author: Powell, J.:

text:
    Eloise B. LUCKETT, Appellant, v. KANSAS EMPLOYMENT SECURITY BOARD OF REVIEW, Appellee.
    No. 119,717
    Court of Appeals of Kansas.
    Opinion filed May 31, 2019.
    Peter Charles Rombold, of Hoover, Schermerhorn, Edwards, Pinaire & Rombold, of Junction City, for appellant.
    Justin McFarland, special assistant attorney general and deputy general counsel, Kansas Department of Labor, for appellee.
    Before Leben, P.J., Green and Powell, JJ.
   Powell, J.:

Eloise B. Luckett appeals the district court's dismissal of her petition for judicial review of the Kansas Employment Security Board of Review's (Board) denial of her unemployment insurance benefit claims. Before us, she argues the district court erred in granting the Board's motion to dismiss for three reasons: (1) A disputed material fact precluded the district court's dismissal of her petition; (2) she established excusable neglect sufficient to justify her untimely appeal of the examiner's August 4, 2017 decision; and (3) the district court failed to address her motion to amend.

But Luckett's claims before the Kansas Department of Labor (KDOL) did not really involve appeals from a denial of benefits. According to the record, in her letter to the KDOL in November 2017, she principally sought payment for benefits authorized by the examiner but that were never paid. Additionally, she sought reconsideration of the examiner's determination that she had not provided the proper documentation to allow for the award of benefits. Instead of directly addressing these claims, the KDOL, to put it in the vernacular, "blew her off" and instead applied a "cookie-cutter" appeal-track approach which doomed her claims because she had submitted her requests well after the time limit allowed for appeals.

We hold the Board erred in affirming the referee's decision to construe Luckett's reconsideration claim as an appeal from the denial of benefits. The KDOL should have considered Luckett's letter as one seeking reconsideration of the examiner's order and allowed the examiner to make a determination on the merits as to the sufficiency of Luckett's documentation. Moreover, because Luckett timely appealed the referee's decision construing her request for reconsideration as an appeal, her appeal to the Board was timely. Once the Board denied her claim, she exhausted her administrative remedies and properly and timely sought judicial review. The district court thus erred by dismissing her petition for judicial review on exhaustion grounds.

As for Luckett's claim that the KDOL had failed to pay her benefits the examiner found she was owed, we find the district court erred by failing to consider her amendment to her petition seeking relief in mandamus for this nonpayment. As our review of the relevant statutes involving administrative proceedings within the KDOL reveals no administrative procedure allowing a claimant to seek enforcement of an examiner's decision to award benefits, Luckett may have a valid claim. Moreover, Luckett's claim for the payment of benefits authorized by the examiner is not subject to the exhaustion requirement because there were no administrative remedies to exhaust. Thus, the district court erred by dismissing Luckett's petition without considering her amendment.

Accordingly, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Relevant to this appeal, the record shows Luckett filed for weekly unemployment insurance benefit claims with the KDOL and received four examiner's decisions finding her eligible and ineligible for unemployment insurance benefits on different dates as follows:

• On May 22, 2017, the examiner found Luckett medically ineligible for benefits beginning April 30, 2017, based on a licensed health care provider's certified statement. The decision advised Luckett to report any changes in status, to appeal the decision within 16 days, to continue filing her weekly claims, and listed her address as Junction City, Kansas.
• On May 30, 2017, the examiner found that if Luckett met all other eligibility requirements, she qualified for unemployment insurance benefits beginning March 31, 2017. The decision listed her address as Junction City, Kansas.
• On June 27, 2017, the examiner found Luckett ineligible for benefits beginning June 11, 2017, because she failed to provide the required information on whether she had limitations affecting the type of work she could perform under K.S.A. 2017 Supp. 44-705. The examiner advised Luckett that she would remain ineligible until she provided the required information and then the KDOL would reevaluate her claim. The decision listed Luckett's address as a P.O. Box in Bern, Kansas.
• On August 4, 2017, the examiner found Luckett ineligible for benefits beginning July 16, 2017, because Luckett had failed to provide a health care provider certification showing her ability to work with limitations under K.S.A. 2017 Supp. 44-705. The decision advised Luckett she would remain ineligible for benefits until she provided the information and, once provided, the KDOL would reevaluate her claim. The decision listed her address as Junction City, Kansas.

The same examiner issued the May 22, June 27, and August 4, 2017 decisions.

In a letter from her counsel to the KDOL dated November 2, 2017, Luckett sought payment of unemployment benefits granted to her in the May 30, 2017 order and challenged the examiner's August 4, 2017 decision that she had not submitted the required health care provider certification by claiming she had submitted the required documents. The referee interpreted Luckett's letter as appeals of the examiner's three decisions issued on May 22, June 27, and August 4, 2017, denying her benefits. Without conducting a hearing, the referee dismissed Luckett's appeals on the grounds that she had failed to timely appeal the examiner's decisions and had failed to establish excusable neglect for an untimely appeal under K.S.A. 2017 Supp. 44-709(b)(3). As a result, the referee found Luckett ineligible for unemployment benefits beginning on April 30, 2017; June 11, 2017; and July 16, 2017. The referee did not address Luckett's claim that she had not been paid the unemployment benefits authorized in the May 30, 2017 decision.

On December 22, 2017, again through counsel, Luckett sent another letter to the KDOL, complaining that the referee had improperly construed her inquiry as appeals of the examiner's decisions denying benefits when she was principally seeking payment for benefits already ordered. Luckett stated that if she needed "to 'appeal' from a determination in order to enforce a claim, then please consider this an 'appeal' from that December 12, 2017 determination."

Additionally, Luckett stated that her hospitalization from August 4 to August 24, 2017, caused her not to receive the August 4 decision until she returned home. Luckett did not challenge her periods of ineligibility under the examiner's decisions but argued she properly sent in the required forms and called in the required information to validate her claims. Luckett admitted she had some trouble reporting her claims at times. She requested the KDOL, at a minimum, pay her unemployment benefits for her time periods of eligibility between March 31 and May 3, 2017, and between August 24 and November 29, 2017.

The Board construed Luckett's second letter as three timely appeals of the referee's decisions and, without conducting a hearing, affirmed the examiner's denial of benefits in three separate decisions issued on January 18, 2018. Like the referee, the Board dismissed Luckett's three appeals because a review of the record showed Luckett had failed to timely appeal and had failed to establish excusable neglect for an untimely appeal of the examiner's decisions.

On February 1, 2018, Luckett timely petitioned for judicial review in the district court. In her petition, she claimed the Board's decisions violated her due process rights, were based upon an erroneous interpretation or application of the law, were unsupported by substantial evidence when viewed in light of the record as a whole, and were otherwise arbitrary and capricious. In its February 20, 2018 answer, the Board denied Luckett's claims and asserted the district court lacked jurisdiction to consider Luckett's petition due to Luckett's failure to exhaust her administrative remedies. Specifically, the Board alleged that Luckett had failed to timely appeal the examiner's decisions and show excusable neglect for an untimely appeal of the examiner's August 4, 2017 decision.

The Board followed up its answer with a motion to dismiss roughly two months later, arguing the same grounds for dismissal as it had alleged in its answer. On May 7, 2018, Luckett responded by asserting that her claims were not "appeals" and thus not untimely. Alternatively, Luckett claimed she had shown excusable neglect because her hospitalization had made it impossible for her to timely appeal the August 4, 2017 decision within the 16-day time limit set out in K.S.A. 2018 Supp. 44-709(b)(3).

The next day, Luckett moved to amend her petition for judicial review. Her amendment sought to clarify her claims under the KJRA as well as add an entirely new claim in mandamus.

In a written order, the district court granted the Board's motion to dismiss, holding it lacked jurisdiction because of Luckett's failure to exhaust her administrative remedies and specifically cited Luckett's untimely appeal of the examiner's decisions and her failure to show excusable neglect for her untimely appeal of the examiner's August 4, 2017 decision. The district court did not address Luckett's motion to amend.

Luckett timely appeals.

DID THE DISTRICT COURT ERR IN DISMISSING LUCKETT'S PETITION FOR JUDICIAL REVIEW?

On appeal, Luckett argues the district court erred by dismissing her petition because (1) a disputed issue of fact precluded the district court's dismissal; (2) she had established excusable neglect for her failure to timely appeal the examiner's August 4 decision; and (3) the district court failed to rule on her motion to amend.

A. Standard of Review

The Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., governs judicial review of a decision by the Kansas Employment Security Board of Review. See K.S.A. 2018 Supp. 44-709(i) ; K.S.A. 2018 Supp. 77-603(a). Because we exercise the same statutorily limited review of the Board's decision as the district court, our review is the same as if it had been appealed directly to this court. See In re Tax Appeal of Fleet , 293 Kan. 768, 776, 272 P.3d 583 (2012). On appeal, the party asserting an invalidity on the part of an agency bears the burden of proving such invalidity. K.S.A. 2018 Supp. 77-621(a)(l).

B. Does the summary judgment standard apply to administrative appeals?

Initially, Luckett tries to persuade us that the standards for summary judgment should have applied before the district court. Apparently, Luckett's contention is that because the record is unclear as to whether she even knew of the examiner's August 4, 2017 decision, the absence of such a fact calls into question the rejection of her excusable neglect argument. She provides us with no authority supporting such a proposition.

