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State v. Thomas

Supreme Court of Montana

July 9, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
MICHAEL JOE THOMAS, Defendant and Appellant.

          Submitted on Briefs: May 30, 2019

          APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 16-0760 Honorable Mary Jane Knisely, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Lynn Ployhar, Assistant Attorney General, Helena, Montana Scott D. Twito, Yellowstone County Attorney, Jacob Yerger, Deputy County Attorney, Billings, Montana

          District Court Judge Karen S. Townsend, Sitting in for Justice Ingrid Gustafson

          OPINION

          JIM RICE, JUSTICE

         ¶1 Michael Joe Thomas appeals his designation as a Persistent Felony Offender (PFO) for purposes of sentencing by the Thirteenth Judicial District Court, Yellowstone County, arguing the District Court lacked authority to sentence him under the 2015 PFO statute in effect at the time he committed his offense, and that he should have been sentenced under the 2017 amendments to the PFO statute. We affirm, and consider the following issue:

         Did the District Court err by designating Thomas a PFO for sentencing purposes pursuant to § 46-18-501, MCA (2015)?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 The State charged Thomas with felony driving under the influence of alcohol and other offenses alleged to have been committed on July 23, 2016. Based on a prior conviction for felony escape, the State filed a notice seeking designation of Thomas as a PFO under § 46-18-502, MCA (2015). In January 2017, a jury convicted Thomas of driving with a blood alcohol content above 0.08, fourth or subsequent offense, in violation of § 61-8-406(1)(a), MCA (2015), and acquitted him of an alternative charge. Thomas sought and was granted multiple continuances of his sentencing hearing, which was not conducted by the District Court until July 27, 2017.

         ¶3 Between the time of Thomas' offense and his sentencing, the 2017 Montana Legislature passed HB 133, which prospectively amended thirty-eight sections of the Montana Code Annotated and repealed three others. See 2017 Mont. Laws ch. 321. Most of HB 133's forty-four provisions addressed elements, definitions, or penalties of specific offenses. See 2017 Mont. Laws ch. 321, §§ 3-4, 6-22, 26-28, 31-39. Additionally, HB 133 changed the definition of a PFO. See 2017 Mont. Laws ch. 321, § 23. Under existing law, the State could seek a PFO designation if an offender had one prior felony conviction within five years of the commission of the present offense, or had been released from a commitment imposed for the prior felony conviction within the last five years. See § 46-18-501, MCA (2015). The Legislature repealed one of the two PFO definitional sections, § 46-18-501, MCA, and revised the other definition within § 46-1-202(18), MCA. See 2017 Mont. Laws ch. 321, §§ 23, 40. The new definition requires two predicate felony convictions before the State may seek a PFO designation, upon a third felony conviction. Further, one of the three felonies must be a sexual or violent offense. See § 46-1-202(18), MCA (2017). Regarding timing, the Act was made effective on July 1, 2017. Consistent therewith, the Act included a separate applicability provision, which provided the Act would apply "to offenses committed after June 30, 2017."

         ¶4 At Thomas' July 27, 2017 sentencing hearing, his counsel acknowledged there had been a legislative revision to the PFO statute, but did not argue the change applied to Thomas. The District Court sentenced Thomas as a PFO under § 46-18-501, MCA (2015), imposing a ten-year prison sentence with no time suspended.

         STANDARDS OF REVIEW

         ¶5 We review a criminal sentence imposing over one year of incarceration for legality. State v. Moore, 2012 MT 95, ¶ 10, 365 Mont. 13, 277 P.3d 1212. The District Court's designation of Thomas as a persistent felony offender is a question of law that we review for correctness. State v. Wilson, 279 Mont. 34, 37, 926 P.2d 712, 714 (1996).

         DISCUSSION

         ¶6 Did the District Court err by designating Thomas a PFO for sentencing purposes pursuant to § 46-18-501, MCA (2015)?

         ¶7 Thomas challenges the District Court's application of the PFO definition under the 2015 statute to his sentence, arguing he was entitled to the ameliorative amendment of the PFO definition within the 2017 Act that became effective before he was sentenced. The State concedes Thomas would not qualify for designation as a PFO as defined under the 2017 Act, but argues that, because Thomas committed his felony DUI offense on July 23, 2016, "the ameliorative effects of 2017 Mont. Laws, ch. 321 did not apply to him."[1]

         ¶8 In applying a statute, our purpose is to "ascertain the legislative intent and give effect to the legislative will[, ]" S.L.H. v. State Comp. Mut. Ins. Fund, 2000 MT 362, ¶ 16, 303 Mont. 364, 15 P.3d 948, and our role "is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted." Diaz v. Blue Cross & Blue Shield,2011 MT 322, ¶ 14, 363 Mont. 151, 267 P.3d 756 (internal quotations and citations omitted). Thus, legislative intent, in the first instance, is to be ascertained "from the plain meaning of the words used." Mont. Vending, Inc. v. Coca-Cola Bottling Co. of Mont,2003 MT 282, ¶ 21, 318 Mont. 1, 78 P.3d 499. "Where the plain language of the statute is clear and unambiguous, no further statutory interpretation is necessary." Diaz, ¶ 14 (internal citation omitted); State v. Stiffarm,2011 MT 9, ...


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