author: BEVAN, Justice

text:
    Bryan OLIVEROS, Claimant-Appellant, v. RULE STEEL TANKS, INC., Employer, Advantage Workers Compensation Insurance Co., Surety, Defendants-Respondents.
    Docket No. 45782
    Supreme Court of Idaho, Boise, January 2019 Term.
    Filed: March 28, 2019
    W. Breck Seiniger, Jr., Boise, attorney for Appellant.
    R. Daniel Bowen, Boise, attorney for Respondent.
   BEVAN, Justice

I. NATURE OF THE CASE

This is a worker's compensation case. Bryan Oliveros filed a complaint with the Idaho Industrial Commission ("Commission") after he was involved in a work related accident at Rule Steel Tanks, Inc. ("Rule Steel"). The accident resulted in the partial amputation of all four fingers on his dominant hand. The Commission awarded Oliveros compensation for a 32% partial permanent impairment ("PPI") rating but declined to award any additional benefits after it later found his permanent partial disability ("PPD") rating to be 25%. Oliveros appealed to this Court. While we conclude the Commission erred when it found Oliveros' PPI could exceed his PPD, we otherwise affirm the Commission's decision.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND

In 2008, before starting his senior year of high school, Oliveros had a summer job with Rule Steel operating a metal press that shaped pieces of steel. Oliveros earned about $7 an hour. On July 30, 2008, his second day at work, the fingers of Oliveros' dominant, right hand were caught in the metal press, which resulted in the traumatic amputation of portions of all four fingers, associated crush injuries, and some degloving injuries on what remained of his fingers. Oliveros had approximately five surgeries before he was considered medically stable. On April 6, 2009, Oliveros' treating physician, Dr. Gross, found that Oliveros had suffered a 32% PPI rating due to his injuries. Dr. Gross released Oliveros to his pre-injury occupation with these restrictions:

He may work in an 8-10 hour shift, with usual and customary breaks, at a medium duty position. The following restrictions are for his Right Upper Extremity Only:
5 pound grip/carry
75 pound push
50 pound pull
20 pound lifting No fine manipulation
Mr. Oliveros should be able to comply with these restrictions for the full shift, without special breaks or rest periods, based on the findings of the [Functional Capacity Evaluation].

Prior to his accident Oliveros had several jobs predominantly in the fast food industry. In either 2006 or 2007, Oliveros worked for Burger King for about 6 months. In April 2008, Oliveros worked as a cashier at Dairy Queen. Following the accident, around March 2009, Oliveros returned to work at Dairy Queen for a few months performing light duty work running the cashier stand and cleaning tables.

Oliveros went back to high school in 2009; however, after missing too much school while recovering from his accident, he ultimately obtained his GED from Boise State University in 2010. From August 2010 to April 2011, Oliveros attended Lewis-Clark State College in Lewiston, Idaho, where he took business classes for two semesters. The summer of 2011, Oliveros took an online class in communications at College of Western Idaho ("CWI"). From August to December 2011, Oliveros returned to the Nampa/Boise area and began working in customer service for WDS Global, a Verizon call center, earning around $9 or $10 an hour with benefits.

Oliveros decided to pursue a career as a pharmacy technician. In 2012, Oliveros enrolled in Carrington College to become certified as a pharmacy technician; however, he dropped out after a few months. From approximately September 2012 to May 2013, Oliveros took courses from the Milan Institute where he earned a Certificate of Completion in Pharmacy Technology. Oliveros went on to work at the Terry Reilly Pharmacy with a provisional license as a pharmacy technician in training. Oliveros earned an initial wage of about $13 an hour that eventually increased to $13.80 an hour. Oliveros left Terry Reilly in August 2015 after he could not pass the examination to become a full pharmacy technician.

From August to September 2015, Oliveros worked at Medcap Pharmacy making about $14 an hour. From September to November 2015, Oliveros worked at TigerDirect as an account manager, making $14.42 an hour plus commissions. From November 15, 2015, to February 29, 2016, Oliveros applied for pharmacy jobs at Walgreens, Walmart, and Albertsons but was not hired. On February 29, 2016, Oliveros started working for KeyBank as a bank teller, making $11.75 an hour plus benefits he could purchase. Oliveros worked at Key Bank for about 8 months until he was let go because of a customer complaint.

On December 5, 2016, Oliveros began working as a third-party coordinator for Albertsons' corporate office. Oliveros remained employed at Albertsons at the time of his hearing, earning $15.87 per hour, plus benefits.

B. PROCEDURAL BACKGROUND

On February 16, 2010, Oliveros filed a worker's compensation complaint with the Commission seeking: (1) medical benefits; (2) total temporary disability ("TTD")/total permanent disability ("TPD"); (3) permanent partial impairment ("PPI"); (4) permanent partial disability ("PPD"); (5) retraining; and (6) attorney fees. Rule Steel conceded Oliveros suffered a 32% PPI rating, which it had already paid him; however, Rule Steel disputed whether Oliveros: (1) was entitled to payment for his PPD rating beyond the award he received for his 32% PPI rating; (2) needed retraining benefits to restore his wage earning capacity; (3) required even more medical treatment; and (4) needed prostheses.

The parties stipulated to a limited hearing held on December 7, 2011, to determine whether Oliveros was entitled to prosthetic fingers under Idaho Code section 72-432. Oliveros argued that prosthetic silicone fingers were a reasonable part of the medical care necessitated by his injury, whereas Rule Steel argued that prosthetic fingers were not medically necessary because they would not improve the residual function of Oliveros' hand. On November 2, 2012, the Commission denied Oliveros' request for prosthetics. The Commission was persuaded by the testimony of Dr. Gross, Oliveros' treating physician, who opined that prostheses would be useless and would contribute to an even greater loss of function. Oliveros filed a motion for reconsideration and motion to rehear the case en banc, which the Commission denied on December 14, 2012.

No further action was taken in the case until February 21, 2017, when Oliveros filed a prehearing statement for his remaining claims. Oliveros mainly relied on a report prepared by Douglas Crum, a vocational expert Oliveros retained at his own expense in 2009. Mr. Crum suggested that the only way Oliveros could successfully mitigate the effects of his 2008 accident would be through education. Mr. Crum opined that "[w]ithout retraining ... Mr. Oliveros would reasonably experience disability, inclusive of impairment, of approximately 75%." On April 7, 2016, Mr. Crum updated his report based on Oliveros' more recent education and work history and stated that because of Oliveros' "retraining" he had not suffered a loss of wage earning capacity, but he had a 55% loss of labor market access, resulting in a PPD rating of 45%.

A hearing was held on February 22, 2017, to determine whether Oliveros had a right to retraining reimbursement benefits, temporary disability benefits while he was retraining, PPD, and attorney fees. Oliveros limited the retraining benefits he sought to reimbursement for the Milan Institute program. Oliveros argued that because he reduced his PPD rating at his own expense he was entitled to compensation for the retraining he underwent. Alternatively, Oliveros argued that if Rule Steel did not have to pay for his retraining they should not benefit from his self-funded education and be required to pay his PPD at the higher rate of 75%.

On July 27, 2017, the Referee entered findings of fact and conclusions of law that determined that Oliveros was not entitled to additional compensation because he failed to prove that: (1) he was entitled to reimbursement and corresponding TTD benefits under Idaho Code section 72-450 ; or that (2) he was entitled to additional PPD benefits above the 32% PPI benefits previously paid. On August 25, 2017, the Commission adopted the Referee's findings. On September 14, 2017, Oliveros filed a motion for reconsideration, which the Commission denied. Oliveros timely appealed to this Court.

III. ISSUES ON APPEAL

1. Whether the Commission erred when it declined to award Oliveros PPD benefits in addition to PPI benefits.

2. Whether the Commission erred when it determined that Oliveros suffered a 25% PPD rating.

3. Whether the Commission's decision to deny Oliveros' request for retraining benefits under Idaho Code section 72-450 is supported by substantial and competent evidence.

4. Whether either party is entitled to attorney fees on appeal.

IV. STANDARD OF REVIEW

"When reviewing a decision by the Industrial Commission, this Court exercises free review over the Commission's conclusions of law, but will not disturb the Commission's factual findings if they are supported by substantial and competent evidence." Knowlton v. Wood River Med. Ctr ., 151 Idaho 135, 140, 254 P.3d 36, 41 (2011) (citing I.C. § 72-732 ). "Substantial and competent evidence is relevant evidence that a reasonable mind might accept to support a conclusion." Mazzone v. Texas Roadhouse, Inc ., 154 Idaho 750, 755, 302 P.3d 718, 723 (2013).

Jordan v. Dean Foods , 160 Idaho 794, 798, 379 P.3d 1064, 1068 (2016). "Because the Commission is the fact finder, its conclusions on the credibility and weight of the evidence will not be disturbed on appeal unless they are clearly erroneous." Funes v. Aardema Dairy , 150 Idaho 7, 10, 244 P.3d 151, 154 (2010) (quoting Eacret v. Clearwater Forest Indus ., 136 Idaho 733, 735, 40 P.3d 91, 93 (2002) ). "Whether a claimant has an impairment and the degree of permanent disability resulting from an industrial injury are questions of fact." Id .

V. ANALYSIS

A. The Commission properly concluded that Oliveros was not entitled to a separate award for his PPD and his PPI.

Oliveros was awarded benefits for his 32% PPI rating after he was considered medically stable. Several years later, the Commission found that Oliveros suffered a 25% PPD rating but declined to award any additional benefits. The Commission held that the 25% whole person PPD rating was subsumed within the 32% PPI payment Oliveros already received. On appeal, Oliveros argues that the Commission erred by declining to award him disability benefits in addition to the impairment benefits he was initially awarded.