As we stated above, Luckett's appeal is based upon the KJRA, which circumscribes the district court's review and our review. When a petitioner alleges that an agency erroneously interpreted or applied the law, the issue presents a question of law over which our review is unlimited. See K.S.A. 2018 Supp. 77-621(c)(4) ; Jones v. U.S.D. No. 259 , 55 Kan. App. 2d 567, 575, 419 P.3d 62 (2018). But if there is an argument over the facts, namely whether substantial competent evidence supports the agency's judgment, then our review is limited to examining the record to determine whether substantial competent evidence supports the agency's findings in light of the record as a whole. See K.S.A. 2018 Supp. 77-621(c)(7) ; Sierra Club v. Moser , 298 Kan. 22, 62, 310 P.3d 360 (2013). In reviewing the evidence, an appellate court does not "reweigh the evidence or engage in de novo review." K.S.A. 2018 Supp. 77-621(d) ; Rhodenbaugh v. Kansas Employment Sec. Bd. of Review , 52 Kan. App. 2d 621, 631, 372 P.3d 1252 (2016), rev. denied 306 Kan. 1319 (2017). Therefore, we reject the application of the summary judgment standard to administrative appeals in this context. Moreover, as we will explain below, even if we assume that Luckett was unaware of the examiner's August 4, 2017 decision, such a fact is not material to our resolution of the case. C. Did the district court err in finding Luckett showed no excusable neglect for an untimely appeal of the examiner's August 4, 2017 decision?

The linchpin of the district court's dismissal order is its agreement with the Board's contention that Luckett had failed to exhaust her administrative remedies prior to filing her petition, thus depriving the court of jurisdiction. It is well settled that "[u]nder the KJRA, a prerequisite to filing a petition for judicial review is the exhaustion of 'all administrative remedies available within the agency.' K.S.A. 77-612 ; see K.S.A. 77-607(a)." Friedman v. Kansas State Bd. of Healing Arts , 287 Kan. 749, 752, 199 P.3d 781 (2009). In fact, " 'the time for taking an administrative appeal, as set by statute, is jurisdictional and delay beyond the statutory time limit is fatal.' " Moser v. Kansas Dept. of Revenue , 289 Kan. 513, 519-20, 213 P.3d 1061 (2009). "Whether a party is required to or has failed to exhaust its administrative remedies is a question of law over which we have unlimited review." Miller v. Kansas Dept. of S.R.S. , 275 Kan. 349, 353, 64 P.3d 395 (2003).

K.S.A. 2018 Supp. 44-709(b)(3) states:

"Notwithstanding the provisions of any other statute, a decision of an examiner or special examiner shall be final unless the claimant or the most recent employing unit of the claimant files an appeal from the decision as provided in subsection (c), except that the time limit for appeal may be waived or extended by the referee or board of review if a timely response was impossible due to excusable neglect. The appeal must be filed within 16 calendar days after the mailing of notice to the last known addresses of the claimant and employing unit or, if notice is not by mail, within 16 calendar days after the delivery of the notice to the parties."

It is undisputed by the parties that Luckett's November 2, 2017 letter seeking relief is well beyond the 16-day time limit set forth in the statute above. In fact, the referee and the Board both relied upon K.S.A. 2018 Supp. 44-709(b)(3) to support their decisions that Luckett's "appeal" was untimely. Many of the arguments made before the district court and before us revolve around whether Luckett had established sufficient excusable neglect to justify her late "appeal." In fact, one of Luckett's main arguments in her brief is that she was unaware of the examiner's August 4, 2017 decision given her hospitalization from August 4 to August 24, 2017, and that this lack of knowledge plus her hospitalization prevented her from timely appealing the examiner's August 4, 2017 decision within the 16-day time limit set out in K.S.A. 2018 Supp. 44-709(b)(3). See Slayden v. Sixta , 250 Kan. 23, 28-29, 825 P.2d 119 (1992) (lack of knowledge can constitute sufficient grounds to establish excusable neglect).

Our problem with these arguments is that none of them address what is at the heart of the agency's findings here, namely, whether Luckett's November 2017 letter constituted an appeal of the examiner's decisions, specifically, the August 4, 2017 decision, in the first instance. As we will explain, Luckett's November 2017 letter did not constitute an appeal of any adverse decision of the examiner. In fact, Luckett made this point repeatedly below but it was ignored by both the KDOL and the district court. This is significant because if Luckett's claims are not appeals of adverse examiner decisions denying her benefits, then the strict 16-day time limit for appeals set forth in K.S.A. 2018 Supp. 44-709(b)(3) is inapplicable.

In its August 4, 2017 decision denying Luckett benefits, the examiner stated:

"The claimant is ineligible for unemployment insurance benefits beginning 7-16-17.
"Information has been received that the claimant has limitations that affect the type of work the claimant could accept. The Department requested a Health Care Provider's Certification to determine whether or not the claimant is eligible for benefits due to those limitations. The claimant has either failed to respond or failed to provide sufficient information.
"Absent such information, the Department is unable to determine that the claimant is eligible for benefits under K.S.A. 44-705. The claimant is ineligible for benefits and will remain ineligible until the required information is provided, at which time the claim will be reevaluated ." (Emphasis added.)

The examiner's decision is significant because it leaves open the door that the determination of Luckett's eligibility for benefits will be reevaluated or reconsidered once Luckett properly supplied the correct information. This is consistent with K.S.A. 2018 Supp. 44-709(b)(2), which allows an examiner to reconsider a decision, provided good cause is shown, prior to the termination of the benefit year, which lasts for one year following a valid claim for benefits. See K.S.A. 2018 Supp. 44-703(d) (definition of benefit year).

Luckett's November 2017 letter to the KDOL appears in part to be a request for such reconsideration. The letter stated in relevant part:

"In that August 4, 2017 determination, KDOL incorrectly stated my client had not provided healthcare provider certification or able and available statements. In fact, she faxed and emailed those statements to KDOL. Enclosed in this letter is yet another return to work (RTW) memorandum dated August 2, 2017 from her healthcare provider stating that Ms. Luckett is able to return to work.
"I also enclose all medical provider certifications, able and available, and RTW memorandums that Ms. Luckett has provided, or attempted to provide to KDOL by means of fax, mail and phone calls from May of this year to date."

Neither the referee nor the Board explained why this letter should be construed as an appeal. Given the examiner's invitation to Luckett that it would reevaluate her claim should she provide the required documents, we view Luckett's letter not as an appeal but more accurately as a request for reconsideration of the examiner's decision as allowed by K.S.A. 2018 Supp. 44-709(b)(2). This construction of Luckett's actual intent is supported by Luckett's reaction to the referee's decision to construe her counsel's letter as an appeal. In her counsel's second letter to the KDOL dated December 22, 2017, she objected to the characterization of her letter as an appeal. Counsel wrote:

"[O]n August 4, 2017, KDOL issued another Notice of Determination declaring [Luckett] medically ineligible beginning on July 16, 2017. My client did not appeal from that determination. Instead, she continued to supply the information required of her by that determination, specificially: 'a Health Care Provider's Certification to determine whether or not the claimant is eligible for benefits.' See , KDOL Notice of Determination, dated August 4, 2017. This determination went on to state that upon provision of such information, my client's claim would be reevaluated. My client has done so, and our letter of November 2, 2017 was intended to follow up.
....
"On December 12, 2017, KDOL responded to our November 2, 2017 inquiry as if it was an 'appeal' from the August 4, 2017 determination, instead of an inquiry into the status of Ms. Luckett's claim. See , Decision dated December 12, 2017. If we need to 'appeal' from a determination in order to enforce a claim, then please consider this an 'appeal' from that December 12, 2017 determination."

Additionally, in Luckett's response to the Board's motion to dismiss before the district court, Luckett again stated "she was not appealing from the Agency's determination as much as she was attempting to ascertain why the Agency was not doing what it previously said it would do."

We find that Luckett's November 2017 letter was not an appeal of the examiner's decision but, in part, a request for reconsideration by the examiner. Therefore, the Board erred by construing the letter as an appeal and by affirming the referee's decision also construing Luckett's letter as an appeal. Moreover, as Luckett's November 2, 2017 letter was sent to the KDOL less than three months after the examiner's August 4, 2017 decision, it certainly was not untimely because it was sent prior to the termination of the benefit year as required by K.S.A. 2018 Supp. 44-709(b)(2). Because Luckett's request for reconsideration of the examiner's decision was not untimely, her subsequent appeal of the referee's decision to the Board also was not untimely. See K.S.A. 2018 Supp. 44-709(c). Given that her appeals within the KDOL were not untimely and Luckett received an adverse final order from the Board, the district court erred in concluding that Luckett had failed to exhaust her administrative remedies. Accordingly, we reverse the district court's decision dismissing Luckett's petition on exhaustion grounds.

D. Did the district court erroneously dismiss Luckett's petition for judicial review without ruling on her motion to amend?

