State v. Brander

NO. 96-389
IN THE SUPREME COURT OF THE‘STATE OF MONTANA

1996

STATE OF MONTANA,

P1aintiff and Resp0ndent,

VS.

'JERRY WALTER BRANDER,

Defendant and Appellant.

APPEAL FROM: DiStriCt COurt Of the FirSt JudiCial DiStriCt,
In and for the C0unty of Lewis and Clark,
The H0n0rable Th0maS H0nzel, Judge presiding.

COUNSEL OF RECORD:

F0r Appel1ant:
Edmund F. Sheehy, Cann0n & Sheehy, Helena, Montana

F0r Resp0ndent:
JOSeph P. Mazurek, Att0rney General, J0hn PaulS0n,
ASSiStant.Att0rney'General, Helena, M0ntana; Michael

T. Menahan, Deputy LewiS and Clark C0unty Att0rney,
Helena, M0ntana

Submitted on Briefs: N0vember 21, 1996

Decided: December:l2, 1996
Fil@d:

C1erki

Justice James C. Nelson delivered the Opinion of the Conrt.

This is an appeal from an order of the First Judicial District

Court, Lewis and Clark County, denying the defendant's motion to

`dismiss Count 1 of an Information filed against him. we reverse

and remand for further proceedings consistent with this opinion.
Factual and Procedural Background

Having waived preliminary examination of the same charges
filed in Justice Court, Jerry walter Brander (Jerry) was bound over
to District Court and was subsequently charged by Information on
November 24, 1995, with one count of driving or being in actual
physical control of a motor vehicle while under the influence of
alcohol (DUI), fourth offense, a felony, in violation of § 61-8~
401, MCAF, (Count I) and one count of driving while the privilege

to do so is suspended or revoked, a misdemeanor, in violation of §

.61-5-212(1), MCA, (Count II). These charges were alleged to have

been committed on October 30, 1995, west of Helena, Montana, at the
intersection of Highway 12 and Colorado Gulch Road. Jerry had been
previously convicted of DU1 on November 24, 1986, November 15,
1993 and May 5, 1994.

On January 4, 1996, Jerry filed a motion to dismiss Count 1 of
the Information. As grounds for his motion, Jerry contended that
the application of § 61-8-714(6), MCA, which. became effective
October l, 1995, violated his constitutional right not to `be

subjected to ex post facto laws. The State opposed the motion, and

1Unless otherwise stated, all statutory citations are to the

_1995 version of the Montana Code Annotated.

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on February' 9, 1996, following the submission. of briefs, the
District Court issued its memorandum and order denying Jerry‘s
motion to dismiss.

On February 22, 1996, Jerry entered a plea of guilty to the

charges, reserving his right to appeal the court's denial of his

`motion. Section 46-12-204(3), MCA. On May 16, 1996, the District

Court sentenced Jerry to the Montana Department of Corrections for
ten years, with five years suspended on conditions, for the felony
DUI conviction and to a six-month jail term, suspended on
conditions, for the misdemeanor charge. This appeal followed.
Discussion

The issue on appeal is whether the District Court erred in
denying Jerry‘s motion to dismiss.

There are no facts in dispute. whether the ex post facto
clauses of the federal and Montana Constitutions are implicated in

charging a criminal offense is a question of law. Therefore, our

~ review is plenary; we simply determine whether the District Court's

interpretation of the law is correct. See State v. Schnittgen
(Mont. 1996), 922 P..'Zd SOO, 503, 53 S’C.Rep. 710, 712 (Citations
omitted). Moreover, even without the constitutional question, the
grant of or denial of a motion to dismiss in a criminal case is a
question of law which is subject to de novo review. See City of
Helena v. Danichek (Mont. 1996), 922 9.2d 1170, 1172, 53 St.Rep.
767, 768 (citing State v. Hansen (1995), 273 Mont. 32l, 323, 903
P.Zd 194, 195).

By way of background, the 1995 Montana Legislature enacted

comprehensive revisions to Montana‘s laws prohibiting driving after
having consumed intoxicating amounts of alcohol. See Chs. 447, 546
and 567, L. 1995. Among other changes, the Legislature created a
felony sanction for repetitive DUI offenders. A new subsection, §
61-8-7l4(4), MCA, provides:

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. Except as provided in subsection (8),
notwithstanding any provision to the contrary providing
for suspension of execution of a sentence imposed under
this subsection, the imposition or execution of the first
6 months of the imprisonment sentence imposed for a
fourth or subsequent offense may not be suspended.

In implementing this sanction, the Legislature also amended §
61-8-714(6), MCA, (formerly subsection (5)}. This subsection now
_provides, in pertinent part:

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. [ltalics indicates newly added language; minor
style changes in the last sentence are not italicized.]

Section 8, Ch. 447, L. 1995, effective October 1, 1995.
At the time of Jerry*s DUI conviction on November 24, 1986, §
61-8-714(5), MCA (1985), provided, in pertinent 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

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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.
The 1989 Legislature amended § 61-8-714(5), MCA, to provide, as
subsection. (6) does now, that after 5 years, there being no
additional DUI convictions, records and data related to a prior DUI

conviction would become confidential criminal justice information,

'rather than the conviction being expunged. Section 2, Ch. 476, L.

1989. The significance of this amendment is explained below.
Jerry argued before the trial court, and now argues on appeal,
that prior to October l, 1995, his November 24, 1986 DUI conviction
could not have been counted on or after five years from the date of
that conviction--i.e., on or after November 24, 199l. Jerry
further argues that because the 1986 conviction was no longer
countable as a DUI conviction at the time he was charged in
November 1995, resurrecting the earlier conviction for purposes of
charging and sentencing his latest DU1 as a felony violates his

constitutional guarantee from the application of ex post facto

_laws. Jerry contends that counting the 1986 DUI conviction is an

ex post facto application of law because counting the earlier
conviction makes more burdensome the punishment for the 1986 crime
after its commission.

Jerry argues that the two-part test which we adopted in State
v. Leistiko (l992), 256 Mont. 32, 844 P.2d 97, to determine whether
a law is eX_post facto, is violated. He maintains that application

of § 61-8-714(6), MCA, violates the ex post facto ban because

first, the 1995 amendment is retrospective in that it changes the

'legal consequences of the 1986 DUI conviction and second, he was

disadvantaged. by' his inability' to foresee, in l986, that his
conviction could be used against him some nine years later to
subject him to a possible ten-year prison sentence.

The District Court rejected Jerry's interpretation of the law.
Basing its decision on Leistiko, State v. Ma1donado (l978), 176
MOnt. 322, 578 P.2d 296, and Gryger v. Burke (l948), 334 U.S. 728,
68 S.Ct. 1256, 92 L.Ed 1683, the court concluded that § 61-8-
7l4(6), MCA, being in effect at the time Jerry committed the
instant DUI, was not an additional penalty for the 1986 DUI, but

rather put Jerry on notice that if he committed the offense of DUI,

.he would be subject to increased punishment. we agree with the

District Court‘s legal conc1usion_ based on the ext post facto
argument advanced by Jerry in that court.

Ex post facto laws are prohibited by Artic1e I, Section 10 of
the United States Constitution and by Article II, Section 31 of the
Montana Constitution. we have stated that:

[A]ny 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.

State V. Suiste (l993), 261 MOnt. 251, 253, 862 P.2d 399, 400
(quoting L@istiko, 344 92d at 99-100 (quoting seazell v. ohio
(1925), 269 U.S. 167, 169~70, 46 S.Ct. 68, 68, 70 L.Ed. 216-17)).

In Leistiko, we observed that banning ex post facto

legislation serves two purposes: (1) it entitles people to a fair

warning of what conduct is punishable; and (2) it prevents federal
and state governments from passing- arbitrary and potentially
vindictive laws. Leistiko, 844 P.2d at 100. To determine whether
a statute violates the prohibition against ex post facto
legislation, we determine, first, whether the law is retrospective
in nature--i.e., whether it changes the legal consequences of

actions committed before its effective date. Leistiko, 844 P.2d at

'l00 (Citing Miller v. FlOrida (l987), 482 U.S. 423, 430, 107 S.Ct.

2446, 2451, 96 L.Ed.2d 351, 360-61). Second, we determine whether
the law disadvantages the offender affected by it--i.e., is the law
more burdensome than the previous law. Leistiko, 844 P.2d at 100
(Citing DObbert v. Florida {l977), 432 U.S. 282, 294, 97 S.Ct.
2290, 2299, 53 L.Ed.2d 344, 357).

