                                           No. 02-671

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 139N



DOUGLAS R. VEIS,

              Petitioner and Appellant,

         v.

STATE OF MONTANA,

              Respondent and Respondent.




APPEAL FROM:         District Court of the Thirteenth Judicial District,
                     In and For the County of Yellowstone, Cause No. DV 56-2002-744,
                     Honorable G. Todd Baugh, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Douglas Veis, pro se, Shelby, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Carol E. Schmidt,
                     Assistant Attorney General, Helena, Montana

                     Dennis Paxinos, County Attorney, Billings, Montana



                                                   Submitted on Briefs: March 20, 2003

                                                             Decided: June 7, 2004

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1        Pursuant to Section I, Paragraph 3(c), of the Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent but shall be filed as

a public document with the Clerk of the Supreme Court. It shall be reported by case title,

Supreme Court cause number, and result to the State Reporter Publishing Company and to

West Group in the quarterly table of noncitable cases issued by this Court.

¶2        Douglas R. Veis (Veis) appeals from an order entered by the Thirteenth Judicial

District Court, Yellowstone County, denying his petition for postconviction relief. We

affirm.

¶3        We restate the issues on appeal as follows:

¶4        1. Did the District Court err in dismissing the postconviction relief petition on the

grounds that it was time-barred?

¶5        2. Is the time bar unconstitutional as violating the ex post facto prohibition?

                    FACTUAL AND PROCEDURAL BACKGROUND

¶6        On November 1, 1995, the State of Montana charged Veis with three felony counts

of sexual intercourse without consent, in violation of § 45-5-503, MCA. The State alleged

that during 1993-1995, Veis had sexual intercourse twice with S.B., and once with B.J., who

were then between the ages of four and ten. A trial was held in June 1996, but the jury was

unable to reach a verdict. A second trial was scheduled for August 1996. Prior to the second

trial, the State amended the Information to add a fourth felony count of sexual intercourse

without consent during the same period based on another incident with S.J. At the

conclusion of a four-day trial, a jury convicted Veis on all four counts. On January 2, 1997,

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the District Court sentenced Veis to forty-year sentences for each conviction. Veis was held

in the State of Texas from June 1997 until September 1999 at which time he was returned

to Crossroads Correctional Center in Shelby, Montana.

¶7     Veis appealed his conviction, and this Court affirmed the judgment of the District

Court on June 25, 1998. State v. Veis, 1998 MT 162, 289 Mont. 450, 962 P.2d 1153. The

only two issues raised by Veis on direct appeal involved alleged errors by the District Court

regarding the admission of testimony. Veis, ¶¶ 13, 20.

¶8     Veis filed a petition for postconviction relief on August 28, 2002. On September 3,

2002, the District Court denied Veis’s petition on grounds it was untimely pursuant to § 46-

21-102, MCA, and that it did not allege the existence of newly-discovered evidence. Veis

appeals.

                                STANDARD OF REVIEW

¶9     We review a district court’s denial of a petition for postconviction relief to determine

whether its findings are clearly erroneous, and whether it correctly interpreted the law. State

v. Wells, 2001 MT 55, ¶ 4, 304 Mont. 329, ¶ 4, 21 P.3d 610, ¶ 4 (citing State v. Wilson,

1999 MT 52, ¶ 11, 293 Mont. 429, ¶ 11, 976 P.2d 962, ¶ 11), overruled on other grounds

in State v. Whitehorn, 2002 MT 54, ¶ 42, 309 Mont. 63, ¶ 42, 50 P.3d 121, ¶ 42.

                                       DISCUSSION

                                           Issue 1

¶10 Did the District Court err in dismissing the postconviction relief petition on the
grounds that it was time-barred?
¶11 Veis asserts the District Court erred in dismissing his petition for postconviction relief

on the basis it was time-barred. Veis argues that after the date of sentencing and entry of

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judgment on January 2, 1997, the Montana Legislature, through amendment of § 46-21-102,

MCA, reduced the statutory period for filing a petition for postconviction relief from five

years to one year. Veis contends this amendment deprived him of the five-year filing period

to which he was entitled under the postconviction statute in effect at the time of his

conviction.

¶12    In 1997, the Montana Legislature amended the procedures for seeking postconviction

relief under § 46-21-101, MCA, et seq. Among other changes, the amendments reduced the

statute of limitations for filing a petition from five years to one year from the date a

conviction becomes final. Montana Session Laws (1997), Ch. 378, Sec. 4. A special

relation-back provision of the 1997 legislation subjected all convictions occurring during the

twelve months prior to the April 24, 1997, effective date to the amended procedures.