Luckett also argues that the district court's dismissal of the case without even considering her motion to amend under K.S.A. 2018 Supp. 60-215(a)(2) in order to add a claim in mandamus was error. We review a district court's decision on a motion to amend the pleadings under an abuse of discretion standard. Thompson v. State , 293 Kan. 704, 709, 270 P.3d 1089 (2011). An abuse of discretion occurs if "(1) no reasonable person would take the view adopted by the trial judge; (2) the ruling is based on an error of law; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion was made." Wiles v. American Family Life Assurance Co. , 302 Kan. 66, 74, 350 P.3d 1071 (2015).

Under K.S.A. 2018 Supp. 60-215(a)(2), once 21 days have passed after service of the pleading, "a party may amend its pleading only with the opposing party's written consent, or the court's leave. The court should freely give leave when justice so requires." Here, Luckett sought to amend her petition for judicial review more than 21 days after she served it and only a few days before the district court issued its dismissal order. There is nothing in the record to show that the Board objected to the amendment, and the district court did not even address the issue in its dismissal order.

However, it is unclear whether amendments under K.S.A. 2018 Supp. 60-215 to a petition for judicial review are even permissible. See K.S.A. 2018 Supp. 77-614 ; Pruitt v. Kansas Dept. of Revenue , No. 115709, 2017 WL 5616794, at *6 (Kan. App. 2017) (unpublished opinion). Our Supreme Court has stated "that the Code of Civil Procedure may be used by the district court to supplement the KJRA if the provision is a logical necessity that is not addressed within the KJRA." Pieren-Abbott v. Kansas Dept. of Revenue , 279 Kan. 83, 97, 106 P.3d 492 (2005) ; see K.S.A. 2018 Supp. 60-101 et seq. Our court has previously allowed an amendment under K.S.A. 60-215 to a petition for judicial review to permit the party to alter the case caption. See Pittsburg State Univ. v. Kansas Bd. of Regents , 30 Kan. App. 2d 37, 40-41, 36 P.3d 853 (2001), rev. denied 273 Kan. 1036 (2002). Given the nature of Luckett's amendment, we see no legal bar to it under the facts before us.

The most consequential portion of Luckett's amendment seeks to add an entirely new cause of action in mandamus unrelated to her petition for judicial review. She seeks an order from the district court compelling the KDOL to pay her unemployment benefits authorized by the KDOL's own examiner. This strikes us as consistent with the purpose of a mandamus action. "Mandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law." K.S.A. 60-801. However, "[t]he writ of mandamus is discretionary with the court and will not issue as a matter of right." State ex rel. Stephan v. O'Keefe , 235 Kan. 1022, 1025, 686 P.2d 171 (1984). Moreover, a petitioner cannot generally rely on a claim in mandamus when other remedies at law or in an administrative proceeding have not been exhausted. See Farmers Banshares of Abilene, Inc. v. Graves , 250 Kan. 520, 522, 826 P.2d 1363 (1992) (affirming dismissal of civil suit where proposed class sought corporate franchise tax refunds through mandamus and injunctive relief but "[b]ecause the forms of relief sought by Farmers are provided for in K.S.A. 77-622, Farmers' exclusive remedy is through KJRA"); Wilson Certified Foods, Inc. v. Reid , 211 Kan. 613, 614, 507 P.2d 339 (1973) ("It is well-established in a long line of decisions of this court that mandamus will not lie where petitioners have not availed themselves of and exhausted other adequate remedies.").

Luckett's main complaint all along has been that the KDOL failed to pay her weekly unemployment benefits that it ordered be paid. Remember, the examiner's May 30, 2017 decision expressly approved her claim for unemployment benefits beginning March 31, 2017. However, Luckett has repeatedly and consistently claimed that she has never been paid these benefits. Luckett's November 2017 letter to the KDOL inquiring about this lack of payment was ignored by both the referee and the Board. In fact, at no time has the KDOL ever addressed this issue. As our independent research has failed to locate a statute or KDOL rule allowing a claimant to seek enforcement of a KDOL order granting benefits under K.S.A. 2018 Supp. 44-705, Luckett may have a valid claim in mandamus. See Platt v. Kansas State University , 305 Kan. 122, 135-37, 379 P.3d 362 (2016) (exhaustion requirement inapplicable to claims against agency of the state falling outside of KJRA). Accordingly, it was error for the district court to dismiss Luckett's petition for judicial review without considering her motion to amend.

E. Conclusion

In light of our holdings today, we remand the matter to the district court with directions for it to do two things: (1) properly consider whether Luckett should be allowed to amend her petition to add a claim in mandamus; and (2) remand to the Board Luckett's claim that the Board improperly refused to consider her request that the examiner reconsider its August 4, 2017 decision. Upon remand to the Board, the Board is to direct the examiner to reconsider whether Luckett has provided sufficient documentation necessary to determine whether she qualifies for unemployment benefits. To facilitate possible subsequent judicial review, the examiner and, if it acts, the Board shall provide an explanation of any decision, including why the information submitted is insufficient.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Arnold-Burger, C.J.:

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Guadalupe J. DURAN, Appellant.
    No. 119,303 119,304
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Jennifer C. Roth, of Kansas Appellate Defender Office, for appellant.
    Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Arnold-Burger, C.J., Hill, J., and Stutzman, S.J.
   Arnold-Burger, C.J.:

If the district court finds "with particularity" that intermediate sanctions would jeopardize public safety or that the welfare of the offender will not be served by the imposition of intermediate sanctions, the district court may order the offender who has violated probation to serve his or her underlying sentence. K.S.A. 2018 Supp. 22-3716. But the court's order must state the reasons for its findings with particularity. The district court's findings are not specific enough to bypass intermediate sanctions if an appellate court must infer from the judge's findings the particularized reasons the public safety would be jeopardized or the offender's welfare would not be served. See State v. Clapp , 308 Kan. 976, Syl. ¶ 4, 425 P.3d 605 (2018).

Guadalupe J. Duran was sentenced in two cases on two occasions. The court offered Duran, and he accepted, probation on each case with a lengthy underlying sentence. After Duran violated his probation, the district court bypassed graduated sanctions and ordered Duran to serve his underlying sentences because the court believed continued probation would jeopardize public safety and would not serve Duran's welfare. Duran appeals, arguing the district court's findings lacked the required specificity. Because the district court abused its discretion by revoking Duran's probation without setting forth with particularity the reasons for finding that the safety of members of the public would be jeopardized or that Duran's welfare would not be served by imposing an intermediate sanction, we remand the case for a new dispositional hearing.

FACTUAL AND PROCEDURAL HISTORY

In April 2016, Duran pleaded guilty to criminal possession of a weapon by a convicted felon. The weapon was a knife found during a pat-down search. The court sentenced him to 17 months in prison but released him on probation for 18 months. About a year later, the State alleged Duran violated the terms of his probation by committing new crimes. Duran pleaded guilty to the new crimes of criminal possession of a weapon by a convicted felon and possession of methamphetamine. This time the weapon was a 4-inch knife found in his car after a traffic stop.

The court held a joint probation violation hearing and sentencing hearing. The court found that Duran qualified for presumptive prison for his new convictions. His counsel requested a dispositional departure, arguing Duran wanted to go to inpatient drug treatment. He explained that Duran was "maybe uncomfortable with the idea of getting out into the community immediately without going first to some inpatient." Duran acknowledged that he failed to complete inpatient treatment in 1984 and 2016.

After listening to Duran's request the district court stated that he was going to give Duran a choice. The court informed Duran:

"I know what your answer's going to be before you give it to me, Mr. Duran, I just know what it is. I know ultimately what the result's going to be. But I'll give you your choice in these matters.
"If you want to choose today and admit to yourself that you'll probably fail on probation, in the [second case], I would impose a 7 month sentence on Count 1, a reduced 24 month sentence on Count 2. I would run those two counts concurrent with each other.
"I would reduce the sentence in the [first case] to 12 months. That would still be consecutive to the [second case], but that would give you an overall prison sentence of 36 months. Less jail credit, less 20 percent reduction of your sentence for good time. So that's three years at most in prison if you admit that you're probably going to fail on probation. That's your first choice.
"And I want you to visit with Mr. Smartt before you give me your answer, even though I know what your answer's going to be.
"Your second choice is I'll grant you probation, I'll make the necessary findings to do so, and I'll reinstate you in the [first] case as well, but I'll impose high number of 9 months on Count 1 and 36 months in Count 2 in the [second] case. I would run those consecutive to each other for a controlling sentence of 45 months in that case. I would leave the sentence in the [first] case to 17 months. It would still be consecutive to the [second] case. That would give you an overall controlling sentence between those two cases of 62 months, over five years in prison.
"There would be no reduction, no reinstatement, zero tolerance for any noncompliance with drug and alcohol or mental health treatment, any positive UA for any alcohol or illegal drugs, any possession of weapons. Any commission of any crime, I don't care what it is, driving while suspended all the way up to murder, no reduction, no reinstatement. You would be going to prison for the balance of 62 months upon a subsequent probation violation raising any of those issues."

