State v. J. Peralta

2022 MT 201, 519 P.3d 5, 410 Mont. 316

Opinion

10/18/2022

DA 21-0029 Case Number: DA 21-0029

IN THE SUPREME COURT OF THE STATE OF MONTANA

2022 MT 201

STATE OF MONTANA,

Plaintiff and Appellee,

v.

JOSE LUIS PERALTA,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC-15-272C Honorable John C. Brown, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Pete Wood, Attorney at Law, Boise, Idaho

For Appellee:

Austin Knudsen, Montana Attorney General, Cori Losing, Assistant Attorney General, Helena, Montana

Marty Lambert, Gallatin County Attorney, Bjorn E. Boyer, Deputy County Attorney, Bozeman, Montana

Submitted on Briefs: September 7, 2022

Decided: October 18, 2022

Filed:

if-6tA.-if __________________________________________ Clerk Justice Beth Baker delivered the Opinion of the Court.

¶1 Jose Peralta appeals his Eighteenth Judicial District Court sentence for a DUI fourth

offense. Peralta argues that the District Court violated prohibitions against ex post facto

application of law when it counted his 1990 DUI conviction towards his 2015 DUI

sentence. Although we find no ex post facto violation, we reverse nonetheless because

Peralta is entitled to the expungement provision in effect at the time he committed the

underlying offense. We reverse the felony conviction and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In October 2015, the State charged Peralta with DUI third offense—a misdemeanor.

The State later amended Peralta’s charge to DUI fourth offense—a felony—based on

Peralta’s three prior Texas DUI convictions in 1990, 1999, and 2003.

¶3 Peralta moved the District Court to amend the felony back to a misdemeanor.

Peralta alleged that his first DUI conviction, from 1990, should be expunged from his

record as a matter of law because he committed the underlying offense in 1988 and had not

committed another DUI offense within five years after his 1990 DUI conviction, in

accordance with § 61-8-714(5), MCA (1987). The State argued that Peralta could not

receive the benefits of the expungement provision from § 61-8-714(5), MCA (1987),

because Peralta was convicted in 1990 after the 1989 amendment removing the

expungement provision from § 61-8-714(5), MCA (1987), took effect.

¶4 The District Court agreed with the State. It concluded that the version of the statute

in effect at the time Peralta committed his offense in 1988 “clearly indicate[d]” that there

2 could be no use of the expungement provision without a defendant first having a conviction

to expunge. Therefore, defendants who committed underlying offenses prior to the 1989

amendment but who were not convicted until after the 1989 amendment took effect were

not entitled to the benefits of the expungement provision.

¶5 Peralta subsequently pleaded guilty to DUI fourth offense for his 2015 DUI,

reserving the right to appeal. The District Court sentenced Peralta in accordance with DUI

felony sentencing statutes. Peralta requests that this Court vacate the felony judgment and

remand for a new sentence.

STANDARD OF REVIEW

¶6 The interpretation and application of a statute are questions of law that we review

for correctness. City of Missoula v. Fox, 2019 MT 250, ¶ 8, 397 Mont. 388, 450 P.3d 898

(citations omitted). “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.” State v. Brander, 280 Mont. 148, 150-51, 930 P.2d 31, 33 (1996)

(emphasis in original) (citations omitted).

DISCUSSION

¶7 The Montana Legislature enacted § 61-8-714(5), MCA, in 1981. The following

provision was in effect from 1981 until October 1, 1989:

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 present offense and a previous conviction. If there has been no additional conviction for an offense under this section for a period 5 years after a prior

3 conviction hereunder, then such prior offense shall be expunged from the defendant’s record.

Section 61-8-714(5), MCA (1981) (emphasis added). The 1989 Legislature amended

§ 61-8-714(5), MCA, effective October 1, 1989. The amendment removed the

expungement provision and replaced it with the following language shown in italics:

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 present offense and a previous conviction. If there has been no additional prior conviction for an offense under this section for a period of 5 years after a prior conviction hereunder, 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.

Section 61-8-714(5), MCA (1989) (emphasis added).

¶8 Peralta argues that the District Court violated prohibitions against ex post facto

application of law when it determined that his 1990 DUI conviction was not eligible for

expungement because Peralta was not convicted prior to the 1989 amendment taking effect.

Therefore, he maintains, the District Court erroneously held that the 1990 DUI conviction

could count towards Peralta’s 2015 DUI, raising it from a third offense misdemeanor to a

fourth offense felony. Peralta contends that the District Court, by counting his 1990 DUI

conviction, subjected him to a different legal consequence for his 1990 DUI conviction and

increased the burden associated with his 1990 DUI conviction by denying him

expungement.

¶9 The State argues that the 1989 amendment merely “made unavailable the legislative

grace of expungement” when the conviction was entered after the new version took effect.

It argues that removing the “legislative grace of expungement” did not change the legal

4 consequences of Peralta’s offense, for which he was sentenced appropriately under the law

in effect at that time. Therefore, the District Court did not violate prohibitions against

ex post facto application of law when it considered Peralta’s 1990 DUI conviction towards

his 2015 DUI sentence. The State contends that this Court already rejected a similar

ex post facto argument in Brander.

