State v. Wolf

• Decision Date: 04 February 2020
• Docket Number: DA 18-0028
• Parties: STATE of Montana, Plaintiff and Appellee, v. Gale Lee RUNNING WOLF, Jr., Defendant and Appellant.
• Court: Montana Supreme Court

398 Mont. 403

457 P.3d 218

2020 MT 24

STATE of Montana, Plaintiff and Appellee,

v.Gale Lee RUNNING WOLF, Jr., Defendant and Appellant.

DA 18-0028

Supreme Court of Montana.

Submitted on Briefs: August 28, 2019

Decided: February 4, 2020

For Appellant: Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Scott Twito, Yellowstone County Attorney, Victoria Callender, Deputy County Attorney, Billings, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Gale Lee Running Wolf, Jr. appeals his designation as a Persistent Felony Offender (PFO) and corresponding enhanced sentence imposed by the Thirteenth Judicial District Court, Yellowstone County. We address the following issues on appeal:

1. Does the 2015 PFO statute apply to Running Wolf who was sentenced in 2017 for offenses committed in 2015?

2. Does the PFO statute require the predicate felony conviction upon which the PFO designation is based to precede commission of the principal offense?

¶2 We affirm in part, reverse in part, and remand with instructions to strike Running Wolf’s designation as a persistent felony offender and impose a new sentence in accordance with § 61-8-731, MCA.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On January 28, 2015, Running Wolf was arrested and charged with his fourth Driving Under the Influence (DUI) offense. While the January 28, 2015 charge was still pending, Running Wolf was arrested and charged with a fifth DUI offense and separate misdemeanor offense on May 1, 2015. Running Wolf had three prior misdemeanor DUI or DUI per se convictions from 2005, 2009, and 2011. Because a fourth or subsequent DUI constitutes a felony under Montana law, the State charged the January and May 2015 DUI offenses as felonies. Following the May 2015 charge, but before Running Wolf was convicted of either felony offense, the State gave notice of its intent to seek PFO designation for Running Wolf pursuant to §§ 46-18-501 and -502, MCA (2015).

¶4 Running Wolf pleaded guilty to both felony DUIs on July 14, 2017, approximately two weeks after a new law took effect changing the definition of a PFO. 2017 Mont. Laws ch. 321, § 40, at 1013 (HB 133). In a sentencing memorandum filed prior to sentencing, Running Wolf argued that the 2015 PFO statute no longer applied. He argued that he did not satisfy the requirements necessary to trigger PFO status under the new definition because it increased the number of predicate felony offenses necessary for PFO designation from two to three and required that at least one of the three offenses be sexual or violent. Section 46-1-202(18), MCA (2017) (enacted under 2017 Mont. Laws ch. 321, § 23, at 996-97).

¶5 At his sentencing hearing on October 30, 2017, the District Court rejected Running Wolf’s argument and concluded that the 2015 PFO statute applied because that version was in effect at the time Running Wolf committed his underlying offenses. HB 133 expressly provided that the act would take effect July 1, 2017, and would apply to offenses committed after June 30, 2017. 2017 Mont. Laws ch. 321, §§ 43-44, at 1013. Next, the District Court contemporaneously sentenced Running Wolf for two felony DUI offenses: (1) his fourth DUI offense from January 28, 2015; and (2) his fifth DUI offense from May 1, 2015. The January 28, 2015 DUI conviction was used as the predicate offense to enhance Running Wolf’s punishment for the May 1, 2015 DUI offense under §§ 46-18-501 and -502, MCA (2015). At the time of sentencing, Running Wolf was forty-two-years old and had no prior felonies. Running Wolf testified that he was twenty-one-months sober, actively attending Alcoholics Anonymous meetings and church, helping to care for his aging parents, and operating a thriving business with his girlfriend/business partner. He intimated a desire to be given his first ever opportunity to participate in the Warm Springs Addiction, Treatment, & Change (WATCh) Program to assist in maintaining his sobriety. The District Court sentenced Running Wolf simultaneously for two felonies—one of which was used to enhance the sentence imposed on the other—and Running Wolf received a straight ten-year sentence without ever having the opportunity, as a fourth DUI offender would have had, to participate in WATCh or to receive other alcohol abuse treatment. See State v. Ballard , 202 Mont. 81, 87, 655 P.2d 986, 989 (1982) (providing that Montana’s PFO statutes are "founded on the principles of prevention and reformation").

¶6 Running Wolf timely appealed, contending that the District Court lacked authority to designate him a PFO pursuant to the 2015 PFO statute because the 2017 version applied on the date he was sentenced. We issued an order for supplemental briefs to address an additional issue: Does the persistent felony offender statute require the predicate felony conviction upon which the PFO designation is based to precede commission of the principal offense?