Duran told the court he wanted probation. The court continued Duran's probation in the first case and granted him probation in the second with underlying sentences consistent with what the court told Duran when offering him a choice. The court found that Duran's offenses were not crimes of violence. Finally, the district court ordered Duran to serve a 30-day jail sanction on his first case and continued him on probation. The court directed Duran to make arrangements for inpatient treatment during the 30-day period.

Duran was released from custody in early February 2018 but did not enter inpatient treatment. Just three days after his release, Duran tested positive for methamphetamine. Duran stipulated to violating his probation. Community Corrections recommended that the court order Duran to serve his underlying sentences. The State also requested that the court order Duran to serve his underlying sentences and make findings that continued probation would not be in the interest of community safety or Duran's welfare.

After hearing arguments from both parties the court said:

"If I were to reinstate your probation and I were to order you into treatment, I seriously doubt that would be any different than what happened at the January ... probation violation hearing where I reinstated you, ordered treatment, gave you a 30 day jail sanction.
"You were released on February 2nd, 2018, and you had a positive for methamphetamine and amphetamine on February 5th of 2018. Despite your intentions, I find you're going to give way to your addiction. And that's historically the case.
"I understand your desire not to go to prison. I understand the rationalization that you justify your desire to not go to prison despite your long-term addiction. But I'm going to find that reinstatement of probation is not in your best interest, would not be in your welfare because you are likely to obtain new probation violation matters based on repeat behaviors, as you've already shown in the prior probation warrants. Drug usage, weapon possession. You have the possibility of incurring new charges. Public safety's impacted in a negative way because of the demonstrated history and the, again, possibility that you would have possession and possibly use of weaponry in the future. You would certainly be fueling the drug economy, which is illegal in and of itself.
"If I were to reinstate you to probation, all I could do would be to tell you you have to abide by probation, or in the event of a probation violation warrant, I would send you to prison. That's exactly what I did on January 4, and that didn't have any benefit.
"You knew you were looking at a 62 month sentence. You knew I had imposed zero tolerance, yet you still gave into your addiction and you used. I don't see how that has changed any at this point in time.
"I'm going to make those findings I've stated that it's not-reinstatement would not be in your best interest of welfare, that public safety would be impacted in a negative way."

The court revoked Duran's sentence and ordered him to serve his underlying sentences. The journal entries noted "[r]einstatement and continued" probation would (1) not be in Duran's welfare or best interest because he continued to use drugs and obtain new charges and convictions and (2) impact public safety because he might use weapons and would continue to fuel the drug economy. Duran appeals the revocation of his probation. This court consolidated the cases for appellate purposes.

ANALYSIS

On appeal, Duran argues the district court erred by bypassing intermediate graduated sanctions and ordering him to serve his underlying sentence without making the particularized findings supporting its decision required by K.S.A. 2018 Supp. 22-3716(c)(9)(A).

Our standard of review is abuse of discretion.

Once a probation violation has been established, the decision to revoke probation rests within the sound discretion of the district court. State v. McFeeters , 52 Kan. App. 2d 45, 47, 362 P.3d 603 (2015). A judicial action constitutes an abuse of discretion if (1) no reasonable person would take the view adopted by the trial court; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Marshall , 303 Kan. 438, 445, 362 P.3d 587 (2015).

A court may bypass intermediate sanctions under K.S.A. 2018 Supp. 22-3716 in limited circumstances.

Generally, the district court is required to order a probation violator to serve a series of graduated intermediate sanctions before revoking probation and ordering him or her to serve the remainder of the underlying prison sentence. See K.S.A. 2018 Supp. 22-3716(c)(1). One exception to the general rule is in K.S.A. 2018 Supp. 22-3716(c)(9)(A), which allows the district court to bypass intermediate sanctions if the court "finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the offender will not be served by such sanction." "When something is to be set forth with particularity, it must be distinct rather than general, with exactitude of detail, especially in description or stated with attention to or concern with details." State v. Huskey , 17 Kan. App. 2d 237, Syl. ¶ 2, 834 P.2d 1371 (1992).

This court addressed the requirement that the district court make its findings with particularity in McFeeters . The court explained that the district court "must explicitly address how the public's safety would be jeopardized or how the offender's welfare would not be served by the imposition of intermediate sanctions." 52 Kan. App. 2d 45, Syl. ¶ 4, 362 P.3d 603. In McFeeters , the district court explained its reasoning for bypassing intermediate sanctions:

" 'My major concern is drug usage. This is a drug case; you've failed to go to treatment. You only reported from the records that I see for about two months and I don't know how many UAs you had in two months, but I would venture to say you didn't have that many. You had one that you were dirty .... [Y]ou stopped reporting in two months .... [T]here was some question in the substance abuse evaluation how accurate your recollection was with regard to your usage of drugs. I think that there was some conflicts, at least the evaluator believed that you said different things different times as to your drug usage, but definitely the recommendation was for completion of the intensive outpatient treatment program which you did not do.' " 52 Kan. App. 2d at 47, 362 P.3d 603.

This court held that the district court's comments "simply repeat[ed] the type of reasoning historically relied upon by sentencing courts in discussing amenability to probation when exercising their discretion to revoke the privilege of probation." 52 Kan. App. 2d at 49, 362 P.3d 603. The district court's "conclusory remarks about McFeeters' apparent unwillingness or inability to conform his behavior" failed to explain "how members of the public would be jeopardized if McFeeters remained on probation or how McFeeters' welfare would not be served by imposition of the intermediate sanctions." 52 Kan. App. 2d at 49, 362 P.3d 603.

The Kansas Supreme Court relied on McFeeters in Clapp , 308 Kan. 976, Syl. ¶ 4, 425 P.3d 605, to hold "[t]he particularity requirement ... is not met when an appellate court must imply the district court's reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the offender will not be served by the bypassed intermediate sanction." The facts outlined in Clapp are like the facts in many probation cases. The State accused Clapp of violating his probation and Clapp stipulated to the violation. The district court found that Clapp did not commit a new crime or abscond from probation and that Clapp had a job and was in drug treatment. But the court revoked Clapp's probation, bypassing intermediate sanctions solely because, after reciting Clapp's criminal history, the court felt that Clapp did not value how probation could help him change his life. And like this court in McFeeters , the Kansas Supreme Court held the district court's reasoning for bypassing intermediate sanctions was inadequate. 308 Kan. at 988-91, 425 P.3d 605.

In State v. Dooley , 308 Kan. 641, 653-54, 423 P.3d 469 (2018), decided just one month before Clapp , the Supreme Court noted that under the scheme in effect before the adoption of a process of graduated sanctions, a violation of probation in the face of unfettered judicial discretion often meant the more likely outcome was revocation and prison. The court suggested the judge's statement that " '[t]his is a serious violation and you've been on probation before, you knew what was required of you, you were given several chances' " was reminiscent of the prior scheme, not the current one. 308 Kan. at 653-54, 423 P.3d 469.

Since Clapp several panels of this court have reached similar results under similar facts-finding the judge failed to state with enough particularity the risk to the defendant's welfare or the public safety to justify bypassing intermediate sanctions. See State v. Collins , No. 117,116, 2019 WL 986315, at *4-5 (Kan. App. 2019) (unpublished opinion) ("[Y]our inability or unwillingness to abide by terms and conditions of probation are a public safety concern. You're obtaining meth from somewhere.... [T]hat fuels an illegal subculture. Drug deals obviously invoke safety concerns.... [Y]ou will again offend and pick up new charges, get another sentence."), petition for rev. filed March 29, 2019; State v. Shanholts , No. 118,911, 2019 WL 1303165, at *4-5 (Kan. App. 2019) (unpublished opinion) (" 'I'll also find that the welfare of the defendant would not be served by continuing probation. It doesn't serve anybody any good to continue a probation that she's not going to follow. So I'll make that specific finding.' "), petition for rev. filed April 22, 2019. But see State v. Campbell , No. 119,077, 2019 WL 1499168, at *3-4 (Kan. App. 2019) (unpublished opinion) (finding sufficient evidence to support district court's finding that Campbell's welfare would not be served by imposition of intermediate sanctions), petition for rev. filed May 2, 2019; State v. Loving , No. 119,851, 2019 WL 1746741, at *2 (Kan. App. 2019) (unpublished opinion) (same).

The Kansas Supreme Court made clear in Clapp that since 2013 we have a new probation scheme in Kansas. 308 Kan. at 988-90, 425 P.3d 605. That scheme requires more than a generalized finding that the defendant is not amenable to probation to bypass mandatory intermediate sanctions. A district court's finding under K.S.A. 2018 Supp. 22-3716(c)(9)(A) that the safety of members of the public will be jeopardized or that the welfare of the offender will not be served by imposing intermediate sanctions for a probation violation is not specific enough to bypass intermediate sanctions if an appellate court must infer from the judge's finding the particularized reasons why public safety would be jeopardized or the offender's welfare would not be served.

Here the district court said Duran was "likely to obtain new probation violation matters based on repeat behaviors" including "[d]rug usage [and] weapon possession" which could lead to new charges. It should be noted that the reason for his probation revocation was not new charges, it was the continued use of drugs. The district court also found that public safety would be impacted because there was a possibility Duran could possess and use weaponry in the future and that he would be contributing to the drug economy. But the court found that Duran's offenses were not crimes of violence. And the reason for the revocation was unrelated to the use of weapons or any crimes of violence. In fact, he had not used a weapon in his underlying crimes, he was just found with knives in his possession. So both of these findings were based on nothing more than general supposition.

