No. 02-119
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 251
STATE OF MONTANA,
Plaintiff and Respondent,
v.
IRA THOMAS JOHNSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable E. Wayne Phillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Carl G. DeBelly, Jr., Attorney at Law, Lewistown, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Micheal S. Wellenstein,
Assistant Attorney General, Helena, Montana
Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana
Submitted on Briefs: September 5, 2002
Decided: November 19, 2002
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court
¶1 A jury found Ira Thomas Johnson guilty of assault with a weapon and not guilty of
two counts of partner or family member assault. The Tenth Judicial District Court, Fergus
County, sentenced Johnson and entered judgment. Johnson appeals from the sentence and
we affirm.
¶2 The issue before us is whether the District Court violated
constitutional prohibitions against cruel and unusual punishment in
sentencing Johnson to 20 years’ imprisonment.
BACKGROUND
¶3 The State of Montana charged Ira Johnson by information with
assault with a weapon and two counts of partner or family member
assault. A jury ultimately found Johnson guilty of assault with a
weapon, but not guilty of the other charges.
¶4 The State’s primary witness at trial was Lori Berg. She
testified she and Ira Johnson began dating late in 1998. Johnson
subsequently moved in with Berg on her ranch. In December of 2000,
Johnson and Berg had a baby. During the course of her pregnancy,
Berg confided to Sue Irvin, the director of Central Montana Family
Planning, that Johnson emotionally abused her. Irvin testified
that, on a subsequent visits to the clinic, Berg told her of
instances when Johnson had threatened her family and punched a hole
in a wall at their house.
¶5 According to Berg, both before and after the baby’s birth, she
and Johnson kept weapons in the house, some of which were loaded.
Johnson often wore a pistol in a holster. Berg testified to a
number of instances where Johnson threatened to kill her and her
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family members, and also slapped or hit her. Johnson attempted to
limit Berg’s contact with her family, and made particular threats
against her brothers. He also made threats involving the baby on
multiple occasions, including that he would sell the baby.
¶6 Berg and Johnson often fought about money. Berg testified
that Johnson demanded they sell Berg’s metal detector so he would
have money. She also testified that approximately May 6, 2001, he
picked up a 20-gauge shotgun, cocked it, pointed it at her and
demanded to know where the metal detector was. She feared he would
kill her. He already had made verbal threats to that effect, to the
point that Berg–fearing she would be killed–made out a will in
March of 2001.
¶7 On May 18, 2001, Berg obtained a restraining order against
Johnson and filed a criminal complaint against him with the Fergus
County Sheriff’s Department. Deputy Sheriff Rick Vaughn met with
Johnson to explain the restraining order to him and, according to
Vaughn, Johnson responded with threats to kill Berg’s family and
stated he would try to take the baby and leave.
¶8 Johnson testified in his own defense. He admitted that he
used to “give full vent to [his] anger,” but denied that he ever
slapped Berg or pointed a gun at her. The jury convicted Johnson
of the felony offense of assault with a weapon, but found him not
guilty of the two misdemeanor counts of partner or family member
assault.
¶9 At the sentencing hearing, the State argued that Johnson
needed significant time in custody in order to undergo
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rehabilitation, such as anger-management training. Furthermore,
the State requested that, when Johnson is released from custody, he
be prohibited from entering central Montana. Johnson asked for
leniency, asserting he was not a threat to Berg or her family and
pointing out to the court that this was his first criminal offense
of any kind.
¶10 The District Court expressed concern that, without
rehabilitation, Johnson would be a risk to re-offend in another
relationship. It sentenced Johnson to 20 years at the Montana
State Prison, with the requirement that Johnson successfully
complete an anger-management or similar program. The court also
imposed numerous conditions on Johnson during any parole, including
no contact with Berg or her family (except as permitted under a
possible future child custody order) and no entry into Fergus
County or any of the surrounding counties. Johnson appeals.
DISCUSSION
¶11 Did the District Court violate constitutional prohibitions
against cruel and unusual punishment in sentencing Johnson to 20
years’ imprisonment?
¶12 We review a district court’s sentence for legality only and
will not disturb a district court’s sentence unless the court
abused its discretion. State v. Clark, 2000 MT 40, ¶ 16, 298 Mont.
300, ¶ 16, 997 P.2d 107, ¶ 16 (citation omitted).