¶10 Article I, Section 10, of the United States Constitution and Article II, Section 31, of

the Montana Constitution prohibit ex post facto laws. The ban on ex post facto laws gives

people a fair warning of punishable conduct and prevents the passage of “arbitrary and

potentially vindictive laws.” Brander, 280 Mont. at 153, 930 P.2d at 35 (citation omitted).

“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 a 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, 261 Mont. 251, 253, 862 P.2d 399, 400 (1993) (emphasis in original)

(cleaned up) (quoting State v. Leistiko, 256 Mont. 32, 36, 844 P.2d 97, 99-100 (1992)

(citation omitted)).

¶11 In Leistiko, this Court adopted a two-part analysis to determine when a law violates

prohibitions against ex post facto laws. First, the law must change the legal consequences

of actions a defendant committed prior to its effective date. Leistiko, 256 Mont. at 36-37,

844 P.2d at 100. Second, the law must impose a greater burden on the defendant than that

imposed by the previous law. Leistiko, 256 Mont. at 36-37, 844 P.2d at 100.

¶12 In Brander¸ we addressed an issue similar to the one Peralta now raises. Brander

moved to dismiss a DUI charged as a felony because he contended that § 61-8-714(6),

5 MCA (1995), violated prohibitions against ex post facto laws. Brander, 280 Mont. at 150,

930 P.2d at 32. In 1995, the Legislature “created a felony sanction for repetitive DUI

offenders.” Brander, 280 Mont. at 151, 930 P.2d at 33. A new subsection of § 61-8-714,

MCA, added in 1995, made a fourth offense DUI a felony. Section 61-8-714(4), MCA

(1995). This version also revised the method for counting previous DUI convictions

towards a felony DUI:

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.

Section 61-8-714(6), MCA (1995) (emphasis added) (formerly subsection (5)).

¶13 Brander argued that the ex post facto clauses prohibited the trial court from using

the 1995 version of § 61-8-714, MCA, to count his pre-1995 DUI convictions towards his

current DUI offense to enhance it to a felony. Brander, 280 Mont at 150, 930 P.2d at 32.

Brander maintained that counting his 1986 DUI conviction violated prohibitions against

ex post facto application of law because it occurred while the expungement provision from

§ 61-8-714(5), MCA (1985), was in effect. Brander, 280 Mont. at 152, 930 P.2d at 34. He

argued that “resurrecting” his 1986 DUI conviction made “more burdensome the

punishment for the 1986 crime after its commission.” Brander, 280 Mont. at 152, 930 P.2d

at 34.

¶14 This Court disagreed, finding the ex post facto argument without merit. Brander,

280 Mont. at 155, 930 P.2d at 35. We concluded that the changes to § 61-8-714, MCA, in

1995 did not impose additional penalties for prior DUI convictions. Brander, 280 Mont.

6 at 154-55, 930 P.2d at 35. We reasoned that “a stiffened penalty for the latest crime, which

is considered to be an aggravated offense because [it is] a repetitive one[,]” does not violate

prohibitions against ex post facto laws. Brander, 280 Mont. at 153-54, 930 P.2d at 35

(quoting Gryger v. Burke, 334 U.S. 728, 732 (1948)). A statute that “operates on events

antecedent to its effective date” does not automatically violate prohibitions against ex post

facto laws. Brander, 280 Mont. at 154, 930 P.2d at 35 (quoting State v. Coleman, 185

Mont. 299, 314, 605 P.2d 1000, 1010 (1979) (citations omitted)). This Court reversed

nonetheless because the trial court impermissibly counted towards his felony DUI the

defendant’s 1986 DUI conviction that should have been expunged in 1991. Brander, 280

Mont. at 157, 930 P.2d at 36.

¶15 We acknowledged that “[t]he 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.” Brander, 280 Mont. at 156, 930

P.2d at 36. We explained, “a court cannot review expunged records because those records

effectively do not exist, [but] a court is in no way restricted from reviewing criminal records

simply because those records are classified as confidential.” Brander, 280 Mont. at 156,

930 P.2d at 36. Because Brander’s 1986 conviction “should have been expunged—i.e.,

destroyed—” five years later, the sentencing court should not have considered it. Brander,

280 Mont. at 157, 930 P.2d at 36.

¶16 Peralta takes the ex post facto analysis from Brander to argue that his issue is the

ex post facto application of the 1989 amendment to his 1990 DUI conviction—not to his

2015 DUI sentence. Though worded differently, Peralta’s claim is at odds with our

7 decision in Brander. Because he already has been sentenced and has served the sentence

for his 1990 DUI conviction, it would not additionally punish Peralta for his 1990 DUI

conviction for the District Court to possess the sentencing authority to consider prior

convictions towards his 2015 DUI sentence. See Brander, 280 Mont. at 155, 930 P.2d at

36. This Court determined that “resurrecting” a prior DUI, even one that occurred before

the 1989 amendment, did not violate prohibitions on ex post facto application of law.

Brander, 280 Mont. at 155, 930 P.2d at 36. The increased consequence Peralta appeals

applies to his 2015 DUI sentence, not to his 1990 DUI conviction.