Findings that a defendant has repeatedly failed to complete treatment and therefore will likely continue to do so, leading to the possession of weapons, which will lead to the commission of more crimes and which will undoubtedly fuel the drug economy, is an approach that relies on a series of speculative and generalized predictions without explaining their connections to the particular facts of Duran's case. It is nothing more than saying "you messed up, you will probably keep messing up, so you are not amenable to probation." We agree with Duran's statement in his appellate brief that "if courts are allowed to make an offender welfare finding based on the likelihood that a person addicted to drugs is going to relapse, then (c)(9) would swallow up the graduated sanctions system." Likewise, if courts can make an offender welfare finding because a person might violate his or her probation again, the exception will swallow the rule. And if courts can base their public safety findings on such generalized conclusions that a defendant's continued drug usage fuels the drug economy, all probation revocations for drug usage could result in such a finding and the bypassing of intermediate sanctions. As previously noted, "[w]hen something is to be set forth with particularity, it must be distinct rather than general, with exactitude of detail, especially in description or stated with attention to or concern with details." Huskey , 17 Kan. App. 2d 237, Syl. ¶ 2, 834 P.2d 1371 (cited with approval in Clapp , 308 Kan. at 989-90, 425 P.3d 605 ). Broad generalizations that equally could apply to all similar cases are not sufficiently particularized to meet the requirements of K.S.A. 2018 Supp. 22-3716(c)(9)(A).

We also pause to note that at his sentencing hearing, the district court judge made it very clear that he was going to have "zero tolerance" for any violations of probation. Such a statement is understandably meant to incentivize compliance with probation, but it is not a justification for bypassing the statutorily mandated intermediate sanctions scheme for subsequent violations of probation. "Regardless of whether a judge has threatened previously to revoke a defendant's probation if there are any violations, the legislature has clearly chosen to limit the court's ability to follow through on such a threat" by legislating a scheme of intermediate sanctions. State v. Jackson , No. 113,654, 2016 WL 2609638, at *2 (Kan. App. 2016) (unpublished opinion). Accordingly, it should be reserved for those situations when a district judge has imposed all mandatory intermediate sanctions and could have revoked the defendant's probation, but didn't. It is at that point that the judge has full discretion to enforce a zero tolerance policy.

In sum, based on this court's prior decisions and the guidance our Supreme Court has provided in Clapp , we find the district court's statements here were not particularized enough to bypass intermediate sanctions on the basis of a threat to public safety or offender welfare. Because the district court abused its discretion by revoking Duran's probation without setting forth with particularity the reasons for finding that the safety of members of the public would be jeopardized or that the welfare of the offender would not be served by imposing an intermediate sanction, we remand the case for a new dispositional hearing.

We cannot affirm the district court for a discretionary decision the court did not make.

The State argues this court can affirm the district court, at least in part, on other grounds because Duran's probation sentence in the second case stemmed from a dispositional departure. Under K.S.A. 2018 Supp. 22-3716(c)(9)(B), the district court may bypass graduated sanctions if the original probation sentence was the result of a dispositional departure. But this court cannot rely on K.S.A. 2018 Supp. 22-3716(c)(9)(B) when the district court did not invoke it while revoking the defendant's probation. In other words, we cannot affirm the district court for a discretionary decision it did not make. The district court is free to take up this provision on remand.

Reversed and remanded with directions.


text:
    STATE of Kansas, Appellant, v. Jeffrey Thomas MCCOWN, Appellee.
    No. 120,130
    Court of Appeals of Kansas.
    Opinion filed August 2, 2019.
    Sentence vacated. Remanded for resentencing.


text:
    STATE of Kansas, Appellee, v. Majeed Abdul SPANTA, Appellant.
    No. 120,094
    Court of Appeals of Kansas.
    Opinion filed August 2, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Ronni KLEIN, Appellant.
    No. 119,004
    Court of Appeals of Kansas.
    Opinion filed August 2, 2019.
    Affirmed.


text:
    In the MATTER OF the MARRIAGE OF Madison R. HARWOOD, Appellee, and Jason C. BLEVINS, Appellant.
    No. 120,351
    Court of Appeals of Kansas.
    Opinion filed August 2, 2019
    Reversed. Remanded with directions.


text:
    STATE of Kansas, Appellee, v. Patrick Allen ATCHISON, Appellant.
    No. 120,392
    Court of Appeals of Kansas.
    Opinion filed August 2, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Frederick Eugene BARNES, Appellant.
    No. 119,582
    Court of Appeals of Kansas.
    Opinion filed August 2, 2019.
    Reversed. Sentence vacated. Case remanded with directions.


text:
    Teresa WILKE, Appellant, v. Ronald ASH, Appellee.
    No. 120,015
    Court of Appeals of Kansas.
    Opinion filed August 2, 2019.
    Reversed. Remanded.


text:
    STATE of Kansas, Appellee, v. Jaered A. LONG, Appellant.
    No. 119,650
    Court of Appeals of Kansas.
    Opinion filed August 2, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Jasmon Devar WATSON, Appellant.
    No. 118,710
    Court of Appeals of Kansas.
    Opinion filed August 2, 2019.
    Affirmed in part. Vacated in part.


text:
    STATE of Kansas, Appellee, v. Eric Vincent LANDEO, Appellant.
    No. 118,156
    Court of Appeals of Kansas.
    Opinion filed August 2, 2019.
    Affirmed in part. Sentences vacated. Remanded for resentencing.


text:
    Shawn Anthony SPRATLEY, Appellee, v. Cari London WESTON, the Natural Mother, Appellant, and C.W., a Minor Child, Defendant.
    No. 120,384
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Shay D. COOK, Appellant.
    No. 119,623
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Affirmed. Vacated. Remanded for resentencing.


text:
    Kade LENARD, et al., Appellants, v. FARM BUREAU PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    No. 120,628
    Court of Appeals of Kansas.
    Opinion filed August 2, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Stephen A. MACOMBER, Appellant.
    No. 119,920
    Court of Appeals of Kansas.
    Opinion filed August 2, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Gabriel Nuri BURCH, Appellant.
    No. 119,748
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Oleksandra OKREPKA, Appellant.
    No. 119,282
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Jonathan Levi MANGOLD, Appellant.
    Nos. 118 996 118,997
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Affirmed. Vacate. Remand.


text:
    STATE of Kansas, Appellee, v. Travis R. BUTCHER, Appellant.
    No. 119,305
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Dismissed.


text:
    In the MATTER OF the MARRIAGE OF Jenna Ann EVANS, Appellant, and Gregory Garrett Evans, Appellee.
    No. 120,131
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Sonny J. BRAY III, Appellant.
    Nos. 119 560 119,561 119,562
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Reversed. Remanded with directions.


text:
    STATE of Kansas, Appellee, v. Delray TAPSCOTT, Appellant.
    No. 119,231
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Affirmed in part. Vacated. Remanded with directions.


text:
    STATE of Kansas, Appellee, v. Kari Marie RUDDLE, Appellant.
    No. 119,220
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Affirmed in part. Dismissed in part.


text:
    STATE of Kansas, Appellee, v. Jerome COOK, Appellant.
    Nos. 119 715 119,716
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Affirm. Vacate. Remand with directions.


text:
    STATE of Kansas, Appellee, v. Kayla M. WEST, Appellant.
    No. 119,634
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Vacated. Remanded with directions.


text:
    STATE of Kansas, Appellee, v. Chace Anthoni JACKSON, Appellant.
    No. 119,499
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Affirmed.


text:
    Antwan A. CARTER, Appellant, v. STATE of Kansas, Appellee.
    No. 119,453
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Affirmed.


text:
    In the INTERESTS OF L.R. and C.R., Minor Children.
    Nos. 120 618 120,619
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019
    Affirmed.


text:
    In the INTERESTS OF H.J., A.J., and C.J., Minor Children.
    No. 120,491
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019
    Affirmed.


text:
    In the INTERESTS OF F.C., A.C., L.D.C., L.J.C., and D.C., Minor Children.
    No. 120,471
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Dion Trent SMITH, Appellant.
    No. 120,501
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Affirm.


text:
    Cledith BOHANON, Appellant, v. Dan SCHNURR, Appellee.
    No. 120,403
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Lakeshia M. SCOTT, Appellant.
    No. 119,874
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. James M. COCHRAN, Appellant.
    No. 119,635
    Court of Appeals of Kansas.
    Opinion filed August 9, 2019
    Affirmed.


author: Justice Jim Rice delivered the Opinion of the Court. Justice Beth Baker, dissenting.

text:
    STATE of Montana, Plaintiff and Appellee, v. Michael Joe THOMAS, Defendant and Appellant.
    DA 17-0602
    Supreme Court of Montana.
    Submitted on Briefs: May 30, 2019 Decided: July 9, 2019 Rehearing Denied: August 13, 2019
    For Appellant: Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Lynn Ployhar, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Jacob Yerger, Deputy County Attorney, Billings, Montana
   Justice Jim Rice delivered the Opinion of the Court.