Title 72 of the Idaho Code governs worker's compensation law. I.C. § 72-101. The terms "permanent impairment" and "permanent disability" are both defined by statute.

"Permanent impairment" is defined as

any anatomic or functional abnormality or loss after maximal medical rehabilitation has been achieved and which abnormality or loss, medically, is considered stable or nonprogressive at the time of evaluation. Permanent impairment is a basic consideration in the evaluation of permanent disability, and is a contributing factor to, but not necessarily an indication of, the entire extent of permanent disability.

I.C. § 72-422. The evaluation of permanent impairment is a medical assessment of the nature and extent of the injury as it affects the injured employee's daily living, i.e., self-care, communication, normal living postures, ambulation, elevation, traveling, and nonspecialized activities of bodily members. I.C. § 72-424. The permanent impairment rating is one component to be considered by the Commission, but is not the exclusive factor, in determining a claimant's permanent disability rating. Baldner v. Bennett's, Inc. , 103 Idaho 458, 461, 649 P.2d 1214, 1217 (1982).

"Permanent disability" occurs "when the actual or presumed ability to engage in gainful activity is reduced or absent because of permanent impairment and no fundamental or marked change in the future can be reasonably expected." I.C. § 72-423. The evaluation of permanent disability is an assessment of the employee's present and future probability to engage in gainful activity as it is affected by the medical factor of permanent impairment and by pertinent nonmedical factors identified in section 72-430. I.C. § 72-425. Such nonmedical factors include:

(1) the nature of the physical disablement; (2) the disfigurement if of a kind likely to limit the employee in procuring or holding employment; (3) the cumulative effect of multiple injuries; (4) the occupation of the employee; (5) and his age at the time of accident causing the injury, or manifestation of the occupational disease, consideration being given to the diminished ability of the afflicted employee to compete in an open labor market within a reasonable geographical area considering all the personal and economic circumstances of the employee; and (6) other factors as the commission may deem relevant ....

I.C. § 72-430.

Oliveros relies on two recent Idaho Supreme Court cases, Corgatelli v. Steel West, Inc. , 157 Idaho 287, 335 P.3d 1150 (2014), and Davis v. Hammack Management , 161 Idaho 791, 391 P.3d 1261 (2017), to argue he was entitled to both PPI benefits as well as PPD benefits. In Corgatelli , this Court held that the Commission erred when it allowed an employer to offset its liability for an employee's total and permanent disability ("TPD") benefits with a credit for the permanent physical impairment benefits previously paid to its employee. 157 Idaho at 292, 335 P.3d at 1155. We applied this same principle in Davis , and held that such credits to employers were invalid in the context of TPD benefits. 161 Idaho at 796, 391 P.3d at 1266.

While we find Corgatelli and Davis to be factually distinguishable because those claimants both received TPD benefits under section 72-408, whereas Oliveros received PPD benefits under section 72-428 , this distinction does not change the legal outcome because there is no "impairment award" under Idaho's Worker's Compensation Act. With that said, we disavow those statements in Corgatelli and Davis that suggest an injured worker is entitled to recover both "impairment" and "disability" benefits under the Act. Namely, this Court's assertion in Corgatelli that "[a]lthough partial permanent disability benefits are calculated in relation to permanent physical impairment benefits, Idaho Code sections 72-427 to -429, partial permanent disability benefits and permanent physical impairment benefits are two separate forms of compensation." 157 Idaho at 292, 335 P.3d at 1155. The confusion may have arisen from our recognition in the past that

[i]n worker's compensation cases, the claimant's recovery is typically categorized into types of benefits, such as medical expenses, temporary disability, permanent impairment, and permanent disability (disability in excess of impairment). Because those benefits are determined separately, the claimant's recovery for each type of benefit is an identifiable sum of money.

Seiniger Law Offices, P.A. v. State ex rel. Indus. Comm'n , 154 Idaho 461, 466, 299 P.3d 773, 778 (2013). We now clarify that even though multiple payments may be made for different types of benefits in these cases, payments made for partial impairment are subsumed by, and part of, the final disability award. Indeed, while impairment and disability are separately defined under the Worker's Compensation Act, there is no separate statutory mechanism authorizing separate awards for income benefits based on a claimant's PPI and his PPD ratings. Instead, any monies paid based on impairment are in actuality payments for disability. Any payments or awards made before the final disability award are therefore more-accurately characterized as disability payments under the statute.

We recently recognized this principle in Mayer v. TPC Holdings, Inc., in which we noted:

Although the term "impairment award" has crept into the vernacular of the workmen's compensation bar, Idaho's Workmen's Compensation Law only provides for an award of income benefits based on disability, not impairment. Fowler v. City of Rexburg , 116 Idaho 1, 3 n.5, 773 P.2d 269, 271 n.5 (1988) ("Income benefits payable under the Workmen's Compensation Law, with the exception of retraining benefits, I.C. § 72-450, are based upon disability, either temporary or permanent, but not merely impairment."). A "permanent impairment" as the definitions themselves make clear, is simply a component of a "permanent disability." I.C. §§ 72-422, -423. Thus, any final award made under Idaho's Workmen's Compensation Law is properly referred to as a disability award. Fowler , 116 Idaho at 3 n.5, 773 P.2d at 271 n.5 ("While in some cases the non-medical factors will not increase the permanent disability rating over the amount of the permanent impairment rating, the ultimate award of income benefits is based upon the permanent disability rating, not merely the impairment rating."); see also Woodvine v. Triangle Dairy , 106 Idaho 716, 722, 682 P.2d 1263, 1269 (1984).

160 Idaho 223 n.1, 370 P.3d 738 n.1 (2016).

Thus, we take this opportunity to reiterate that Idaho's workers compensation law only provides for an award of income benefits based on disability, not impairment. See id . There are not separate income awards for PPI and PPD . Instead, monies received by the claimant for PPI are part of his final award for PPD. This accords with how disability is calculated, e.g., PPI is one component to be considered by the Commission, but is not the exclusive factor, in determining a claimant's PPD rating. Baldner , 103 Idaho at 461, 649 P.2d at 1217. We hold that the Commission did not err in following Mayer and identifying that there is not a separate avenue for recovery of both impairment and disability because impairment is included in the determination of disability. Corgatelli and Davis , supra , are overruled insofar as they are inconsistent with this opinion.

B. The Commission erred when it determined that Oliveros' PPD rating was lower than his impairment rating. Nevertheless, its conclusion is affirmed.

Oliveros also argues that the Commission's determination that he had a 25% PPD rating was speculative. In proceedings before the Commission, Oliveros retained Mr. Crum as a vocational expert. Mr. Crum came up with a retraining plan based on Oliveros' medical records, restrictions given by Dr. Gross, Oliveros' work history, and his access to the labor market both pre- and post-injury. Oliveros asserts that the Commission arbitrarily rejected Mr. Crum's testimony about the extent of Oliveros' disability. Oliveros also points out that Rule Steel retained, but did not utilize, a vocational expert; as such, Mr. Crum's testimony was unrebutted.

"A determination by the Commission as to the degree of permanent disability resulting from an industrial injury is a factual question committed to the particular expertise of the Commission." McCabe v. Jo Ann Stores, Inc ., 145 Idaho 91, 99, 175 P.3d 780, 788 (2007) (internal citation omitted). Such findings are much like those made by a trial court, so the following analysis equally applies to the findings of the Commission:

A trial court's findings of fact will not be set aside on appeal unless they are clearly erroneous. When deciding whether findings of fact are clearly erroneous, this Court does not substitute its view of the facts for that of the trial court. It is the province of the trial court to weigh conflicting evidence and to judge the credibility of witnesses. On appeal, this Court examines the record to see if challenged findings of fact are supported by substantial and competent evidence. Evidence is regarded as substantial if a reasonable trier of fact would accept it and rely upon it in determining whether a disputed point of fact has been proven.

Miller v. Callear , 140 Idaho 213, 216, 91 P.3d 1117, 1120 (2004) (internal citations omitted). "The opinion of an expert is not binding on the trial court, and, as long as it does not act arbitrarily, the trial court may reject expert testimony even when it is uncontradicted." Id . at 218, 91 P.3d at 1122 (citing Levin v. Levin , 122 Idaho 583, 836 P.2d 529 (1992) ).

As set forth in Section A, a claimant's disability rating is based on his or her "present and probable future ability to engage in gainful activity." I.C. § 72-425. This Court has held "[t]he word 'present' implies that the Commission is to consider the claimant's ability to work as of the time the evidence is received. There is no 'present' opportunity for the Commission to make its determination apart from the time of hearing." Brown v. Home Depot , 152 Idaho 605, 609, 272 P.3d 577, 581 (2012). At the time of Oliveros' hearing, the Commission found that he suffered a 25% PPD rating. The Commission found that Mr. Crum's opinions were of little advisory benefit because: (1) other than stating that jobs such as medical doctors or lawyers were not considered when calculating Oliveros' loss of potential jobs, Mr. Crum failed to identify what categories of jobs were included; (2) his report was conclusory in nature; and (3) the report implied that Oliveros would have a difficult time finding employment, making more than minimum wage, and escaping poverty, when in reality Oliveros had always been able to find a job within a reasonable time and he has found employment for jobs earning greater than minimum wage.

