State v. K. Tipton, 2021 MT 281

Kenneth Tipton was charged with three counts for misconduct against minor relatives arising from incidents between July 2015 and early 2017: Count I (indecent exposure to a minor relating to V.B.), Count II (sexual abuse of children relating to A.B.), and Count III (sexual abuse of children relating to T.B.).
The State’s Amended Information added an allegation from July 2015 to Count I; Tipton and counsel acknowledged and did not object at a March 25, 2019 pretrial hearing.
The statutory problem: § 45-5-504 (indecent exposure to a minor) was amended in October 2015 to create a distinct, far-more-punitive offense (up to 100 years) that did not exist in July 2015; § 45-5-625(1)(c) (sexual abuse of children) was amended in October 2017 to criminalize showing sexually explicit material in person or electronically (new language), but all conduct underlying Counts II and III predated that amendment.
At trial the jury was instructed to consider the grouped incidents together for Count I (any of the alleged incidents involving V.B. could support conviction); the verdict form does not identify which incident the jury relied on.
Jury convicted Tipton on all counts. On appeal the court considered (1) whether trial counsel rendered ineffective assistance by failing to object to the ex post facto application of the October 2015 statute to the 2015 incident (Count I), and (2) whether Counts II and III—premised on the October 2017 amendment—required remand for a new trial or acquittal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
1) Whether counsel was ineffective for not objecting to Count I’s statutory basis (ex post facto application of Oct. 2015 statute to a July 2015 incident)	State: inclusion of 2015 was a harmless factual amendment and defense had no plausible basis to object	Tipton: counsel should have objected; prosecuting 2015 conduct under a statute not yet in effect exposed him to a dramatically harsher penalty	Held: Counsel’s failure was objectively unreasonable and prejudicial; IAC reviewable on direct appeal; conviction reversed and remanded for new trial on Count I
2) Remedy for Counts II & III, which rely on the Oct. 2017 amendment applied to pre-amendment conduct	State: defective charging (wrong statute) is a procedural error; remedy is vacatur and remand for new trial	Tipton: convictions rest on statutes not in effect at the time—should result in acquittal for those offenses	Held: Convictions cannot stand because the State relied on the wrong statute; remedy is vacatur and remand for new trial (not acquittal)

Strickland v. Washington, 466 U.S. 668 (claim requires showing deficient performance and prejudice)
Montana v. Hall, 481 U.S. 400 (procedural defect in charging may warrant vacatur and remand for new trial)
Lockhart v. Nelson, 488 U.S. 33 (societal interest supports retrial when procedural errors require reversal)
United States v. Ball, 163 U.S. 662 (vacatur/remand principle for defective proceedings)
United States v. Tateo, 377 U.S. 463 (appellate reversal does not necessarily bar retrial)
Miller v. Florida, 482 U.S. 423 (ex post facto inquiry: law must be retrospective and disadvantage defendant)
State v. Price, 312 Mont. 458 (Mont. 2002) (grouping of charged conduct can render verdicts vulnerable to ex post facto error)