Montana Session Laws (1997), Ch. 378, Sec. 9. The act afforded persons convicted between

April 25, 1996, and April 24, 1997, another year following the legislation’s effective date,

or until April 24, 1998, in which to file their postconviction relief petitions.          See

“Applicability” section of Compiler’s Comments to § 46-21-102, MCA (1997).

¶13    Section 46-21-102(1), MCA, as amended in 1997, states:

       46-21-102. When petition may be filed. (1) Except as provided in subsection
       (2), a petition for the relief referred to in 46-21-101 may be filed at anytime
       within 1 year of the date that the conviction becomes final. A conviction
       becomes final for purposes of this chapter when:
               (a) the time for appeal to the Montana supreme court expires;
               (b) if an appeal is taken to the Montana supreme court, the time for
       petitioning the United States supreme court for review expires; or
               (c) if review is sought in the United States supreme court, on the date
       that that court issues its final order in the case.


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                (2) A claim that alleges the existence of newly discovered evidence,
       that, if proved and viewed in light of the evidence as a whole would establish
       that the petitioner did not engage in the criminal conduct for which the
       petitioner was convicted, may be raised in a petition filed within 1 year of the
       date on which the conviction becomes final or the date on which the petitioner
       discovers, or reasonably should have discovered, the existence of the
       evidence, whichever is later.

¶14    Veis was sentenced and judgment entered on January 2, 1997. Veis appealed, and

this Court affirmed the conviction on June 25, 1998. See Veis. Veis’s conviction became

final 90 days thereafter, or September 23, 1998. See § 46-21-201(1)(b), MCA (1997); Rule

13, Rules of the Supreme Court of the United States; Davis v. State, 2004 MT 112, ¶ 14, 321

Mont. 118, ¶ 14, 88 P.3d 1285, ¶ 14. Veis’s September 23, 1998, final conviction date was

approximately a year and a half after the legislation passed. Veis then had an additional

year, from September 23, 1998, to September 23, 1999, to file his petition for postconviction

relief. Veis filed his petition for postconviction relief on August 28, 2002.

¶15    Although Veis was sentenced prior to the change in statute, he nonetheless had

approximately a year and a half prior to his conviction becoming final to absorb this change,

which allowed him another year thereafter to file his petition for postconviction relief. We

therefore conclude that the District Court did not err in determining that Veis’s petition was

time-barred.

¶16    Veis nonetheless argues that the statute of limitations should be equitably tolled

during the time he was incarcerated in Texas (June 1997 through September 1999), and upon

his return to the Crossroads Correctional Center in Shelby, Montana, because he was

unaware of the change in the statute which occurred while he was out of state, and the



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Shelby correctional facility did not provide access to legal research materials. However, this

Court has already considered and expressly rejected such assertions. See Wells. In Wells,

the petitioner had argued that, although she failed to timely file her petition for

postconviction relief, the one-year limitation was not a jurisdictional limitation, but rather

a statute of limitations, and that she was entitled to an equitable tolling of the statute. Like

Veis, Wells argued that the tolling should be applied to the time period she was incarcerated

out of state and allegedly without adequate legal assistance. Wells, ¶ 9.

¶17    This Court rejected the argument because § 46-21-102, MCA, is a jurisdictional limit

on postconviction litigation, and we have held its waiver may only be justified by a clear

miscarriage of justice, one so obvious that the judgment is rendered a complete nullity.

Wells, ¶ 10 (citing State v. Rosales, 2000 MT 89, ¶ 7, 299 Mont. 226, ¶ 7, 999 P.2d 313,

¶ 7); see also Petition of Gray (1995), 274 Mont. 1, 2, 908 P.2d 1352. This narrow

exception to the jurisdictional limitation of § 46-21-102, MCA, was further discussed in

numerous cases including Hawkins v. Mahoney, 1999 MT 82, ¶ 12, 294 Mont. 124, ¶ 12, 979

P.2d 697, ¶ 12; State v. Charlo, 2000 MT 192, ¶ 13, 300 Mont. 435, ¶ 13, 4 P.3d 1201, ¶

13; and State v. Redcrow, 1999 MT 95, ¶ 34, 294 Mont. 252, ¶ 34, 980 P.2d 622, ¶ 34.

These cases establish that the “miscarriage of justice” exception is a narrow one and does

not apply unless the defendant alleges newly-discovered evidence that establishes that the

defendant did not commit the offense. See, e.g., Rosales, ¶ 7. This Court has held that the

exception is extremely rare and is limited to extraordinary cases in which a constitutional




                                               6
violation has probably resulted in the conviction of one who is actually innocent, which was

not so claimed here by Veis. See, e.g., Redcrow, ¶ 33. Thus, Veis’s petition is time-barred.

                                             Issue 2

¶18    Is the time bar unconstitutional as violating the ex post facto prohibition?