The Commission also recognized that Mr. Crum failed to highlight Oliveros' many assets when preparing his analysis. Oliveros is fluent in Spanish and English, both spoken and written. He is good at math and has significant skills with basic computer programs used in business, including spreadsheets, Photoshop, and Word. He took advanced computer classes in high school including business applications and principles of marketing. He had a strong interest in business, and enjoyed his business classes. He had no impediments to employment before his accident, nor did he have a criminal record. Further, the Commission appropriately recognized that Oliveros had no desire to do many jobs that his injury precluded him from pursuing. Instead, he consistently testified that he had always intended to pursue higher education. Ultimately, the Commission determined that because of Oliveros' choice of career opportunities, he minimized the effect of his disability, and considering the totality of the evidence, the Commission found Oliveros' PPD rating to be 25%. The Commission rejected Mr. Crum's assertion that Oliveros' hand injury would severely impact his vocational options for the rest of his life, calling it "vastly overstated" due to Oliveros' drive, desire, adaptability, and perseverance.

"A determination by the Commission as to the degree of permanent disability resulting from an industrial injury is a factual question committed to the particular expertise of the Commission." McCabe , 145 Idaho at 99, 175 P.3d at 788. "The Court cannot re-weigh the evidence or consider whether it would have drawn a different conclusion from the evidence presented unless it is clearly erroneous." Id . There is no indication that the Commission acted arbitrarily in rejecting Mr. Crum's testimony. Oliveros has always been able to find a job within a reasonable time, found employment for jobs greater than minimum wage, and now has a job with Albertsons, which is a career opportunity.

With that said, the Commission erred in concluding that Oliveros' PPD rating was lower than his PPI rating. The primary purpose of an award of permanent disability is to compensate the claimant for a reduction in the claimant's capacity for gainful activity. Graybill v. Swift & Co. , 115 Idaho 293, 294, 766 P.2d 763, 764 (1988) (citing I.C. § 72-425 ). The test for determining whether a claimant has suffered a permanent disability greater than permanent impairment is "whether the physical impairment, taken in conjunction with non-medical factors , has reduced the claimant's capacity for gainful activity." Id . (emphasis added). Under this test it is feasible that a PPD rating may exceed the claimant's PPI rating; however, because the impairment is part of the calculation for disability, once a PPI disability rating has been set, a PPD rating cannot be lower than such a rating. The PPI rating is a permanent rating of impairment. Such a rating sets the floor from which a disability rating may only increase, based on the factors in Idaho Code section 72-430. The Commission erred in concluding that Oliveros suffered a PPD rating lower than his PPI rating.

Even so, we have already clarified that a claimant does not receive separate awards for PPI and PPD. As a result, the Commission's reduced PPD rating, although erroneous, is in reality a finding that Oliveros established no disability in excess of impairment. We therefore affirm the Commission's decision.

C. The Commission's decision to deny Oliveros' request for retraining benefits under Idaho Code section 72-450 is supported by substantial and competent evidence.

Mr. Crum testified that Oliveros' future employment opportunities-particularly his ability to pursue high-paying manual labor jobs-would be limited by his accident because he no longer had the manual dexterity to do those kinds of jobs. Mr. Crum opined that the only way Oliveros could successfully mitigate the effects of his accident would be through education. Following the accident, Oliveros obtained his GED and went on to earn a Certificate of Completion in Pharmacy Technology. It is undisputed that through Oliveros' post-accident education and employment-related activities he improved his access to the labor market. The question is whether Rule Steel should have to reimburse Oliveros for the expenses associated with his education under Idaho Code section 72-450. In the alternative, Oliveros asserts the Commission should have evaluated his disability and arrived at his PPD rating without considering his education.

Idaho Code section 72-450 provides:

Following a hearing upon a motion of the employer, the employee, or the commission, if the commission deems a permanently disabled employee, after the period of recovery, is receptive to and in need of retraining in another field, skill or vocation in order to restore his earning capacity, the commission may authorize or order such retraining and during the period of retraining or any extension thereof, the employer shall continue to pay the disabled employee, as a subsistence benefit, temporary total or temporary partial disability benefits as the case may be. The period of retraining shall be fixed by the commission but shall not exceed fifty-two (52) weeks unless the commission, following application and hearing, deems it advisable to extend the period of retraining, in which case the increased period shall not exceed fifty-two (52) weeks. An employer and employee may mutually agree to a retraining program without the necessity of a hearing before the commission.

In short, section 72-450 gives the Commission discretion to authorize retraining benefits if it determines a permanently disabled employee is receptive to, and in need of, retraining in another field, skill, or vocation to restore his earning capacity. I.C. § 72-450. A claimant's ability to restore earning capacity after suffering an injury is not limited to a comparison of wages, but also depends on relevant factors such as a claimant's willingness to work, attitude, and particular skillset. I.C. § 72-102(34) ("wage-earning capacity shall be determined in the light of all factors and circumstances which may affect the worker's capacity to earn wages.").

The Commission determined that Idaho Code section 72-450 did not apply because Oliveros did not have an established field, skill, or vocation at the time of his accident from which he was precluded because of his injuries. Oliveros contends the implications of this interpretation preclude recovery for unskilled and minor workers. That said, the Commission appropriately recognized that Oliveros' one plus-day's experience at Rule Steel did not imbue him with skills, was not his chosen field, and was never considered by him to be a place where he intended to pursue his life's vocation. The point of retraining is to restore a claimant's earning capacity. I.C. § 72-450. It stands to reason that an earning capacity would need to be established and damaged before it can be restored.

Oliveros contends that even if he was required to have such an established field, skill, or vocation, the Commission erred in holding that his work at fast-food restaurants was insufficient under section 72-450 to establish a basis for retraining. However, this argument ignores the fact that Oliveros could, and did return to work in the fast food industry, at least temporarily. In doing so, Oliveros demonstrated he maintained the ability to work in a fast food restaurant without requiring retraining. Oliveros cites testimony given at the hearing to argue the Commission's conclusion was not based on substantial evidence, but the testimony merely showed that Oliveros was learning how to use his left hand instead of his right shortly after the accident. There is no suggestion from his testimony that Oliveros left Dairy Queen because he was unable to do the job. The Commission could have reasonably concluded that Oliveros had proven he was able to continue working in fast food, but left to pursue other options, such as to complete his GED and attend college.

Indeed, Oliveros testified that before the accident and injury his intention was to finish high school and go to college. Oliveros made the decision to pursue a career as a pharmacy technician based on his own research and conversations with relatives who worked in that industry. Oliveros also testified that he did not seek any retraining assistance when he attended the Milan Institute:

Q. So that isn't something you presented to them?
A. No. I mean, it's something that I, personally, you know made a decision about. I didn't have time to wait for people to help me with, you know - - to get money from other people, to help me with my education.
Q. You were capable of moving on with your life?
A. Correct.
Q. And you wanted to move forward and get that done?
A. Correct.

Despite Oliveros' testimony unequivocally showing that his intentions were always to pursue additional education following high school, Oliveros contends the Commission abused its discretion in denying his request for retraining benefits. However, while the Commission can authorize retraining, there is no requirement that it do so. Retraining is appropriate in circumstances where an injured worker needs retraining due to the loss of a skill as a result of an industrial accident. This case presents a unique situation, but the Commission did not err in recognizing that Oliveros intended to continue his education after high school before his accident, and nothing in the record shows that "but for" the accident, Oliveros would have chosen a different path.

Alternatively, Oliveros asserts that Rule Steel should not be able to reap the benefits of his self-funded education and the Commission should have determined his PPD rating without factoring in his education. Even so, we have already established the appropriate time for the Commission to make a determination on a claimant's "present and probable future ability to engage in gainful activity" is at the time of the hearing. Brown , 152 Idaho at 609, 272 P.3d at 581. At the time of his hearing, Oliveros had already successfully earned a Certificate of Completion in Pharmacy Technology from the Milan Institute and demonstrated he could obtain steady employment. The Commission cannot speculate about what could have happened if Oliveros had sat by the sideline rather than pursue new employment opportunities after his accident. The Commission commended Oliveros for his drive and ability to move forward with his life. Even so, the Commission recognized that Oliveros' perseverance did not mean that Rule Steel had to retroactively assume that financial responsibility. The Commission's finding that Oliveros failed to prove he was entitled to reimbursement under Idaho Code section 72-450 is supported by substantial and competent evidence.

D. No attorney fees on appeal.

Oliveros requests attorney fees on appeal under Idaho Appellate Rule 41 and Idaho Code section 72-804. Rule Steel requests attorney fees and costs under Idaho Code section 12-121, I.R.C.P. 54(d) and 54(e), Idaho Appellate Rule 41, and all other applicable state law. While we find Rule Steel to be the prevailing party, its reliance on Idaho Code section 12-121 is misplaced because it does not apply to worker's compensation appeals. Clark v. Shari's Mgmt. Corp. , 155 Idaho 576, 583, 314 P.3d 631, 638 (2013) (" I.C. § 12-121, does not apply to this appeal because worker's compensation cases are not civil actions."). Rule Steel has also requested attorney fees under "all other applicable state law" but failed to provide any specific authority that would permit recovery of attorney fees. "In order to be awarded attorney fees, a party must actually assert the specific statute or common law rule on which an award is based...." Browning v. Browning , 136 Idaho 691, 696, 39 P.3d 631, 636 (2001) (quoting Bingham v. Montane Resource Associates , 133 Idaho 420, 427, 987 P.2d 1035, 1042 (1999). As a result, we decline to award attorney fees on appeal.