STANDARD OF REVIEW

¶7 Where a defendant is sentenced to more than one year of actual incarceration, we review his sentence for legality. State v. Johnson , 2010 MT 288, ¶ 7, 359 Mont. 15, 245 P.3d 1113. "Our review is confined to determining whether the sentencing court had statutory authority to impose the sentence, whether the sentence falls within the parameters set by the applicable sentencing statutes, and whether the court adhered to the affirmative mandates of the applicable sentencing statutes." State v. Anderson , 2009 MT 39, ¶ 7, 349 Mont. 245, 203 P.3d 764. This determination presents a question of law that we review de novo. Anderson , ¶ 7 (citing State v. Rosling , 2008 MT 62, ¶ 59, 342 Mont. 1, 180 P.3d 1102 ).

DISCUSSION

¶8 1. Does the 2015 PFO statute apply to Running Wolf who was sentenced in 2017 for offenses committed in 2015?

¶9 Running Wolf’s first argument—that he was entitled to be sentenced under the 2017 amendments to the PFO statute—is resolved by our recent decision in State v. Thomas , 2019 MT 155, 396 Mont. 284, 445 P.3d 777. There, the State charged Thomas with felony DUI arising from an incident that allegedly occurred on July 23, 2016. Based on a prior felony escape conviction, the State sought PFO status for Thomas under the 2015 PFO statute. A jury convicted Thomas of DUI, fourth or subsequent offense, in January 2017. Thomas , ¶ 2. HB 133 took effect during the time that elapsed between his trial and sentencing. Thomas , ¶ 3. At Thomas’s sentencing hearing, the District Court sentenced Thomas as a PFO under the 2015 statute and imposed a ten-year prison sentence with no time suspended. Thomas , ¶ 4. Thomas appealed, raising the identical issue presented here.

¶10 We held that "[t]he plain language of HB 133 clearly expresses the Legislature’s intent regarding the timing of the Act’s application." Thomas , ¶ 9. We further held that the provisions setting forth the effective and applicability dates, taken together, made clear that "the revisions enacted by the Act would not apply to offenses committed prior to July 1, 2017." Thomas , ¶ 9. Distinguishing our holding in State v. Wilson , 279 Mont. 34, 926 P.2d 712 (1996), we explained, "Unlike HB 133, the bill [at issue in Wilson ] contained no provisions whatsoever governing the timing of its application, but simply repealed the former law outright." Thomas , ¶ 12. Therefore, that bill had no savings clause, and Wilson was entitled to benefit from the repeal of the statute. Thomas , ¶ 12. In contrast, "the [2017] Legislature did not outright repeal the 2015 PFO designation, and did not fail to address the timing of the new Act’s application. Rather, it limited the repeal of former law to post-June 30, 2017 cases." Thomas , ¶ 13. We concluded that HB 133 expressly preserved application of the 2015 PFO statute to offenses committed before July 1, 2017, and therefore that the legislature’s intent was clear, eliminating the need for a separate savings clause. Thomas , ¶ 13.

¶11 Running Wolf presents the same issue and arguments raised in Thomas , which we rejected. Thomas thus compels the conclusion that the District Court correctly applied the 2015 PFO statute at Running Wolf’s October 30, 2017 sentencing hearing.

¶12 2. Does the PFO statute require the predicate felony conviction upon which the PFO designation is based to precede commission of the principal offense?

¶13 This Court must decide whether the procedure used in designating Running Wolf a PFO comports with the language of the statute, which reads: "A ‘persistent felony offender’ is an offender who has previously been convicted of a felony and who is presently being sentenced for a second felony ...." Section 46-18-501, MCA (2015) (emphasis added). "An offender is considered to have been previously convicted of a felony if ... (2) less than 5 years have elapsed between the commission of the present offense and either: (a) the previous felony conviction; or (b) the offender’s release on parole or otherwise from prison or other commitment imposed as a result of the previous felony conviction." Section 46-18-501(2), MCA (2015).

¶14 Running Wolf argues that the District Court lacked authority to impose an enhanced PFO sentence because the PFO statute requires an offender to have a felony conviction before committing the offense for which the PFO designation is sought. He asserts that because the District Court simultaneously entered judgment on both felony DUI offenses in one sentencing hearing, Running Wolf had no "previous felony conviction" upon which to base his PFO designation. The State directs this Court to our prior decision in Williamson , wherein we held that the statutory language at issue—"previously been convicted"—simply requires a second felony committed on a different occasion than, and within five years of, the first. State v. Williamson , 218 Mont. 242, 246, 707 P.2d 530, 532-33 (1985). The...