¶1 Michael Joe Thomas appeals his designation as a Persistent Felony Offender (PFO) for purposes of sentencing by the Thirteenth Judicial District Court, Yellowstone County, arguing the District Court lacked authority to sentence him under the 2015 PFO statute in effect at the time he committed his offense, and that he should have been sentenced under the 2017 amendments to the PFO statute. We affirm, and consider the following issue:

Did the District Court err by designating Thomas a PFO for sentencing purposes pursuant to § 46-18-501, MCA (2015)?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The State charged Thomas with felony driving under the influence of alcohol and other offenses alleged to have been committed on July 23, 2016. Based on a prior conviction for felony escape, the State filed a notice seeking designation of Thomas as a PFO under § 46-18-502, MCA (2015). In January 2017, a jury convicted Thomas of driving with a blood alcohol content above 0.08, fourth or subsequent offense, in violation of § 61-8-406(1)(a), MCA (2015), and acquitted him of an alternative charge. Thomas sought and was granted multiple continuances of his sentencing hearing, which was not conducted by the District Court until July 27, 2017.

¶3 Between the time of Thomas' offense and his sentencing, the 2017 Montana Legislature passed HB 133, which prospectively amended thirty-eight sections of the Montana Code Annotated and repealed three others. See 2017 Mont. Laws ch. 321. Most of HB 133's forty-four provisions addressed elements, definitions, or penalties of specific offenses. See 2017 Mont. Laws ch. 321, §§ 3-4, 6-22, 26-28, 31-39. Additionally, HB 133 changed the definition of a PFO. See 2017 Mont. Laws ch. 321, § 23. Under existing law, the State could seek a PFO designation if an offender had one prior felony conviction within five years of the commission of the present offense, or had been released from a commitment imposed for the prior felony conviction within the last five years. See § 46-18-501, MCA (2015). The Legislature repealed one of the two PFO definitional sections, § 46-18-501, MCA, and revised the other definition within § 46-1-202(18), MCA. See 2017 Mont. Laws ch. 321, §§ 23, 40. The new definition requires two predicate felony convictions before the State may seek a PFO designation, upon a third felony conviction. Further, one of the three felonies must be a sexual or violent offense. See § 46-1-202(18), MCA (2017). Regarding timing, the Act was made effective on July 1, 2017. Consistent therewith, the Act included a separate applicability provision, which provided the Act would apply "to offenses committed after June 30, 2017."

¶4 At Thomas' July 27, 2017 sentencing hearing, his counsel acknowledged there had been a legislative revision to the PFO statute, but did not argue the change applied to Thomas. The District Court sentenced Thomas as a PFO under § 46-18-501, MCA (2015), imposing a ten-year prison sentence with no time suspended.

STANDARDS OF REVIEW

¶5 We review a criminal sentence imposing over one year of incarceration for legality. State v. Moore , 2012 MT 95, ¶ 10, 365 Mont. 13, 277 P.3d 1212. The District Court's designation of Thomas as a persistent felony offender is a question of law that we review for correctness. State v. Wilson , 279 Mont. 34, 37, 926 P.2d 712, 714 (1996).

DISCUSSION

¶6 Did the District Court err by designating Thomas a PFO for sentencing purposes pursuant to § 46-18-501, MCA (2015)?

¶7 Thomas challenges the District Court's application of the PFO definition under the 2015 statute to his sentence, arguing he was entitled to the ameliorative amendment of the PFO definition within the 2017 Act that became effective before he was sentenced. The State concedes Thomas would not qualify for designation as a PFO as defined under the 2017 Act, but argues that, because Thomas committed his felony DUI offense on July 23, 2016, "the ameliorative effects of 2017 Mont. Laws, ch. 321 did not apply to him."

¶8 In applying a statute, our purpose is to "ascertain the legislative intent and give effect to the legislative will[,]" S.L.H. v. State Comp. Mut. Ins. Fund , 2000 MT 362, ¶ 16, 303 Mont. 364, 15 P.3d 948, and our role "is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted." Diaz v. Blue Cross & Blue Shield , 2011 MT 322, ¶ 14, 363 Mont. 151, 267 P.3d 756 (internal quotations and citations omitted). Thus, legislative intent, in the first instance, is to be ascertained "from the plain meaning of the words used." Mont. Vending, Inc. v. Coca-Cola Bottling Co. of Mont. , 2003 MT 282, ¶ 21, 318 Mont. 1, 78 P.3d 499. "Where the plain language of the statute is clear and unambiguous, no further statutory interpretation is necessary." Diaz , ¶ 14 (internal citation omitted); State v. Stiffarm , 2011 MT 9, ¶ 12, 359 Mont. 116, 250 P.3d 300 ("a statute is to be construed according to its plain meaning, and if the language is clear and unambiguous, no further interpretation is required.").

¶9 The plain language of HB 133 clearly expresses the Legislature's intent regarding the timing of the Act's application. The sections at issue, 2017 Mont. Laws, ch. 321, §§ 43-44, state:

Section 43. Effective date. [This act] is effective July 1, 2017.
Section 44. Applicability. [This act] applies to offenses committed after June 30, 2017.

Section 43 provides a special effective date making the Act effective on July 1, 2017. 2017 Mont. Laws, ch. 321, § 43. Consistent therewith, Section 44 provides that the Act, in its entirety, will apply "to offenses committed after June 30, 2017." 2017 Mont. Laws, ch. 321, § 44 (emphasis added). Taken together, Sections 43 and 44 unquestionably provide that the revisions enacted by the Act would not apply to offenses committed prior to July 1, 2017.

¶10 The Legislature further ensured that offenses committed prior to July 1, 2017 would continue to be governed under existing law by expressly making all of the Act's provisions, including the provision repealing the existing PFO definition, applicable only to offenses that occurred after June 30, 2017 ("[This act] applies to offenses committed after June 30, 2017."). In other words, the repealer, as part of the Act, has no application or effect on statutes that govern offenses committed prior to July 1, 2017; rather, it operates to repeal those provisions only for offenses committed thereafter. Consequently, prior law remains effective for prior offenses. This contradicts Thomas' argument that "[n]othing in HB 133 expressly says to apply the old PFO designation when presently sentencing an offender for an offense committed before its effective date." To the contrary, the Legislature deliberately retained prior law for prior offenses by limiting the repeal of prior law to post-June 30, 2017 offenses. By doing so, the Legislature conformed HB 133 to the longstanding and often constitutionally necessary principle that "the law in effect at the time of the commission of the crime controls as to the possible sentence." State v. Finley , 276 Mont. 126, 147, 915 P.2d 208, 221 (1996) (overruled in part by State v. Gallagher , 2001 MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 817 ).

¶11 Consequently, because Thomas committed felony DUI on July 23, 2016, well before the amendments enacted under HB 133 were made applicable to offenses, the ameliorative effects of the Act's revision of the PFO definition did not apply to him. Instead, the law in effect at the time of Thomas' offense-specifically here, the 2015 PFO definition-remained applicable, even though his sentencing occurred after the effective date of the Act itself. This is the plain and unambiguous "meaning of the words used." Mont. Vending, Inc. , ¶ 21.

¶12 Thomas nonetheless argues that because the Act "became effective" before he was sentenced, and the Act contained no savings clause, he is entitled to the benefit of the ameliorative PFO definition pursuant to our decision in Wilson , 279 Mont. 34, 926 P.2d 712. However, first, although HB 133 itself went into effect on July 1, 2017, the revisions therein never "became effective" upon Thomas' case because they were expressly limited to future cases, while prior law was retained for prior cases, as discussed above. Moreover, Wilson offers no support for Thomas because, unlike here, the Court there was presented with a legislative failure to "indicate under what law a defendant who committed a criminal offense prior to the repeal should be punished." Wilson , 279 Mont. at 40, 926 P.2d at 716. After Wilson's offense but prior to his sentencing, the Legislature repealed the statute permitting sentencing courts to designate a defendant a dangerous offender. Wilson , 279 Mont. at 41, 926 P.2d at 716. Unlike HB 133, the bill contained no provisions whatsoever governing the timing of its application, but simply repealed the former law outright. Relying on In re Estrada , 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948, 953 (1966), we held that, lacking any direction from the Legislature about application of the repealed statute to current cases, a savings clause would have been necessary to preserve the former law's application to Wilson and, thus, Wilson was entitled to the benefit of the outright repeal of the statute. Wilson , 279 Mont. at 40, 926 P.2d at 716. Estrada had likewise involved an amendment to a statute that, as in Wilson , "did not directly or indirectly indicate whether [a defendant] should be punished under the old law or the new one." Wilson , 279 Mont. at 40, 926 P.2d at 716 (quoting Estrada , 48 Cal.Rptr. 172, 408 P.2d at 953 ). In such situations, defendants are entitled to the ameliorative effects of the new legislation. See State v. Reams , 284 Mont. 448, 457, 945 P.2d 52, 58 (1997) ; State v. Kebble , 2015 MT 195, ¶¶ 49, 53, 380 Mont. 69, 353 P.3d 1175 (stating defendants entitled to the ameliorative effect of legislation absent legislative direction).

