11/15/2016


                                           DA 15-0610
                                                                                             Case Number: DA 15-0610

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2016 MT 293N



JEREMIAH ALLEN JOHNSON,

              Plaintiff and Appellant,

         v.

STATE OF MONTANA,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DV-15-861
                        Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jeremiah Allen Johnson (Self-Represented), Great Falls, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
                        Assistant Attorney General, Helena, Montana

                        Kirsten H. Pabst, Missoula County Attorney, Jennifer Clark, Deputy
                        County Attorney, Missoula, Montana



                                                    Submitted on Briefs: October 19, 2016

                                                                Decided: November 15, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), 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     Jeremiah Allen Johnson (Johnson) appeals from the September 8, 2015 Order of

the Fourth Judicial District Court, Missoula County, denying his petition for

postconviction relief (PCR). We affirm.

¶3     Johnson was convicted of aggravated assault and assault with a weapon on

February 13, 2013. Johnson appealed his conviction to this Court, arguing that the

District Court erred in denying both his motion for a mistrial and his challenge for cause

of a prospective juror. He also claimed that the court erred in failing to give a cautionary

instruction to the jury. We affirmed his conviction in a memorandum opinion on May

13, 2014. State v. Johnson, 2014 129N, No. DA 13-0306, 2014 Mont. LEXIS 253.

¶4     On August 11, 2015, Johnson filed a PCR petition with the District Court, alleging

trial errors including prosecutorial misconduct, Brady1 violations, judicial misconduct,

and three separate ineffective assistance of counsel claims. On September 8, 2015, the

court dismissed the petition, finding that his claim was barred under § 46-21-105(2),

MCA, and further concluding that each of the six issues he raised in his claim


       1
           Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
                                                2
substantively failed under § 46-21-201(1)(a), MCA.2 Johnson now appeals the District

Court’s denial of his PCR petition.

¶5     We review a district court’s denial of a PCR petition to determine if the court’s

findings of fact are clearly erroneous and if its conclusions of law are correct. McGarvey

v. State, 2014 MT 189, ¶ 14, 375 Mont. 495, 329 P.3d 576.

¶6     Section 46-21-105, MCA, provides, in relevant part:

              (2) When 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. Ineffectiveness or
       incompetence of counsel in proceedings on an original or an amended
       original petition under this part may not be raised in a second or subsequent
       petition under this part.
              (3) For purposes of this section, “grounds for relief” includes all
       legal and factual issues that were or could have been raised in support of
       the petitioner’s claim for relief.

Additionally, we will not exercise plain error review over PCR claims unless the

petitioner alleges newly discovered evidence “which establishes that the petitioner did

not commit the underlying offense.” Adgerson v. State, 2007 MT 336, ¶ 12, 340 Mont.
242, 174 P.3d 475.

¶7     In this case, Johnson admits that he relied exclusively on the trial record to support

his PCR petition, but contends that the issues he raises were not previously evident from

the trial transcript. We disagree. Johnson was afforded the opportunity for a direct

appeal and previously raised three alleged errors in this Court, based on the same trial


       2
         Section 46-21-201(1)(a), MCA, requires the court to conduct an initial review of a PCR
petition and provides that “[f]ollowing its review of the responsive pleading, the court may
dismiss the petition as a matter of law for failure to state a claim for relief . . . .”
                                              3
record he relies upon here. The trial record does not provide any new legal or factual

issues that could not have been reasonably discovered and raised in the petitioner’s direct

appeal. As such, we conclude that the District Court did not err in finding that each of

Johnson’s six claims for relief are based on asserted error that was evident on the trial

record and thus could and should have been raised on direct appeal.          Furthermore,

Johnson does not ask us to exercise plain error review in this case, nor does he allege any

newly discovered, exculpatory evidence to warrant such review.          Because we have

determined that Johnson’s claim is barred under § 46-21-105(2), MCA, we decline to

address the merits of his claims for postconviction relief.

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶9     Affirmed.


                                                  /S/ MICHAEL E WHEAT


We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA




                                              4