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No. 98-674 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1999 MT 195 

295 Mont. 394

983 P.2d 985

IN THE MATTER OF TANNER YOUNG, 

A Youth 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin,

The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:

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For Appellant:

Derik Pomeroy, Bozeman, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana; 

Marty Lambert, Gallatin County Attorney, Jane Mersen, Deputy Gallatin County Attorney, Bozeman, 

Montana

Submitted on Briefs: May 13, 1999 

Decided: August 19, 1999

Filed:

__________________________________________

Clerk

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

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1. ¶This is an appeal by Tanner Young (Young) from the October 16, 1998 order of 

the Eighteenth Judicial District Youth Court, Gallatin County, transferring 

supervision of two Youth Court cases to the District Court and imposing conditions 

of probation. We reverse and remand for further proceedings consistent with this 

opinion.

Background

1. ¶In 1993, Young entered into a consent decree with the State to dispose of three 

felony property offenses. Though ordered to pay some $3,788 in restitution while on 

probation, Young paid only $125. It does not appear that the State took any action to 

enforce the restitution agreement, however.

2. ¶On March 15, 1995, Young was adjudicated a delinquent youth in Cause No. DJ95-03 by reason of his admitting the commission of felony theft and misdemeanor 

drug and assault charges. The trial court advised Young that the maximum 

disposition of his case was commitment to the Department of Family Services 

(DFS) until age 19. The court then committed Young to the DFS until age 18 with 

certain conditions. No restitution was required, but, at the State's request and over 

Young's objection, the trial court reinstated Young's restitution obligation from the 

1993 consent decree.

3. ¶The same day DJ-95-03 was disposed of, Young committed new offenses 

involving felony and misdemeanor assault, misdemeanor theft, and criminal trespass 

to vehicles. With the exception of the felony assault charge, Young admitted to 

these offenses after being advised by the court that the maximum disposition was 

placement in a state institution until he was 19.

4. ¶On July 19, 1995, the Youth Court conducted a combined hearing on the final 

dispositions of DJ-95-03 and the subsequent cause, DJ-95-31. At the time, Young 

was 17. The court imposed no further restitution requirement, but committed the 

youth to the Department of Corrections (DOC) until he reached 19 and required his 

placement in a residential treatment program in Orem, Utah.

5. ¶On January 22, 1997, at the State's request and pursuant to § 41-5-208, MCA, the 

Youth Court ordered that supervision of both DJ-95-03 and DJ-95-31 be transferred 

from the Youth Court to the District Court for direct supervision by Adult Probation 

and Parole. The court further ordered Young to report within five days. 

6. ¶Young failed to report, however, and on May 14, 1997, the State petitioned to 

revoke the July 19, 1995 disposition. On July 31, 1998, Young appeared before the 

court on a summons and denied the allegations in the petition to revoke. Moreover, 

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Young, now age 20, argued

against, and following his appearance, formally objected to the youth court's transfer 

of his case to District Court. Young maintained that § 41-5-208, MCA, did not apply 

to DJ-95-03, because this case was disposed of before the statute was enacted. As to 

DJ-95-31, Young argued that the only reason the State had sought transfer was to 

obtain his outstanding restitution, but that no restitution was owing on this case. He 

also contended that he had successfully completed the residential treatment program 

in Utah per the court's disposition order, and that the application of § 41-5-208, 

MCA, violated the ex post facto provisions of the Montana and federal constitutions 

because the law was not in effect when he committed any of the offenses and 

because applying the transfer statute to him would increase the possible penalty he 

faced for the offenses to which he previously admitted.

7. ¶The State disagreed arguing that Young's two cases were finally disposed of on 

July 19, 1995, following the effective date of § 41-5-208, MCA, of April 14, 1995. 

Accordingly, on October 15, 1998, the court held a hearing on whether this statute 

applied to Young's case.

8. ¶At the hearing the State pointed out that Young had failed to make the full 

restitution payments ordered by the court in 1993 and reinstated in 1995. The State 

also noted that, while Young had completed the Utah residential treatment program 

by the time he turned 18, he had not completed and was not expected to be able to 

complete payment of restitution by his 19th birthday. Hence, the State requested 

transfer of Young's cases to District Court so that he could be supervised until he 

was 25.

9. ¶The court concluded that § 41-5-208, MCA, was in effect at the time it entered the 

final disposition of Young's two cases in July 1995. Consequently, the court ordered 

Young's cases transferred to the District Court, but also ordered that as soon as 

Young paid his restitution, then amounting to $2,975.88, his probation would 

terminate. Young appeals.

Issue

1. ¶Did the court's application of § 41-5-208, MCA, violate the ex post facto

provisions of the Montana and federal constitutions?

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Discussion

1. ¶The trial court's determination that § 41-5-208, MCA, applied to Young's cases is a 

conclusion of law. Our standard of review of a court's conclusion of law is whether 

the court's interpretation of the law is correct. See State v. Romain, 1999 MT 161, ¶ 

14, ___ P.2d ___, ¶ 14, 56 St.Rep. 638, ¶ 14 (citation omitted).

2. ¶On appeal Young argues that the court's application of § 41-5-208, MCA, to 

transfer his Youth Court cases to the District Court for supervision violates the ex 

post facto provisions of the Montana and federal constitutions. The State now

concedes that Young's argument is correct.

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

the Montana Constitution both prevent the State legislature from enacting ex post 

facto laws. In State v. Leistiko (1992), 256 Mont. 32, 36-37, 844 P.2d 97, we 

articulated a two-part test to determine whether a statute violates this constitutional 

preclusion. The first prong of this test focuses on whether the law is retrospective. A 

law is retrospective if it changes the legal consequences of actions committed before 

its effective date. The second prong of the test requires that the law at issue must be 

more onerous than the prior law. Leistiko, 256 Mont. at 36-37, 844 P.2d 97, 100 

(citations omitted).

4. ¶We conclude that both prongs of the Leistiko test are met in the case at bar. Here, 

the transfer provision found in § 41-5-208, MCA, is retrospective because it was not 

in effect when Young committed any of the offenses charged in DJ-95-03 or DJ-95-

31. And, as to the second prong of the test, § 41-5-208, MCA, is more onerous than 

the prior law because this statute changed the legal consequences to Young by 

allowing the Youth Court to extend his time of supervision on probation for an 

additional six years--i.e. from age 19 to 25--by transfer to adult court. Additionally, 

under § 41-5-208(4), MCA, Young faced the possibility of additional punishment in 

that a youth whose case is transferred to the District Court, on violation of the 

conditions of disposition, may face a jail term and other conditions as specified in 

§§ 46-18-201 through -203, MCA.

5. ¶While we appreciate the court's frustration in Young's failure to pay the restitution 

he was ordered, application of the transfer provisions of § 41-5-208, MCA, did not 

provide a lawful mechanism to rectify this problem. We hold that the Youth Court 

erred in its determination to apply this statute to Young's cases.

6. ¶Since the Youth Court committed Young to the DOC until age 19 on the condition 

that he complete the residential treatment program in Utah, and inasmuch as Young 

completed that program and is now 20 years old, Young's cases should be closed.

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7. ¶Reversed and remanded for further proceedings consistent with this opinion.

/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

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