Veis v. State , 2004 MT 139N ( 2004 )


Menu:
  •                                            No. 02-671
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    
    2004 MT 139N
    DOUGLAS R. VEIS,
    Petitioner and Appellant,
    v.
    STATE OF MONTANA,
    Respondent and Respondent.
    APPEAL FROM:         District Court of the Thirteenth Judicial District,
    In and For the County of Yellowstone, Cause No. DV 56-2002-744,
    Honorable G. Todd Baugh, Presiding Judge
    COUNSEL OF RECORD:
    For Appellant:
    Douglas Veis, pro se, Shelby, Montana
    For Respondent:
    Honorable Mike McGrath, Attorney General; Carol E. Schmidt,
    Assistant Attorney General, Helena, Montana
    Dennis Paxinos, County Attorney, Billings, Montana
    Submitted on Briefs: March 20, 2003
    Decided: June 7, 2004
    Filed:
    __________________________________________
    Clerk
    Justice Jim Rice delivered the Opinion of the Court.
    ¶1        Pursuant to Section I, Paragraph 3(c), of the Montana Supreme Court 1996 Internal
    Operating Rules, the following decision shall not be cited as precedent but shall be filed as
    a public document with the Clerk of the Supreme Court. It shall be reported by case title,
    Supreme Court cause number, and result to the State Reporter Publishing Company and to
    West Group in the quarterly table of noncitable cases issued by this Court.
    ¶2        Douglas R. Veis (Veis) appeals from an order entered by the Thirteenth Judicial
    District Court, Yellowstone County, denying his petition for postconviction relief. We
    affirm.
    ¶3        We restate the issues on appeal as follows:
    ¶4        1. Did the District Court err in dismissing the postconviction relief petition on the
    grounds that it was time-barred?
    ¶5        2. Is the time bar unconstitutional as violating the ex post facto prohibition?
    FACTUAL AND PROCEDURAL BACKGROUND
    ¶6        On November 1, 1995, the State of Montana charged Veis with three felony counts
    of sexual intercourse without consent, in violation of § 45-5-503, MCA. The State alleged
    that during 1993-1995, Veis had sexual intercourse twice with S.B., and once with B.J., who
    were then between the ages of four and ten. A trial was held in June 1996, but the jury was
    unable to reach a verdict. A second trial was scheduled for August 1996. Prior to the second
    trial, the State amended the Information to add a fourth felony count of sexual intercourse
    without consent during the same period based on another incident with S.J. At the
    conclusion of a four-day trial, a jury convicted Veis on all four counts. On January 2, 1997,
    2
    the District Court sentenced Veis to forty-year sentences for each conviction. Veis was held
    in the State of Texas from June 1997 until September 1999 at which time he was returned
    to Crossroads Correctional Center in Shelby, Montana.
    ¶7     Veis appealed his conviction, and this Court affirmed the judgment of the District
    Court on June 25, 1998. State v. Veis, 
    1998 MT 162
    , 
    289 Mont. 450
    , 
    962 P.2d 1153
    . The
    only two issues raised by Veis on direct appeal involved alleged errors by the District Court
    regarding the admission of testimony. Veis, ¶¶ 13, 20.
    ¶8     Veis filed a petition for postconviction relief on August 28, 2002. On September 3,
    2002, the District Court denied Veis’s petition on grounds it was untimely pursuant to § 46-
    21-102, MCA, and that it did not allege the existence of newly-discovered evidence. Veis
    appeals.
    STANDARD OF REVIEW
    ¶9     We review a district court’s denial of a petition for postconviction relief to determine
    whether its findings are clearly erroneous, and whether it correctly interpreted the law. State
    v. Wells, 
    2001 MT 55
    , ¶ 4, 
    304 Mont. 329
    , ¶ 4, 
    21 P.3d 610
    , ¶ 4 (citing State v. Wilson,
    
    1999 MT 52
    , ¶ 11, 
    293 Mont. 429
    , ¶ 11, 
    976 P.2d 962
    , ¶ 11), overruled on other grounds
    in State v. Whitehorn, 
    2002 MT 54
    , ¶ 42, 
    309 Mont. 63
    , ¶ 42, 
    50 P.3d 121
    , ¶ 42.