VI. CONCLUSION

The Commission's decision is affirmed. Costs, but not attorney fees, are awarded to Rule Steel.

Chief Justice BURDICK, Justices BRODY, STEGNER and MOELLER concur.

      In his opening brief, Oliveros initially raised the issue of whether the Commission erred when it determined that Oliveros was not entitled to prostheses; however, after Rule Steel expressed concerns regarding the timeliness of the issue, Oliveros withdrew it from his appeal. While the time to file an appeal would have begun on the date the Commission denied Oliveros' motion for reconsideration-December 14, 2012-no further action was taken in the case until February 21, 2017; as such, Oliveros' appeal concerning the prosthetics issue is time-barred.

      The Commission initially identified Oliveros' award as an award for "impairment benefits." However, impairment is only payable as a component of disability; thus, it is more accurate to characterize Oliveros' award as an award for PPD benefits.

      The parties may enter into a contract for payment of monies based on PPI while reserving the right to seek additional monies for PPD. See Woodvine v. Triangle Dairy, Inc ., 106 Idaho 716, 722, 682 P.2d 1263, 1269 (1984). There is nothing in the record before us to establish that the parties made any such agreement regarding Oliveros' award for 32% PPI.


source: Caselaw Access Project

author: MOELLER, Justice

license: Public Domain

text:
    STATE of Idaho, Plaintiff-Respondent, v. Richard Alan WILSON, aka Richard Burrell, Richie B. Wilson, Defendant-Appellant.
    Docket No. 45193
    Supreme Court of Idaho, Boise, February 2019 Term.
    Opinion filed: March 28, 2019
    Eric Don Fredericksen, State Appellate Public Defender, Boise, for Appellant. Sally J. Cooley argued.
    Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Jeffery D. Nye argued.
   MOELLER, Justice

Following a jury trial, Richard Wilson was convicted of two counts of aiding and abetting trafficking in methamphetamine. He now appeals on the grounds that the State failed to present sufficient evidence to support either conviction. For the reasons stated, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 7, 2016, an undercover police officer arranged to meet Regina Jones ("Jones") in a shopping center parking lot to purchase two ounces of methamphetamine. Jones had contacted the officer earlier that day offering to sell one ounce of methamphetamine for $650 or two ounces for $1200. The officer agreed to buy two ounces and made arrangements to complete the sale at a public location around 6 p.m. Jones informed the officer she would be in a white Ford Expedition with the front hood open. When the officer arrived, he located the Expedition and parked near it. Jones was in the driver's seat of the Expedition, and a man-later identified as Richard Wilson ("Wilson")-was standing alongside it near the opened hood of the vehicle. The officer texted Jones to tell her that he had arrived and described the car he was in. Jones then exited the Expedition and entered the officer's car to complete the sale. After some conversation, Jones handed the officer a plastic bag containing two smaller plastic bags, each containing a white crystal substance, and the officer gave Jones $1200 cash. The substance was later identified as methamphetamine.

Meanwhile, Wilson had closed the hood and re-entered the Expedition on the passenger side. Shortly after the exchange of the methamphetamine and the cash, Jones exited the officer's vehicle. The officer returned to the police station to verify the substance and weigh the contents of the bags received from Jones. The small bags each contained just under one ounce of methamphetamine: 27.76 grams and 27.89 grams, respectively.

Twenty days later, on April 27, 2016, Jones and the undercover officer met again to complete another methamphetamine sale. This time Jones agreed to sell one ounce for $600 cash. Once again, Jones and the officer met in a public place, this time a restaurant parking lot, and Wilson accompanied Jones. When they arrived, Wilson, who was driving, exited the Nissan, opened the hood, and waited outside. The officer then texted Jones, telling her that he was parked nearby. Jones exited the car and entered the officer's vehicle. After some conversation, Jones gave the officer a clear plastic bag containing a white crystal substance and the officer gave Jones $620 in pre-marked bills. Jones then exited the vehicle. While Jones was in the officer's car, Wilson had lowered the hood on the Nissan and re-entered it on the driver's side. Both parties left the scene. The officer again returned to the police station to weigh and identify the substance received from Jones. The bag weighed 25.91 grams and the substance it contained was positively identified as methamphetamine.

Later that day another officer, responding to a call from dispatch, pulled over the Nissan that Wilson and Jones were driving. During the stop, the officer searched Wilson, the driver of the vehicle, and discovered $600 cash in his front pants pocket. The serial numbers on the bills obtained from Wilson's pocket matched the serial numbers of the bills given to Jones by the undercover officer earlier that day. This money was seized by the officer and taken into evidence. Several days later, on May 2, 2016, Wilson contacted the police department about retrieving the money, which he claimed he had received from work and family members.

Thereafter, Wilson was charged with two counts of aiding and abetting Jones in trafficking methamphetamine in violation of Idaho Code sections 18-204 and 37-2732B(a)(4) : one count for the April 7th sale (Count I) and one count for the April 27th sale (Count II). A jury determined that Wilson was guilty of both counts and he was later sentenced to concurrent unified sentences of ten years, with three years fixed, and ordered to pay restitution and mandatory minimum fines of $10,000 per count. Wilson appeals.

II. STANDARD OF REVIEW

"This Court will uphold a judgment of conviction entered upon a jury verdict so long as there is substantial evidence upon which a trier of fact could conclude that the prosecution proved all essential elements of the crime beyond a reasonable doubt." State v. Kralovec, 161 Idaho 569, 572, 388 P.3d 583, 586 (2017) (internal quotations and citation omitted). "Evidence is substantial if a reasonable trier of fact would accept it and rely upon it in determining whether a disputed point of fact has been proven." State v. Smith, 161 Idaho 782, 790, 391 P.3d 1252, 1260 (2017) (internal quotations and citation omitted).

On appeal, where a defendant stands convicted, the evidence is viewed in the light most favorable to the prosecution and the reviewing court is precluded from substituting its judgment for that of the jury as to the credibility of witnesses, the weight of the evidence and the reasonable inferences to be drawn from the evidence.

State v. Allen, 129 Idaho 556, 558, 929 P.2d 118, 120 (1996) (internal quotations omitted).

We freely review issues of statutory interpretation. State v. Owens, 158 Idaho 1, 3, 343 P.3d 30, 32 (2015). When interpreting a statute, we "begin[ ] with the statute's plain language." Id. The statute is considered as a whole, and words are given "their plain, usual, and ordinary meanings." Id. "When the statute's language is unambiguous, the legislature's clearly expressed intent must be given effect, and we do not need to go beyond the statute's plain language to consider other rules of statutory construction." Id.

III. ANALYSIS

A. The State Presented Substantial Evidence that Wilson Aided and Abetted Trafficking in Methamphetamine by Represented Amount, as Alleged in Count II.

1. The State was not Required to Prove that Wilson Knew the Quantity of Methamphetamine Jones Represented She was Selling or Delivering.

Wilson argues that there was insufficient evidence presented at trial to convict him of Count II of the Indictment because the State failed to present evidence that he knew Jones had represented to the officer that she would deliver "one ounce" of methamphetamine to him on April 27. He argues that no evidence establishing his actual knowledge of the amount of methamphetamine Jones represented she was selling to the undercover officer was submitted to the jury. Thus, he claims that there was insufficient proof at trial that he possessed the requisite shared criminal intent to be found guilty as an aider and abettor.

Wilson was charged with aiding and abetting trafficking in methamphetamine in accordance with Idaho Code sections 18-204 and 37-2732B(a)(4). Section 18-204 provides that "[a]ll persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense or aid and abet in its commission ... are principals in any crime so committed." I.C. § 18-204. This Court has further clarified that

[t]o 'aid and abet' means to assist, facilitate, promote, encourage, counsel, solicit or incite the commission of a crime. A person who aids and abets the commission of a crime must knowingly participate by any of such means in bringing about the commission of a crime. It contemplates a sharing by the aider and abettor of the criminal intent of the perpetrator.

Smith, 161 Idaho at 787, 391 P.3d at 1257 (internal citations and quotations omitted).

Idaho Code section 37-2732B(a)(4) sets forth the fundamental elements of trafficking in methamphetamine:

[a]ny person who knowingly delivers, or brings into this state, or who is knowingly in actual or constructive possession of, twenty-eight (28) grams or more of methamphetamine or amphetamine or of any mixture or substance containing a detectible amount of methamphetamine or amphetamine is guilty of a felony, which felony shall be known as ''trafficking in methamphetamine or amphetamine.''

Additionally, section 37-2732B(c) delineates the type of proof required to establish the amount of methamphetamine for a trafficking charge: "[f]or the purposes of subsections (a) and (b) of [section 37-2732B ] the weight of the controlled substance as represented by the person selling or delivering it is determinative if the weight as represented is greater than the actual weight of the controlled substance." (Emphasis added). Wilson argues that section 37-2732B requires knowledge by the principal-and by extension any aider and abettor-of the actual weight or of the represented weight of the methamphetamine. This argument is unavailing based on the plain language of the statute.

The State must prove two critical elements beyond a reasonable doubt to sustain a conviction of trafficking in methamphetamine under section 37-2732B(a)(4). First, that there was a knowing possession, delivery, or bringing of the methamphetamine into Idaho; and second, that the weight of the substance was 28 grams or greater. I.C. § 37-2732B(a)(4). As noted, to prove weight, subsection (c) allows the State to use either the actual weight of the substance, or the weight "as represented by the person selling or delivering it" if that representation is greater than the actual weight. I.C. § 37-2732B(c). Knowledge of the weight is not an element of trafficking in methamphetamine under section 37-2732B, for either the principal or any aider and abettor. Although the substance's weight must be proven by its actual weight or represented weight per subsection (c), the State is not required to prove that either the principal, or any aider or abettor, knew the actual weight of the substance. By its very terms, subsection (c) only requires the State to prove that a single representation of weight was made by either the principal or any aider and abettor. Such evidence is sufficient proof of weight to sustain a conviction of both the principal and the aider and abettor.

