State v. Johnston

September 12 2008

DA 06-0169

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 318

STATE OF MONTANA,

Plaintiff and Appellee,

v.

BRIAN ANTHONY JOHNSTON,

Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DC 01-24
Honorable Deborah Kim Christopher, Presiding Judge

COUNSEL OF RECORD:

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

Submitted on Briefs: October 26, 2007

Decided: September 12, 2008

Filed:

__________________________________________
Clerk
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
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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
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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

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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
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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
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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 their positions . . . .” Davis, ¶ 24. The court also must

“determine whether ‘the interests of justice would be better served’ by addressing the merits

or by dismissing the petition . . .” pursuant to § 46-21-105(2), MCA. Davis, ¶ 24 (quoting

Day v. McDonough, 547 U.S. 198, 210, 126 S. Ct. 1675, 1684 (2006)).

¶21 Section 46-21-105(2), MCA, does not limit a district court’s subject matter

jurisdiction. Davis, ¶ 23. The State, therefore, waived the procedural bar found in § 46-21-

105(2), MCA, by raising it for the first time on appeal.

ISSUE TWO
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¶22 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?

¶23 Johnston points out that § 46-23-1012(4), MCA, provides that “[i]f the probationer is

detained and bond is set, the probation and parole officer shall file a report of violation

within 10 days of the arrest of the probationer.” Johnston argues that Officer Weaver

violated § 46-23-1012(4), MCA, when Officer Weaver filed his “Report of Violation” on

December 11, 2001, eleven days after the police had arrested Johnston for Partner/Family

Member Assault and Obstructing a Police Officer.

¶24 The State concedes that Officer Weaver filed the “Report of Violation” eleven days

after Johnston’s initial arrest. The State points to the fact, however, that Officer Weaver

filed his “Report of Violation” within ten days of the time that Officer Weaver had filed his

“Warrant to Arrest and Hold” Johnston on December 1, 2001. The State asserts that the ten-

day limit in § 46-23-1012(4), MCA, did not begin to run when the police arrested Johnston

on November 30, 2001. The State argues that the ten-day limit in § 46-23-1012(4), MCA,

began to run only when the probation officer, Officer Weaver, initiated an arrest pursuant to

§ 46-23-1012, MCA.

¶25 We have acknowledged that § 46-23-1012, MCA, contemplates dual revocation

proceedings. Gonzales v. Mahoney, 2001 MT 259, ¶ 11, 307 Mont. 228, ¶ 11, 37 P.3d 653,

¶ 11. We have explained that the manner in which the State initiates revocation proceedings

will determine which of the requirements set forth in § 46-23-1012, MCA, will apply. State
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v. Finley, 2003 MT 239, ¶ 20, 317 Mont. 268, ¶ 20, 77 P.3d 193, ¶ 20. The State must bring

a probationer arrested pursuant to a bench warrant before the court “without unnecessary

delay” under §§ 46-23-1012(1) and 46-18-203, MCA. Finley, ¶ 20. The State must follow

the requirements set forth in § 46-23-1012(2)-(5), MCA, on the other hand, when the State

arrests the probationer pursuant to an arrest initiated by a probation officer under § 46-23-

1012(2), MCA. Finley, ¶ 20; Gonzales, ¶ 11. Section 46-23-1012, MCA, does not address,

however, the State’s obligations when a probationer is arrested on grounds independent from

the violation of a condition of probation.

¶26 We must determine whether the word “arrest” in § 46-23-1012(4), MCA, refers to any

arrest initiated for any reason, or, more specifically, to an arrest initiated pursuant to the

procedures outlined in § 46-23-1012, MCA. Our purpose in construing a statute is to

ascertain the legislative intent and give effect to the legislative will. S.L.H. v. State

Compensation Mut. Ins. Fund, 2000 MT 362, ¶ 16, 303 Mont. 364, ¶ 16, 15 P.3d 948, ¶ 16.

