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                                                                No. 99-029



                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                               1999 MT 224




STATE OF MONTANA,

Plaintiff and Respondent,



v.



ZACHARY O'NEILL,



Defendant and Appellant.




APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Susan P. Watters, Judge presiding.




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COUNSEL OF RECORD:



For Appellant:



Roberta A. Drew, Public Defender's Office, Billings, Montana



For Respondent:



Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell,

Assistant Attorney General; Helena, Montana



Dennis Paxinos, Yellowstone County Attorney, Billings, Montana




Submitted on Briefs: August 5, 1999

Decided: September 23, 1999

Filed:




__________________________________________

Clerk


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Justice Karla M. Gray delivered the Opinion of the Court.




    1. ¶Zachary O'Neill (O'Neill) appeals from the judgment entered by the Thirteenth Judicial District
       Court, Yellowstone County, on his pleas of guilty to the felony offenses of burglary and theft and
       the misdemeanor offense of unauthorized use of a motor vehicle, having reserved the right to do
       so under § 46-12-204, MCA (1997). We reverse and remand.
    2. ¶The dispositive issue on appeal is whether the District Court violated O'Neill's
        right to due process of law, as guaranteed by the Fourteenth Amendment to the
        United States Constitution, when it allowed the State of Montana to file an
        information pursuant to § 41-5-206, MCA (1997), without first affording O'Neill a
        hearing.

                                                         BACKGROUND

    1. ¶On July 22, 1997, the State of Montana (State) petitioned the District Court for
        leave to file an information in that court charging O'Neill, age 17, with having
        committed one count of felony burglary and two counts of felony theft on or about
        July 10, 1997. The petition was filed pursuant to § 41-5-206(2), MCA (1997),
        effective July 1, 1997, which mandated the filing of such a petition in the district
        court, rather than the youth court, when the prosecution desired to charge a youth
        who was 17 years old at the time of the alleged offense with certain statutorily
        enumerated offenses, including burglary. The District Court granted the State's
        petition over O'Neill's objection. O'Neill pled not guilty to the charges and a jury
        trial was scheduled.

    1. ¶O'Neill subsequently moved the District Court on due process grounds to
        reconsider its order allowing the information to be filed and to set a hearing on the
        basis of which it could determine, under § 41-5-206(3), MCA (1997), whether the
        seriousness of the alleged offenses and the interests of community protection
        required that the case be filed directly in that court. The State opposed O'Neill's
        motion, arguing that the Legislature had deleted the requirement for a hearing
        contained in § 41-5-206, MCA (1995), when it amended that statute during the 1997
        legislative session and that § 41-5-206, MCA (1997), was effective July 1, 1997,
        prior to its petition regarding O'Neill. Moreover, according to the State, O'Neill had

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      not met his burden of establishing that § 41-5-206(3), MCA (1997), was
      unconstitutional. The District Court denied O'Neill's motion for reconsideration and
      for a hearing.
   2. ¶Thereafter, O'Neill and the State entered into a plea agreement. The State agreed 1)
      to amend the information by charging misdemeanor unauthorized use of a motor
      vehicle in place of the first count of felony theft alleged in the original information;
      2) to recommend a sentence of "10 yrs suspended[;]" and 3) pursuant to § 46-12-
      204, MCA (1997), to permit O'Neill to appeal the court's overruling of his objection
      to the State's petition for leave to file the information and its subsequent denial of
      his motion to reconsider and for a hearing. In exchange, O'Neill agreed to plead
      guilty to the charges set forth in the amended information.
   3. ¶The court allowed the amendment to the information, accepted O'Neill's guilty
      pleas to the charges as amended, ordered a presentence investigation report and held
      a restitution hearing. The District Court entered its Judgment and Commitment on
      October 29, 1998, and O'Neill appeals.

                                                           DISCUSSION

   1. ¶Did the District Court violate O'Neill's right to due process of law, as guaranteed
      by the Fourteenth Amendment to the United States Constitution, when it allowed the
      State to file an information pursuant to § 41-5-206, MCA (1997), without first
      affording O'Neill a hearing?
   2. ¶The District Court's conclusion that due process did not require a hearing prior to
      its decision pursuant to § 41-5-206(3), MCA (1997), to permit the State to file an
      information, rather than proceeding in the youth court, is a conclusion of
      constitutional law. We review such conclusions to determine whether the court's
      interpretation of the law is correct. State v. Butler, 1999 MT 70, ¶ 7, 977 P.2d 1000,
      ¶ 7, 56 St.Rep. 291,¶ 7 (citation omitted).
   3. ¶O'Neill argues, the State concedes and we agree, that we resolved the issue now
      before us in Butler, which was decided after the District Court's ruling in the present
      case. There, we observed that § 41-5-206(3), MCA (1997), vests the district court
      with the final decision regarding whether probable cause exists to believe the youth
      committed the offense at issue and whether the seriousness of the offense and the
      interests of community protection are such that the case should be brought in that
      court. As a result, the court's decision is a critically important matter to the youth
      because it could mean "the difference between being detained until he is 25 years of
      age if the case is processed in youth court, and losing his life if the case in processed

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        in district court." Butler, ¶ 26. We concluded that, absent the opportunity provided
        by a hearing for the youth to challenge the prosecution's allegations that there was
        probable cause to believe the youth committed the offense and that the seriousness
        of the crime and the interests of community protection required the information to
        be filed in the district court, the youth did not receive the due process to which he
        was entitled by the federal constitution. Butler, ¶ 27. Consequently, we held that the
        court violated the youth's due process rights when it allowed the filing of the
        information in district court under § 41-5-206, MCA (1997), without first affording
        him a hearing, and remanded for a hearing prior to the district court rendering a
        decision pursuant to the statute. See Butler, ¶ 32. Butler is squarely on point here.
   4.   ¶The only remaining question is whether O'Neill is entitled to retroactive
        application of Butler. Again, the State concedes that--under this Court's
        jurisprudence--he is, and, again, we agree.
   5.   ¶Retroactivity requires that a new rule for the conduct of criminal prosecutions be
        applied in an evenhanded manner to those similarly situated in cases pending on
        direct review or not yet final. See State v. Egelhoff (1995), 272 Mont. 114, 125-26,
        900 P.2d 260, 267, rev'd on other grounds by Montana v. Egelhoff (1996), 518 U.S.
        37, 116 S.Ct. 2013, 135 L.Ed.2d 361 (citations omitted). Butler created a "new rule"
        because it broke new ground and imposed a new obligation on the government
        which was not dictated by existing precedent. See Egelhoff, 272 Mont. at 126, 900
        P.2d at 267. Moreover, O'Neill's notice of appeal in the present case was filed on
        September 30, 1998, and we did not decide Butler until April 6, 1999. As a result,
        O'Neill's case was pending on direct review and not yet final when Butler was
        decided. See Egelhoff, 272 Mont. at 125-26, 900 P.2d at 267.
   6.   ¶The requisites for retroactivity are met here. Therefore, we conclude O'Neill is
        entitled to retroactive application of Butler.
   7.   ¶We hold that the District Court violated O'Neill's due process rights under the
        Fourteenth Amendment to the United States Constitution when it allowed the State
        to file an information pursuant to § 41-5-206, MCA (1997), without affording
        O'Neill a hearing.
   8.   ¶Reversed and remanded for further proceedings consistent with this opinion.




/S/ KARLA M. GRAY


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We concur:



/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ JIM REGNIER

/S/ TERRY N. TRIEWEILER




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