    DISCUSSION
    Issue 1
    ¶10 Did the District Court err in dismissing the postconviction relief petition on the
    grounds that it was time-barred?
    ¶11 Veis asserts the District Court erred in dismissing his petition for postconviction relief
    on the basis it was time-barred. Veis argues that after the date of sentencing and entry of
    3
    judgment on January 2, 1997, the Montana Legislature, through amendment of § 46-21-102,
    MCA, reduced the statutory period for filing a petition for postconviction relief from five
    years to one year. Veis contends this amendment deprived him of the five-year filing period
    to which he was entitled under the postconviction statute in effect at the time of his
    conviction.
    ¶12    In 1997, the Montana Legislature amended the procedures for seeking postconviction
    relief under § 46-21-101, MCA, et seq. Among other changes, the amendments reduced the
    statute of limitations for filing a petition from five years to one year from the date a
    conviction becomes final. Montana Session Laws (1997), Ch. 378, Sec. 4. A special
    relation-back provision of the 1997 legislation subjected all convictions occurring during the
    twelve months prior to the April 24, 1997, effective date to the amended procedures.
    Montana Session Laws (1997), Ch. 378, Sec. 9. The act afforded persons convicted between
    April 25, 1996, and April 24, 1997, another year following the legislation’s effective date,
    or until April 24, 1998, in which to file their postconviction relief petitions.          See
    “Applicability” section of Compiler’s Comments to § 46-21-102, MCA (1997).
    ¶13    Section 46-21-102(1), MCA, as amended in 1997, states:
    46-21-102. When petition may be filed. (1) Except as provided in subsection
    (2), a petition for the relief referred to in 46-21-101 may be filed at anytime
    within 1 year of the date that the conviction becomes final. A conviction
    becomes final for purposes of this chapter when:
    (a) the time for appeal to the Montana supreme court expires;
    (b) if an appeal is taken to the Montana supreme court, the time for
    petitioning the United States supreme court for review expires; or
    (c) if review is sought in the United States supreme court, on the date
    that that court issues its final order in the case.
    4
    (2) A claim that alleges the existence of newly discovered evidence,
    that, if proved and viewed in light of the evidence as a whole would establish
    that the petitioner did not engage in the criminal conduct for which the
    petitioner was convicted, may be raised in a petition filed within 1 year of the
    date on which the conviction becomes final or the date on which the petitioner
    discovers, or reasonably should have discovered, the existence of the
    evidence, whichever is later.
    ¶14    Veis was sentenced and judgment entered on January 2, 1997. Veis appealed, and
    this Court affirmed the conviction on June 25, 1998. See Veis. Veis’s conviction became
    final 90 days thereafter, or September 23, 1998. See § 46-21-201(1)(b), MCA (1997); Rule
    13, Rules of the Supreme Court of the United States; Davis v. State, 
    2004 MT 112
    , ¶ 14, 
    321 Mont. 118
    , ¶ 14, 
    88 P.3d 1285
    , ¶ 14. Veis’s September 23, 1998, final conviction date was
    approximately a year and a half after the legislation passed. Veis then had an additional
    year, from September 23, 1998, to September 23, 1999, to file his petition for postconviction
    relief. Veis filed his petition for postconviction relief on August 28, 2002.
    ¶15    Although Veis was sentenced prior to the change in statute, he nonetheless had
    approximately a year and a half prior to his conviction becoming final to absorb this change,
    which allowed him another year thereafter to file his petition for postconviction relief. We
    therefore conclude that the District Court did not err in determining that Veis’s petition was
    time-barred.
