State v. Johnson ( 1996 )

No. 95-310
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Defendant,
LYLE HENRY JOHNSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding
COUNSEL OF RECORD:
For Appellant:
Lyle Johnson, Pro Se, Deer Lodge, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; John
Paulson, Assistant Attorney General, Helena, Montana
Betty Wing, Deputy County Attorney, Missoula,
Montana
Submitted on Briefs: April 11, 1996
Decided: May 17, 1996
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing and West Publishing Companies.
Lyle Johnson pled guilty in the Fourth Judicial District
Court, Missoula County, to a charge of indecent exposure. He was
sentenced to five years' imprisonment on the charge and a consecu-
tive term of forty-five years' imprisonment as a persistent felony
offender. He was designated a dangerous offender, and the court
recommended that he be ineligible for parole or early release until
he completes the sex offender program at the prison. Appearing pro
se, Johnson appeals. We affirm.
The issues are whether Johnson was afforded effective
assistance of counsel; whether the sentence imposed is dispropor-
tionate because it includes persistent felony offender enhancement;
whether the State's notice of intent to introduce evidence of prior
acts violated Johnson's rights; and whether the District Court
acted impartially during the sentencing hearing.
The several deficiencies which Johnson alleges in the
performance of his trial counsel relate to counsel's alleged
failure to warn Johnson of the possible length of his sentence or
to fully investigate the defenses of brain damage, state of mind,
and misidentification by the victims. As the State's brief
explains, the alleged deficiencies are either unsupported in the
record or are based upon JohnsonIs misunderstandings of the law and
of his attorney's role in the proceedings. Johnson has not shown
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through reference to the record that his guilty plea resulted from
any inadequacy on the part of his attorney or that his attorney's
performance was in any way deficient under the standard set forth
in Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052,
80 L.Ed.Zd 674.
Johnson's sentence is within the maximum statutory guidelines;
therefore, it does not violate the Eighth Amendment prohibition
against cruel and unusual punishment and any review of the sentence
lies with the Sentence Review Division. See State v. DeSalvo
(19951, 273 Mont. 343, 903 P.2d 202. As to his unsupported and
conclusory allegation that the prosecution's notice of intent to
introduce evidence of prior acts violated his rights, Johnson has
waived this issue because he failed to raise it in District Court.
Finally, the record does not support any claim of bias or inatten-
tiveness on the part of the District Court.
We affirm the judgment of the District Court.
We concur:
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May 17, 1996
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent ,by United States mail, prepaid, to the
following named:
Lyle Johnson
700 Conley Lake Road
Deer Lodge, MT 59722
Joseph P. Mazurek, Attorney General
John Paulson, Assistant Attorney General
Justice Building
Helena, MT 59620
Betty Wing
Deputy County Attorney
Missoula County Courthouse
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA