                                                                                               09/05/2017

                                          DA 16-0430
                                                                                           Case Number: DA 16-0430
                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 216



DANNY SARTAIN,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Appellee.



APPEAL FROM:           District Court of the Eighteenth Judicial District,
                       In and For the County of Gallatin, Cause No. DC 08-86B
                       Honorable Mike Salvagni, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Danny Sartain, Self-Represented, Deer Lodge, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                       Assistant Attorney General, Helena, Montana

                       Marty Lambert, Gallatin County Attorney, Bozeman, Montana



                                                   Submitted on Briefs: May 31, 2017

                                                              Decided: September 5, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1        Danny Sartain (Sartain) appeals from an Order entered in the Montana Eighteenth

Judicial District Court, Gallatin County, denying his petition for touch DNA testing. We

affirm.

¶2        Sartain presents the following issue for review:

          Whether the District Court properly denied Sartain’s petition for touch DNA
          testing.

                    FACTUAL AND PROCEDURAL BACKGROUND

¶3        In 2009, Sartain was found guilty of burglary, designated a persistent felony

offender, and sentenced to forty years in the Montana State Prison. He appealed that

conviction to this Court, challenging the district court’s denial of his speedy trial claim

and also raising ineffective assistance of counsel (IAC) claims. This Court summarized

the facts relevant to Sartain’s direct appeal as follows:

          On March 25, 2008, in Bozeman, Timothy Hop returned from snow skiing
          and found a male intruder in his house. He chased the man out of his house
          and called 911. Police were dispatched. A responding officer observed a
          man matching Hop’s description of the intruder jogging down a sidewalk in
          the area. Another resident of the area, Jason Schutz, was watching the
          jogging man when the officer stopped and asked Schutz what he was
          watching. He responded that the jogging man had just jumped the fence in
          his backyard, cut through a neighbor’s yard, and then started running down
          the street. The officer arrested the jogging man, defendant Sartain, on
          suspicion of burglary. A short time later, the officer took Sartain back to
          the scene of the burglary, had him step out of the police vehicle and
          conducted a “show-up” identification of Sartain first with Hop and then
          Kristi Helsper, another neighbor who had observed a man jogging down the
          street after hearing a loud noise. Both stated that Sartain matched the
          description of the person, but that they were not able to positively identify
          him. Later at trial, Hop testified that he was positive that Sartain was the
          intruder.

State v. Sartain, 2010 MT 213, ¶ 4, 357 Mont. 483, 241 P.3d 1032 (Sartain I).

                                            2
¶4     Relevant to the instant proceeding, our review of the trial transcript filed in the

direct appeal indicates there was testimony that fresh footprints were found around

Timothy Hop’s (Hop) backyard fence, which were consistent with the tread pattern and

size of boot Sartain was wearing when he was apprehended. Hop also discovered fresh

“jimmy” marks on the back and front doors to his apartment, which were consistent with

use of a pry bar that was found by law enforcement in an alley approximately one block

from Hop’s apartment. Officers also found a footprint near the pry bar—similar to the

other footprints found in the alley, in Hop’s backyard, and in Jason Schutz’ (Schutz)

backyard—which was consistent with the tread pattern and size of boot Sartain wore.

¶5     We affirmed the denial of Sartain’s speedy trial claim and dismissed the IAC

claims without prejudice to Sartain raising them in a postconviction proceeding. The

United States Supreme Court denied Sartain’s petition for writ of certiorari. Sartain v.

Montana, 562 U.S. 1237, 131 S. Ct. 1514 (2011). Next, Sartain filed a petition for

postconviction relief in district court raising primarily his IAC claims. The district court

dismissed Sartain’s petition and we affirmed. Sartain v. State, 2012 MT 164, 365 Mont.

483, 285 P.3d 407 (Sartain II).       On March 29, 2013, Sartain filed a Petition for

Performance of Fingerprint Analysis and Testing, which the district court denied with

prejudice. Sartain appealed and we affirmed. We concluded that Sartain’s claims could

have been raised on direct appeal and that Sartain did not meet the exception to the time

limitations governing direct appeal and postconviction relief set forth in § 46-21-102(2),

MCA, because there was no basis to assume a reasonable jury would not have convicted

Sartain with the additional fingerprint analysis evidence. State v. Sartain, 2013 MT 372N


                                         3
(Sartain III). Finally, on May 22, 2014, Sartain filed a Motion for Credit for Time

Served in the district court seeking 384 days credit toward his sentence for burglary. The

district court concluded that Sartain was incarcerated on unrelated offenses and denied

his motion. We affirmed. State v. Sartain, 2015 MT 306N (Sartain IV).

