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
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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
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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
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