Here, the Court described C.D.H.’s trial argument:

C.D.H. mainly argued in support of his ex parte motion to the District Court to remove the registration requirement that the court should apply the former version of § 41-5-1513,MCA [sic]. C.D.H. argued that this Court long has held “that the person must be sentenced under the statute in effect at the time of the offense.” C.D.H. cited for support, our decision in State v. Southwick, 2007 MT 257, ¶ 25, 339 Mont. 281, ¶ 25, 169 P.3d 698, ¶ 25, and other related cases. C.D.H.’s motion made no mention of any constitutional prohibitions on application of the 2007 amendment to § 41-5-1513, MCA.

At the hearing, C.D.H. conceded that the legislature intended for the 2007 amendment to § 41-5-1513, MCA, to apply retroactively. He then argued “I think it’s still an ex post facto application of the statute … this case was going on pending this legislature doing this.” The court attempted to solicit further argument and authority for C.D.H’s constitutional claim. The court noted that registration also was a possibility under the old statute. The court specifically asked C.D.H.: “Where is the ex post facto argument?” C.D.H. responded again that it was ex post facto as his case was pending “and just for the record judge, I would like to make that argument.” The court asked C.D.H. if it should consider another brief on that point. C.D.H. responded “no, you have everything that you need to make that decision, judge.”

The Court’s reliance on LaFreniere seems misplaced. There, the defendant’s counsel made no ex post facto argument. “At no time did LaFreniere argue before the District Court the issue of an ex post facto violation.” LaFreniere, ¶ 13. I have not read the transcript from the District Court, but the summary reproduced above indicates that C.D.H. did make such an argument. An ex post facto violation derives its name from the ex post facto clause of the United States Constitution, found in Article 1, Section 10, and its corollary in the Montana Constitution. By stating the name of the violation, C.D.H. referenced the authority his argument relied upon. And not only did C.D.H. reference the relevant constitutional provision, but he also cited to Southwick. A case that, by my reading, stands for the proposition that sentencing under a newly enacted statute, not in effect at the time of the defendant’s crime, is an ex post facto violation.

Could C.D.H. have made a more thorough, eloquent argument? Probably. But were the attorney’s statements so deficient as to render Constitutional protections void for his client? I simply cannot see how.

Finally, my favorite discovery from reading these cases. In LaFreniere, SCOMONT states its reason for requiring specificity in order to preserve an issue for appeal as this:

it is fundamentally unfair to fault the trial court for failing to rule on an issue it was never given the opportunity to consider.

I’m glad we’re looking out for the feelings of the state Judiciary. And if a few fundamentals get trampled in the process? Oh well.

Download Matter of C.D.H.
Download LaFreniere
Download Southwick