¶6     The subject of the instant appeal is Sartain’s request that touch DNA analysis be

conducted on fingerprint evidence collected from the medicine cabinet mirror and rear

door of Hop’s apartment, areas which Hop believed Sartain had touched. The evidence

technician investigating the crime scene, Thomas Weightman, obtained a partial print

from these areas, but the prints collected were insufficient to conduct a traditional DNA

analysis. Sartain contends that if touch DNA testing of the partial fingerprints revealed

DNA that did not match his, there is a strong possibility he would have been exonerated.

Sartain, referring to the Innocence Protection Act (IPA), 18 U.S.C. § 3600, and federal

precedent holding that touch DNA evidence can constitute new evidence, argues that his

request for DNA testing is therefore timely and must be allowed.

¶7     The District Court requested briefing from the parties and considered the merits of

Sartain’s request pursuant to both the IPA and Montana’s statute allowing for petitions to

perform DNA testing, § 46-21-110, MCA. The District Court concluded that even if the

IPA applied to Sartain’s request, Sartain failed to set forth a plausible theory under which

the DNA evidence would establish his innocence. The District Court noted that failure to

establish a plausible theory of innocence was fatal to Sartain’s petition under the IPA.

The District Court addressed application of § 46-21-110, MCA, and similarly concluded

that Sartain had not shown, in light of the evidence produced at trial, there was a


                                         4
reasonable probability that Sartain would not have been convicted if favorable results had

been obtained through DNA testing.

¶8    We consider the application of the IPA to these proceedings, and resolve Sartain’s

request by applying the provisions of § 46-21-110, MCA.

                              STANDARD OF REVIEW

¶9    A district court’s decision regarding a petition for DNA testing under § 46-21-110,

MCA, constitutes a mixed question of law and fact, which we review de novo. Golden v.

State, 2014 MT 141, ¶ 14, 375 Mont. 222, 326 P.3d 430.            Questions of statutory

interpretation are reviewed de novo. State v. Cooksey, 2012 MT 226, ¶ 32, 366 Mont.

346, 286 P.3d 1174; United States v. Watson, 792 F.3d 1174, 1177 (9th Cir. 2015).

                                     DISCUSSION

¶10   Improvements in the accuracies in building DNA profiles have opened the door to

new sources of DNA evidence. Touch DNA is

      the genetic information recovered from epithelial (skin) cells left behind
      when a person makes contact with an object. During the commission of a
      crime, an assailant can leave touch DNA samples behind . . . on a victim’s
      clothing or other items implicated in the crime. Touch DNA testing uses
      the same . . . technology used to test more traditional sources of DNA--
      blood, semen, saliva, and other bodily fluids--to test recovered epithelial
      cells. The difference between “traditional” DNA testing--the testing of
      bodily fluids--and touch DNA testing is that material from which the DNA
      is collected, not the method by which the DNA sample is analyzed.

Victoria Kawecki, Comment, Can’t Touch This? Making a Place for Touch DNA in

Post-Conviction DNA Testing Statutes, 62 Cath. U. L. Rev. 821, 828-29 (2013). See also

Watson, 792 F.3d at 1177; Bean v. State, 373 P.3d 372, 377-78 (Wyo. 2016). Touch DNA

testing “is possible even if the sample contains only seven or eight cells from the


                                        5
outermost layer of [] skin.” Davis Phillips, State v. Carver: A Cautionary Tale about the

Use of Touch DNA as Inculpatory Evidence in North Carolina, 49 Wake Forest L. Rev.

1545, 1558 (2014) (internal citations and quotations omitted). Although not specifically

addressed, we assume for purposes of this appeal that touch DNA testing was not

available at the time of Sartain’s prosecution.

¶11    Sartain argues that the District Court erred in holding that his petition for touch

DNA testing was untimely. The State contends that timeliness was not the basis for the

court’s ruling. Also, the State argues that, even assuming favorable DNA results, Sartain

has failed to show the evidence would be material to the question of whether he was the

perpetrator of the burglary.

¶12    In 2004, Congress passed the IPA, 18 U.S.C. § 3600, which opened the door to

revisiting convictions when DNA left at the crime scene could potentially exonerate the

wrongly convicted. The IPA provides that the court “shall order DNA testing” upon “a

written motion by an individual sentenced to imprisonment or death pursuant to a

conviction for a Federal offense . . .” if ten criteria are satisfied. 18 U.S.C. § 3600(a).