Long-standing principles of statutory construction support this view. "Because the best guide to legislative intent is the words of the statute itself, the interpretation of a statute must begin with the literal words of the statute." Gordon v. Hedrick, 159 Idaho 604, 609, 364 P.3d 951, 956 (2015) (internal quotations omitted). "If the words [of a statute] are in common use, they should be given the same meaning in a statute as they have among the people who rely on and uphold the statute." Purco Fleet Services, Inc. v. Idaho State Dept. of Fin., 140 Idaho 121, 124, 90 P.3d 346, 350 (2004). In interpreting subsection (c), we note the use of the word "or." "The word 'or' is disjunctive, meaning that it is a conjunction used to introduce an alternative." State v. Herren, 157 Idaho 722, 726, 339 P.3d 1126, 1130 (2014). Use of the disjunctive under these circumstances clearly indicates that a single representation-from either "the person selling" the methamphetamine or "[the person] delivering it"-would alone be sufficient to prove weight under section 37-2732B. See Herren, 157 Idaho at 726, 339 P.3d at 1130 (holding that the use of the word "or" in a court order "unmistakably convey[ed]" that terms in a list were distinct from one another); Marek v. Hecla, Limited, 161 Idaho 211, 216, 384 P.3d 975, 980 (2016) (holding that the use of "or" separating terms in a workers' compensation statute "clearly indicated" that the terms were distinct and that either, standing alone, could trigger an exception under the statute). Therefore, either the person selling or the person delivering the methamphetamine may make a representation as to weight; and this representation is sufficient to prove weight under section 37-2732B for both the principal and any aiders and abettors.

Wilson has cited several federal cases to support his contention that the State is required to prove that he, as an accomplice, had prior knowledge of the amount of methamphetamine: Rosemond v. United States , 572 U.S. 65, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014) ; United States v. Rolon-Ramos, 502 F.3d 750 (8th Cir. 2007) ; United States v. Hayes , 342 F.3d 385 (5th Cir. 2003) ; and United States v. Gomez-Rosario, 418 F.3d 90 (1st Cir. 2005). Hayes, Gomez-Rosario and Rolon-Ramos , all deal with drug distribution conspiracy convictions under 18 U.S.C. § 924(c) and 21 U.S.C. § 841. The holdings in these cases are based on the respective federal courts' interpretations of a federal trafficking statute under which a defendant had been convicted of conspiracy; they do not address the question Wilson raises in this appeal-whether the evidence was sufficient for his conviction of aiding and abetting drug trafficking under Idaho law. As such, they are inapposite.

Wilson relies most heavily on Rosemond to argue that the State was required to prove that he had advance knowledge of the amount of methamphetamine being sold by Jones. Rosemond concerned a drug deal in which Rosemond and another man accompanied a woman to a drug sale, but the buyer absconded with the drugs instead of paying for them. Rosemond, 572 U.S. at 67, 134 S.Ct. 1240. Rather than give chase, one of the accompanying men fired shots after the fleeing buyer. Id. Because it was unclear who fired the shots, the government used alternate theories to charge Rosemond with violating 18 U.S.C. § 924(c) by either: (1) discharging a gun while committing a drug trafficking offense or (2) aiding and abetting in a drug trafficking offense while carrying a gun. Id. at 67-68, 134 S.Ct. 1240. On the aiding and abetting theory, the U.S. Supreme Court held that because the offense at issue was a "combination crime," requiring both the carrying or using of a firearm and the commission of the acts constituting the drug trafficking crime, the defendant could only be convicted of aiding and abetting in the overall crime if he had the required state of mind for both parts of the crime-meaning that he needed to have advance knowledge of the presence of a firearm to be convicted of the crime. Id. at 76-78, 134 S.Ct. 1240.

In the same vein, Wilson argues that the State needed to prove that he had advance knowledge of the amount of methamphetamine for his trafficking conviction to be upheld; otherwise, the most he could be guilty of is aiding and abetting in the delivery of methamphetamine. However, unlike 18 U.S.C. § 924(c), which requires proof of drug trafficking and firearm possession, section 37-2732B is not a combination crime. It contains only a description of the acts constituting the crime of "trafficking in methamphetamine," and indicates the proof required for conviction of that crime. For conviction, the State needed to prove that (1) Wilson was aware that Jones was selling methamphetamine, (2) either Wilson or Jones represented to the buyer that the amount to be sold weighed "28 grams or more," and (3) Wilson acted with the intent to assist her in the transaction. Accordingly, the analysis underlying Rosemond is not applicable.

While the State must prove that Wilson knew that Jones possessed or was selling methamphetamine, it is not required to prove that he had advance knowledge of the actual or represented amount. Section 37-2732B(a)(4) is unambiguous and we must apply it as written. Section 37-2732B reflects a policy choice by the legislature: that individuals who participate in the transport and sale of illegal substances, and those who aid and abet those participants, undertake this behavior at the risk that their actions could amount to trafficking, which would expose them to mandatory sentencing.

The totality of the circumstances convincingly establishes that Wilson shared the requisite criminal intent with Jones, even if he did not know the precise amount of methamphetamine represented. The State presented evidence that (1) Wilson drove Jones to a prearranged site for the April 27 sale, (2) Wilson lifted the hood of the car to signal to the officer that they were there, (3) Wilson admitted to accompanying Jones to provide "protection" for her during the transaction, and (4) after the sale Wilson drove away with Jones. Additionally, later that same day, the police found $600 in cash matching the serial numbers of the cash given to Jones-almost 97% of the proceeds of the sale-in Wilson's front pants pocket. The jury also viewed video of Wilson's interview with police containing his admission that he "sort of" was "in the game," or involved in dealing drugs, because he accompanied Jones to deals for protection and she gave him free "dope" and lunch for doing so. The cumulative effect of such proof provides substantial evidence from which a reasonable jury could determine that Wilson shared criminal intent and culpability with Jones, even if his knowledge of the actual amount of the methamphetamine is imputed by law.

2. The State Presented Substantial Evidence that Jones Made a Representation to the Officer that Met the Weight Requirements of Section 37-2732B(c) for Count II.

Wilson also argues that the State did not present sufficient evidence on Count II that Jones made a representation to the officer that she intended to sell him one ounce (28.35 grams) on April 27. As indicated above, the actual weight of the package received from Jones on April 27 was 25.91 grams, several grams short of the 28 grams required by section 37-2732B(a)(4)(A). Thus, to proceed with a charge under that section, the State needed to rely on the represented weight, as allowed by Idaho Code section 37-2732B(c). Because "represented" is not defined by Title 37 of the Code, Wilson argues that the ordinary meaning of the word should be used, which he argues is a "presentation of fact-either by words or conduct-made to induce someone to act, esp. to enter into a contract." Citing Black's Law Dictionary (10th ed. 2014). He argues that the State did not present any evidence that Jones herself stated or indicated by her conduct that the April 27 package was an ounce, but instead relied on testimony from the officer that he was "supposed to be getting an ounce of Methamphetamine for $600" on that date.

The State does not dispute the use of the dictionary definition of "represented," arguing instead that the definition used by Wilson encapsulates Jones' behavior perfectly-that by her words and conduct she indicated her intent to sell the officer an ounce of methamphetamine. The State's argument is persuasive.

Prior to the April 27 meeting, the officer testified that he communicated with Jones by cell phone, "specifically" asking for an ounce, that Jones told him that she did not have "it" with her, and that she had to go to a friend's house to get "it." He testified that he understood from that conversation that "he was supposed to be getting an ounce of methamphetamine for $600." Then, later that day, Jones met with the officer and gave him the package of methamphetamine for $600, which is identical to the price paid per ounce in the April 7 transaction-indicating that $600 was consistent with the going rate for an ounce of methamphetamine. This is substantial evidence from which a jury could reasonably conclude that Jones, as the seller, was representing the amount of the methamphetamine to be one ounce, which satisfies the "28 grams or more" language of the statute. As such, it was sufficient evidence of the amount of methamphetamine, in accordance with section 37-2732B(c).

B. The State Presented Substantial Evidence that Wilson Knew Jones was Selling Methamphetamine in both Counts I and II.

Finally, Wilson argues that the State did not present sufficient evidence that he knew Jones was selling methamphetamine to the officer, so his convictions as to both Counts I and II should be vacated. He argues that the transcript of the police interview provided by the State showed him admitting to accompanying Jones when she does "deals," and even that he received free "dope" and occasionally lunch for his services, but never identified what type of "dope" was involved. Wilson argues that the term "dope" could refer to another substance, such as marijuana, and since the State failed to prove this essential element of the crime at trial, his convictions as to both counts cannot be upheld.

