Ulrigg v. State

2012 MT 56N

• Court: Montana Supreme Court
• Decided: March 7, 2012
• Docket: 11-0418
• Status: Published

Opinion

March 7 2012

DA 11-0418

IN THE SUPREME COURT OF THE STATE OF MONTANA 2012 MT 56N

MATTHEW G. ULRIGG,

Petitioner and Appellant,

v.

STATE OF MONTANA,

Respondent and Appellee.

APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause Nos. DV-11-342A, DV-11-337B Honorable Holly Brown, Honorable Mike Salvagni, Presiding Judges

COUNSEL OF RECORD:

For Appellant:

Matthew G. Ulrigg (self-represented litigant); Shelby, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Mark W. Mattioli, Assistant Attorney General, Helena, Montana

Marty Lambert, Gallatin County Attorney, Bozeman, Montana

Submitted on Briefs: February 1, 2012

Decided: March 7, 2012

Filed:

__________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 Matthew Gale Ulrigg (Ulrigg) appeals from the dismissal of two petitions for

postconviction relief by the District Court for the Eighteenth Judicial District, Gallatin

County.1 We affirm.

¶3 In 2005, Ulrigg was sentenced by Judge Holly Brown to two concurrent, 10-year

commitments to the Department of Corrections (DOC) with five years suspended for

criminal distribution of dangerous drugs and two counts of forgery. The next month,

Judge Mike Salvagni committed Ulrigg to the DOC for a term of 20 years with 15

suspended for burglary, which was to run concurrently with the prior two sentences.

¶4 Ulrigg served time in the Missoula Assessment and Sanction Center, the Butte

Prerelease Center, and the Connections Corrections program. However he was soon

returned to prison on a felony warrant. In February 2006, Ulrigg was committed to the

DOC for 20 years with 15 suspended for a new charge of burglary, and to a concurrent 10

years with 5 suspended for forgery. Judge Holly Brown presided over this matter.

1 This appeal consolidates District Court cause numbers DV-11-342A and DV-11-337B. 2 ¶5 Over the next several years, Ulrigg was placed in numerous DOC programs and

facilities. He violated conditions of his parole multiple times with infractions such as

failure to report, harassment, and use of methamphetamine and other drugs. In

September 2009, the Gallatin County Attorney’s Office moved to revoke Ulrigg’s

suspended sentences, alleging that he had used methamphetamine and escaped from the

Butte Prerelease Center. Ulrigg pleaded guilty to that escape, and he was soon convicted

again of escape in another county.

¶6 Ulrigg agreed to admit to the escape charge as related to the revocation of his then

six suspended sentences in exchange for the State’s agreement to dismiss the other

allegations in its petition. In July 2010, Ulrigg’s suspended sentence in the first burglary

case was revoked, and he was committed to the DOC for 15 years with a

recommendation for the department’s boot camp program. For the other five sentences,

Ulrigg was committed to the DOC for four concurrent 5-year terms, and one 15-year term

with 10 years suspended.

¶7 Ulrigg filed motions with the District Courts, which were construed as petitions

for postconviction relief. He argued that the courts lacked authority to revoke his

suspended sentences because the petition to revoke was not filed during the suspended

portions of his sentences. See § 46-18-203(2), MCA (2003); State v. Stiffarm, 2011 MT

9, 359 Mont. 116, 250 P.3d 300. The State argued that Ulrigg’s revocations complied

both with the law at the time of disposition, as well as with the retroactive provisions of §

46-18-203, MCA (2011), as amended during the last legislative session. Judges Salvagni

and Brown both dismissed Ulrigg’s petitions with prejudice. This appeal followed.

3 ¶8 In Stiffarm, we overruled then-existing case law that allowed prosecutors to file

petitions to revoke before the start of the suspended sentence. We held that the prior

cases were contrary to the plain language of § 46-18-203(2), MCA (1999), which at the

time provided: “the petition for a revocation must be filed with the sentencing court

during the period of suspension or deferral.” Stiffarm, ¶ 19; see also State v. LeDeau,

2009 MT 276, ¶¶ 19-21, 352 Mont. 140, 215 P.3d 672; State v. Morrison, 2008 MT 16,

¶¶ 13-18, 341 Mont. 147, 176 P.3d 1027. As such, district courts lacked statutory

authority to rule upon petitions filed prior to the commencement of the suspended

sentence. Stiffarm, ¶ 19.

¶9 The State filed its petition to revoke Ulrigg’s suspended sentences in September

2009. The District Court judges revoked his suspended sentences on July 26 and 27,

2010. We decided Stiffarm on January 26, 2011. Then, on April 20, 2011, the

Legislature amended § 46-18-203, MCA, to allow for the filing of petitions to revoke

before the period of suspension or deferral. Ulrigg argues that our holding in Stiffarm

should apply retroactively to his revocation, and that employment of the amended § 46-

18-203(2), MCA (2011), in his case would constitute an ex post facto application of the

law. Accordingly, he argues that the District Court lacked statutory authority to revoke

his suspended sentence.

¶10 We recently decided State v. Cook, 2012 MT 34, 364 Mont. 161, ___ P.3d ___,

holding that the rule announced in Stiffarm was a new rule of procedure that did not apply

retroactively to cases on collateral review. Our holding in Stiffarm instead applied

prospectively, from the date of decision until the amended § 46-18-203, MCA (2011),

4 became effective. Cook, ¶ 20. Therefore, Stiffarm does not apply to Ulrigg’s

revocations.

¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

issues in this case are legal and are controlled by settled Montana law.

¶12 Affirmed.

/S/ MIKE McGRATH

We concur:

/S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BRIAN MORRIS /S/ JIM RICE