant issued by a judge.

¶ 3 Next, on May 7, 2001, the State filed a petition for rehearing in State v. Giddings, Cause No. 00-113, seeking clarification of whether the Court's decision in that case applies retroactively or was intended for prospective application only. In its petition, the State points out that the 2001 Legislature amended § 46-23-1012, MCA, to delete the requirement for the probable cause hearing designated in subsection (4) of the statute. The new statute contains a clause making the amendments retroactive to "offenders who are under the custody or supervision of the department of corrections" on its effective date. The effective date of the statute is May 1, 2001, less than one week after we handed down our opinion in this case.

¶ 4 Finally, on May 9, 2001, Joshua David Giddings (Giddings) filed a petition for rehearing in State v. Giddings, Cause No. 00-113, seeking clarification of our opinion in that case and asking us to direct the District Court to dismiss, with prejudice, the petition to revoke his suspended sentence. Giddings contends that the District Court cannot now acquire jurisdiction as to any revocation of his probation because of the amendment of § 46-23-1012, MCA, and any application of the new statute would violate his right to not be subject to ex post facto legislation.

¶ 5 Rule 34, M.R.App.P., authorizes a rehearing only when

some fact, material to the decision, or some question decisive of the case submitted by counsel, was overlooked by the court, or that the decision is in conflict with an express statute or controlling decision to which the attention of the court was not directed.

Since no fact material to our decisions in these cases, nor any question decisive of the cases themselves, was overlooked by this Court, nor were our decisions in these cases in conflict with any express statute or controlling decision, we need not modify our opinions in these cases. However, because the question of the retroactive application of this Court's decisions in these cases was raised and briefed by both sides and that question may be of significance to many other cases throughout this State, it merits a response.

¶ 6 We begin with a discussion of the retroactive application of new judicial rules of criminal procedure and the retroactive application of the judicial interpretation of a statute, and we conclude with a discussion of whether the retroactive application of the newly amended § 46-23-1012, MCA (2001), to Giddings is a violation of the ex post facto clause.

I. Retroactive application of new judicial rules of criminal procedure¹

¶ 7 Prior to 1960, each new constitutional ruling, whether civil or criminal, was applied not only to all cases initiated after the ruling was handed down, but also to all previously initiated cases that were still subject to judicial review. Thus, in criminal cases, a conviction remained subject to attack even after the exhaustion of direct appellate review through the writ of habeas corpus. Courts were required to grant the writ if the petitioner's conviction was obtained through practices currently deemed unconstitutional even if those practices were accepted as constitutional at the time of trial. While courts would ordinarily give the state the opportunity to retry the petitioner, retrial was often impractical due to the lapse in time since the original trial. As the Supreme Court noted, this combination of retroactive application and the availability of the writ of habeas corpus raised the fear that new constitutional rulings might "open[ ] wide the prison doors of the land." Foster v. Illinois (1947), 332 U.S. 134, 139, 67 S.Ct. 1716, 1719, 91 L.Ed. 1955.

¶ 8 Consequently, when the Warren Court in the early 1960s announced a series of new rulings that could affect the convictions of a substantial number of prisoners throughout the United States, the Supreme Court reexamined the practice of complete retroactive application of new constitutional rulings. The Supreme Court, in Linkletter v. Walker (1965), 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, first held that a newly adopted constitutional ruling need not be given full retroactive application. In Linkletter, the Supreme Court determined that whether a constitutional ruling should be given retroactive effect depended upon the nature of the rule at issue. Linkletter, 381 U.S. at 636,85 S.Ct. at 1741.

¶ 9 Based on the Linkletter doctrine, many of the most precedent-shattering criminal procedural rulings of the 1960s were not given retroactive effect. Among those decisions are Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576; and Chimel v. California (1969), 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685.

¶ 10 Two years after Linkletter, the Supreme Court, in Stovall v. Denno (1967), 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, formalized a new approach to retroactivity analysis. The Supreme Court held that a retroactivity analysis required assessment of (a) the purpose to be served by the new standards (what effect the standards had on the accuracy of the truth-finding process), (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. Stovall, 388 U.S. at 297, 87 S.Ct. at 1970.

¶ 11 The Supreme Court later determined that "[f]oremost among [the Stovall] factors is the purpose to be served by the new constitutional rule." Desist v. United States (1969), 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248. Still later, the Supreme Court held that a new rule is to be given complete retroactive effect without regard to the other criteria when the new rule's major purpose is to "overcome an aspect of the criminal trial that substantially impairs its truth-finding function" and it thereby "raises serious questions about the accuracy of guilty verdicts in past trials." Williams v. United States (1971), 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388.

¶ 12 In 1982, the Supreme Court decided to rethink retroactivity and began a gradual departure from the doctrine developed in Linkletter. This gradual departure began with United States v. Johnson (1982), 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202, wherein the Supreme Court set out three threshold inquiries designed to determine the applicability of retroactivity analysis. First, no retroactivity question arises when an opinion merely applies settled precedents to new and different factual situations. Second, if the new opinion is a "clear break with the past," it should almost always be applied prospectively only. Third, if the new rule goes to the very authority of the trial court to convict or punish a criminal, then the rule must be applied retroactively even if it is a "clear break." Johnson, 457 U.S. at 549-50, 102 S.Ct. at 2586-87.

¶ 13 Additionally, the "clear break" cases were seen to fall into three types: (1) those that explicitly overruled a past decision; (2) those that disapproved an established practice the Supreme Court had sanctioned in prior cases; and (3) those that overturned a longstanding and widespread practice to which the Supreme Court had not spoken but which a near-unanimous body of lower court authority had expressly approved. Johnson, 457 U.S. at 551, 102 S.Ct. at 2588. The Supreme Court noted that if a rule met any of these definitions, it generally should not be applied retroactively, but rules that are not clear breaks with the past will always be given retroactive application, at least to cases pending on direct appeal. Johnson, 457 U.S. at 562-63, 102 S.Ct. at 2594.

¶ 14 The Johnson Court limited its holding to retroactive application of decisions construing only the Fourth Amendment. However, in Shea v. Louisiana (1985), 470 U.S. 51, 59, 105 S.Ct. 1065, 1069-70, 84 L.Ed.2d 38, the Supreme Court extended Johnson beyond Fourth Amendment cases indicating that, with the possible exception of "clear break" cases, new constitutional rulings in all areas would thereafter be applied retroactively to all non-final convictions. Later, in Griffith v. Kentucky (1987), 479 U.S. 314, 326-27, 107 S.Ct. 708, 715-16, 93 L.Ed.2d 649, the Supreme Court held that even "clear break" rulings would be applied retroactively to all cases pending on direct review or not yet final at the time of the new ruling, since the adoption of a "clear break" exception for non-final convictions would create the problem of not treating similarly situated defendants the same and would be contrary to "the principle that this Court does not disregard current law when it adjudicates a case pending before it on direct review."

¶ 15 Thus, it was now firmly settled that a new constitutional rule of criminal procedure, even if it was a "clear break" with the past,...