Here, viewing the evidence in the light most favorable to the prosecution, it seems clear that Wilson knew Jones was selling methamphetamine. The testimony at trial established that Jones was a methamphetamine dealer. The record also establishes that $600 was the going rate for an ounce of methamphetamine. Wilson accompanied Jones to two sales, one on April 7 and one on April 27, both involving the sale of an illicit substance for approximately $600 per ounce. On April 7, the officer paid $1,200 for two ounces, and on April 27, he paid $620 for one ounce. In both instances, the substance sold was later determined to be methamphetamine. The pre-marked bills discovered in Wilson's pocket shortly after the April 27 sale offer concrete evidence that he was aware of the amount of money generated by the sales, and there was no evidence presented at trial that Jones sold any other illicit substances besides methamphetamine. Further, Wilson admitted to participating in the drug trade in his interview with the officers, and to assisting Jones by being present at sales and offering "protection." This is substantial evidence from which a reasonable jury could infer that Wilson knew that he was assisting Jones in the sale of methamphetamine.

IV. CONCLUSION

For the reasons stated above, we conclude that the State provided substantial evidence for the jury to conclude beyond a reasonable doubt that Wilson aided or abetted in the trafficking of what was represented to be 28 grams or more of methamphetamine. Accordingly, we affirm Wilson's judgment of conviction for both Counts I and II.

Chief Justice BURDICK, and Justices BRODY, BEVAN and STEGNER concur.

      There are 28.35 grams in an ounce.

      The undercover officer testified at trial that $600 was the agreed-upon price for the ounce of methamphetamine; however, he unintentionally paid Jones $20 extra.

      21 U.S.C. § 841 makes it "unlawful for any person knowingly or intentionally-(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance," and provides for a minimum 10 year prison term for trafficking 50 grams or more (or 500 grams of a mixed substance) or a minimum 5 year prison term for trafficking 5 grams or more (or 50 grams mixed substance). Unlike Idaho's drug trafficking statutes, 21 U.S.C. § 841 encompasses intent to a greater degree and does not allow for represented weight to be substituted for actual weight. See I.C. § 37-2732B(c).

      Under this statutory scheme, although Jones apparently shorted the buyer by selling him less than the one ounce he paid for, it is possible that she may have implicated an unwitting Wilson in a trafficking crime by representing to the buyer that the methamphetamine weighed more than one ounce. In other words, even if Jones told Wilson that she was selling less than an ounce, he would still be bound by her false representation to the buyer. While we recognize that the wording of the statute might lead to potentially harsh outcomes, we also are mindful that the clear legislative policy behind Idaho's current drug trafficking statutes is to impose significant consequences for all who participate in drug transactions of considerable size. See I.C. § 37-2739B ("The legislature hereby finds and declares that trafficking in controlled substances in the state of Idaho is a primary contributor to a societal problem that causes loss of life, personal injury and theft of property, and exacts a tremendous toll on the citizens of this state. To afford better protection to our citizens from those who traffic in controlled substances, the fixed minimum sentencing contained in subsections (b) and (c) of this section is enacted.").

      As noted previously, the officer actually paid $620 by mistake.

      Although each of the three baggies of methamphetamine at issue in this case weighed just under the one-ounce weight represented, Wilson has not argued, nor does the record support an inference, that he and the principal were intentionally "shorting" the undercover officer as part of a scheme to deliberately sell customers less than 28 ounces of methamphetamine in order to avoid the consequences of a trafficking charge. Regardless, under Idaho's statutory scheme, they are bound by the represented amount.

      Although counsel suggested at oral argument that Wilson could have believed the substance being sold was marijuana, there is no evidence in the record from which the jury could reasonably infer that the going rate for marijuana at the time and place of this incident was $600 per ounce.


text:
    In the INTEREST OF A.H., a Minor Child.
    No. 120,316
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Shannon Marie BOGART, Appellant.
    No. 119,013
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Jerrick PHILLIPS, Appellant.
    No. 118,314
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019.
    Reversed. Remanded.


text:
    STATE of Kansas, Appellee, v. Travis James BERRY, Appellant.
    No. 118,049
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Jerrick PHILLIPS, Appellant.
    Nos. 118 312 118,313
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. James Aubrey VAUGHAN Jr., Appellant.
    No. 119,610
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019.
    Affirmed in part. Reversed in part. Remanded.


text:
    Troy Lamont LOVE II, Appellant, v. STATE of Kansas, Appellee.
    No. 118,823
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Rex Emmanuel HAYES, Appellant.
    No. 118,773
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019.
    Reversed. Remanded.


text:
    STATE of Kansas, Appellee, v. Clarence BUFORD Jr., Appellant.
    Nos. 119 486 119,487
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019
    Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    In the MATTER OF the JOINT APPLICATION OF WESTAR ENERGY, INC. AND KANSAS GAS AND ELECTRIC COMPANY.
    No. 120,436
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Deandre M. DILWORTH, Appellant.
    No. 119,714
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019.
    Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Charles S. EDWARDS, Appellant.
    No. 118,626
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019
    Affirm.


text:
    STATE of Kansas, Appellee, v. Joshua Scott LANE, Appellant.
    No. 118,952
    Court of Appeals of Kansas.
    Opinion filed April 19, 2019
    Affirm.


text:
    STATE of Kansas, Appellee, v. Clinton E. RIFE, Appellant.
    No. 119,326
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Kayla Marie GOODING, Appellant.
    No. 119,727
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019.
    Submitted for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    Rasheem A. COLEMAN, Appellant, v. STATE of Kansas, Appellee.
    No. 119,037
    Court of Appeals of Kansas.
    Opinion filed April 12, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Sidney W. CLARK, Appellant.
    No. 119,076
    Court of Appeals of Kansas.
    Opinion filed April 19, 2019
    Sentence vacated. Case remanded for resentencing with the correct criminal history.


text:
    STATE of Kansas, Appellee, v. Jason E. CHANEY, Appellant.
    No. 119,708
    Court of Appeals of Kansas.
    Opinion filed April 19, 2019
    Submitted for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed in part. Dismissed in part.


text:
    Allen Dale SMITH, Appellant, v. STATE of Kansas, Appellee.
    No. 119,029
    Court of Appeals of Kansas.
    Opinion filed April 19, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Jeffery Dane SWINDLER, Appellant.
    No. 118,484
    Court of Appeals of Kansas.
    Opinion filed April 19, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Jershawn L. PHOENIX, Appellant.
    No. 115,694
    Court of Appeals of Kansas.
    Opinion on remand filed April 19, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Christopher Lee STAPLES, Appellant.
    No. 119,252
    Court of Appeals of Kansas.
    Opinion filed April 19, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Austin Dean REISINGER, Appellant.
    No. 119,074
    Court of Appeals of Kansas.
    Opinion filed April 19, 2019.
    Affirmed.


text:
    BLIZZARD ENERGY, INC., Appellee/Cross-Appellant, v. Valentin ALEXANDROV, Jacob Gitman and Bernd Schaefers, Appellants/Cross-Appellees, v. Franziska Shepard, Appellee/Cross-Appellant.
    No. 118,656
    Court of Appeals of Kansas.
    Opinion filed April 19, 2019.
    Affirm in part. Dismissed in part.


text:
    STATE of Kansas, Appellee, v. Reynaldo PEREZ-MARES a/k/a Steven Trujillo, Appellant.
    No. 119,632
    Court of Appeals of Kansas.
    Opinion filed April 19, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Darrin C. SAVAGE, Appellant.
    No. 119,569
    Court of Appeals of Kansas.
    Opinion filed April 19, 2019
    Submitted by the parties for summary disposition pursuant to K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Arvay L. JEFFERSON Jr., Appellant.
    No. 120,278
    Court of Appeals of Kansas.
    Opinion filed April 19, 2019.
    Submitted for summary disposition under K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Miguel Angel PEREZ, Appellant.
    No. 119,336
    Court of Appeals of Kansas.
    Opinion filed April 19, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Yesenia SESMAS, Appellant.
    No. 120,446
    Court of Appeals of Kansas.
    Opinion filed April 19, 2019
    Submitted for summary disposition under K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Brandon LOVING, Appellant.
    No. 119,851
    Court of Appeals of Kansas.
    Opinion filed April 19, 2019.
    Submitted for summary disposition pursuant K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    Shanae' ELEM, Appellee, v. Zachariah ELEM, Appellant.
    No. 119,774
    Court of Appeals of Kansas.
    Opinion filed April 19, 2019
    Vacated.


text:
    STATE of Kansas, Appellee, v. Tariq H. SHAH, Appellant.
    Nos. 119 279 119,280
    Court of Appeals of Kansas.
    Opinion filed April 19, 2019
    Submitted for summary disposition pursuant K.S.A. 2018 Supp. 21-6820(g) and (h).
    Affirmed.


text:
    CITY OF HELENA, Plaintiff and Appellee, v. Kristi Anne O'CONNELL, Defendant and Appellant.
    DA 17-0440
    Supreme Court of Montana.
    Argued and Submitted: January 23, 2019 Decided: March 20, 2019 Rehearing Denied April 16, 2019
    For Appellant: Chad Wright, Appellate Defender, James Reavis (argued), Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Aislinn W. Shaul-Jensen (argued), Assistant Attorney General, Helena, Montana, Thomas J. Jodoin, Helena City Attorney, Erik Coate, Deputy City Attorney, Helena, Montana
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Defendant Kristi Anne O'Connell appeals from a First Judicial District Court order upholding the denial of her motion to dismiss her driving under the influence charge. We affirm.

¶2 We restate the issue on appeal as follows:

Whether the District Court correctly upheld the Municipal Court's denial of O'Connell's motion to dismiss her driving under the influence charge as violative of her statutory protection against multiple prosecutions and her constitutional protection against double jeopardy.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The parties stipulated to the following facts in the proceeding before the Municipal Court.

