                                          No. 04-511

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 192


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

JESUS “CHUEY” VILLANUEVA,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Fourth Judicial District,
                     In and for the County of Missoula, Cause No. DC 2002-479
                     The Honorable John W. Larson, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Alice Kennedy, Missoula County Public Defender Office, Missoula, Montana

              For Respondent:

                     Honorable Mike McGrath, Montana Attorney General, Tammy K Plubell,
                     Assistant Attorney General, Helena, Montana; Fred Van Valkenburg,
                     Missoula County Attorney, Suzy Boylan Moore, Deputy County Attorney,
                     Missoula, Montana



                                                  Submitted on Briefs: April 12, 2005

                                                             Decided: August 9, 2005


Filed:



                     __________________________________________
                                       Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1     Jesus “Chuey” Villanueva (Villanueva) was charged with, and ultimately pled guilty

to, misdemeanor partner or family member assault, felony failure to register as a sex

offender, and felony bail jumping. He appeals the Fourth Judicial District Court’s denial of

his Motion to Dismiss. We affirm.

                                           ISSUE

¶2     Did the District Court err in denying Villanueva’s Motion to Dismiss on the following

grounds: 1) Villaneuva is not a “sexual offender” as defined by § 46-23-502(7), MCA, and

2) the Information and Affidavit in Support failed to establish sufficient probable cause to

believe that Villanueva is required to register as a sex offender in Montana?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     At the age of fifteen, Villanueva, then residing in the State of Washington, raped a

teenage girl at knife point. On March 5, 1993, the Superior Court of Washington for

Whatcom County, Juvenile Department, adjudicated Villanueva guilty after trial of first

degree rape, a Class A felony. On March 26, 1993, the Washington juvenile court sentenced

Villanueva to the custody of the Department of Social and Health Services. He served 103

weeks with the Juvenile Rehabilitation Administration.

¶4     In January 1995, Villanueva received a State of Washington form entitled “Appendix

to Order of Disposition--Notification of Registration Requirements.” This form notified

Villanueva that because he had been “found to have committed a sex offense,” he had to

register with the County Sheriff in the county of his residence within thirty (30) days of his


                                              2
release from confinement. The form also required that he maintain current registration with

any county to which he moved. Villanueva signed the acknowledgment form on January 19,

1995. Subsequently, in July 1997, Villanueva signed another State of Washington form

acknowledging that he had a lifetime obligation to register with the appropriate county

sexual offender registry and to keep his registration current.

¶5     Villanueva moved to Montana during the fall of 2002. On December 6, 2002, the

Missoula County Sheriff’s Office (MCSO) received a call reporting a domestic disturbance

in Lolo, Montana. When the MCSO deputy arrived at the scene, Nichole Martinez reported

that Villanueva, who had been drinking, struck her in the face during a violent argument.

Frightened, she had grabbed her two-year old son and fought her way out of the house. She

ran to a neighbor’s house, and the neighbor called 9-1-1 and reported the incident to the

MCSO.

¶6     When the deputy ran a check on Villanueva, he learned that Villanueva was a

registered sex offender in Washington. He further learned that Villanueva had been living

in Missoula for about six weeks but had not registered as a sex offender with Missoula

County. The deputy charged Villaneuva with partner/family member assault and failure to

register. On January 16, 2003, Villanueva entered pleas of not guilty.

¶7     In March 2003, Villanueva filed a Motion to Dismiss arguing that he was not a

“sexual offender” as defined by § 46-23-502(7), MCA; thus, he maintained, the State’s

Information and Affidavit in Support failed to establish sufficient probable cause to believe

that he was required to register as a sex offender in Montana. In July 2003, the District

                                              3
Court denied Villanueva’s Motion. In October 2003, Villanueva withdrew his not guilty

plea and entered into a Plea Bargain Agreement, conditional upon his right to appeal the

court’s denial of his Motion to Dismiss. The District Court accepted his guilty plea.

Sentencing was set for January 8, 2004. When Villanueva failed to appear and his attorney

reported that she had had no contact with him, the Information was amended to add the

charge of felony bail jumping and a bench warrant was issued. After he was apprehended,

Villanueva pled guilty to bail jumping.