    ¶16    Veis nonetheless argues that the statute of limitations should be equitably tolled
    during the time he was incarcerated in Texas (June 1997 through September 1999), and upon
    his return to the Crossroads Correctional Center in Shelby, Montana, because he was
    unaware of the change in the statute which occurred while he was out of state, and the
    5
    Shelby correctional facility did not provide access to legal research materials. However, this
    Court has already considered and expressly rejected such assertions. See Wells. In Wells,
    the petitioner had argued that, although she failed to timely file her petition for
    postconviction relief, the one-year limitation was not a jurisdictional limitation, but rather
    a statute of limitations, and that she was entitled to an equitable tolling of the statute. Like
    Veis, Wells argued that the tolling should be applied to the time period she was incarcerated
    out of state and allegedly without adequate legal assistance. Wells, ¶ 9.
    ¶17    This Court rejected the argument because § 46-21-102, MCA, is a jurisdictional limit
    on postconviction litigation, and we have held its waiver may only be justified by a clear
    miscarriage of justice, one so obvious that the judgment is rendered a complete nullity.
    Wells, ¶ 10 (citing State v. Rosales, 
    2000 MT 89
    , ¶ 7, 
    299 Mont. 226
    , ¶ 7, 
    999 P.2d 313
    ,
    ¶ 7); see also Petition of Gray (1995), 
    274 Mont. 1
    , 2, 
    908 P.2d 1352
    . This narrow
    exception to the jurisdictional limitation of § 46-21-102, MCA, was further discussed in
    numerous cases including Hawkins v. Mahoney, 
    1999 MT 82
    , ¶ 12, 
    294 Mont. 124
    , ¶ 12, 
    979 P.2d 697
    , ¶ 12; State v. Charlo, 
    2000 MT 192
    , ¶ 13, 
    300 Mont. 435
    , ¶ 13, 
    4 P.3d 1201
    , ¶
    13; and State v. Redcrow, 
    1999 MT 95
    , ¶ 34, 
    294 Mont. 252
    , ¶ 34, 
    980 P.2d 622
    , ¶ 34.
    These cases establish that the “miscarriage of justice” exception is a narrow one and does
    not apply unless the defendant alleges newly-discovered evidence that establishes that the
    defendant did not commit the offense. See, e.g., Rosales, ¶ 7. This Court has held that the
    exception is extremely rare and is limited to extraordinary cases in which a constitutional
    6
    violation has probably resulted in the conviction of one who is actually innocent, which was
    not so claimed here by Veis. See, e.g., Redcrow, ¶ 33. Thus, Veis’s petition is time-barred.
    Issue 2
    ¶18    Is the time bar unconstitutional as violating the ex post facto prohibition?
    ¶19    Veis further asserts the time bar in the 1997 amendment to § 46-21-102, MCA,
    constitutes a violation of his constitutional right against ex post facto laws. Article I, Section
    10, of the United States Constitution prohibits the States from passing any ex post facto law.
    California Dept. of Corrections v. Morales (1995), 
    514 U.S. 499
    , 504, 
    115 S. Ct. 1597
    , 1601,
    
    131 L. Ed. 2d 588
    . Article II, Section 31, of the Montana Constitution also prohibits the
    passage of ex post facto laws. State v. Duffy, 
    2000 MT 186
    , ¶ 29, 
    300 Mont. 381
    , ¶ 29, 
    6 P.3d 453
    , ¶ 29; In re Young, 
    1999 MT 195
    , ¶ 14, 
    295 Mont. 394
    , ¶ 14, 
    983 P.2d 985
    , ¶ 14.
    This Court has articulated a two-part test to determine whether a statute violates the
    constitutional ban on ex post facto laws: (1) the law must be retrospective, and (2) it must
    disadvantage the offender affected by it. Duffy, ¶ 29 (citing State v. Leistiko (1992), 
    256 Mont. 32
    , 36-37, 
    844 P.2d 97
    , 100). We have stated that a statute was retrospective because
    it changes the legal consequences of actions committed before its effective date. Young,
    ¶ 14. The second prong of the test requires that the law at issue must be more onerous than
    the prior law. Young, ¶ 14.