We interpret a statute by looking first to the statute’s plain language, and if the language is

clear and unambiguous no further interpretation is required. Small v. Board of Trustees,

2001 MT 181, ¶ 21, 306 Mont. 199, ¶ 21, 31 P.3d 358, ¶ 21. We resolve ambiguous terms,

however, by looking to the structure, purpose and/or legislative history of a statute to

determine the intent of the Legislature. S.L.H., ¶ 16; State v. Knudson, 2007 MT 324, ¶ 23,

340 Mont. 167, ¶ 23, 174 P.3d 469, ¶ 23.

¶27 The plain meaning of the word “arrest” as used in the statute is ambiguous. It could

refer to the specific type of arrest a probation officer initiates pursuant to § 46-23-1012(2),
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MCA, or it could refer to the more general type of arrest that a police officer initiates, for

example, pursuant to probable cause. We agree with the State that the structure of § 46-23-

1012, MCA, indicates that the Legislature intended the term “arrest” to have the more

specific meaning. We note that § 46-23-1012, MCA, addresses only two possible ways that

a probationer may be “arrested” on grounds of an alleged probation violation: (1) the

probation officer may ask the court to issue a warrant; or (2) the probation officer may arrest

the probationer or may authorize a police officer to arrest the probationer. Section 46-23-

1012(1)-(2), MCA. We also note that § 46-23-1012(3), MCA, provides that the probation

officer may authorize a detention center to hold for up to 72 hours a probationer who was

arrested pursuant to § 46-23-1012, MCA.

¶28 We note additionally that Johnston’s interpretation of the term “arrest” in § 46-23-

1012(4), MCA, could lead to absurd results. Johnston’s interpretation would mean that the

ten-day limit found in § 46-23-1012(4), MCA, would begin to run when a probationer is

arrested based upon facts that also may happen to establish a probation violation, regardless

of whether the probation officer is aware of the arrest. This interpretation could lead the

State unknowingly to waive its right to revoke probation if the arresting officer fails to

communicate the arrest of a probationer to the probation officer in sufficient time for the

probation officer to file a report. We conclude that the structure of § 46-23-1012, MCA,

indicates that the Legislature intended to limit the term “arrest” in subsection (4) to the

specific types of arrests that subsection (2) permits a probation officer to initiate. We further

conclude that the State correctly followed the procedures required under § 46-23-1012(4),
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MCA, when it filed its “Report of Violation” within ten days of Officer Weaver issuing a

“Warrant to Arrest and Hold” Johnston.

ISSUE THREE

¶29 Did the 21-day period of incarceration between Johnston’s arrest and his probation

revocation hearing deny him due process of law?

¶30 Johnston argues that the State violated his due process rights, as guaranteed by the

Untied States Constitution, by holding him in custody for 21 days with no preliminary

hearing to establish probable cause for his alleged probation violations. Johnston

acknowledges that no statutory authority exists for requiring the State to provide a

preliminary probable cause hearing. State v. Goebel and Giddings, 2001 MT 155, ¶ 3, 306

Mont. 83, ¶ 3, 31 P.3d 340, ¶ 3, abrogated in part on other grounds, Gundrum v. Mahoney,

2001 MT 246, ¶ 12, 307 Mont. 96, ¶ 12, 36 P.3d 890, ¶ 12; see also Finley, ¶ 20 (explaining

which statutory requirements apply to revocation proceedings); Gonzales, ¶ 11 (same).

Johnston asserts that case law establishes that the due process requirement of the United

States Constitution requires the State to provide a preliminary probable cause hearing.

Johnston relies solely on County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661

(1991), where the United States Supreme Court held that persons subjected to warrantless

arrests normally must be provided a judicial determination of probable cause within 48 hours

of the warrantless arrest. Johnston argues that the State’s failure to provide a preliminary

hearing on probable cause within 48 hours of his arrest rendered his revocation proceeding

presumptively unconstitutional.
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¶31 Johnston misplaces reliance on County of Riverside, however, as that case involved a

criminal prosecution rather than a probation revocation proceeding. Johnston fails to note

that probationers already have been “tried and convicted” for the offense underlying their

probation, and, thus, they are entitled to “less than the full panoply of due process rights

accorded a defendant at a criminal trial.” Carchman v. Nash, 473 U.S. 716, 725-26, 105

S. Ct. 3401, 3406 (1985).

¶32 This Court previously has considered the question of whether due process requires a

preliminary hearing for a probation revocation hearing. State v. Swan, 220 Mont. 162, 713

P.2d 1003 (1986). We noted in Swan that the Supreme Court has held in Morrissey v.

