Johnson v. State ( 2013 )

January 22 2013
DA 11-0386
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 9N
LYLE H. JOHNSON,
Petitioner and Appellant,
v.
STATE OF MONTANA,
Respondent and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-94-11338
Honorable Karen S. Townsend, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Lyle H. Johnson (Pro Se), Shelby, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, M. Shaun Donovan,
Deputy County Attorney, Missoula, Montana
Submitted on Briefs: December 4, 2012
Decided: January 22, 2013
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court Internal
Operating Rules, this case is decided by memorandum opinion and shall not be cited and
does not serve as precedent. Its case title, cause number, and disposition shall be
included in this Court’s quarterly list of noncitable cases published in the Pacific
Reporter and Montana Reports.
¶2 Lyle H. Johnson (Johnson) appeals from an order from the Fourth Judicial District
Court, Missoula County, which denied his motion to modify his sentence. Johnson
argues on appeal that because he is proceeding pro se, the District Court should have
construed his petition more liberally so as to afford him the relief that he has requested.
We affirm.
¶3 Johnson pled guilty to felony indecent exposure on February 13, 1995. He was
sentenced to a term of five years in the Montana State Prison for the indecent exposure
charge and to a concurrent forty-five year term for being a persistent felony offender.
Johnson appealed his conviction, and we affirmed in a noncite opinion. In August of
1996, Johnson petitioned the Sentence Review Division to reconsider his sentence. The
Sentence Review Division found that Johnson’s sentence was not excessive, but rather
concluded that it was inadequate. Accordingly, the Sentence Review Division issued an
order that amended the judgment to prohibit him from becoming eligible for parole until
he has served thirty years of his sentence and completed all phases of the Sex Offender
Treatment Program at the prison.
2
¶4 Because Johnson committed his offense in 1994, he has been eligible to earn
“good time allowance” that operates as a credit towards his sentence pursuant to
§ 53-30-105, MCA (1993)1. See Orozco v. Day, 281 Mont. 341, 354, 934 P.2d 1009,
1016 (1997) (holding that prisoners have liberty interest in good time allowance as
permitted by the statute in effect at the time the offense was committed). On April 12,
2011, after learning that he had been receiving good-time allowance credit towards his
discharge date but not towards his parole eligibility date, Johnson filed a letter with the
District Court titled “Petition for Modification of Sentence.” In the letter, Johnson
claimed that he would have been eligible for parole sometime in 2009 if he had been
credited good time allowance towards his parole eligibility date. He accordingly asked
the District Court to suspend the balance of his sentence and allow him to complete the
remainder of the Sex Offender Program “on the streets.” The District Court held that it
did not have jurisdiction to modify Johnson’s sentence and issued an order denying his
request on June 1, 2011.
¶5 “No provision of law allows a court to vacate a conviction simply upon the motion
of the defendant.” State v. Baker, 1999 MT 251, ¶ 14, 296 Mont. 253, 989 P.2d 335.
There must be a statutory basis for a trial court to modify a validly pronounced sentence.
Baker, ¶ 14. When a prisoner fails to cite a statutory basis for a sentence modification
motion, we consider the motion under the postconviction relief statute. Baker, ¶ 15. The
postconviction relief statute in effect at the time Johnson committed his offense had a
1
Section 53-30-105, MCA (1993) subsequently has been amended and then repealed.
3
five-year statute of limitations. Section 46-21-102, MCA (1993). Thus, the District
Court correctly held that Johnson’s request for modification was untimely. 2
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2006, which provides for
memorandum opinions. The issues are clearly controlled by settled Montana law, and we
find no reason in fact or law to disturb the District Court’s order.
¶7 Affirmed.
/S/ Mike McGrath
We Concur:
/S/ Beth Baker
/S/ Michael E Wheat
/S/ Patricia O. Cotter
/S/ Brian Morris
2
We note that while the District Court properly considered Johnson’s letter, Johnson’s
complaint that his sentence is illegal and his good time allowance has not been credited
toward his parole eligibility date, may more appropriately be addressed in a writ of
habeas corpus filed pursuant to §§ 46-22-101 et seq., MCA.
4