¶13 Significantly, here, the Legislature did not outright repeal the 2015 PFO designation, and did not fail to address the timing of the new Act's application. Rather, it limited the repeal of former law to post-June 30, 2017 cases, and coordinated the new provisions to apply only to those future cases. HB 133 did not suffer from the deficits for which we said in Wilson required a savings clause to preserve application of prior law to prior cases. While an explicit "savings clause" as an additional section of the bill would have been appropriate, the Legislature nonetheless provided the same content and direction by the manner it drafted the bill, clearly preserving application of the law then in effect to prior offenses. Contra Wilson , 279 Mont. at 40-41, 926 P.2d at 716 (vacating the dangerous offender designation because the statute authorizing that designation had been repealed, leaving "a clear absence of statutory authority to impose the dangerous offender designation."). Further, we have held that legislative drafting errors will not thwart the Legislature's clearly expressed intent. See State v. Heath , 2004 MT 126, ¶ 37, 321 Mont. 280, 90 P.3d 426.

¶14 By applying HB 133 to offenses according to the date of occurrence, rather than to the date of sentencing, the Legislature carefully avoided case processing pitfalls. If a more favorable PFO status had been made dependent upon a defendant's sentencing date, he would be incentivized to hinder and delay the process until the new law took effect. The Legislature avoided such difficulties by requiring application of the law in effect at the time the offense was committed, both before and after the Act went into effect. The District Court properly sentenced Thomas as a PFO pursuant to § 46-18-501 (2015), MCA.

¶15 Affirmed.

We concur:

LAURIE McKINNON, J.

DIRK M. SANDEFUR, J.

KAREN S. TOWNSEND, J.

District Court Judge Karen S. Townsend Sitting in for Justice Ingrid Gustafson

Justice Beth Baker, dissenting.

¶16 We have not addressed the precise question Thomas raises on appeal. Wilson is the closest we have come. Unlike the Court, however, I would conclude that the rule we articulated in Wilson and reaffirmed in Reams and Kebble is not satisfied by the language of HB 133. Consequently, Thomas is entitled to the benefit of the ameliorative changes in the PFO statute.

¶17 Based on ex post facto protections, we have explained that "the law in effect at the time of the commission of the crime controls as to the possible sentence." Finley , 276 Mont. at 147, 915 P.2d at 221 (emphasis in original). Despite this broad statement, however, the Ex Post Facto Clause has no application when an amendment mitigates a punishment. See State v. Coleman , 185 Mont. 299, 318-19, 605 P.2d 1000, 1012 (1979) (holding that amendments that ameliorate punishment do not violate the Ex Post Facto Clause and suggesting that "the District Court may well have been obligated to apply the [amended] statutes as their changes benefited the accused"). See also Rooney v. North Dakota , 196 U.S. 319, 325, 25 S. Ct. 264, 266, 49 L.Ed. 494 (1905) ("[A] statute which mitigates the rigor of the law in force at the time a crime was committed cannot be regarded as ex post facto with reference to that crime.").

¶18 We also have made clear that amendments to sentencing statutes have no application to sentences that already are final when the amendments come into effect. At later revocation proceedings, a defendant may not receive the benefits of an ameliorative statute that came into effect after his original sentencing. See Rose v. McCormick , 253 Mont. 347, 349, 834 P.2d 1377, 1378 (1992) (holding that a prisoner was not entitled to be designated as nondangerous under amendments that came into effect after his sentencing). Nor may a court apply in later proceedings amendments that would enhance the original sentence. State v. Suiste , 261 Mont. 251, 255, 862 P.2d 399, 401-02 (1993).

¶19 In Wilson we considered the Legislature's repeal of the dangerous offender enhancement statute, which occurred after Wilson committed the offense but before he was sentenced. We distinguished Finley because "the dangerous offender statute was repealed and could result in a mitigated punishment." Wilson , 279 Mont. at 39, 926 P.2d at 715. Finding no Montana case law on point, we relied on a California Supreme Court case, In re Estrada , 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (1966). The Estrada court held that a defendant was entitled to be sentenced according to the ameliorative terms of amendments that became effective after the defendant had committed his underlying offense but before the defendant's trial, conviction, and sentencing. We explained that Estrada 's holding had two foundations. First, the amendments mitigating sentencing demonstrated legislative intent to decrease a prior punishment that was too severe. Second, the general savings statute for criminal laws did not apply to sentencing statutes. We explained that "[a]lthough Estrada discusses the effects of an amended statute which mitigates punishment, its reasoning also applies to a repealed statute." Wilson , 279 Mont. at 40, 926 P.2d at 716. Like the statutory savings clause in California, Montana's general savings statute, § 1-2-205, MCA, "refers only to the 'law creating a criminal [offense],' and does not apply to sentencing statutes." Wilson , 279 Mont. at 40, 926 P.2d at 716 (quoting § 1-2-205, MCA ). Without an express savings clause in the bill, the Legislature had not indicated clearly whether a defendant should be punished under the old law or the new one. We concluded:

[ (1) ] that when a sentencing statute ... is repealed between the date a defendant commits the underlying offenses and is sentenced; and
(2) where the effect of the repeal lessens or ameliorates the defendant's punishment; and
(3) where the repealer contains no savings clause; the defendant is entitled to be sentenced according to the sentencing statute in effect on the date of sentencing.

Wilson , 279 Mont. at 40, 926 P.2d at 716. Applying this framework, we held that "there was a clear absence of statutory authority to impose the dangerous offender designation." Wilson , 279 Mont. at 41, 926 P.2d at 716.

¶20 We further elaborated on Wilson 's holding in Reams , 284 Mont. at 454-55, 945 P.2d at 56, and in Kebble , ¶ 49. We held in Reams that the State could not resurrect a driving under the influence conviction that should have been expunged automatically years earlier under a now-repealed statute. Reams , 284 Mont. at 455, 945 P.2d at 57. Reams was convicted of driving under the influence in 1975. In 1981, a new amendment came into effect that expunged DUI convictions automatically if five years elapsed without another DUI offense. Relying on Wilson , we explained that the 1981 bill had no savings clause to limit its application; Reams was entitled to the benefits of the amendment. We rejected the State's attempt to consider Reams's expunged DUI conviction for sentence enhancement purposes after the Legislature repealed the statute providing for automatic expungement after five years. Reams , 284 Mont. at 454-57, 945 P.2d at 56-58. Reams did not deal with an ameliorative sentencing statute that changed the defendant's sentence for his 1975 DUI convictions, but the 1981 amendments did mitigate the consequences of that prior conviction. We explained that defendants are entitled to the benefit of statutes "other than those creating a criminal offense,... absent a clear expression of legislative intent through a savings clause that the former law controls." Reams , 284 Mont. at 454-55, 945 P.2d at 56.

¶21 In Kebble , the defendant claimed that amendments to the outfitting without a license statute that came into effect after his offense but before his conviction eliminated jail time and made his offenses subject to a fine only. Kebble , ¶ 48. Again citing Wilson , we explained "that when a sentencing statute is repealed (or amended) between the date a defendant commits the underlying offense and the date of his sentence, the effect of the repeal (or amendment) is to lessen the defendant's punishment, and the new statute contains no savings clause, the defendant is entitled to be sentenced according to the sentencing statute in effect on the date of sentencing." Kebble , ¶ 49. We ultimately did not reach the issue in Kebble , however, because the Legislature had not repealed or amended the punishment for the offense at issue but simply moved it to another title. Kebble , ¶ 53. Neither Kebble , Reams , nor Wilson is on all fours with the current case, but the principles they articulate are directly applicable to the facts before us.

¶22 The savings statute, § 1-2-205, MCA, preserves the State's authority to prosecute and punish offenders under "any law creating a criminal offense" in effect when an offender committed the act, even if the Legislature repeals that statute before final judgment, "unless the intention to bar such indictment or information and punishment is expressly declared in the repealing act." The general savings statute provides no guidance for determining whether the Legislature intends to have a sentencing court apply the former PFO statutes or ameliorative amendments to those statutes that come into effect between when an offender committed his offenses and his sentencing for those offenses.

¶23 The Court concludes that HB 133's applicability clause supplies the Legislature's clear direction that the bill not apply to offenders who committed their offenses on or before June 30, 2017. Opinion, ¶ 13. I disagree. As the Court observes, legislative intent, in the first instance, is to be ascertained from the plain meaning of the words used. Opinion, ¶ 8; Mont. Vending, Inc. , ¶ 21. It is only when the intent cannot be ascertained from the plain language that we examine legislative history. Mont. Vending, Inc. , ¶ 21.

¶24 Relying on Wilson , we explained in Reams , 284 Mont. at 454-55, 945 P.2d at 56 :

[A]s to statutes, other than those creating a criminal offense, the criminal defendant is entitled to the benefit of the law in effect when the offense is committed, except to the extent that a later repeal or amendment of the law ameliorates or mitigates a sentence or punishment, and, in that case, the criminal defendant is entitled to the benefit of the later law, absent a clear expression of legislative intent through a savings clause that the former law controls.

