                                          No. 04-874

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2007 MT 103


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

KEVIN GENE TOMASKIE,

              Defendant and Appellant.



APPEAL FROM:         The District Court of the Ninth Judicial District,
                     In and For the County of Toole, Cause No. DC-2003-028,
                     Honorable Marc G. Buyske, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     William E. Hunt, Jr., Hunt Law Firm, Shelby, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Pamela P. Collins,
                     Assistant Attorney General, Helena, Montana

                     Merle Raph, County Attorney, Shelby, Montana


                                                       Submitted on Briefs: April 3, 2007

                                                                  Decided: April 25, 2007

Filed:


                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1    Kevin Gene Tomaskie (Tomaskie) appeals from a judgment entered in the Ninth

Judicial District Court, Toole County, convicting him of the offense of criminal

possession of dangerous drugs (marijuana), a felony. We reverse and remand.

¶2    On July 10, 2003, the State filed an Information charging Tomaskie with criminal

possession of dangerous drugs (marijuana), a felony. Though he was alleged to have

been in possession of less than sixty grams of marijuana, the Information charged

Tomaskie with a felony alleging that he had previously been convicted of the offense of

criminal possession of marijuana. Section 45-9-102(2), MCA, provides that a second

conviction for possession of marijuana may be charged as a felony. In 1995 Tomaskie

had been convicted in the Havre City Court of the misdemeanor offense of possession of

marijuana.

¶3    In March of 2004 the District Court accepted Tomaskie’s plea of guilty on the

felony charge, ordered a pre-sentence report (PSI) and postponed sentencing pending the

receipt of the PSI.   When the PSI was prepared, it showed that Tomaskie’s 1995

marijuana possession conviction had resulted in the imposition of a one-year deferred

imposition of sentence.

¶4    Prior to sentencing on the Toole County felony charge in question here, Tomaskie

contacted the Havre City Court. As he had fulfilled the conditions of the deferred

imposition of sentence on the 1995 conviction, the Havre City Court dismissed the

charge. Tomaskie then moved the Toole County District Court to amend the charge in

this case reducing it from a felony to a misdemeanor. Tomaskie argued that under § 45-

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9-102(2), MCA, possession of less than sixty grams of marijuana can be charged as a

felony only if it is the defendant’s second or subsequent conviction; and, as the previous

charge had been dismissed, the offense charged in Toole County was no longer his

second conviction. The District Court denied Tomaskie’s motion. The District Court

reasoned that the prior conviction remained of record at the time the Toole County charge

was filed and at the time Tomaskie pled guilty to that charge. On October 21, 2004, the

District Court deferred the imposition of sentence for three years, on conditions. This

appeal followed.

¶5    The issue presented is whether the District Court erred in denying Tomaskie’s

motion to amend the charge and imposing a felony sentence, rather than a misdemeanor

sentence.

¶6    The relevant facts are not in dispute. When the parties have raised no factual

disputes, this Court determines only whether the district court correctly interpreted the

law. State v. Bowles, 284 Mont. 490, 492, 947 P.2d 52, 53 (1997).

¶7    Tomaskie argues that because his prior conviction in the Havre City Court was

dismissed before he was convicted of the Toole County charge, the Toole County charge

must be reduced from a felony to a misdemeanor.           The State counters that such

amendment is not required after the Toole County District Court accepted Tomaskie’s

guilty plea. The State reasons that, since the prior Havre conviction existed at the time

Tomaskie pled guilty to the Toole County offense, the District Court was correct in

concluding that Tomaskie was convicted at that point and the court correctly denied the

motion to amend the charge to a misdemeanor.

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¶8    A felony is defined as:

            “Felony” means an offense in which the sentence imposed upon
      conviction is death or imprisonment in a state prison for a term exceeding 1
      year.

Section 45-2-101(23), MCA.

¶9    A conviction is defined as:

              “Conviction” means a judgment or sentence entered upon a guilty or
      nolo contendere plea or upon a verdict or finding of guilty rendered by a
      legally constituted jury or by a court of competent jurisdiction authorized to
      try the case without a jury.

Section 46-1-202(7), MCA.