¶8     Villanueva was subsequently sentenced to the Missoula County Detention Facility for

one year for partner/family member assault (Count 1) and to five years at Montana State

Prison for felony failure to register as a sex offender (Count II) and five years for felony bail

jumping (Count III). The sentence for Count III was to run consecutively to the sentences

for Counts I and II. Upon specified probation conditions, and with credit for time served,

the District Court suspended the sentences for Counts I and II and suspended the sentence

for Count III. Villanueva was ordered to register as a sexual offender with the appropriate

Montana county for the remainder of his lifetime, with the opportunity to petition the District

Court after ten years for an order relieving him from such registration obligation. Villaneuva

filed a timely appeal.




                                               4
                               STANDARD OF REVIEW

¶9     The grant or denial of a motion to dismiss in a criminal case is a question of law. We

review conclusions of law to determine if they are correct. State v. Reynolds, 2004 MT 364,

¶ 8, 324 Mont. 495, ¶ 8, 104 P.3d 1056, ¶ 8.

                                      DISCUSSION

¶10    Villanueva presents a complex argument based on his interpretation of multiple

Montana statutes and a 1989 Attorney General Opinion. The crux of his argument is that he

is not a “sexual offender” as defined in § 46-23-502(7), MCA, and therefore he is not

required to register under the Sexual and Violent Offender’s Registration Act (SVORA),

§ 46-23-504(1)(c), MCA. His argument is premised on the following:

       1.     A “sexual or violent offender” is defined as a person who has been
              “convicted” of a sexual or violent offense. Section 46-23-502(7),
              MCA.

       2.     “Conviction” is defined, in relevant part in § 46-1-202(7), MCA, as a
              judgment or sentence entered upon a guilty plea rendered by a court of
              competent jurisdiction authorized to try the case without a jury.

       3.     Section § 46-23-504(1)(c), MCA, requires, in part, a “sexual offender”
              to register within ten days of entering a Montana county for the purpose
              of residing.

       4.     Section 41-5-106, MCA, of the Montana Youth Court Act, provides, in
              relevant part, that “no adjudication upon the status of any youth in the
              jurisdiction of the court shall . . . be deemed a criminal conviction.”
              Villanueva asserts that this means that as a youth adjudicated in
              Washington’s youth court, Villanueva’s youth adjudication cannot be
              deemed a criminal conviction.
       5.     Because he was not “convicted,” he does not meet the definition of a
              “sexual offender;” therefore, the SVORA does not subject him to a
              registration requirement.

                                               5
¶11    Villanueva acknowledges two exceptions to his theory: 1) the juvenile sex offender

was convicted in a district court pursuant to § 41-5-206, MCA; or 2) the Youth Court

adjudicated the youth a delinquent and specifically ordered him to register as a sexual

offender under § 41-5-1513(1)(c), MCA.

¶12    Villanueva argues that the first exception is inapplicable because he was not convicted

in a district court in either Washington or Montana. He further opines that the second

exception does not apply to him because the Washington Whatcom County Youth Court did

not require in its Order on Disposition that he register as a sexual offender, nor was he

ordered to register pursuant to § 41-5-1513(1)(c), MCA. Villanueva finds support for his

argument in a 1989 Attorney General Opinion which held that “A juvenile who is

adjudicated delinquent under the Youth Court Act and whose case has not been transferred

to district court is exempt from the registration requirement of the [SVORA].” AG Op. 45

(1989).

¶13    In response, the State argues that the 1997 Montana legislature amended the

registration statute, originally enacted in 1989, to make the registration and disclosure

requirements retroactive to “sexual offenders who are sentenced or who are in the custody

or under the supervision of the department of corrections on or after July 1, 1989.” Section

18, Ch. 375, L. 1997. Subsequently, in 2001, the legislature again amended the statute to

make it expressly applicable to “sexual offenders who are sentenced by a state or federal

court in any state on or after July 1, 1989, or who as a result of a sentence are under the




                                              6
supervision of a county, state, or federal agency in any state on or after July 1, 1989.”

Section 1, Ch. 152, L. 2001.

¶14    The District Court found that the Order of Adjudication from Washington Whatcom

County Court concluding that Villanueva was “Guilty of the offense(s) charged in Count(s)

1: Rape 1st Degree,” constituted a “conviction” as defined by § 46-1-202(7), MCA. The

court also concluded that Washington’s sexual offense of first degree rape is reasonably

equivalent to the Montana sexual offense of “sexual intercourse without consent.” Section

45-5-503, MCA. Having found that Villanueva had been “convicted” of a “sexual offense”

in Washington, the court concluded that Villanueva met the statutory definition of “sexual

offender.”

