                                          No. 03-517

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 210


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

STEPHEN MICHAEL SAMPLES,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and For the County of Yellowstone, Cause No. DC 02–590
                     Honorable Susan P. Watters, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Kristina Guest, Assistant Appellate Defender, Helena, Montana

              For Respondent:

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

                     Dennis Paxinos, Yellowstone County Attorney, Billings, Montana



                                                  Submitted on Briefs: July 12, 2005

                                                             Decided: August 24, 2005


Filed:

                     __________________________________________
                                       Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     Stephen Michael Samples (Samples) appeals from the judgment entered by the

Thirteenth Judicial District Court, Yellowstone County, on his conviction for the felony

offense of failure to register as a sexual offender. We remand.

¶2     Samples raises numerous issues on appeal, including whether the District Court erred

in refusing to consider all of the arguments he raised in his pro se petition challenging the

constitutionality of Montana’s Sexual or Violent Offender Registration Act.

¶3     Samples’ other issues seek our appellate review of the constitutional issue addressed

by the District Court and our de novo determination of the constitutional challenges not

addressed by that court. Because we remand on the stated issue, we decline to address

Samples’ other issues at this time.

                                      BACKGROUND

¶4     In August of 2002, the State of Montana (State) charged Samples by information with

the felony offense of failure to register as a sexual offender based on the allegation that,

although Samples had registered as a sexual offender, he failed to inform authorities that he

had changed his residence. The State also filed notice of its intent to have Samples

designated a persistent felony offender. In November of 2002, the District Court held a

status hearing in the matter at which Samples appeared with his court-appointed public

defender.




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¶5     At the hearing, Samples’ counsel informed the court that Samples wished to file a

motion asserting the failure to register charge constituted an impermissible ex post facto

application of the Sexual or Violent Offender Registration Act (the Act) found in Title 46,

chapter 23, part 5 of the Montana Code Annotated. Defense counsel further stated that, after

researching the issue, he determined the motion would be frivolous and had told Samples he

would not file the motion. Samples insisted that he wished to pursue the issue and the

District Court questioned Samples, explaining to him that he could not file pro se motions

while he was represented by counsel. The court told him he could choose either to proceed

pro se in the case in order to file his motion, or continue with appointed counsel and accept

his counsel’s advice. Samples again stated he wished to file his motion challenging the Act

and would proceed pro se if necessary to do so. The District Court then gave Samples

permission to file his pro se motion, but stated to defense counsel that he was “still on the

case for the time being . . . .”

¶6     Samples subsequently filed a “petition” with the District Court in which he raised a

variety of challenges to the constitutionality of the Act, both on its face and as applied,

including his ex post facto argument. The District Court denied the petition, substantively

discussing and rejecting Samples’ ex post facto argument. The court refused to address the

remaining constitutional arguments Samples raised in the petition on the basis that the court

had allowed him to file a pro se motion limited to the ex post facto allegations.

¶7     Following the District Court’s denial of his petition, Samples entered into a plea

agreement with the State in which he agreed to plead guilty to the offense of failure to


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register as a sexual offender in exchange for the State’s agreement not to seek the persistent

felony offender designation and to recommend the District Court impose a specific sentence.

The plea agreement also reserved Samples’ right to “appeal his previously entered [petition]

ruled on by the Court.” The District Court accepted Samples’ guilty plea, sentenced him in

accordance with the plea agreement and entered judgment. Samples appeals.

                                 STANDARD OF REVIEW

¶8     In essence, Samples’ pro se petition asserted various constitutional barriers to the

State’s ability to charge him with failure to register as a sexual offender. In that regard, his

petition was akin to a motion to dismiss the charge against him. A district court’s ruling on

a motion to dismiss is a question of law which we review to determine whether the court’s

conclusions of law are correct. State v. Mallak, 2005 MT 49, ¶ 13, 326 Mont. 165, ¶ 13, 109

P.3d 209, ¶ 13.

                                        DISCUSSION

¶9      Did the District Court err in refusing to consider all of the arguments Samples raised
in his pro se petition challenging the constitutionality of the Act?

¶10    As stated above, the District Court refused to address all but one of the constitutional

issues raised in Samples’ petition on the basis that the court had authorized Samples to file

a pro se motion limited to an ex post facto challenge to the Act. Samples contends the

District Court erred in refusing to address the entirety of his petition because he clearly

stated at the status hearing that he wished to raise additional constitutional challenges to the

Act.