In Maldonado, we adopted the reasoning of the U.S. Supreme
Court'in Gryger. in Gryger, the defendant claimed that his being
charged. as a habitual offender‘ under a statute which. allowed
consideration of a conviction occurring before the habitual

offender statute was enacted.was unconstitutionally retroactive and

'ex post facto. Gr er, 334 U.S. at 729. The Court disagreed,

holding that consideration of the prior conviction was proper in
sentencing under the new statute as the current sentence was not an
additional penalty for the earlier crime, but, rather, was "a
stiffened penalty for the latest crime, which is considered to be
an aggravated offense because a repetitive one." Gryger, 334 U.S.
at 732. Citing this language from Gryger in Maldonado, we rejected

the defendant‘s similar challenge to the application of an amended

persistent felony offender statute which took into consideration a

conviction occurring prior to the effective date of the amendment.

'we stated:

The law did not punish defendant for past conduct, but
merely notified defendant he was subject to increased
punishment, if he in the future committed an additional
felony crime,

Maldonado, 578 P.2d at 300.

The fallacy of Jerry's position, however, is that the increase
in punishment at issue here is a consequence of his present offense
only and this enhancement neither punishes any previous conduct nor
increases the penalty for any prior conviction of DUI. In point of
fact, the enhancement of Jerry's present DUI to felony status is
nothing more nor less than current punishment for his repetitive
drunk driving offense. That Jerry's prior behavior is taken into
account in charging the current offense as a felony rather than as
a misdemeanor does not, without more, constitute ex post facto
legislation. ns we pointed out in State v. Coleman (1979), 185
Mont. 299, 605 P.2d 1000, "[s]imply because a statute operates on
events antecedent to its effective date does not make the statute
ex post facto, nor does such operation make a law prohibitively
retroactive." Coleman, 605 P.2d at 1010 (citing Calder v. Bull
(1793), 3 U.s. (3 Dall.) 336, 390, 1 L.Ed. 643 and cox v. Hart
(l922), 260 U.S. 427, 435, 43 S.Ct. l54, 67 L.Ed. 332).

Rather, what is critical is that the sanctions of § 61-8-7l4,

MCA, apply only to Jerry's present offense, committed following the

`effective date of the statutes under which he was charged and

sentenced. while Jerry may not have foreseen in 1986 a change in

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the law in 1995, at the time he committed the instant offense of
DUI on October 30, 1995, he was without question on notice that his
prior DUI convictions would be considered for charging and
sentencing purposes as regards his driving under the influence on
that date. That the Legislature chose to punish his repetitive
behavior more severely, does not impoAe a new penalty for an
earlier crime, Maldonado, 578 P.2d at 300. Jerry had fair warning
of what conduct was punishable, and he makes no showing that the
Legislature amended § 61-8-714, MCA, arbitrarily or for vindictive
purposes. The 1995 amendments to this statute do not change the
legal consequences of actions committed prior to October 1, 1995,
nor does the present law disadvantage Jerry by imposing an
additional burden on his prior conduct that was not present when
his earlier DUIs were committed. Leistiko, 844 P.2d at 100.

Accordingly, we hold that the District Court correctly
concluded that the application of § 61-8-714(6), MCA, did not
violate the ex: post facto clauses of the federal or Montana
Constitutions. That does not end our inquiry, however. Under the
circumstances of this case, Jerry still was not properly charged
with felony DUI, and the information filed against him should have
been dismissed. .

while not articulated in a particularly clear fashion, Jerry
nevertheless, maintained in the District Court and on appeal that
he could not be charged with felony DUI because it was improper to

count his November 24, 1986 DUI conviction. `Unfortunately, because

.of the way it was presented both to the trial court and to this

Court, the significance of this contention tends to get lost in
Jerry's ex post facto argument, which we have concluded is not
meritorious.

In his argument, Jerry distinguishes Gryger and Maldonado on
the basis that in neither of those cases was the defendant
convicted under an earlier statute which provided that--at least
after a certain cut-off date--the conviction could not be used
against him. Jerry argues that because the record of his November
24, 1986 conviction was "expunged" under § 61-8-714(5), MCA (1985),
that conviction could not be counted as a conviction for purposes
of charging and sentencing him under § 61-8-714(6), MCA, for felony
DUI committed October 30, 1995. In support of this argument, he
cites State v. Gladue (1984), 209 Mont. 235, 679 P.2d 1256 (charges
subsequently dismissed under a deferred imposition of sentence
cannot be counted as a “conviction" for persistent felony offender
designation), and 42 Op. Att'y Gen. 384 (1988). He argues that the
only way to give meaning to the word "expunged" is to prohibit
counting the 1986 conviction as being ex post facto.