Helena Police Officer Kaleczyc's report states that on or about June 3, 2016, at approximately 8:49 a.m., he arrived at a multiple vehicle crash on the intersection of Lyndale and Last Chance Gulch, Helena, Montana. After investigation, he determined that O'Connell had failed to drive in a safe and prudent manner and had rear-ended another vehicle. In total, five vehicles were damaged in the accident.
During his investigation, Officer Kaleczyc learned O'Connell had missed a turn and was looking for an opportunity to turn around. O'Connell explained she was in the process of looping back around when the accident happened. Based on his review of O'Connell's phone log and text messages, Officer Kaleczyc determined that O'Connell was not using her cell phone while driving. O'Connell informed Officer Kaleczyc that she took prescription medication for Lupus, depression, and sleeping. Officer Kaleczyc reported that he observed no behaviors indicating O'Connell was under the influence of alcohol or drugs. On June 3, 2016, Officer Kaleczyc charged O'Connell with careless driving for failure to operate her truck in a safe and prudent manner in violation of § 61-8-302, MCA.

¶4 On June 9, 2016, O'Connell pleaded guilty to careless driving in violation of § 61-8-302, MCA, and Helena Municipal Court sentenced her with a $90 fine.

¶5 On October 9, 2016, after reviewing O'Connell's toxicology report, the Helena Attorney's Office (City) additionally charged O'Connell with driving under the influence (DUI). O'Connell pleaded not guilty and moved the Municipal Court to dismiss her DUI charge as a subsequent prosecution barred by § 46-11-504(1), MCA. On December 22, 2016, the Municipal Court denied O'Connell's motion to dismiss the DUI charge. Pursuant to a plea agreement, O'Connell pleaded guilty to negligent endangerment, preserved her right to appeal, and timely appealed the denial of her motion to dismiss to the District Court.

¶6 On appeal, the parties stipulated to the following facts.

On June 3, 2016, O'Connell caused a multiple-car accident at the intersection of Lyndale and Last Chance Gulch. O'Connell told the dispatched officer she didn't have a clear memory of how she caused the accident. She was cited for careless driving.
When O'Connell reported she took medication for depression, difficulty sleeping, and Lupus, the citing officer asked for a blood sample. O'Connell agreed to provide one.
On June 9, 2016, O'Connell pleaded guilty to the careless driving charge. On August 22, 2016, the City received the toxicology report on O'Connell's blood sample, revealing the presence of four medications in O'Connell's blood. On October 9, 2016, the City cited O'Connell with DUI.
O'Connell filed a motion to dismiss the DUI charge on statutory and constitutional grounds. O'Connell's opening brief, the City's response, and O'Connell's reply were filed, but no hearing was held. On December 22, 2016, the Helena Municipal Court issued an order denying O'Connell's motion to dismiss her DUI charge.
O'Connell's counsel informed the City that O'Connell's driving was impaired by a sudden onset of dizziness. O'Connell acknowledged she chose to continue driving when she became impaired, resulting in the multiple-vehicle accident. The City offered O'Connell the opportunity to plead guilty to an amended charge, negligent endangerment. O'Connell accepted, pleaded guilty to negligent endangerment, and preserved her right to appeal.

¶7 O'Connell appealed to the District Court, which issued a June 1, 2017 order affirming the Municipal Court's denial of her motion. O'Connell presently appeals from the District Court's order.

STANDARD OF REVIEW

¶8 A district court's review of a municipal court order is limited to the record and questions of law. This Court reviews a district court's conclusions of law for correctness. City of Missoula v. Duane , 2015 MT 232, ¶ 10, 380 Mont. 290, 355 P.3d 729. Denial of a motion to dismiss based on statutory double jeopardy is a question of law reviewed by this Court for correctness. State v. Glass , 2017 MT 128, ¶ 9, 387 Mont. 471, 395 P.3d 469.

DISCUSSION

¶9 Whether the District Court correctly upheld the Municipal Court's denial of O'Connell's motion to dismiss her driving under the influence charge as violative of her statutory protection against multiple prosecutions and her constitutional protection against double jeopardy.

¶10 O'Connell argues that § 46-11-504, MCA, statutorily bars the City from charging her with DUI, because the DUI charge occurred nearly four months after the accident and O'Connell's guilty plea to careless driving. O'Connell argues if a prosecution results in a conviction, § 46-11-504, MCA, bars a subsequent prosecution based on an offense arising out of the same transaction. O'Connell argues that her DUI charge arose from the same transaction, the accident, as her careless driving conviction. The City argues that § 46-11-504, MCA, does not bar her subsequent DUI charge, because the DUI charge did not arise from the same transaction as the careless driving conviction. Pursuant to § 46-1-202(23), MCA :

"Same transaction" means conduct consisting of a series of acts or omissions that are motivated by:
(a) a purpose to accomplish a criminal objective and that are necessary or incidental to the accomplishment of that objective.

¶11 Specifically, O'Connell argues her conduct fell within the meaning of "same transaction" because the conduct that led up to both the careless driving and DUI charge was the same conduct-continuing to drive after she became dizzy. O'Connell asserts that State v. James , 2010 MT 175, 357 Mont. 193, 237 P.3d 672, and State v. Cech , 2007 MT 184, 338 Mont. 330, 167 P.3d 389, support her position. Contrarily, the City argues that absolute liability offenses, including DUI, require no proof of mental state and do not carry a criminal objective. Therefore, absolute liability offenses cannot be part of a "same transaction," even if they arose from the same incident. The City asserts State ex. rel Booth v. Montana Twenty-First Judicial Dist. , 1998 MT 344, 292 Mont. 371, 972 P.2d 325, and State v. Condo , 2008 MT 114, 342 Mont. 468, 182 P.3d 57, support its position.

¶12 Montana's statutes provide defendants with greater protections against double jeopardy than the United States Constitution. Cech , ¶ 13. Based on the particular jurisdictional circumstances of a case, either § 46-11-503, MCA, or § 46-11-504, MCA, provides a party with statutory protection against double jeopardy. Both statutes protect against subsequent prosecutions based on the same transaction.

¶13 Although the parties relied on § 46-11-504, MCA, as the basis for their arguments in briefing, at oral argument both parties indicated that § 46-11-503, MCA, was the more applicable statute in this case. We agree. Section 46-11-503, MCA, provides:

46-11-503 Prosecution based on same transaction barred by former prosecution.
(1) When two or more offenses are known to the prosecutor, are supported by probable cause, and are consummated prior to the original charge and jurisdiction and venue of the offenses lie in a single court, a prosecution is barred if:
(a) the former prosecution resulted in an acquittal. There is an acquittal whenever the prosecution results in a finding of not guilty by the trier of fact or in a determination that there is insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense that is subsequently set aside is an acquittal of the greater offense that was charged.
(b) the former prosecution resulted in a conviction that has not been set aside, reversed, or vacated;
(c) after a charge had been filed, the prosecution was terminated by a final order or judgment for the defendant that has not been set aside, reversed, or vacated; or
(d) the former prosecution was terminated for reasons not amounting to an acquittal and takes place:
(i) in a jury trial, when the jury is impaneled and sworn; or
(ii) in a nonjury trial, after the first witness is sworn but before a judgment as to guilt or innocence is reached.
(2) A prosecution based upon the same transaction as a former prosecution is not barred under subsection (1)(d) when:
(a) the defendant consents to the termination or waives the right to object to the termination; or
(b) the trial court finds that the termination is necessary because:
(i) it is physically impossible to proceed with the trial in conformity with law;
(ii) there is a legal defect in the proceedings that would make any judgment entered upon a verdict reversible as a matter of law;
(iii) prejudicial conduct makes it impossible to proceed with the trial without manifest injustice to either the defendant or the state;
(iv) the jury is unable to agree upon a verdict; or
(v) false statements of a juror on voir dire prevent a fair trial.

¶14 Section 46-11-503, MCA, applies where jurisdiction and venue of the offenses lie in a single court, whereas § 46-11-504, MCA, bars a subsequent prosecution where the conduct constituting the offense is charged and resolved in any state or federal jurisdiction. Here, the jurisdiction and venue of O'Connell's offenses lie in a single court. Section 46-11-503, MCA, is therefore the more appropriate and specific statute to this case. O'Connell has consistently claimed that the City's subsequent prosecution for DUI violated her statutory protections against double jeopardy under Montana law. The City understood O'Connell's claim and responded to the merits of her argument accordingly. The District Court had full opportunity to address O'Connell's claims. Thus, the parties' failure to specifically refer to § 46-11-503, MCA, does not waive its consideration in this instance.

¶15 Although the parties devote considerable argument to whether the DUI and careless driving charges arose out of the "same transaction," that issue is not dispositive in this case. For purposes of this appeal, we assume the DUI and careless driving charges arose out of the same transaction. Section 46-11-503(1), MCA, requires this Court to preliminarily consider whether both offenses, careless driving and DUI, were supported by probable cause when the initial offense was resolved. O'Connell's careless driving charge was resolved when she pleaded guilty to the charge on June 9, 2016. If probable cause did not exist to charge the DUI offense by June 9, 2016, § 46-1-503, MCA, did not bar its subsequent prosecution, regardless of whether it arose out of the same transaction.

¶16 "Probable cause" is defined as "[a] reasonable ground to suspect that a person has committed or is committing a crime."