    ¶20    The 1997 amendments to § 46-21-102, MCA, made the procedures by which a
    petitioner may seek relief after conviction expressly retroactive. Retroactive laws include
    both laws with a retrospective effect and ex post facto laws. Saint Vincent Hosp. and Health
    7
    Center, Inc. v. Blue Cross and Blue Shield of Montana (1993), 
    261 Mont. 56
    , 60, 
    862 P.2d 6
    , 9. We have defined a retrospective law as one “which takes away or impairs vested rights
    acquired under existing laws or creates a new obligation, imposes a new duty, or attaches
    a new disability in respect to transactions already passed.” Saint Vincent 
    Hosp., 261 Mont. at 60
    , 862 P.2d at 9 (quoting City of Harlem v. State Highway Comm’n. (1967), 
    149 Mont. 281
    , 284, 
    425 P.2d 718
    , 720). By contrast, the constitutional prohibition against ex post
    facto laws “is aimed at laws that ‘retroactively alter the definition of crimes or increase the
    punishment for criminal acts.’” Duffy, ¶ 29 (citing 
    Morales, 514 U.S. at 504
    , 115 S.Ct. at
    1601). Changes in procedure which do not affect substantial rights do not implicate the
    prohibition against ex post facto laws. State v. Goebel, 
    2001 MT 155
    , ¶ 28, 
    306 Mont. 83
    ,
    ¶ 28, 
    31 P.3d 340
    , ¶ 28; Duffy, ¶ 31.
    ¶21    We conclude that because this procedural change neither alters the definition of the
    crime for which Veis was convicted nor increases his punishment, it did not affect his
    substantial rights. Therefore, the amended statute of limitations is not subject to prohibition
    against ex post facto laws.
    ¶22    We additionally note that Veis raises fourteen issues in his petition for postconviction
    relief. Thirteen of the fourteen are procedurally barred for failure to raise them on direct
    appeal. Section 46-21-105(2), MCA. This Court has stated numerous times that it will not
    review issues that were not preserved for appeal in the district court. See, e.g., State v.
    Schmalz, 
    1998 MT 210
    , ¶¶ 11-13, 
    290 Mont. 420
    , ¶¶ 11-13, 
    964 P.2d 763
    , ¶¶ 11-13; State
    v. Spotted Blanket, 
    1998 MT 59
    , ¶ 13, 
    288 Mont. 126
    , ¶ 13, 
    955 P.2d 1347
    , ¶ 13.
    8
    Ineffective assistance of counsel claims must be raised by petition for postconviction relief
    where the allegations of ineffective assistance of counsel cannot be documented from the
    record in the underlying case. State v. Wright, 
    2001 MT 282
    , ¶ 12, 
    307 Mont. 349
    , ¶ 12, 
    42 P.3d 753
    , ¶ 12. Although Veis’s fourteenth issue, ineffective assistance of counsel for
    failing to raise the other thirteen issues, could have been raised by petition for postconviction
    relief under the circumstances articulated in Wright, it is nonetheless disposed by the statute
    of limitations question resolved in the case sub judice.
    ¶23    Affirmed.
    /S/ JIM RICE
    We concur:
    /S/ JIM REGNIER
    /S/ JAMES C. NELSON
    /S/ PATRICIA O. COTTER
    9
    Justice W. William Leaphart specially concurring.
    ¶24    I concur in our opinion with the exception of ¶ 17 wherein we state that § 46-21-
    102, MCA, is a “jurisdictional limit” on postconviction litigation. I do not necessarily
    agree with this characterization. However, even if that statute is treated as a
    nonjurisdictional statute of limitations, I do not agree with Veis that he was entitled to
    equitable tolling due to his being out of state.
    /S/ W. WILLIAM LEAPHART
    10