                                                                                          January 8 2013


                                          DA 12-0326

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2013 MT 4N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

SANDRA LEE MURRY,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Twenty-First Judicial District,
                       In and For the County of Ravalli, Cause No. DC 11-56
                       Honorable James A. Haynes, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Wade Zolynski, Chief Appellate Defender; Nicholas Domitrovich,
                       Assistant Appellate Defender; Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Jonathan M. Krauss,
                       Assistant Attorney General, Helena, Montana

                       William E. Fulbright, Ravalli County Attorney; Angela Wetzsteon,
                       Deputy County Attorney, Hamilton, Montana


                                                   Submitted on Briefs: December 19, 2012
                                                              Decided: January 8, 2013




Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2    Sandra Lee Murry appeals her May 2012 conviction for felony DUI, challenging

the District Court’s conclusion that her 1997 Washington State conviction properly was

included as a predicate offense for purposes of enhancing her current charge to a felony

pursuant to § 61-8-731, MCA. We affirm.

¶3    Murry was charged with DUI after a Hamilton City Police Officer stopped her on

December 31, 2010, for driving with high beams illuminated and for having an

inoperable passenger-side headlight.     When the traffic stop developed into a DUI

investigation, Murry consented to a preliminary breath test that showed she was under the

influence of alcohol. Upon being charged with felony DUI, Murry sought to amend the

information to a misdemeanor, which the District Court denied. Murry filed a motion to

reconsider, which was denied, and then moved to set aside and reconsider the previous

order, which the District Court also denied. Murry pleaded guilty and was sentenced to

the custody of the Montana Department of Corrections for a period of thirteen months for

placement in an appropriate treatment or correctional facility or program, followed by a

five-year consecutive commitment to the Department, suspended with conditions.


                                         2
¶4     Murry agrees that she was convicted of DUI in Montana in May 2005 and

February 2006, and that both of those offenses “count” toward determining whether the

2010 offense should be considered a felony.          She claims, however, that there is

insufficient evidence to show that her 1997 conviction in Washington State was for DUI

rather than a “per se” conviction for operating a motor vehicle with an alcohol

concentration in excess of the legal limit. Murry argues that, under Montana’s former

sentencing scheme in which “per se” offenses were expunged after five years, the

Washington conviction cannot be used to support an enhanced felony charge. Section

61-8-722(6) (1993).

¶5     The parties dispute whether the 1993 or 1997 version of Montana’s DUI

sentencing statutes controls, since Murry’s Washington offense was committed in 1994

but, for unknown reasons, she was not convicted and sentenced until 1997. Murry argues

that she is entitled to the application of Montana law in effect at the time her offense was

committed, under which the “per se” offense should be expunged since she committed no

additional offense within the next five years. Unlike the 1993 statutes, there was no BAC

expungement statute in effect in 1997.       The State therefore argues, citing State v.

Brander, 280 Mont. 148, 155, 930 P.2d 31, 36 (1996), that the expungement provision

does not apply because it was not in effect at the time the conviction was entered.

¶6     We conclude that it is unnecessary to resolve this conflict. Although whether a

prior conviction may be used for sentence enhancement generally presents a question of

law, a trial court’s findings of fact regarding the circumstances of the underlying

conviction will be upheld unless they are clearly erroneous. State v. Hass, 2011 MT 296,
                                         3
¶ 13, 363 Mont. 8, 265 P.3d 1221. The District Court found, after considering evidence

submitted by the parties on Murry’s motion to amend the information, that her 1997

Washington State conviction was for DUI, not for a “per se” offense based on her blood

alcohol concentration. Murry argued that since Washington law provided for both DUI

and “per se” violations under the same code section, the State of Montana had not proven

that her 1997 conviction was for DUI and not a “per se” offense. Based on the evidence,

however, including in part the Washington court’s judgment reflecting that Murry had

“refused” a test of her breath or blood, the District Court concluded that Murry was

convicted of DUI in the State of Washington in 1997, bringing her prior DUI convictions

to three and supporting the felony charge.

¶7     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

District Court’s findings of fact are based on substantial evidence in the record and

support its conclusion that Murry’s 1997 Washington conviction properly was used to

support her felony DUI charge in this case.

¶8     Affirmed.

                                                      /S/ Beth Baker

We concur:

/S/ Mike McGrath
/S/ Michael E Wheat
/S/ Patricia O. Cotter
/S/ Jim Rice



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