State v. Johnston

Decision Date12 September 2008
Docket NumberNo. DA 06-0169.,DA 06-0169.
Citation193 P.3d 925,346 Mont. 93,2008 MT 318
PartiesSTATE of Montana, Plaintiff and Appellee, v. Brian Anthony JOHNSTON, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Noel K. Larrivee, Attorney at Law, Polson, Montana.

For Appellee: Hon. Mike McGrath, Attorney General; Joslyn Hunt, Assistant Attorney General, Helena, Montana, Robert A. Long, Lake County Attorney; Mitchell Young, Deputy County Attorney, Polson, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 Brian Anthony Johnston (Johnston) appeals from the Order of the Twentieth Judicial District Court, Lake County, denying his Motion to Set Aside Revocation and Petition for Post-conviction Relief. We affirm.

¶ 2 We review the following issues on appeal:

¶ 3 Does § 46-21-105(2), MCA, bar Johnston's claim that the District Court revoked his probation in violation of the procedures set forth in § 46-23-1012(4), MCA?

¶ 4 Did the District Court correctly determine that the State did not violate the procedures set forth in § 46-23-1012(4), MCA, when the State sought to revoke Johnston's probation?

¶ 5 Did the 21-day period of incarceration between Johnston's arrest and his probation revocation hearing deny him due process of law?

¶ 6 Did the District Court subject Johnston to double jeopardy when it revoked Johnston's suspended sentence for alleged probation violations for which he previously had been arrested?

¶ 7 Was Johnston denied effective assistance of counsel in his revocation proceedings?

FACTUAL AND PROCEDURAL HISTORY

¶ 8 The Lake County Attorney (State) charged Johnston on March 9, 2001, with felony Sexual Intercourse Without Consent and felony Persons Required to Register (Failure to Register as a Sex Offender). Johnston and the State entered into a plea agreement on May 10, 2001, whereby Johnston agreed to plead guilty to the charge of Failure to Register as a Sex Offender, and the State agreed to dismiss the charge of Sexual Intercourse Without Consent. Johnston and the State agreed to recommend that the District Court sentence Johnston to four years in Montana State Prison, with all but 36 days suspended. Johnston and the State also agreed to recommend that the District Court place Johnston on probation for the balance of his suspended sentence. The court accepted the plea agreement and imposed Johnston's sentence pursuant to the terms of the plea agreement.

¶ 9 Johnston was arrested on October 13, 2001, in Lake County for an alcohol-related incident. Johnston's State Probation and Parole Officer Dave Weaver (Officer Weaver) issued a "Warrant to Arrest and Hold" Johnston the next day, alleging that Johnston had violated two "special conditions" of his probation in light of the fact that "Johnston was allegedly intoxicated in Lake County, MT," on October 13, 2001, and that Johnston had "refused to submit to an alcohol breath test."

¶ 10 The Ronan City Police arrested Johnston again on November 30, 2001, in Lake County for Partner/Family Member Assault and Obstructing a Police Officer. Officer Weaver issued a second "Warrant to Arrest and Hold" Johnston on December 1, 2001. Officer Weaver's "Warrant to Arrest and Hold" alleged that various charges pending against Johnston also constituted probation violations. Officer Weaver recommended a bond of $10,000. Officer Weaver then filed a Petition for Suspected Violation of Probation on December 3, 2001, and filed a "Report of Violation" on December 11, 2001.

¶ 11 Weaver alleged in the "Report of Violation" that Johnston had committed the following probation violations: (1) Johnston had pled guilty to driving with a suspended license; (2) the police had arrested and charged Johnston on [November 30, 2001], with Partner/Family Member Assault and Obstructing a Peace Officer; (3) Johnston had tested positive for marijuana on August 6, 2001; (4) Johnston had failed to pay a $45.00 supervision fee in November 2001; (5) Johnston had submitted to a blood-alcohol test that indicated his blood-alcohol level was ".018 mg%."; and (6) Johnston had refused to submit to an alcohol breathalyzer test. Officer Weaver recommended in his "Report of Violation" that Johnston "be returned to the District Court for a formal revocation hearing." The State filed a petition to revoke Johnston's probation that same day.

¶ 12 Johnston appeared in the District Court to answer to the alleged probation violations on December 20, 2001. The District Court found that Johnston's admission to several of the charges was sufficient to revoke Johnston's suspended sentence for the charge of Failure to Register as a Sex Offender. The court sentenced Johnston to four years in Montana State Prison with all but 75 days suspended and credit for time served. Johnston did not appeal.

