                                                                                          October 20 2015


                                          DA 15-0243
                                                                                          Case Number: DA 15-0243

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2015 MT 303



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

GARY DENNIS BARRETT,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fifth Judicial District,
                        In and For the County of Beaverhead, Cause No. DC-14-3563
                        Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        John Warren, Davis, Warren & Hritsco, Dillon, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                        Assistant Appellate Defender, Nicholas Vandenbos, Legal Intern, Helena,
                        Montana

                        Jed Fitch, Beaverhead County Attorney, Dillon, Montana



                                                    Submitted on Briefs: September 9, 2015
                                                               Decided: October 20, 2015


Filed:

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

¶1    Gary Dennis Barrett (Barrett) appeals from an order of the Fifth Judicial District

Court, Beaverhead County, denying his motion to dismiss a felony charge of Driving

Under the Influence (DUI). Barrett argues that Idaho’s reduction, pursuant to a plea

agreement, of Barrett’s third DUI conviction to a second DUI, precludes Montana from

charging Barrett as a fourth DUI for sentencing purposes. We affirm.

¶2    We address the following issue appeal: Whether Barrett was properly sentenced

as a fourth DUI offender when one of his predicate DUIs was reduced in Idaho from a

third to a second DUI pursuant to a plea agreement.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    Barrett, a resident of Idaho, was pulled over by police on January 27, 2014, after

he failed to stop at an intersection in Dillon, Montana. The Officer noted the smell of

alcohol, that Barrett’s speech was slurred, and that he had red eyes. Barrett failed the

Standardized Field Sobriety Tests and was detained.         A Preliminary Breath Test

administered at the detention facility revealed a 0.140 blood alcohol content. Barrett was

charged with DUI, fourth or subsequent offense, in violation of § 61-8-401, MCA.

Barrett filed a motion to dismiss the felony DUI charge, arguing that the charge was his

third DUI offense.

¶4    The stipulated facts concerning Barrett’s three prior Idaho DUI convictions are as

follows: On March 9, 2004, and again on January 20, 2009, Barrett pleaded guilty to

DUI in violation of Idaho Code § 18-8004. On September 25, 2010, Barrett was charged

with his third DUI violation in ten years, a felony under Idaho Code §§ 18-8004 and


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18-8005(6). To avoid the felony enhancement, Barrett reached a plea agreement with the

State of Idaho which amended the charge to DUI “Second Offense” under § 18-8004.

Barrett was convicted of this charge on January 18, 2011.

¶5    The District Court concluded that Barrett had three prior convictions for DUI and

that the label Idaho placed on the convictions was immaterial. The District Court noted

that all of the convictions remained valid and had not been expunged, dismissed, or

vacated. Barrett agreed to plead guilty and the District Court sentenced Barrett under

Montana’s DUI Statutes, §§ 61-8-401, -731, MCA, as a fourth or subsequent DUI

offender.

                              STANDARD OF REVIEW

¶6    Absent a factual dispute, a decision on a motion to dismiss is an issue of law

which we review de novo for correctness. State v. Blue, 2009 MT 304, ¶ 9, 352 Mont.

382, 217 P.3d 82. We exercise plenary review for questions regarding constitutional law.

State v. Johnson, 2015 MT 221, ¶ 10, 380 Mont. 198, ___ P.3d ___.

                                    DISCUSSION

¶7    Whether Barrett was properly sentenced as a fourth DUI offender when one of his
predicate DUIs was reduced in Idaho from a third to a second DUI pursuant to a plea
agreement.

¶8    In Montana, an offender’s first, second, and third convictions for DUI are

punished as misdemeanors.       Section 61-8-714, MCA.       The fourth or subsequent

conviction is punished as a felony.       Section 61-8-731, MCA.       For purposes of

determining the number of prior convictions, a “conviction” means a final conviction, as

defined in § 45-2-101, MCA, as well as a “conviction for a violation of a similar statute


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or regulation in another state.” Section 45-2-101(16), MCA. Guilty pleas are included in

Montana’s definition of “conviction.” Section 45-2-101(16), MCA. With an offender’s

third or subsequent DUI offense, all previous convictions must be used for sentencing

purposes. Section 61-8-734(1)(b), MCA. The title placed on a charge is not material to

counting the number of offenses. Blue, ¶ 14. In Blue, we held that the statutory scheme

for the DUI statutes provided for increasing gradations of punishments and required that

“each conviction [be counted] without regard to what the charge or conviction was called

at the time.” Blue, ¶ 14.