Brewer, 408 U.S. 471, 92 S. Ct. 2593 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93

S. Ct. 1756 (1973), that due process entitles a defendant to a preliminary hearing on probable

cause in addition to a final hearing. Swan, 220 Mont. at 165, 713 P.2d at 1006. We

determined, however, that the reasons underlying the Supreme Court’s holdings in Morrissey

and Gagnon regarding preliminary hearings were absent under Montana’s probation

revocation scheme at § 46-23-1012 and § 46-23-1013, MCA (1983). Swan, 220 Mont. at

166, 713 P.3d at 1006.

¶33 Unlike the procedures at issue in Morrissey and Gagnon, §§ 46-23-1012 and 46-23-

1013, MCA (1983), provided the following due process protections: (1) “[t]he revocation

hearing is held promptly, before a defendant is returned to prison;” (2) “[t]he defendant

receives notice of the hearing and of the alleged violations;” (3) and “the hearing is held

12
before a judge, rather than an administrative body, providing additional protection for the

defendant.” Swan, 220 Mont. at 166, 713 Mont. at 1006.

¶34 We deemed sufficient the 1983 version of § 46-23-1012, MCA, in Swan and

concluded that the State did not need to provide a preliminary probable cause hearing in

order to satisfy Swan’s constitutional right to due process. Swan, 220 Mont. at 167, 713 P.2d

at 1006-07. The Legislature amended § 46-23-1012, MCA, in 1999, however, to provide a

probationer facing a possible revocation with a right to a probable cause hearing under

limited circumstances. Laws of Montana, 1999, Ch. 505, § 3. We acknowledged the limited

statutory requirement of a probable cause hearing in State v. Goebel, 2001 MT 73, ¶¶ 20-22,

305 Mont. 53, ¶¶ 20-22, 31 P.3d 335, ¶¶ 20-22. The Legislature amended § 46-23-1012,

MCA, again in 2001 and eliminated the probable cause hearing requirement from the statute.

Laws of Montana, 2001, Ch. 493, § 5. We noted the absence of a statutorily required

preliminary probable cause hearing in Goebel and Giddings. Goebel and Giddings, ¶ 3. We

did not revisit in these cases, however, the need for a probable cause hearing under the due

process clauses of the Montana and United States constitutions.

¶35 The current version of § 46-23-1012, MCA, provides due process protections to a

probationer similar to those contained in the 1983 probation revocation process that we

deemed constitutionally adequate in Swan. The probation officer must file a “report of

violation” within ten days of when the probationer is arrested pursuant to § 46-23-1012(2),

MCA. Section 46-23-1012(4), MCA. The State must bring the probationer before a judge

for a hearing on the charges “[w]ithout unnecessary delay,” after a “report of violation” is
13
filed. Sections 46-23-1012(5), 46-18-203(4), MCA. The State must notify the probationer at

the hearing of the alleged probation violations. Section 46-18-203(4)(a), MCA. Section 46-

23-1012, MCA, provides adequate due process to an alleged probation violator. The District

Court correctly dismissed Johnston’s due process claims.

ISSUE FOUR

¶36 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?

¶37 Johnston argues that he was “punished twice” for probation violations in violation of

the Double Jeopardy Clause of the United States Constitution. Johnston points to the fact

that he was held in jail in October 2001, for probation violations that the State used against

him again in the December 20, 2001, revocation proceedings.

¶38 We recently have determined that a probation officer cannot pursue a revocation

proceeding for a probation violation if the officer already has subjected the probationer to

sanctions for that violation. State v. Martinez, 2008 MT 233, 344 Mont. 394, ___ P.3d ___.

