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,

Helena,

Assistant Attorney General,

Montana; Patrick L. Paul Cascade

County Attorney, Deborah Kim Chr&topher, Deputy

Cascade County Attorney, Great Falls, Montana

Filed:

Submitted on Briefs: May 13, 1993

Decided: October 26, 1993
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

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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. A t the time of the revocation hearing,

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§ 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 Rose -, Suiste is entitled

to sentencing under the applicable statute at the time of his

original sentencing. We reverse the revocation order and remand

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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