¶15    Villanueva’s attempt to apply the Youth Court Act to his situation is unavailing, as

he was not adjudicated under that Act. Rather, the controlling law is the legislative

amendment that unequivocally states that the SVORA applies to “sexual offenders who are

sentenced by a state or federal court in any state on or after July 1, 1989, or who as a result

of a sentence are under the supervision of a county, state, or federal agency in any state on

or after July 1, 1989.” Section 1, Ch. 152, L. 2001. See also Part Compiler’s Comments to

Title 46, Chapter 23, Part 5, MCA.

¶16    In the context of this amendment, a “sexual offender” is defined by the law of the

state in which the offender was sentenced, i.e., in this case, Washington. While presumably

similar, the definition of “sexual offender” in all other states will not be identical to the

definition enacted by the Montana legislature. If only those offenders satisfying Montana’s

                                              7
definition were required to register, the 2001 amendment specifically incorporating those

offenders sentenced in other states would be rendered meaningless.

¶17    It is undisputed that the Washington Court adjudicated Villanueva guilty of first

degree rape and, two years later, imposed on him a lifelong obligation to register as a sexual

offender in the State of Washington. Notably, the Washington sexual offender registration

statute also imposed an obligation on Villanueva to register in Montana. Wash. Crim. Code

§ 9A.44.130(4)(a)(ix) (2005), requires “[o]ffenders required to register in Washington, who

move to another state, . . . shall register a new address, fingerprints, and photograph with the

new state within ten days after establishing residence . . . .” As a result, under both Montana

and Washington law, Villanueva was legally obligated to register as a sexual offender within

“10 days of entering a county of this state for the purpose of residing . . . .” Section 46-23-

504(1)(c), MCA. Therefore, we conclude that the District Court did not err in denying

Villanueva’s Motion to Dismiss on this ground.

¶18    Villanueva further asserts that the Information and Affidavit in Support failed to

establish sufficient probable cause to believe that Villanueva is required to register as a sex

offender in Montana.

¶19    Section 46-11-201, MCA, governs the filing of an Information. It provides in

relevant part that:

       (1) The prosecutor may apply directly to the district court for permission to
       file an information against a named defendant. . . .

       (2) An application must be by affidavit supported by evidence that the judge
       or chief justice may require. If it appears that there is probable cause to

                                               8
       believe that an offense has been committed by the defendant, the judge or
       chief justice shall grant leave to file the information, otherwise the application
       is denied.

¶20    We have previously held that “[t]he sufficiency of charging documents is established

by reading the information together with the affidavit in support of the motion for leave to

file the information. State v. Hamilton (1992), 252 Mont. 496, 499, 830 P.2d 1264, 1266.

An affidavit in support of a motion to file an information need not make out a prima facie

case that a defendant committed an offense. A mere probability that [he] committed the

offense is sufficient. State v. Arrington (1993), 260 Mont. 1, 6, 858 P.2d 343, 346.” State

v. Elliott, 2002 MT 26, ¶ 26, 308 Mont. 227, ¶ 26, 43 P.3d 279, ¶ 26.

¶21    In the case before us, the Affidavit in Support of the Motion For Leave to File an

Information detailed the deputy sheriff’s discovery that Villanueva was a registered sex

offender in the State of Washington. The Affidavit also indicated that the deputy learned

that Villanueva had been in Montana for approximately six weeks. The Affidavit further

stated that the deputy verified that Villanueva had not registered with Missoula County since

his arrival in Montana. As stated in Arrington, the Affidavit need not make a prima facie

case; it need only establish a “mere probability” that Villanueva , as a sexual offender

required to register for life with the Washington Sexual Offender Registry, was required to

register in Montana but failed to do so. Arrington, 260 Mont. at 6, 858 P.2d at 346.

¶22    We conclude that the State’s charging documents established sufficient probable

cause; therefore, the District Court did not err by denying Villanueva’s Motion to Dismiss

on this ground.

                                               9
                                   CONCLUSION

¶23   We affirm the District Court’s denial of Villanueva’s Motion to Dismiss.



                                                            /S/ PATRICIA O. COTTER



We Concur:

/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ JOHN WARNER
/S/ JIM RICE




                                          10