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¶11    The State urges, as a threshold issue, that Samples waived his right to appeal the

court’s failure to address the additional claims in his petition when he pleaded guilty. It

contends Samples’ reservation of his right to appeal in the plea agreement was limited to an

appeal of the District Court’s ruling on the ex post facto argument. Generally, when a

criminal defendant enters a guilty plea, he or she waives the right to appeal all

nonjurisdictional defects which occurred prior to entry of the plea. Ellenburg v. Chase, 2004

MT 66, ¶ 21, 320 Mont. 315, ¶ 21, 87 P.3d 473, ¶ 21. However, a defendant pleading guilty

may expressly reserve the right to appeal the adverse determination of any specified pretrial

motion. Section 46-12-204(3), MCA.

¶12    Here, the plea agreement between Samples and the State provided that Samples “may

appeal his previously entered [petition] ruled on by the Court.” In addition, at the sentencing

hearing defense counsel requested the District Court to accept the terms of the plea

agreement, including that Samples “reserve[s] his issues for appeal that this Court has ruled

on in pretrial situations.” Later in the hearing, the court stated that Samples “will be allowed,

as the State introduced the plea agreement, to appeal the issue that [he] raised on motion and

the Court’s ruling denying [his] motion.” We conclude these statements are phrased in terms

sufficiently broad to preserve Samples’ right to appeal the entirety of the District Court’s

ruling on his petition, including the court’s refusal to address the majority of the issues he

raised in his petition.

¶13      The State also argues that the District Court correctly refused to consider the

additional constitutional arguments raised in Samples’ petition because the court clearly


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limited Samples to raising only the ex post facto issue when it gave him permission to file

a pro se motion. We disagree.

¶14    At the status hearing, defense counsel informed the court he refused to file a motion

challenging the Act on ex post facto grounds as Samples requested. The District Court then

had the following discussion with Samples:

       COURT: So apparently, Mr. Samples, your attorney has researched the matter
       and it is his opinion that such a motion would be frivolous, and as an officer
       of the Court he declines to file a frivolous motion, and, therefore, I understand
       you wish to file a motion pro se; is that correct?

       SAMPLES: I wish to file a motion, yes.

       COURT: You wish to file [a] motion regarding an ex post facto application
       of the law; is that the motion you wish to file?

       SAMPLES: Ex post facto and probably a number of other constitutional
       violations of the registration act.

The court then discussed with Samples that he could not file a pro se motion as long as he

was represented by counsel. After Samples stated he was willing to proceed pro se so that

he could file his motion, the court said “[v]ery well. File your pro se petition.” The court

then went on to discuss a deadline for when Samples was to file his motion.

¶15    We observe that a district court may refuse to accept pro se motions from defendants

who are adequately represented by counsel. See State v. Weaver, 2001 MT 115, ¶ 24, 305

Mont. 315, ¶ 24, 28 P.3d 451, ¶ 24 (citing State v. Harvey (1986), 219 Mont. 402, 409-10,

713 P.2d 517, 522). Here, however, the District Court expressly authorized Samples to file

a pro se motion challenging the constitutionality of the Act after Samples discussed an ex



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post facto challenge to the Act and his intention to raise “probably a number of other

constitutional violations of the registration act.” As noted above, the District Court could

have refused to allow the pro se motion. Having authorized it, however, the District Court

was obligated to address the constitutional arguments raised. Consequently, we conclude

the District Court erred in refusing to consider all of the constitutional challenges to the Act

which Samples raised, and we remand this case for the District Court to address the entirety

of Samples’ “petition.”

¶16    Remanded for further proceedings consistent with this opinion.



                                                   /S/ KARLA M. GRAY

We concur:

/S/ JOHN WARNER
/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS

Justice Jim Rice dissenting.

¶17    The Court cites no authority for its conclusion in ¶ 15 that, once a district court

authorizes the filing of a pro se motion by a defendant who is represented by counsel, the

district court is then “obligated to address [all] the constitutional arguments raised.” Of

course, there is no authority for such a proposition. The District Court’s granting of an

opportunity for Samples to file his petition was completely optional, an act of grace. It was

bestowed based on the District Court’s understanding that Samples wanted to raise an ex post



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facto argument. The fact that Samples stated that he had other possible issues does not turn

the matter into one of right and obligation. The District Court considered and ruled upon

Samples’ ex post facto argument, and, in so doing, fulfilled its understanding of the

procedural deviation it had courteously granted to Samples. As a matter of grace, the District

Court was obligated to do nothing more.

¶18    I would affirm.


                                                  /S/ JIM RICE




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