¶19    Veis further asserts the time bar in the 1997 amendment to § 46-21-102, MCA,

constitutes a violation of his constitutional right against ex post facto laws. Article I, Section

10, of the United States Constitution prohibits the States from passing any ex post facto law.

California Dept. of Corrections v. Morales (1995), 514 U.S. 499, 504, 115 S.Ct. 1597, 1601,

131 L.Ed.2d 588. Article II, Section 31, of the Montana Constitution also prohibits the

passage of ex post facto laws. State v. Duffy, 2000 MT 186, ¶ 29, 300 Mont. 381, ¶ 29, 6

P.3d 453, ¶ 29; In re Young, 1999 MT 195, ¶ 14, 295 Mont. 394, ¶ 14, 983 P.2d 985, ¶ 14.

This Court has articulated a two-part test to determine whether a statute violates the

constitutional ban on ex post facto laws: (1) the law must be retrospective, and (2) it must

disadvantage the offender affected by it. Duffy, ¶ 29 (citing State v. Leistiko (1992), 256

Mont. 32, 36-37, 844 P.2d 97, 100). We have stated that a statute was retrospective because

it changes the legal consequences of actions committed before its effective date. Young,

¶ 14. The second prong of the test requires that the law at issue must be more onerous than

the prior law. Young, ¶ 14.

¶20    The 1997 amendments to § 46-21-102, MCA, made the procedures by which a

petitioner may seek relief after conviction expressly retroactive. Retroactive laws include

both laws with a retrospective effect and ex post facto laws. Saint Vincent Hosp. and Health


                                                7
Center, Inc. v. Blue Cross and Blue Shield of Montana (1993), 261 Mont. 56, 60, 862 P.2d

6, 9. We have defined a retrospective law as one “which takes away or impairs vested rights

acquired under existing laws or creates a new obligation, imposes a new duty, or attaches

a new disability in respect to transactions already passed.” Saint Vincent Hosp., 261 Mont.

at 60, 862 P.2d at 9 (quoting City of Harlem v. State Highway Comm’n. (1967), 149 Mont.

281, 284, 425 P.2d 718, 720). By contrast, the constitutional prohibition against ex post

facto laws “is aimed at laws that ‘retroactively alter the definition of crimes or increase the

punishment for criminal acts.’” Duffy, ¶ 29 (citing Morales, 514 U.S. at 504, 115 S.Ct. at

1601). Changes in procedure which do not affect substantial rights do not implicate the

prohibition against ex post facto laws. State v. Goebel, 2001 MT 155, ¶ 28, 306 Mont. 83,

¶ 28, 31 P.3d 340, ¶ 28; Duffy, ¶ 31.

¶21    We conclude that because this procedural change neither alters the definition of the

crime for which Veis was convicted nor increases his punishment, it did not affect his

substantial rights. Therefore, the amended statute of limitations is not subject to prohibition

against ex post facto laws.

¶22    We additionally note that Veis raises fourteen issues in his petition for postconviction

relief. Thirteen of the fourteen are procedurally barred for failure to raise them on direct

appeal. Section 46-21-105(2), MCA. This Court has stated numerous times that it will not

review issues that were not preserved for appeal in the district court. See, e.g., State v.

Schmalz, 1998 MT 210, ¶¶ 11-13, 290 Mont. 420, ¶¶ 11-13, 964 P.2d 763, ¶¶ 11-13; State

v. Spotted Blanket, 1998 MT 59, ¶ 13, 288 Mont. 126, ¶ 13, 955 P.2d 1347, ¶ 13.


                                              8
Ineffective assistance of counsel claims must be raised by petition for postconviction relief

where the allegations of ineffective assistance of counsel cannot be documented from the

record in the underlying case. State v. Wright, 2001 MT 282, ¶ 12, 307 Mont. 349, ¶ 12, 42

P.3d 753, ¶ 12. Although Veis’s fourteenth issue, ineffective assistance of counsel for

failing to raise the other thirteen issues, could have been raised by petition for postconviction

relief under the circumstances articulated in Wright, it is nonetheless disposed by the statute

of limitations question resolved in the case sub judice.

¶23    Affirmed.



                                                           /S/ JIM RICE



We concur:


/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER




                                               9
Justice W. William Leaphart specially concurring.

¶24    I concur in our opinion with the exception of ¶ 17 wherein we state that § 46-21-

102, MCA, is a “jurisdictional limit” on postconviction litigation. I do not necessarily

agree with this characterization. However, even if that statute is treated as a

nonjurisdictional statute of limitations, I do not agree with Veis that he was entitled to

equitable tolling due to his being out of state.



                                                   /S/ W. WILLIAM LEAPHART




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