¶13 The jury convicted Johnson of the felony offense of assault
with a weapon. Pursuant to § 45-5-213(2)(a), MCA, “a person
convicted of assault with a weapon shall be imprisoned in the state
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prison for a term not to exceed 20 years or be fined not more than
$50,000, or both.” The District Court sentenced Johnson to 20
years at the Montana State Prison. The sentence is the maximum
term authorized by statute, but also is within the statutory
parameters.
¶14 The Eighth Amendment to the United States Constitution and
Article II, Section 22 of the Montana Constitution both prohibit
cruel and unusual punishment. However, we have long held that “a
sentence which falls within the statutory maximum is not cruel and
unusual punishment.” State v. Tadewaldt (1996), 277 Mont. 261, 271,
922 P.2d 463, 469 (citations omitted). An exception to that
general rule exists in cases where the sentence “is so
disproportionate to the crime that it shocks the conscience and
outrages the moral sense of the community or of justice.”
Tadewaldt, 277 Mont. at 271, 922 P.2d at 469 (citation omitted).
The defendant bears the burden of proving that a sentence falls
within this exception. Tadewaldt, 277 Mont. at 271, 922 P.2d at
469 (citation omitted).
¶15 Johnson relies generally on Tadewaldt and Clark for the
proposition that aggravating factors must be present to support a
sentence at the upper range of sentences available. He asserts no
aggravating factors exist in his case because, among other things,
his use of a weapon was merely an element of the offense, the
victim was not physically harmed and he has no prior criminal
record. He argues the absence of aggravating factors supports his
position that the Tadewaldt exception applies and, therefore, his
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sentence is cruel and unusual punishment. Neither of the cases on
which Johnson relies support his position.
¶16 In Tadewaldt, the defendant was convicted of a felony drug
offense. He argued on appeal that a mandatory felony for a college
student possessing a small amount of drugs constituted cruel and
unusual punishment. We upheld the district court’s sentence, which
was less severe than the statutory maximum, because we determined
the defendant fell “far short of meeting his burden of proving that
his sentence is so disproportionate to the crime that it outrages
the moral sense of the community or of justice.” Tadewaldt, 277
Mont. at 271, 922 P.2d at 469. Johnson’s argument that we affirmed
Tadewaldt’s harsh sentence because of the presence of aggravating
factors is simply untrue. Tadewaldt actually received “the most
lenient sentence possible under the statute.” Tadewaldt, 277 Mont.
at 271, 922 P.2d at 469. Furthermore, we did not address the
presence or absence of aggravating factors.
¶17 In Clark, the defendant was convicted of several motor
vehicle-related offenses. The trial court sentenced Clark within
the statutory parameters, but he argued on appeal that his
sentences constituted cruel and unusual punishment because they
were greatly disproportionate to sentences imposed against other
defendants convicted of the same offenses. Clark, ¶ 36. We upheld
the sentences which were within the statutory limits. Clark, ¶¶
38, 40. We did not discuss the presence or absence of aggravating
factors in Clark. Indeed, we did not directly address Clark’s
disproportionality argument at all. We merely affirmed the
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sentences falling within statutory parameters and noted the
district court’s proper consideration of Montana’s statutory
sentencing policy. Clark, ¶¶ 38, 40. Neither Tadewaldt nor Clark
support Johnson’s position that aggravating factors must be present
before the statutory maximum sentence properly can be imposed.
¶18 Johnson also argues that, although his sentence is within the
statutory parameters, it “shocks the conscience,” thereby falling
within the exception described in Tadewaldt. In sentencing
Johnson, the District Court noted Johnson’s “threats to the victim,
threats to the victim’s child and the Defendant’s child, threats to
the victim’s family, threats of abduction of the child, which
really, really weigh[] on this Court very heavily.” It also
expressed concern that Johnson was a risk to re-offend and ordered
that, during any parole, Johnson not be allowed to enter Fergus
County or the surrounding counties.
¶19 Given the facts of this case, we simply are not persuaded that
Johnson met his burden of proving that his sentence “shocks the
conscience” or “outrages the moral sense of the community or of
justice.” Tadewaldt, 277 Mont. at 271, 922 P.2d at 469.
Accordingly, we hold that the District Court did not violate
constitutional prohibitions against cruel and unusual punishment in
sentencing Johnson to 20 years’ imprisonment.
¶20 Affirmed.
/S/ KARLA M. GRAY
We concur:
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/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JIM RICE
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