¶ 13 The State released Johnston after he had served 20 days in jail, but he was arrested several more times throughout 2002 and 2003 for various crimes and probation violations. Johnston eventually admitted at a hearing on March 10, 2005, to numerous probation violations, and the District Court found these admissions sufficient to revoke Johnston's suspended sentence. The District Court sentenced Johnston on March 17, 2005, to four years in Montana State Prison. Johnston did not appeal. Johnston filed a "Motion to Set Aside Revocation and Petition for Post-Conviction Relief" on January 3, 2006, alleging that the District Court's December 20, 2001, revocation violated state and federal law. The District Court denied Johnston's motion on February 9, 2006. This appeal followed.

STANDARD OF REVIEW

¶ 14 We review de novo a grant or denial of a motion to dismiss in a criminal case. State v. Mallak, 2005 MT 49, ¶ 13, 326 Mont. 165, ¶ 13, 109 P.3d 209, ¶ 13.

DISCUSSION
ISSUE ONE

¶ 15 Does § 46-21-105(2), MCA, bar Johnston's claim that the District Court revoked his probation in violation of the procedures set forth in § 46-23-1012(4), MCA?

¶ 16 The State argues for the first time on appeal that § 46-21-105(2), MCA, bars Johnston's claim that the State failed to comply with § 46-23-1012(4), MCA. Section 46-21-105(2), MCA, provides that "[w]hen a petitioner has been afforded the opportunity for a direct appeal of the petitioner's conviction, grounds for relief that were or could reasonably have been raised on direct appeal may not be raised, considered, or decided in a proceeding brought under this chapter." The State points to the fact that Johnston failed to raise the alleged violation of § 46-23-1012(4), MCA, in a direct appeal from his December 20, 2001, revocation proceedings.

¶ 17 We normally do not review an argument made for the first time on appeal. State v. Osborne, 2005 MT 264, ¶ 11, 329 Mont. 95, ¶ 11, 124 P.3d 1085, ¶ 11. The State argues, however, that it can raise the § 46-21-105(2), MCA, procedural bar for the first time on appeal in light of the fact that this provision represents a limit on a district court's subject matter jurisdiction that can be raised at any time.

¶ 18 The State relies on a line of cases beginning with Peña v. State, 2004 MT 293, 323 Mont. 347, 100 P.3d 154, where we permitted the State to argue for the first time on appeal that a petition for post-conviction relief was time barred in light of § 46-21-102, MCA. We held in Peña that "because the time bar is jurisdictional, it cannot be waived by the State by failing to raise the issue in the District Court." Peña, ¶ 35. We have concluded recently in Davis v. State, 2008 MT 226, 344 Mont. 300, 187 P.3d 654, however, that the Legislature's enactment of a one-year time bar on the filing of petitions for post-conviction relief did "not circumscribe a district court's subject matter jurisdiction." Davis, ¶ 23. We determined that the Montana Constitution grants the district courts subject matter jurisdiction over post-conviction relief. We overruled Peña and other cases "to the extent they have held that the Legislature limited district courts' subject matter jurisdiction . . ." by codifying a statutory time bar on post-conviction relief. Davis, ¶ 23.

¶ 19 Section 46-21-105(2), MCA, represents a similar statutory limitation on post-conviction relief, and, thus, "does not circumscribe a district court's subject matter jurisdiction." Davis, ¶ 23. Like the statutory time bar in Davis, § 46-21-105(2), MCA, represents merely a rigid statutory prescription governing post-conviction petitions. The Iowa Supreme Court reached a similar conclusion in DeVoss v. State, 648 N.W.2d 56 (Iowa 2002). There a statute required post-conviction relief applicants to raise all available grounds for relief in their original petitions. DeVoss, 648 N.W.2d at 63. The court previously had interpreted the statute "`to impose a burden upon a post[-]conviction applicant to show sufficient reasons why any ground for relief asserted in a post[-]conviction relief petition was not previously asserted on direct appeal.'" DeVoss, 648 N.W.2d at 63 (quoting Bugley v. State, 596 N.W.2d 893, 896 (Iowa 1999)) (emphasis in DeVoss). The State raised for the first time on appeal DeVoss's failure to raise in her direct appeal a claim of ineffective assistance of counsel. The court determined that the State's failure to raise the defect in the trial court waived the claim on appeal: "Because error preservation is based on fairness, we think both parties should be bound by the rule." DeVoss, 648 N.W.2d at 63 (emphasis in original).

¶ 20 We agree that our general rule regarding error presentation binds both parties in a post-conviction relief proceeding. We note again, however, that nothing in our ruling "precludes a court from raising, sua sponte . . ." the prescription set forth in § 46-21-105(2), MCA. Davis, ¶ 24. A trial court may raise the prescription set forth in § 46-21-105(2), MCA, on its own initiative, however, only after the court "afford[s] the parties fair notice and an opportunity to present...

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