Probable cause , Black's Law Dictionary (10th ed. 2009). Probable cause exists:

if the facts and circumstances within an officer's personal knowledge, or related to the officer by a reliable source, are sufficient to warrant a reasonable person to believe that another person is committing or has committed an offense." The probable cause determination must be based on an assessment of all relevant circumstances, evaluated in light of the knowledge of a trained law enforcement officer. Mere suspicion is not enough to establish probable cause.

City of Missoula v. Iosefo , 2014 MT 209, ¶ 10, 376 Mont. 161, 330 P.3d 1180 (internal citations omitted).

¶17 The stipulated facts regarding the accident on June 3, 2016, support that probable cause existed to charge O'Connell with careless driving, but do not support that probable cause existed to charge O'Connell with DUI. O'Connell agreed she caused a multiple-vehicle accident. She told Officer Kaleczyc her memory was unclear as to how she caused the accident. Upon investigation, Officer Kaleczyc determined that an accident occurred and that he had reasonable grounds to believe O'Connell caused the accident. He reasonably concluded that O'Connell failed to operate her truck in a safe and prudent manner and issued her a citation for careless driving in violation of § 61-8-302, MCA.

¶18 O'Connell advised Officer Kaleczyc she was prescribed medication for Lupus, depression, and difficulty sleeping. Officer Kaleczyc reported he observed no behaviors indicating O'Connell was under the influence of alcohol or drugs. Therefore, Officer Kaleczyc had no more than an unconfirmed suspicion that O'Connell potentially was under the influence of medication. Accordingly, he requested that O'Connell provide a blood sample.

¶19 On August 22, 2016, the City received the toxicology report on O'Connell's blood sample, revealing the presence of four medications in O'Connell's blood at the time of the accident. After examination of the toxicology report, the City established probable cause to charge O'Connell with DUI. Probable cause did not yet exist for the City to charge O'Connell with DUI on June 9, 2016, the day O'Connell's initial offense, careless driving, was resolved through her guilty plea and imposition of sentence. Therefore, § 46-11-503, MCA, did not bar the subsequent DUI charge from prosecution.

¶20 Although the District Court's determination upholding the Municipal Court's denial of O'Connell's motion to dismiss was not based on lack of probable cause to charge the DUI offense, we "will affirm the district court when it reaches the right result, even if it reaches the right result for the wrong reason." State v. Daffin , 2017 MT 76, ¶ 34, 387 Mont. 154, 392 P.3d 150.

CONCLUSION

¶21 Section 46-11-503, MCA, applies to this proceeding. As no probable cause existed to charge O'Connell with DUI before resolution of her careless driving charge, Montana's statutory protections against double jeopardy did not bar O'Connell's subsequent DUI charge.

¶22 Affirmed.

We concur:

MIKE McGRATH, C.J.

LAURIE McKINNON, J.

BETH BAKER, J.

JAMES JEREMIAH SHEA, J.

DIRK M. SANDEFUR, J.

DAN WILSON, J.

District Court Judge Dan Wilson sitting in for Justice Jim Rice


text:
    Ronald MASCARENA, Petitioner and Appellant, v. STATE of Montana, Respondent and Appellee.
    DA 17-0573
    Supreme Court of Montana.
    Submitted on Briefs: February 27, 2019 Decided: April 2, 2019
    For Appellant: Ronald Mascarena, Self-Represented, Butte, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana, Scott Twito, Yellowstone County Attorney, Billings, Montana
   Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Ronald Fermin Mascarena appeals from an order of the Thirteenth Judicial District Court, Yellowstone County, dismissing his petition for postconviction relief without an evidentiary hearing. We affirm.

¶2 We restate the issue on appeal as follows:

Whether the District Court erred when it dismissed Mascarena's petition for postconviction relief.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 In 1999, Mascarena pleaded guilty to felony Partner or Family Member Assault (PFMA) and was required to register as a violent offender. In 2007, Mascarena was charged with failure to register as a violent offender, a felony. He entered a plea of nolo contendere and was sentenced to three years to the Department of Corrections, all suspended. Mascarena's sentence was subsequently revoked in August 2009, and again in October 2009. In February 2011, Mascarena filed a petition for an out-of-time appeal to this Court concerning his failure to register conviction, alleging extraordinary circumstances justified his untimely appeal. This Court granted the petition. However, the appeal was ultimately dismissed on September 20, 2011, when the appeal was deemed frivolous. On September 2, 2015, Mascarena filed a petition for postconviction relief. On December 20, 2016, the District Court dismissed the petition without a hearing, concluding Mascarena's claims were time barred and finding no equitable grounds to extend the deadline. Mascarena appeals.

STANDARD OF REVIEW

¶4 We review a district court's denial of a petition for postconviction relief to determine whether that court's findings are clearly erroneous and whether its conclusions of law are correct. Walker v. State , 2003 MT 134, ¶ 36, 316 Mont. 103, 68 P.3d 872. A petitioner seeking to reverse a district court's denial of a petition for postconviction relief "bears a heavy burden." State v. Cobell , 2004 MT 46, ¶ 14, 320 Mont. 122, 86 P.3d 20.

DISCUSSION

¶5 Whether the District Court erred when it dismissed Mascarena's petition for postconviction relief .

¶6 A person convicted of an offense who has no adequate remedy of appeal but claims that a sentence was imposed in violation of Montana law or their constitutional rights may petition for postconviction relief. Section 46-21-101, MCA. An individual petitioning for relief pursuant to § 46-21-101, MCA, must file his or her claim "within 1 year of the date that the conviction becomes final." Section 46-21-102(1), MCA. For purposes of this statute, a conviction becomes final when the time for appeal to this Court expires, the time for petitioning the United States Supreme Court for review expires, or, if review is sought in the United States Supreme Court, on the date that that Court issues its final order in the case. Section 46-21-102(1), MCA. Section 46-21-102(2), MCA, creates an exception to the general rule and extends the filing deadline where the petitioner alleges newly discovered evidence establishing the petitioner's innocence. If the new evidence meets the statutory standard, the petitioner may file a claim more than one year after the conviction became final. Guillen v. State , 2018 MT 71, ¶ 13, 391 Mont. 131, 415 P.3d 1.

¶7 Mascarena's petition falls far outside the one-year deadline enunciated in § 46-21-102(1), MCA. His conviction became final on December 19, 2011, upon expiration of time to appeal this Court's September 20, 2011 order to the United States Supreme Court in accordance with § 46-21-102(1)(b), MCA. Sup. Ct. R. 13.1. Therefore, Mascarena had one year, or until December 18, 2012, to file a petition for postconviction relief pursuant to § 46-21-102(1), MCA. Mascarena's petition was not filed until September 2, 2015, almost three years after the deadline expired.

¶8 The State argues that this Court's acceptance of Mascarena's out-of-time appeal does not change the fact that Mascarena's conviction became final one year after his opportunity for direct appeal to this Court expired pursuant to § 46-21-102(1)(a), MCA. Under this theory, Mascarena's failure to register conviction would have become final on July 1, 2008. We disagree with the State's analysis. The United States Supreme Court, in interpreting a comparable federal statute, addressed this issue in Jimenez v. Quarterman , 555 U.S. 113, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009). The Court held that a state appellate court's order granting an out-of-time appeal restores the pendency of the direct appeal; therefore, the date the defendant's out-of-time appeal becomes final is the controlling date. Jimenez , 555 U.S. at 121, 129 S.Ct. at 686. A plain reading of § 46-21-102(1)(b), MCA, supports the same conclusion and provides that when "an appeal is taken to the Montana supreme court," a conviction becomes final when the time for petitioning the United States Supreme Court for review expires. When Mascarena's out-of-time appeal was granted and this Court considered his claims on the merits, an appeal was "taken to the Montana supreme court." Section 46-21-102(1)(b), MCA. Regardless, Mascarena's petition is time barred under either analysis.

¶9 In the District Court, Mascarena asserted that although the District Court has no record of the filing, he submitted a timely petition for postconviction relief in May 2012. The District Court noted, "there is no record of Mascarena filing any type of post-conviction relief action in regard to DC 070163 in May 2012 or at any time thereafter." On appeal, Mascarena contends that the District Court erred in dismissing his petition as untimely without allowing evidentiary development because records from the Cascade County Regional Prison will establish that he first filed his petition in May 2012. The District Court records definitively confirm that Mascarena did not file a petition for postconviction relief in May 2012. No prison records could establish that the District Court received the alleged petition.

¶10 Mascarena attempts to proceed under the newly discovered evidence exception found in § 46-21-102(2), MCA, which provides:

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.

¶11 Mascarena asserts that when he was sentenced in 2000 for the PFMA, the Judge explicitly stated Mascarena would not be required to register as a violent offender, despite the statutory requirement providing otherwise. Mascarena argues this is "new evidence, or at least a new rendering" because he has a new witness-the attorney who represented him on the PFMA charge-who is willing to corroborate the Judge's statements. This evidence does not fall under the newly discovered evidence exception delineated in § 46-21-102(2), MCA, because Mascarena was aware of these facts when he was charged with failure to register.

CONCLUSION

¶12 Accordingly, the District Court correctly determined that Mascarena's petition for postconviction relief is time barred under both § 46-21-102(1) and (2), MCA, and it did not err when it dismissed his petition without a hearing.

¶13 Affirmed.

We Concur:

DIRK M. SANDEFUR, J.

JAMES JEREMIAH SHEA, J.

BETH BAKER, J.

JIM RICE, J.

      The petition for postconviction relief Mascarena filed with the District Court was vague and did not cite this alleged newly discovered evidence with specificity. Although the District Court was not given the opportunity to address this evidence below, we have decided to include it in the present analysis.