Martinez’s probation officer initiated a revocation hearing by filing a report of violation that

alleged that Martinez had committed multiple violations of his conditions of probation.

Martinez, ¶ 11. Martinez sought to prohibit the District Court from considering those

violations for which the probation officer already had subjected Martinez to intervention

hearings under § 46-23-1012(3)(b), MCA. Martinez, ¶ 11. We confirmed in Martinez that a

probation officer acting under § 46-23-1012(3), MCA, cannot pursue a revocation hearing
14
for conduct if the officer already has subjected the probationer to an intervention hearing for

the same conduct. Martinez, ¶ 18.

¶39 Authorities arrested Johnston in October 2001. Johnston’s probation officer, Officer

Weaver, filed a “Warrant to Arrest and Hold” Johnston based upon Johnston’s use of alcohol

and his refusal to submit to an alcohol breath test in violation of his conditions of probation.

Officer Weaver filed with the District Court a petition entitled “Suspected Violation of

Probation” that asked the court to “set bond on [Johnston] pending further action by the

Probation Department.” The court set Johnston’s bond at $5,000. Johnston posted bond and

was released after spending five days in custody.

¶40 Authorities arrested Johnston again on November 30, 2001. Officer Weaver filed

another “Warrant to Arrest and Hold” based upon Johnston’s arrest for partner or family

member assault and for obstructing a peace officer. Officer Weaver recommended, and the

court agreed, to set Johnston’s bond at $10,000 pursuant to a second petition of a “Suspected

Violation of Probation.”

¶41 Officer Weaver ultimately filed a “Report of Violation” and a “Petition to Revoke” as

a result of the November 30, 2001, arrest. The petition to revoke alleged six violations as

grounds for revocation of Johnston’s probation. The District Court revoked Johnston’s

probation on the basis that Johnston had “admitted several of the violations . . . .” The record

does not reveal the specific conduct that Johnston had admitted as violations of his

conditions of probation.

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¶42 The District Court could not revoke Johnston’s sentence for conduct for which the

court already had set bond pursuant to the two petitions of “Suspected Violation of

Probation” without subjecting Johnston to double jeopardy under our decision in Martinez.

Martinez, ¶ 18. Officer Weaver’s petition to revoke included one alleged violation, however,

that Officer Weaver did not include in either of the petitions of suspected violation for which

the court had set bond: Johnston’s conviction for driving with a suspended or revoked

license. This conviction constituted a violation of a condition of Johnston’s probation and

provided the District Court with a sufficient basis for revoking his probation. Martinez, ¶ 20.

Our holding in Martinez does not preclude the State from pursuing a revocation when a

probationer receives an original sentence for conduct that also constituted a probation

violation, but the probationer did not suffer a “probation” sanction as outlined in Martinez.

¶43 We have recognized that the Double Jeopardy Clause does not apply to a revocation

of probation because a revocation proceeding does not constitute a “‘criminal adjudication,

does not require proof of a criminal offense, [and] does not impose punishment for any new

offense . . . .’” State v. Oppelt, 184 Mont. 48, 53-54, 601 P.2d 394, 398 (1979) (quoting

State v. Eckley, 579 P.2d 291, 293 (Or. App. 1978)). Oppelt faced the revocation of a

suspended sentence that he had received in 1975 based upon conduct that had resulted in

convictions in 1977. Oppelt, 184 Mont. at 49-50, 601 P.2d at 395-96. We noted in Oppelt

that a revocation proceeding constitutes merely “an act in the performance of the duty of

judicial supervision of probationary liberty . . .” and determined that the Double Jeopardy

Clause did not apply. Oppelt, 184 Mont. at 53-54, 601 P.2d at 398 (citation omitted).
16
¶44 Johnston’s conviction for driving with a suspended or revoked license did not result in

an intervention hearing or in the court setting bond pursuant to § 46-23-1012(3), MCA.