¶17 Unlike Brander, however, Peralta was not convicted before the 1989 amendment

took effect. Brander, 280 Mont. at 157, 930 P.2d at 37. We examine, therefore, whether

the 1987 version of § 61-8-714(5), MCA, applies to Peralta’s 1990 DUI conviction even

though the statute did not affect his sentence for that offense. Did the District Court thus

err when it counted a conviction that—for purposes of a repeat DUI offense—should no

longer exist? If the 1987 version should apply to Peralta’s conviction, then Brander makes

clear that he would be entitled to expungement.1 280 Mont. at 157, 930 P.2d at 37.

¶18 The State argues that the date of conviction should control Peralta’s eligibility to the

expungement provision because the plain language of § 61-8-714(5), MCA (1987), first

necessitates a conviction to then later expunge it. Therefore, offenses committed prior to

the 1989 amendment for which judgment was not entered until after it took effect are not

entitled to the expungement provision. Peralta argues that the State incorrectly interprets

1 The State does not argue that if the 1987 version of the statute applies to Peralta’s 1990 DUI conviction he failed otherwise to meet its requirements for expungement. 8 the statute because this Court’s precedent supports his entitlement to the sentencing statute

in effect at the time of his offense—not at the time of his conviction.

¶19 “[T]he law in effect at the time of the commission of the crime controls as to the

possible sentence.” State v. Wilson, 279 Mont. 34, 37, 926 P.2d 712, 714 (1996) (citation

omitted). We have made clear that criminal defendants are “entitled to the benefit of the

law in effect when the offense is committed, except to the extent that a later repeal or

amendment of the law ameliorates or mitigates a sentence or punishment.” State v. Reams,

284 Mont. 448, 454, 945 P.2d 52, 56 (1997). In Reams, we held that the expungement

provision in § 61-8-714(5), MCA, that went into effect in 1981 was ameliorative:

[T]o now limit the effect of the expungement provision to only those ‘prior’ DUI convictions entered during the time the expungement provision of § 61-8-714(5), MCA was in effect, October 1, 1981 until October 1, 1989 . . . goes against the rationale articulated in Fitzpatrick and Wilson and underlying our decision in Brander[.]

284 Mont. at 456-57, 945 P.2d at 57-58. We also determined that repealing the

expungement provision was not ameliorative. Reams, 284 Mont. at 455, 945 P.2d at 57.

¶20 Reams demonstrates that we will apply a sentencing statute passed or amended after

the date of offense only when it gives the defendant an ameliorative benefit. See Reams,

284 Mont. at 454, 945 P.2d at 56; Wilson, 279 Mont. at 37, 926 P.2d at 714. These

decisions considered changes in statutes that would have impacted the sentence being

imposed for an offense committed before the statute was changed. But they are firm that

a defendant is entitled to the benefit of laws in existence at the time of the offense. We

thus are unpersuaded by the State’s argument that § 61-8-714(5), MCA (1987), required

that a conviction be entered prior to 1989 to have the benefit of the expungement provision.

9 The State correctly argues that before a conviction could be expunged under § 61-8-714(5),

MCA (1987), there had to be a conviction date from which to count five years to determine

whether a defendant met the requirement for expungement. But this requirement exists in

both versions of the statute and affects only the calculation of the expungement date, not

which version applies to how or whether the underlying offense will be considered in the

future.

¶21 When in 1988 Peralta committed the offense underlying his 1990 DUI conviction,

the statute in effect was § 61-8-714(5), MCA (1987). The expungement provision in that

statute was ameliorative compared to the 1989 amendment. We accordingly conclude that

Peralta was entitled to the benefit of § 61-8-714(5), MCA (1987). Because Peralta’s next

DUI conviction did not occur until 1999, his 1990 DUI conviction should have been

considered expunged in 1995, five years after his conviction was entered. See Brander,

280 Mont. at 157, 930 P.2d at 37; § 61-8-714(5), MCA (1987).

¶22 Our analysis in Brander thus resolves the issue. Peralta was entitled to have his

1990 DUI conviction considered expunged because he committed the underlying offense

in 1988 when § 61-8-714(5), MCA (1987), was in effect, and he had no further DUI

convictions for more than five years after the conviction date. “[B]y expunging an offense

from the defendant’s record, all traces of the criminal process relating to this offense are

destroyed.” Brander, 280 Mont. at 156, 930 P.2d at 36. Therefore, for purposes of

Montana’s DUI sentencing laws, Peralta’s 1990 DUI conviction does not exist; it has been

“destroyed” for the purposes of his criminal record and cannot be counted towards his 2015

DUI sentence. See Brander, 280 Mont. at 156, 930 P.2d at 36.

10 CONCLUSION

¶23 The District Court erred when it considered Peralta’s 1990 DUI conviction when

sentencing for his 2015 DUI because his 1990 DUI conviction should have been expunged.

The judgment is reversed, and the matter is remanded to the District Court to dismiss the

felony and re-impose sentence in accordance with this Opinion.

/S/ BETH BAKER

We Concur:

/S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ JIM RICE