NO. 93-002
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
v.
KENNETH SUISTE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Billy B. Miller, Miller & Cook,
Great Falls, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Barbara C. Harris, Assistant Attorney General,
Helena, Montana; Patrick L. Paul Cascade
County Attorney, Deborah Kim Chr&topher, Deputy
Cascade County Attorney, Great Falls, Montana
Submitted on Briefs: May 13, 1993
Decided: October 26, 1993
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Defendant Kenneth Suiste appeals from an order of the Eighth
Judicial District Court, Cascade County, revoking his suspended
sentence for sexual intercourse without consent and designating him
as a dangerous offender without the possibility of parole.
We reverse and remand.
Defendant raises two issues on appeal.
1. Did the District Court err by designating defendant a
dangerous offender pursuant to § 46-18-404(4), MCA (enacted in
1989), when the original crime occurred in 1979?
2. Did the District Court err when it determined defendant
to be ineligible for parole?
In 1979, the Cascade County Attorney's Office charged Suiste
with sexual intercourse without consent. The District Court
imposed a ten-year suspended sentence on the condition that Suiste
obey all rules and regulations of adult probation and parole
services. Suiste committed a series of sexual related offenses in
Washington, California, and Idaho, and spent time incarcerated in
each of those states.
In 1982, Suiste was arrested in Flagstaff, Arizona. In
January 1983, the Cascade County Attorney's Office issued a bench
warrant charging Suiste with violating the terms of his suspended
sentence. Arizona authorities extradited Suiste to Cascade County,
where authorities placed him in jail. After a six month
2
incarceration, the court dismissed Suiste's parole violation and he
was released from jail.
In February 1984, Suiste was arrested and convicted of
providing alcohol to a minor in Cascade County. He received a $500
fine and a six-month suspended sentence. In 1985, authorities
arrested and charged Suiste with assault. He was placed in jail,
but released after he posted a $2000 bail bond. Later, he failed
to appear and bail was forfeited.
In 1985, the Cascade County Attorney's Office filed a petition
to revoke Suiste's suspended sentence. Because he was incarcerated
in California for homicide, Suiste did not enter the jurisdiction
of the Eighth Judicial District Court until November 1992.
On November 23, 1992, the District Court held a revocation of
sentence hearing. After the hearing, the District Court revoked
the suspended sentence, designated Suiste a dangerous offender, and
stated that he was ineligible for parole. Suiste appeals from the
order.
Did the District Court err by designating Suiste a dangerous
offender pursuant to § 46-18-404(4), MCA (enacted in 1989), when
the original crime occurred in 1979?
Article I, Section 10, of the United States Constitution and
Article II, Section 31, of the Montana Constitution prohibit the
legislature from passing ex post facto laws. This Court has stated
that:
3
[AJny statute which punishes as a crime an act previously
committed, which was innocent when done: whichmakesmore
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 expostfacto.
State v. Leistiko (1992), 256 Mont. 32, 36, 844 P.2d 97, 99-100
(quoting Beazell v. Ohio (1925), 269 U.S. 167, 169-70, 46 S. Ct.
68, 70 L. Ed 216-17). Banning ex post facto legislation served two
purposes: (1) it entitled people to a fair warning of what conduct
is punishable; and (2) it prevented federal and state governments
from passing arbitrary and potentially vindictive laws. Leistiko,
844 P.2d at 100.
To determine whether a statute violates the ban on ex post
facto legislation, we use a two-part test. First, the law must be
retrospective in nature: that is, if it "changes the legal
consequences of actions committed before its effective date."
Leistiko, 844 P.2d at 100 (citing Miller v. Florida (1987), 482
U.S. 423, 430, 107 S. Ct. 2446, 2451, 96 L. Ed. 2d 351, 360-61).
Second, it must disadvantage the offender affected by it, which is
to say, that the law must be more burdensome than the previous law.