¶9     DUI statutes are deemed similar if they proscribe the same blood alcohol content.

See State v. Calvert, 2013 MT 374, ¶ 14, 373 Mont. 152, 316 P.3d 173. We have

previously determined that Montana and Idaho have substantially similar DUI statutes.

State v. Young, 2012 MT 251, ¶ 19 366 Mont. 527, 289 P.3d 110. Both states find it

unlawful to be in actual physical control of a (noncommercial) vehicle with an alcohol

concentration of 0.08 or above. Idaho Code § 18-8004(1)(a); § 61-8-406, MCA. Barrett

has stipulated to the fact that he has pleaded guilty on three prior occasions to DUI in

violation of Idaho’s DUI statutes.     Therefore, under Montana’s DUI statutes and

precedent, a Montana Court is required to count all three of Idaho’s prior convictions

when sentencing Barrett for his current Montana DUI. We distinguish the present case

from our decision in Cleary where we recognized South Dakota law provided for an

expungement of a charge, precluding it from being counted as a previous conviction for

sentence enhancement purposes. State v. Cleary, 2012 MT 113, ¶ 25, 365 Mont. 142,




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278 P.3d 1020. Barrett’s DUI conviction has not been expunged, dismissed, or vacated

by Idaho.

¶10   Barrett’s constitutional argument concerning the Full Faith and Credit Clause of

the United States Constitution is unconvincing. Barrett argues that the Montana District

Court erred when it gave full faith and credit to Barrett’s 2011 DUI conviction but not to

Idaho’s restatement of the number of prior DUIs for enhancement purposes. He argues

that Montana is precluded from counting the 2011 DUI as Barrett’s fourth offense.

¶11   Article IV, Section 1 of the United States Constitution provides:

      Full Faith and Credit shall be given in each State to the public Acts,
      Records, and judicial Proceedings of every other State. And the Congress
      may by general Laws prescribe the Manner in which such Acts, Records
      and Proceedings shall be proved, and the Effect thereof.

Pursuant to this provision, a foreign judgment rendered by a court with jurisdiction over

the subject matter and persons must be given credit by other tribunals.         Precedent

differentiates, however, “the credit owed to laws (legislative measures and common law)

and to judgments. The Full Faith and Credit Clause does not compel ‘a state to substitute

the statutes of other states for its own statutes dealing with a subject matter concerning

which it is competent to legislate.’” Baker v. General Motors, 522 U.S. 222, 232, 118 S.

Ct. 657 (1998), citing Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306

U.S. 493, 501, 59 S. Ct. 629 (1939); see also Phillips Petroleum Co. v. Shutts, 472 U.S.

797, 818-19, 105 S. Ct. 2965 (1985). “Regarding judgments, however, the full faith and

credit obligation is exacting. A final judgment in one State, if rendered by a court with




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adjudicatory authority over the subject matter and persons governed by the judgment,

qualifies for recognition throughout the land.” Baker, 522 U.S. at 232.

¶12    Therefore, contrary to Barrett’s contentions, Montana is required to give full faith

and credit to each conviction rendered by Idaho and has done so in this instance. State v.

Berry, 141 Wash. 2d 121, 129, 5 P.3d 658 (2000). “Full faith and credit, however, does

not mean that States must adopt the practices of other States regarding the time, manner,

and mechanisms for enforcing judgments. Enforcement measures do not travel with the

sister state judgment as preclusive effects do; such measures remain subject to the

even-handed control of forum law.” Baker, 522 U.S. at 233. See McElmoyle ex rel.

Bailey v. Cohen, 13 Peters 312, 325 (1839) (judgment may be enforced only as “laws [of

enforcing forum] may permit”); see also Restatement (Second) of Conflict of Laws § 99

(1969) (“The local law of the forum determines the methods by which a judgment of

another state is enforced.”). Montana courts accordingly must give full faith and credit to

the Idaho judgment, but may enforce it according to Montana’s statutory scheme for DUI

penalties.

                                    CONCLUSION

¶13    Montana law requires all prior DUI convictions be counted when determining

whether felony enhancement is appropriate. The Full Faith and Credit Clause of the

United States Constitution does not require that we ignore that Barrett has three prior

convictions for DUI. The District Court correctly determined that all of Barrett’s DUI

convictions should be considered for purposes of sentencing.

¶14    Affirmed.


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                              /S/ LAURIE McKINNON


We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA




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