¶10   A judgment is defined as:

             “Judgment” means an adjudication by a court that the defendant is
      guilty or not guilty, and if the adjudication is that the defendant is guilty, it
      includes the sentence pronounced by the court.

Section 46-1-202(11), MCA.

¶11   A sentence is defined as:

              “Sentence” means the judicial disposition of a criminal proceeding
      upon a plea of guilty or nolo contendere or upon a verdict or finding of
      guilty.

Section 46-1-202(25), MCA.

¶12   Thus, in order for there to be a conviction, a sentence must be imposed. In this

case, when Tomaskie obtained a dismissal of the Havre City Court charge, he had not

been sentenced on the Toole County charge. Therefore, he had not yet been convicted in

the Toole County case. The District Court erred in determining that when Tomaskie pled

guilty he had been convicted. A conviction does not occur until sentence is imposed.


                                             4
¶13   As to the Havre City Court charge, the imposition of a deferred sentence does

constitute a conviction and final judgment. Davis v. State, 2004 MT 112, ¶ 16, 321

Mont. 118, ¶ 16, 88 P.3d 1285, ¶ 16. However, when the judgment is for a deferred

imposition of sentence, it may be set aside. Section 46-18-204, MCA, provides:

              Whenever the court has deferred the imposition of sentence and after
      termination of the time period during which imposition of sentence has
      been deferred, upon motion of the court, the defendant, or the defendant’s
      attorney, the court may allow the defendant to withdraw a plea of guilty or
      nolo contendere or may strike the verdict of guilty from the record and
      order that the charge or charges against the defendant be dismissed. A copy
      of the order of dismissal must be sent to the prosecutor and the department
      of justice, accompanied by a form prepared by the department of justice and
      containing identifying information about the defendant. After the charge is
      dismissed, all records and data relating to the charge are confidential
      criminal justice information, as defined in 44-5-103, and public access to
      the information may only be obtained by district court order upon good
      cause shown.

Accordingly, when a sentence has been deferred and the period of deferment has expired,

the court may dismiss the charges.

¶14   Section 45-9-102(2), MCA, provides:

              A person convicted of criminal possession of marijuana or its
      derivatives in an amount the aggregate weight of which does not exceed 60
      grams of marijuana or 1 gram of hashish is, for the first offense, guilty of a
      misdemeanor and shall be punished by a fine of not less than $100 or more
      than $500 and by imprisonment in the county jail for not more than 6
      months. The minimum fine must be imposed as a condition of a suspended
      or deferred sentence. A person convicted of a second or subsequent offense
      under this subsection is punishable by a fine not to exceed $1,000 or by
      imprisonment in the county jail for a term not to exceed 1 year or in the
      state prison for a term not to exceed 3 years or by both.

¶15   Tomaskie was not convicted of a second or subsequent offense under § 45-9-

102(2), MCA, in Toole County because before those proceedings resulted in a conviction


                                            5
(i.e., before sentence was imposed), he had taken the affirmative steps required to have

the prior Havre City Court conviction dismissed. 1

¶16    In State v. Gladue, 209 Mont. 235, 679 P.2d 1256 (1984), this Court held that if

the charges for a previous offense resulted in a deferred sentence, and such charges have

since been dismissed, the defendant has no prior predicate conviction as contemplated by

the persistent felony offender statute and such defendant must be sentenced accordingly.

Gladue, 209 Mont. at 239-40, 679 P.2d at 1259. We conclude that the reasoning in

Gladue applies to Tomaskie’s charge of possession under § 45-9-102, MCA. The Havre

City Court conviction for the previous offense of possession of less than sixty grams of

marijuana was dismissed prior to the time Tomaskie was sentenced and convicted in

Toole County. Thus, at the time of his Toole County sentencing, Tomaskie had no prior

conviction as contemplated by § 45-9-102(2), MCA, and he should not have been

sentenced as a felon.