Leistiko, 844 P.2d at 100, (citing Dobbert v. Florida (1977), 432
U.S. 282, 294, 97 S. Ct. 2290, 2299, 53 L. Ed. 2d 344, 357).
Suiste argues that at the time he was sentenced in 1979,
5 46-18-404, MCA, did not authorize the District Court to designate
him a dangerous offender when he was already designated
nondangerous. At the time of the revocation hearing,
4
§ 46-18-404(4) MCA, did authorize the District Court to designate
him as a dangerous offender. Suiste maintains that the effect of
the designation is to increase his punishment, therefore, the
statute violates the ban on ex post facto legislation.
The original. statute under which Suiste was sentenced was
§ 46-18-404, MCA (1978). The statute provided that:
(1) The sentencing court shall designate an offender a
nondangerous offender for purposes of parole eligibility
for parole under part 2 of chapter 23 if:
(a) during the 5 years preceding the commission of
the offense for which the offender is being sentenced,
the offender was neither convicted of nor incarcerated
for an offense committed in this state or any other
jurisdiction for which a sentence to a term of
imprisonment in excess of 1 year could have been imposed:
or
(b) the court has determined, based on any
presentence report and the evidence presented at the
trial and the sentencing hearing, that the offender does
not represent a substantial danger to other persons or
society.
(2) A conviction or incarceration may not be
considered under subsection (l)(a) if:
(a) the offender was less than 18 years of age at
the time of .the commission of the present offense; or
(b) the offender has been pardoned for the previous
offense on the grounds of innocence or the conviction for
such offense has been set aside in a postconviction
hearing.
Prior to the time of Suiste's revocation, the Legislature
added two more subsections to the statute. Those subsections gave
the district courts additional guidance and authority when
designating a convicted individual dangerous or nondangerous:
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(3) If the court determines that an offender is a
dangerous offender, it shall make that determination as
part of the sentenced imposed and shall state the
determination in the judgment. Except as provided in
subsection (4), if the sentence and judgment do not
contain a determination that the offender is a dangerous
offender, the offender is considered to have been
designated as a nondangerous offender for purposes of
eligibility for parole.
(4) If an offender is given a probationary sentence
that is subsequently revoked, the court may make the
determination of whether the offender is a dangerous or
nondangerous offender at the time of the revocation
proceeding.
Section 46-18-404 MCA, (1991).
Subsection 4 gives the District Court authority to make a
determination of dangerous status at the revocation hearing. on
the other hand, subsection 4 did not exist at the time of Suiste's
sentencing in 1979. A designation as a dangerous offender would
mean that Suiste must serve one-half of his sentence, minus good
time. Section 46-23-201(2), MCA. We have held that when an
offender is not expressly designated nondangerous he must serve
one-half of his sentence, minus good time. Rose v. McCormick
(1992) I 253 Mont. 347, 349, 834 P.2d 1377, 1378. Suiste was not
expressly designated nondangerous at the time of his sentencing.
In Rose, we also stated that the statute in effect at the time the
offender was sentenced is the applicable sentencing statute. See
also
-I State v. Gone (1978), 179 Mont. 271, 280, 587 P.2d 1291,
1297. We hold that, like the offender in -, Suiste is entitled
Rose
to sentencing under the applicable statute at the time of his
original sentencing. We reverse the revocation order and remand
6
for sentencing under the statute in effect at the time of Suiste's
original sentencing.
As a result of our holding on issue one, we need not discuss
issue two.
We reverse and remand for proceedings not inconsistent with
this opinion.
Justice
We concur:
Chief Justice
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October 26, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Billy B. Miller
Miller & Cook
600 Central Plaza, Ste. 300
Great Falls, MT 59401
Hon. Joseph P. Mazurek, Attorney General
Barbara C. Harris, Assistant
Justice Bldg.
Helena, MT 59620
Patrick L. Paul, County Attorney
Deborah Kim Christopher, Deputy
Cascade County Courthouse
Great Falls, MT 59401
ED SMITH
CLERK OF THE SUPREME COURT
STATE QF MONTANA