No. 92-088
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
WILLIAM GERALD LEISTIKO,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary G. Doran, Moore & Doran, Kalispell, Montana
For Respondent:
Marc Racicot, Attorney General ; Carol
Schmidt, Assistant Attorney General; Thomas Esch,
Flathead County Attorney, Kalispell, Montana
Submitted on Briefs: October 14, 1992
~ ~ ~ i d ~ d :1 7 , 1992
December
Clerk
Justice Fred J. Weber delivered the Opinion of the Court
Defendant William Gerald Leistiko appeals the Order of
Revocation issued by the District Court of the Eleventh Judicial
District, Flathead County. The Order of Revocation continued
Leistiko's suspended sentence and required him to pay an additional
$10,000 in restitution to the victim. We set aside the portion of
the order requiring $10,000 additional restitution.
The sole issue for our review is whether the District Court
could order the defendant to pay $10,000 additional restitution
after Leistiko violated the terms and conditions of his suspended
sentence.
William Gerald Leistiko (Leistiko) attended a New Year's Eve
party on December 31, 1984, with his girlfriend. The couple argued
throughout the evening and Leistiko subsequently left the party and
returned with a 9 mm. automatic pistol, which was ultimately
wrested from him by others at the party. He returned the morning
of January 1, 1985, with a .22 semi-automatic pistol, and shot his
girlfriend in the back as she attempted to phone law enforcement
officers. The victim sustained injuries which caused permanent
paralysis from the waist down. Leistiko was charged with
aggravated assault and attempted deliberate homicide.
The parties and the victim signed a pretrial agreement on July
16, 1985, wherein Leistiko agreed to plead guilty to the charge of
aggravated assault in exchange for the State's dropping the
attempted deliberate homicide charge. On September 5, 1985, the
District Court sentenced Leistiko to a twelve-year prison term with
2
nine years suspended and a consecutive five-year term for the use
of a weapon. The court also imposed a $20,000 ltfineUas financial
restitution to the victim, with monthly payments commencing one
month after his release from Montana State Prison.
While in prison, Leistiko paid $60 per month restitution from
money he earned there, although this was not required by his
sentence. After his parole on September 22, 1986, following
thirteen months incarceration, he made monthly payments of $250 as
required by his sentence. He later returned to his former
employment and began making payments of $400 per month. At the
time of the final revocation hearing, he had paid $12,400 of the
$20,000 fine.
On September 9, 1989, a random urinalysis tested positive for
cocaine. Leistiko was given another chance on parole and entered
Rocky Mountain Treatment Center in Great Falls on October 3 , 1989.
He completed chemical dependency treatment there and discharged his
aftercare requirements on January 12, 1990. On February 8, 1990,
another urinalysis tested positive for cocaine. The Board of
Pardons then revoked Leistiko's parole and again incarcerated him
in the Montana State Prison.
On May 12, 1990, the State filed a petition to revoke
Leistiko's suspended sentence. On May 23, 1990, the District Court
conducted a hearing on the petition and found Leistiko in violation
of terms of his suspended sentence, but reserved judgment with
regard to that revocation until Leistiko completed an intensive
addiction treatment program in prison. On December 6, 1990, the
Court allowed Leistiko to continue this treatment at the Providence
Center in Great Falls so that he could avail himself of the Great
Falls Pre-release Center's programs. On August 11, 1991, Leistiko
was discharged from the Great Falls Pre-release Center.
On October 11, 1991, Leistiko filed a motion to reduce his
monthly payments to $100 per month based on his financial
situation. At the final revocation hearing, the District Court
heard testimony from both the defendant and the victim as well as
the recommendation from the prosecutor that justice would not be
served by sending Leistiko back to prison. In an order dated
December 10, 1990, the District Court continued the suspended
sentence, allowed reduced payments of $100 for three months and
increased the restitution by $10,000.
I
Did the District Court err when it ordered the defendant to
pay an additional $10,000 to his victim after he violated the terms
and conditions of his suspended sentence while on parole?
~eistikocontends that the District Court had no authority to
increase the original sentence by an additional $10,000 in
restitution. He relies on the version of 5 46-18-203, MCA, which
was in effect at the time of the crime and at the time of initial
sentencing. Section 46-18-203, MCA (1983), then provided:
evocation of suspended or deferred sentence.
(1) A judge . .
. who has suspended the execution of a sentence . of. .
imprisonment under 46-18-201 or his successor is authorized in
his discretion to revoke the suspension or impose sentence and
order the person committed. ...
However, the District Court relied on the 1991 revision of 5 46-18-
203, MCA, in its sentencing order. It provides in pertinent part:
evocation of suspended or deferred sentence. (1) Upon the
filing of a petition for revocation, accompanied by an
affidavit showing probable cause that the defendant has
violated any condition of a sentence ...the court may issue
an order for a hearing on revocation. ,..