Martinez, ¶ 18. The fact that Johnston pled guilty to the offense does not implicate the

Double Jeopardy Clause with regard to the State’s petition for revocation. Oppelt, 184

Mont. at 53-54, 601 P.2d at 398. We conclude that the District Court did not subject

Johnston to double jeopardy.

ISSUE FIVE

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

¶46 Johnston claims that he was denied effective assistance of counsel. Johnston rests his

ineffective assistance of counsel allegation wholly on the following assertion: “Here, it is

apparent from the record and the proceedings that Johnston had substantial issues to raise

before the Court. None of the issues were raised.” We find no evidence in the record, or in

Johnston’s arguments on appeal, however, that the result of the December 20, 2001,

revocation proceeding would have been different had the issues raised in this appeal been

raised in the revocation proceeding. State v. Kougl, 2004 MT 243, ¶ 11, 323 Mont. 6, ¶ 11,

97 P.3d 1095, ¶ 11. We conclude that the District Court properly dismissed Johnston’s

Motion to Set Aside Revocation and Petition for Post-conviction Relief.

¶47 Affirmed.

/S/ BRIAN MORRIS
We Concur:

/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
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/S/ PATRICIA COTTER

Justice James C. Nelson, concurring.

¶48 I concur in Issues One, Two, Four and Five. I also concur in the result of Issue Three,

but I do so on a narrower basis than does the Court’s Opinion.

¶49 We begin ¶ 30 with the statement of Johnston’s claim—specifically, that the State

violated his constitutional right to due process by holding him in custody for 21 days with no

preliminary hearing to establish probable cause for his alleged probation violations. We then

proceed in the subsequent paragraphs to explain that § 46-23-1012, MCA, provides

probationers with due process protections. However, the Court’s Opinion does not explain

why the 21-day delay in Johnston’s case does not constitute “unnecessary delay” under § 46-

18-203(4), MCA, or a due process violation.

¶50 It appears to me that the Court is treating Johnston’s due process claim as a facial

challenge to §§ 46-23-1012(5) and 46-18-203(4), MCA, and is then reaffirming our holding

in State v. Swan, 220 Mont. 162, 713 P.2d 1003 (1986), Opinion, ¶¶ 32-35, when in reality,

Johnston’s claim is an as-applied challenge. I would explain that § 46-23-1012, MCA,

provides adequate due process protections, as the Opinion states in ¶ 35, and also that the 21-

day delay challenged by Johnston does not fall outside the “[w]ithout unnecessary delay”

requirement of § 46-18-203(4), MCA, on the facts of this case. This approach recognizes

18
that there may be a fact scenario wherein this amount or nature of delay would be

“unnecessary,” § 46-18-203(4), MCA, or would violate due process.

¶51 On that basis I concur with Issue Three.

/S/ JAMES C. NELSON

Justice Jim Rice, dissenting.

¶52 I dissent from the Court’s resolution of Issue One and would not reach Issues Two-

Five.

¶53 The Court states that the State argues for the first time on appeal that Johnston’s claim

is barred by § 46-21-105(2), MCA, and reasons that the State has therefore “waived” this

procedural bar. Opinion, ¶ 21. The record reflects that, in its written response to Johnson’s

petition for post-conviction relief, the State argued that “[a]ny claims which could have been

raised on direct appeal may not be raised in a petition for post-conviction relief,” citing § 46-

21-105(2), MCA, but thereafter focused its argument on the time bar and the substantive

merits of Johnston’s claims.

¶54 For the reasons set forth in my dissent in Davis v. State, 2008 MT 226, 344 Mont.

300, 187 P.3d 654, regarding the similar issue of the time bar set forth in § 46-21-102, MCA,

I disagree with the Court’s analysis with regard to the holdings of our previous cases and the

effect of the post-conviction statutes. I do not belief that the procedural bar at issue here was

19
waived or forfeited by the State, and would conclude that Johnston’s claims were barred by

that provision.

/S/ JIM RICE

Chief Justice Karla M. Gray joins in the foregoing dissenting Opinion of Justice Jim
Rice.

/S/ KARLA M. GRAY

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