Thus, by its terms, the IPA is applicable only to imprisonment pursuant to a federal

offense. The IPA addresses “state offense[s]” when evidence of the state offense was

“admitted during a Federal sentencing hearing and exoneration of such offense would

entitle the applicant to a reduced sentence” and “no adequate remedy under State law to

permit DNA testing of the specified evidence relating to the State offense . . .” exists. 18

U.S.C. § 3600(a)(1)(B)(i)-(ii). Sartain is not imprisoned as a result of a federal offense.

Sartain also does not allege he wants DNA testing in his state burglary conviction


                                          6
because his state conviction was used to enhance a federal sentence. These reasons, each

standing alone, are sufficient to deny Sartain’s request for DNA testing pursuant to the

IPA. Further, Montana provides an adequate remedy for DNA testing through § 46-21-

110, MCA.

¶13   The dispositive provision of § 46-21-110, MCA, for this appeal is set forth in

subsection (5), which provides:

      The court shall grant the petition if it determines that the petition is not
      made for the purpose of delay and that:
            (a) the evidence sought to be tested is available and has been subject
            to a chain of custody sufficient to establish that it has not been
            substituted, tampered with, degraded, contaminated, altered, or
            replaced in any material aspect;
            (b) the identity of the perpetrator of the felony was or should have
            been a significant issue in the case;
            (c) the petitioner has made a showing that the evidence sought to be
            tested has a reasonable probability, assuming favorable results, of
            being material to the question of whether the petitioner was the
            perpetrator of the felony that resulted in the conviction;
            (d) in light of all the evidence, there is a reasonable probability that
            the petitioner would not have been convicted if favorable results had
            been obtained through DNA testing at the time of the original
            prosecution; and
            (e) the evidence sought to be tested was not previously tested or was
            tested previously but another test would provide results that are
            reasonably more discriminating and probative on the question of
            whether the petitioner was the perpetrator of the felony that resulted
            in the conviction or would have a reasonable probability of
            contradicting the prior test results.

Section 46-21-110(5), MCA. In denying Sartain’s petition for DNA testing pursuant to

§ 46-21-110, MCA, the district court “conclude[d] that Sartain has not shown under

§ 46-21-110(5)(d), MCA, that in light of all the evidence presented at the trial, there is

reasonable probability that Sartain would not have been convicted if favorable results had

been obtained through DNA testing at the time of the trial.” We agree.

                                         7
¶14    Assuming touch DNA testing of the fingerprint lifts from the mirror and door

would not have Sartain’s DNA, the absence of Sartain’s DNA does not exculpate Sartain.

While certainly the presence of Sartain’s DNA on the objects would be inculpatory, an

assumption of exoneration does not follow from the absence of Sartain’s DNA on those

objects. In light of the evidence and the circumstances surrounding the burglary, the

absence of Sartain’s fingerprints on the mirror and door does not establish “a reasonable

probability that the petitioner would not have been convicted.” Section 46-21-110(5)(d),

MCA. In making this conclusion, we consider all of the evidence produced at trial.

¶15    To begin, the crime occurred in the middle of the day when visibility was good.

Hop identified Sartain at trial as the intruder he saw in his apartment and yard when he

arrived home after skiing. The responding officer observed Sartain, who matched Hop’s

description, running away from the area of Hop’s apartment immediately following a

report from dispatch of the burglary. A neighbor, Schutz, also observed Sartain running

down the sidewalk after Sartain jumped his fence and cut across another yard. Schutz

had a brief conversation with and subsequently identified Sartain. Footprints in the yards

of Hop and Schutz were consistent in size and tread pattern with boots worn by Sartain.

A pry bar was found nearby in an alley which had marks similar to the pry marks found

on Hop’s doorjambs. A footprint next to the pry bar matched the size and tread pattern of

Sartain’s boots.

¶16    We conclude, in light of the evidence produced at trial, there is not a reasonable

probability Sartain would have been exonerated by touch DNA evidence showing his




                                        8
DNA was not on a mirror or door in Hop’s apartment. Sartain has failed to establish he

was entitled to touch DNA testing and the District Court correctly denied his petition.

                                     CONCLUSION

¶17    Sartain is not entitled to touch DNA testing pursuant to the IPA. We affirm the

District Court’s conclusion that there was no reasonable probability Sartain would have

been exonerated if favorable DNA results had been obtained.            The District Court

correctly applied the provisions of § 46-21-110, MCA.


                                                 /S/ LAURIE McKINNON


We Concur:

/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR




                                         9