...
(7) If the court finds that the defendant has violated the
terms and conditions of the suspended or deferred sentence,
the court may:
(a) continue the suspended or deferred sentence without a
change in conditions;
(b) continue the sus~ended sentence with modified or
additional terms and conditions;
(c) revoke the suspension of sentence and require the
defendant to serve either the sentence imposed or any lesser
sentence ...
Section 46-18-203, MCA (1991), (emphasis supplied).
Leistiko contends that he is entitled to the benefits of the
former statute. Under the statute in effect when he committed the
crime on January 1, 1985, the District Court could either continue
the suspended sentence under the original terms, or revoke the
suspended sentence and order a defendant to serve the remainder of
his prison term. The 1991 revision of 5 46-18-203, MCA, grants
authority to the district courts to add terms and conditions which
are not part of the original sentence.
That legislative grant of authority, however, cannot violate
the constitutional rights of a defendant over whom the District
Court has jurisdiction. Article I, Section 10 of the United States
Constitution prevents state legislatures from enacting ex post
facto legislation. Similarly, Article 11, Section 31 of the
Montana Constitution prohibits the same. One of the United States
Supreme Court's earliest opinions provides a definition of ex post
facto laws and a rationale for the constitutional prohibition. See
Calder v. Bull (1798), 3 Dall. 386, 3 U.S. 269, 1 L.Ed. 648.
Justice Chase's opinion in Calder became well accepted as to those
legislative acts which were prohibited by the ex post facto clause
in Art. I, S 10 of the United States Constitution. This
interpretation of the clause was subsequently summarized as
follows:
It is settled, by decisions of this Court so well known that
their citation may be dispensed with, that any 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.
Beazellv. Ohio (1925), 269 U.S. 167, 169-70, 46 S.Ct. 68, 70 L . E d .
216, (emphasis supplied).
The Framers had a dual purpose in banning ex post facto
legislation: (1) to give fair warning to individuals of what
conduct is punishable, and (2) to restrain federal and state
governments from enacting arbitrary and potentially vindictive
legislation. Calder, 3 Dall. at 387-90. An increase in the
severity of a criminal punishment compared with that authorized at
the time the act was committed is a criminal conduct measure coming
within the ban on ex post facto laws. Weaver v. Graham (1981), 450
U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.Zd, 17, 22. Critical to
relief under the ex post facto clause is the lack of fair notice
and governmental restraint when a legislature increases punishment
beyond what was prescribed when the crime was committed. Weaver,
450 U.S. at 30.
We use a two-part test to determine whether a statute violates
the ban on ex post facto laws: (1) the law must be retrospective,
and (2) it must disadvantage the offender affected by it. Miller
v. Florida (1987), 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96
L.Ed.2d 351, 360-61. A law is retrospective if it changes the
legal consequences of actions committed before its effective date.
Miller, 482 U.S. at 430. At the time Leistiko shot his girlfriend,
5 46-18-203, MCA, did not authorize the District Court to modify or
add terms and conditions in a revocation proceeding. Clearly, the
revised statute changes the legal consequences of Leistiko's crime
by allowing the District Court to change the sentence.
To meet the second prong of the test, the United States
Supreme Court has said, "It is axiomatic that for a law to be ex
post facto it must be more onerous than the prior law. " Dobbert v.
Florida (1977), 432 U.S. 282, 294, 97 S.Ct. 2290, 2299, 53 L.Ed.2d
344, 357. The District Court's application of the new law here
added $10,000 in restitution to be paid before the end of the
suspended sentence. This puts a substantial additional burden upon
Leistiko, both financially and in terms of violations which can
subject him to additional incarceration. We conclude that the
additional restitution ordered in this case constitutes an
unconstitutional increase in punishment which Leistiko could not
have foreseen at the time he committed the crime or when he entered
into the plea agreement with the prosecutor before sentencing. We
conclude that the District Court could not increase Leistiko's
sentence by ordering $10,000 additional restitution.
We hold that under Article I, Section 10 of the United States
Constitution and Article 11, Section 31 of the Montana
Constitution, the District Court could not order the defendant to
pay his victim $10,000 additional restitution after the defendant
violated the terms and conditions of his suspended sentence while
on parole.
Vacated in part.
we concur:
December 17, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Gary G. Doran
Moore & Doran
P.O. Box 1198
Kalispell, MT 59903-1198
Hon. Marc Racicot, Attorney General
Carol Schmidt, Assistant
Justice Bldg.
Helena, MT 59620
Ted 0. Lympus
County Attorney
P.O. Box 1516
Kalispell, MT 59903-1516
ED SMITH
CLERK O F THE SUPREME COURT
STATE OF MONTANA