In other words, when a statute changes criminal procedure or sentencing between the time of the commission of an offense and the time of sentencing, the defendant is entitled to the protections of the more lenient statute unless the Legislature makes clear through a savings clause that the former law will control. In this case, the first two prongs of the Wilson analysis are met: the Legislature passed an ameliorative sentencing statute that came into effect between the date of Thomas's offense and his sentencing. Thomas argues, however, that HB 133 lacks "a clear expression of legislative intent through a savings clause" that the former PFO definition should continue to control in certain cases after the act's effective date. See Reams , 284 Mont. at 454-55, 945 P.2d at 56.

¶25 A savings clause "excepts from the new legislation matters that would otherwise be governed by the new law and preserves the existing law for such excluded matters." Fisher v. First Citizens Bank , 2000 MT 314, ¶ 19, 302 Mont. 473, 14 P.3d 1228. The Montana Bill Drafting Manual 2016-written and published by the Montana Legislative Services Division "to provide a uniform standard for bill drafting"-distinguishes between effective dates, applicability dates, and savings clauses. It explains that "[a]n effective date should not be included in a bill unless ... there is a reason requiring an early effective date." And it warns: "Do not confuse an applicability date with an effective date." According to the Manual, the applicability date serves the purpose of expressly stating whether a bill applies retrospectively or prospectively, noting that "[t]o apply retroactively, a law must expressly state that fact" under § 1-2-109, MCA. The Manual explains that a savings clause, on the other hand, "preserves rights and duties that already have matured or proceedings already begun."

¶26 These are different but related concepts. The applicability clause explains a bill's prospective or retrospective application, and the savings clause explains what law applies to "duties that already have matured or proceedings [that] already [have] begun" but have not progressed to final judgment at the time the new bill goes into effect. The Manual explains that "[b]ecause it is presumed that changes in the law are in full force beginning on the effective date of the act, new laws could disrupt transactions already in progress." Though it is possible that one clause could serve as both an applicability clause and a savings clause, it would need the requisite language for each. The Legislature recognized this, for example, when it enacted the Criminal Code of 1973. Section 45-1-103, MCA, includes three distinct subsections:

(1) The provisions of this code apply to any offense defined in this code and committed after January 1, 1974.
(2) Unless otherwise expressly provided or unless the context otherwise requires, the provisions of this title and Title 46 govern the construction of and punishment for any offense defined outside of this code and committed after January 1, 1974, as well as the construction and application of any defense to a prosecution for such an offense.
(3) The provisions of this code do not apply to any offense defined outside of this code and committed before January 1, 1974. Such an offense must be construed and punished according to the provisions of law existing at the time of commission thereof in the same manner as if this code had not been enacted.

This statute shows plainly the Legislature's distinction between an applicability clause and a savings clause.

¶27 HB 133 contains nothing labelled as a savings clause. Section 43 states: "Effective Date. [This act] is effective July 1, 2017." 2017 Mont. Laws. ch. 321, § 43 (brackets in original). Without this effective date clause, the act would have come into effect on October 1, 2017. See § 1-2-201(1), MCA. Section 44 of HB 133 states: "Applicability. [This act] applies to offenses committed after June 30, 2017." 2017 Mont. Laws ch. 321, § 44 (brackets in original). The applicability clause states that the changes in the act apply to offenses committed after June 30, 2017. 2017 Mont. Laws ch. 321, § 44. Because much of the Act amends the elements, definitions, or sentences for specific offenses, this language clearly applies to those amendments. On the other hand, a PFO "designation is not itself a separate crime carrying a separate sentence, but is a procedural sentence enhancement required by statute." State v. Johnson , 2010 MT 288, ¶ 16, 359 Mont. 15, 245 P.3d 1113 (quoting State v. DeWitt , 2006 MT 302, ¶ 11, 334 Mont. 474, 149 P.3d 549 ). The applicability clause clearly addresses amendments to offenses, but provides no clear explanation for which PFO statutes apply to pending prosecutions. Neither the general savings statute nor the applicability date expresses what PFO statute applies to "proceedings already begun." Just as § 1-2-205, MCA, refers to "criminal offenses," and not to sentencing laws, Wilson , 279 Mont. at 40, 926 P.2d at 716, HB 133 likewise refers to "offenses," 2017 Mont. Laws ch. 321, § 44, and provides little guidance regarding a broadly applicable "procedural sentence enhancement," Johnson , ¶ 16 (quotations omitted).

¶28 The 2017 Legislature could have made clear that the applicability clause acted to preserve the former PFO statute for pending prosecutions. For example, in one measure passed during the same session, the Legislature directly addressed a statute's prospective applicability for sentencing going forward: "Applicability. [This act] applies to offenders who are sentenced on or after [the effective date of this act]." 2017 Mont. Laws ch. 62, § 2 (brackets in original). Alternatively, the Legislature could have used the more comprehensive language in the sample savings clause in the Bill Drafting Manual: "[This act] does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before [the effective date of this act]"-which the Legislature used in at least thirteen bills during the 2017 legislative session. See , e.g. , 2017 Mont. Laws ch. 44, § 2, ch. 55, § 9, ch. 102, § 3, ch. 244, § 15, ch. 247, § 9, ch. 320, § 15, ch. 326, § 22, ch. 339, § 11, ch. 346, § 12, ch. 367, § 29, ch. 384, § 37, ch. 389, § 11, ch. 446, § 3. HB 133 does not contain a "clear expression of legislative intent" that the ameliorative effects of the amended PFO statute should not apply to all persons sentenced after the act's effective date. See Reams , 284 Mont. at 454, 945 P.2d at 56.

¶29 Considering the plain language of HB 133's applicability clause, the ameliorative purpose of the PFO amendments, Wilson 's requirement for "a savings clause," and the Montana Legislature's different uses for a savings clause and an applicability clause, I agree with Thomas that the applicability date clause in HB 133 does not equate to a savings clause for the PFO statutes. If HB 133 had done no more than amend the PFO statute, the Legislature's intent may be clearer. But the bill amended many additional sections of the criminal code that define criminal offenses. The general applicability clause, evidencing an intention for those changes in criminal offenses to be applied prospectively, sheds little light on the application of changes to the PFO definition to pending sentencing proceedings. This is particularly true because HB 133 as introduced repealed the PFO designation in its entirety. Later amendments reinstated the designation without amending the applicability clause. Neither the applicability date nor the savings statute, § 1-2-205, MCA, expressly preserved the 2015 PFO statute for proceedings that already were pending before the effective date. Far from a mere "drafting error," Opinion, ¶ 13, the Legislature's omission of a savings clause affects dramatically the liberty of offenders like Thomas whose sentences were imposed after HB 133 became law. Thomas is entitled to be sentenced under the amended PFO statutes.

¶30 Finally, I am not persuaded by the State's argument that applying the amended PFO statute to Thomas would be unfair and would reward an offender for delaying his sentencing. As the Alaska Court of Appeals explained in reviewing the same issue, "whenever a legislative amendment takes effect on a fortuitous date, fortuitous results are inevitable." State v. Stafford , 129 P.3d 927, 933 (Alaska Ct. App. 2006) (quoting Helton v. State , 778 P.2d 1156, 1160 (Alaska Ct. App. 1989) ). It is not unfair to grant an offender the benefit of an ameliorative sentencing statute that the Legislature has enacted during the pendency of his case. See Coleman , 185 Mont. at 324, 605 P.2d at 1015. I would reverse Thomas's sentence and remand for resentencing under the 2017 PFO statute.

Chief Justice Mike McGrath and Justice James Jeremiah Shea join in the dissenting Opinion of Justice Baker.

MIKE McGRATH, C.J.

JAMES JEREMIAH SHEA, J.

      Although Thomas did not object to the application of the 2015 PFO statutes at his sentencing, we will review a criminal sentence on appeal despite a defendant's failure to object at sentencing if the defendant alleges the sentence is illegal or exceeds statutory mandates. See State v. Lenihan , 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979). We therefore address Thomas' claimed error.

      We have held that the Ex Post Facto Clause (see U.S. Const. art. I, § 10; Mont. Const. art. II, § 31 ) prohibits the application of enhanced penalties that become effective after the commission of the crime but before sentencing. See , e.g. , Finley , 276 Mont. at 147, 915 P.2d at 221-22 (discussing the Ex Post Facto Clause and holding that a district court may not defer its determination of an offender as dangerous or nondangerous until a later revocation hearing when the statute in place at the time of the crime did not authorize the district court to defer such a determination); State v. Azure , 179 Mont. 281, 282, 587 P.2d 1297, 1298 (1978) (holding that "[a] law which eliminates or delays a defendant's parole eligibility after the criminal offense has been committed is ex post facto as applied to that defendant"); State v. Gone , 179 Mont. 271, 280, 587 P.2d 1291, 1297 (1978) (same).

      This quote from Coleman is not binding precedent because the Court did not resolve on this basis the issue before it-whether the Court's prior declaration that Montana's death penalty statute was unconstitutional rendered the penalty unavailable in Coleman's case.

      Both the Bill Drafting Manual and other legislative enactments-including some from the same session that enacted HB 133-demonstrate that the Legislature does not use the two clauses interchangeably. See 2017 Mont. Laws ch. 102, §§ 3-4 and ch. 326, §§ 22, 25.