¶17    This case is distinguishable from State v. Lorash, 238 Mont. 345, 777 P.2d 884

(1989), cited by the State in support of its argument. Lorash, who had previously

received a deferred sentence, made no attempt to have the charges in the previous case

dismissed before he was sentenced on a subsequent charge. Therefore, the previous

conviction was still in place when Lorash was convicted on the later charge, and he was

properly denied a second deferred sentence. Lorash, 238 Mont. at 347, 777 P.2d at 885-



       1
       The State does not argue that it was Tomaskie’s obligation to assure that a copy
of the order of dismissal was sent to the prosecutor and the department of justice,
accompanied by a form containing identifying information about him.
                                            6
86. In this case, Tomaskie did take the affirmative step of having his previous conviction

dismissed before being sentenced and convicted of the subsequent offense.

¶18   Tomaskie’s situation also differs from State v. Wheeler, 285 Mont. 400, 948 P.2d

698 (1997), in which Wheeler, who was charged with fifth offense felony DUI, pled

guilty to the felony charge and then, before sentencing, moved to expunge the prior DUI

convictions from the State of Colorado. We held that, in pleading guilty, Wheeler

waived all nonjurisdictional claims, including any claim that the prior Colorado

convictions should be expunged.        We reasoned that “[t]he number of previous

convictions clearly came into play both in the charge filed against Wheeler and in his

plea agreement. It cannot correctly be said that the Colorado convictions were relevant

only at sentencing.” Wheeler, 285 Mont. at 403, 948 P.2d at 700. In other words,

Wheeler’s basis for seeking expungement of the Colorado convictions was extant at the

time the Montana charge was filed.         If there was merit to Wheeler’s expungement

argument, the district court would have had to grant a timely motion to dismiss the felony

charge. In contrast, when Tomaskie entered his plea to the felony possession charge, he

had no basis for challenging the felony nature of the charge since, at that time, his Havre

City Court conviction was still valid. His plea of guilty did not constitute a waiver

because there was nothing to waive at that juncture. It was only after his plea that his

Havre City Court charge was dismissed. Once the Havre charge was dismissed, he then

had a basis for arguing that the District Court no longer had the predicate offense

required for imposing a felony sentence.



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¶19    Finally, Tomaskie also argues that this case must be dismissed because the offense

became a misdemeanor when the Havre City Court charge was dismissed and a district

court lacks subject matter jurisdiction over misdemeanor offenses.

¶20    Section 45-1-201(1), MCA, provides:

             For the determination of the court’s jurisdiction at the commence-
       ment of the action and for the determination of the commencement of the
       period of limitations, the offense shall be designated a felony or
       misdemeanor based upon the maximum potential sentence which could be
       imposed by statute.

¶21    Tomaskie was charged with a felony offense at the commencement of the Toole

County action, and the District Court acquired jurisdiction over this case.

¶22    The applicable general rule is:

       [T]he jurisdiction of a court depends on the state of facts existing at the
       time it is invoked, and once jurisdiction of the person and subject matter
       attaches it continues until final disposition or determination of the case.

22 C.J.S. Criminal Law § 222 (2006) (citations omitted).

¶23    In State v. Shults, 169 Mont. 33, 544 P.2d 817 (1976), the defendant was

originally charged with a felony in district court. Upon arraignment the State moved to

amend the charge to a lesser included misdemeanor, the motion was granted and the

district court imposed a misdemeanor sentence. Shults appealed, arguing that when the

charge was amended to a misdemeanor the district court lost jurisdiction. On appeal, we

noted that if the charge had been filed originally as a misdemeanor, the district court

would have had no subject matter jurisdiction. We held, however, that where a district

court’s jurisdiction was originally invoked by a felony charge, district court subject

matter jurisdiction was not lost even though Shults was convicted of a misdemeanor.

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¶24   This case is similar to Shults. When the Information was filed, Tomaskie’s prior

conviction had not been dismissed and he was thus properly charged with a felony in

District Court. When the Havre City Court dismissed Tomaskie’s previous conviction,

the ability to impose a felony sentence on Tomaskie was lost. However, the District

Court retained jurisdiction. See Shults, 169 Mont. at 36, 544 P.2d at 819.

¶25   Reversed and remanded for re-sentencing consistent with this Opinion.