hs we explained above, the District Court's consideration of
Jerry‘s previous DUl convictions was not ex post facto application

of the law. Therefore, we disagree that the only way to give

'meaning to the word "expunged" is to ban consideration of the 1986

DUI conviction based on ex post facto grounds. However, we do
agree that because Jerry's 1986 DUI conviction was to be expunged
under § 61-8-714{5), MCA (1985), the law in effect at the time of

his 1986 DUI conviction, the November 24, 1986 conviction no longer

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exists, and, therefore, cannot be considered for purposes of § 61-
8-714 (6} , MCA.

Section 61-8~714(5}, MCA (1985), states in part that "{i]f
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.] The word "expunge" is not defined in
Montana statutes or case law, with the exception of one Attorney
General opinion, which, while defining "expunge" for the purposes

of a different Montana statute, is consistent with our discussion

herein. See 42 Op. Att'y Gen. 384 (1988). Therefore, to interpret

§ 61-8-714(5), MCA (1985), we look first to the plain meaning of
the words that this statute contains. That is, we will interpret
the statutory language by "giving words their usual and ordinary
meaning." werre v. David (1996), 275 Mont. 376, 385, 913 P.2d 625,
631 (citation omitted).

The plain and ordinary meaning of expunge is "[t}o destroy;
blot out; obliterate; erase; efface designedly; strike out wholly.
The act of physically destroying information--including criminal
records--in files, computers, or other depositories." Black's Law
Dictionary at 582 (6th ed. 1990). Therefore, the term expunge
“impli[es] not a legal act, but a physical annihilation." K. v. K.
(N.Y. Sup. Ct. 1984), 483 N.Y.S.2d 602, 604. Consequently, by
expunging an offense from the defendant's record, all traces of the
criminal process relating to this offense are destroyed.

Commonwealth v. Roberts (Mass. App. Ct. 1995), 656 N.E.2d 1260

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(citing Police Commr. of Boston v. Municipal Court of Dorchester

Dist. (Mass. 1973), 374 N.E.2d 272).

As we noted above, in 1989, the Legislature amended § 61-8-
714(5), MCA, by substituting the language of expungment with
language directing that a prior DUI conviction be classified as
confidential criminal justice information, if after 5 years the
defendant has no additional DUI convictions. Section 2, Ch. 476,
L. 1989. The distinction between a mandate to expunge an offense
from the defendant's record and instructions to classify certain
conviction records as confidential criminal justice information is
significant. Most importantly, this distinction determines whether

a court may consider a prior DUI conviction for calculating

`penalties under § 61-8-714(6), MCA. Unlike expunged records which

are completely destroyed, classification of records as confidential
criminal justice information does not prevent a court from
reviewing those records, but merely restricts the dissemination of
those records to criminal justice agencies and others authorized.by
law. Sections 44-5-103(3), 44-5-103{7) and 44-5-303, MCA.
Therefore, while a court cannot review expunged records because
those records effectively do not exist, a court is iJ1 no way
restricted from reviewing criminal records simply because those
records are classified as confidential. See § 44-5-303, MCA.

we note, however, that § 61-8-714(5), MCA (1985), was in

»effect when Jerry was convicted of his first DUI on November 24,

1986. Accordingly, because Jerry‘s second DU1 conviction did not

occur until November 15, 1993, his 1986 DUI conviction should have

12

been expunged--i.e., destroyed--on November 24, 1991. Section 61-
B»714(5), MCA (1985). Therefore, the District Court should not
' have considered the 1986 conviction when it sentenced Jerry for his
October 30, 1995 DUI. Having been expunged from his record, the
1986 conviction did not exist after November 24, 1991.
while the District Court did. not err when. it considered
Jerry's November 15, 1993 and May 5, 1994 DUI convictions under §
61~8-714(6}, MCA, the District Court did err when it also
considered. Jerry‘s expunged November 24, 1986 DUI conviction.
Accordingly, we hold that the trial court did not err in denying
Jerry's motion to dismiss Count 1 of the information based upon ex
post facto grounds. However, we hold that the District Court did
err when it specifically considered Jerry's expunged November 24,
-1986 DUE conviction under § 61-8-714(6), MCA.

Reversed and remanded for further proceedings consistent with

//// Jdstice
we Concur: d;/f/,/fj3==~

this opinion.

Justices

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