                                                /S/ W. WILLIAM LEAPHART


We concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS




                                            9
Justice John Warner dissents.

¶26   I must dissent. Tomaskie waived his right to have the charge amended when he

plead guilty to second offense possession of marijuana.

¶27   I disagree with the Court that this case is distinguishable from Wheeler. The same

issue is presented here, and the result must be the same. Wheeler was charged with

driving under the influence of alcohol (DUI), fifth offense, a felony. To be sentenced as

a felony, a DUI must be a fourth or subsequent offense. Section 61-8-714(4), MCA

(1995). Wheeler moved to dismiss the charge. The district court denied his motion.

Wheeler then plead guilty without reserving his right to appeal any pre-plea adverse

rulings. After accepting the plea, the court ordered a PSI. After the PSI was filed, and

before sentencing, Wheeler moved to expunge two of the alleged prior convictions. The

district court denied Wheeler’s motion and sentenced him according to the plea

agreement.

¶28   On appeal, this Court affirmed the district court. We held:

      [a]fter a criminal defendant pleads guilty and thereby admits that he is
      guilty of the offense charged, he may only attack the voluntary and
      intelligent character of his plea and may not raise independent claims
      relating to prior deprivation of his constitutional rights. A voluntary and
      intelligent plea of guilty constitutes a waiver of non-jurisdictional defects
      and defenses.

Wheeler, 285 Mont. at 402, 948 P.2d at 699 (citing State v. Hilton, 183 Mont. 13, 18, 597

P.2d 1171, 1174 (1979), and Hagen v. State, 265 Mont. 31, 35, 873 P.2d 1385, 1387

(1994) (quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608 (1973)).




                                           10
¶29   In Hagan, we defined jurisdictional claims in the context of waiver as set forth in

United States v. Cortez, 973 F.2d 764, 767 (9th Cir. 1992). Hagan, 265 Mont. at 36, 873

P.2d at 1388. Cortez limited jurisdictional claims to “those cases in which the district

court could determine that the government lacked the power to bring the indictment at the

time of accepting the guilty plea from the face of the indictment or from the record.”

Cortez, 973 F.2d at 767 (emphasis in original).

¶30   At the time that Tomaskie was charged, and at the time he plead guilty, his prior

conviction of possession of marijuana had not been dismissed and thus the State had the

power to bring the felony charge. Therefore, Tomaskie’s claim is non-jurisdictional.

¶31   Contrary to the Court’s opinion, Tomaskie was in exactly the same position that

Wheeler was in before and after he plead guilty. Up to and at the time of their guilty

pleas, the predicate offenses were subject to being invalidated as previous offenses upon

which the current felony charges were based. After they plead guilty, both Tomaskie and

Wheeler had admitted the offenses with which they were charged, each of which required

previous convictions of a like offense. Neither reserved the right to appeal. Wheeler was

denied the opportunity to challenge the felony nature of the subsequent charge on the

basis that he had waived all non-jurisdictional defects in that charge. However, we have

sustained Tomaskie’s challenge to the felony nature of a charge to which he plead guilty.

Wheeler cannot be distinguished, as the Court does at ¶ 18, by simply saying that at the

time Tomaskie plead guilty he had no basis to challenge the felony nature of the charge.

When he plead guilty as charged, Tomaskie waived the right to later have the Havre City



                                            11
Court conviction “not count” as a second possession conviction. After he plead guilty,

Tomaskie was in the same position as Wheeler.

¶32    For several years before and up to the time he plead guilty in this case, Tomaskie

could have taken the necessary steps to have the Havre City Court charge dismissed.

Wheeler also had up to the time he plead guilty to attack the predicate DUI charges. Just

like Wheeler, when Tomaskie plead guilty he waived his right to challenge all non-

jurisdictional defects in the charge.

¶33    Tomaskie has not challenged the voluntary nature of his plea on appeal, nor has he

argued that his counsel was ineffective. The District Court did not err in denying his

motion to amend the charge from a felony to a misdemeanor and the judgment should be

affirmed. I dissent.


                                                   /S/ JOHN WARNER




Justice Jim Rice joins in the foregoing dissent.


                                                   /S/ JIM RICE




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