Submitted on Briefs: February 15, 2017
FROM: District Court of the Fourth Judicial District, In and
For the County of Missoula, Cause No. DV 14-512 Honorable
Robert L. Deschamps, III, Presiding Judge
Appellant: Jeremiah Allen Johnson, self-represented, Deer
Appellee: Timothy C. Fox, Montana Attorney General, Madison
L. Mattioli, Assistant Attorney General, Helena, Montana
Kirsten H. Pabst, Missoula County Attorney, Jennifer Clark,
Deputy County Attorney, Missoula, Montana.
M. Sandefur Justice.
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
Jeremiah Allen Johnson (Johnson) appeals the dismissal of his
petition for postconviction relief by the Fourth Judicial
District Court, Missoula County. We affirm, in part, and
remand for an evidentiary hearing, findings of fact, and
conclusions of law on Johnson's claim of non-disclosure
of a plea offer.
The facts adduced at trial show that, on February 11, 2012,
Johnson drove to the home of his ex-girlfriend, Kristy
Horvath (Horvath) and her roommate, Tye Diamond (Diamond). As
a result of an earlier incident, Diamond had informed Johnson
that he was not welcome at the house. Present at the house
when Johnson arrived were Horvath, Diamond, and two
guests-Katrina Brenna (Brenna) and Horvath's
ex-boyfriend, Tommy McDonald (McDonald). Horvath stepped
outside and asked Johnson to leave. Johnson left, but
continued to drive around the neighborhood.
Johnson returned later that night and knocked on the door.
Brenna opened the door with the hope of calming him down but
Johnson pushed past her and punched McDonald in the face,
breaking his nose. When Diamond intervened, Johnson punched
him several times. The altercation moved outside and
continued until Johnson said, "I'm done." Law
enforcement arrived shortly thereafter.
The State ultimately charged Johnson with burglary and two
counts of misdemeanor assault. Johnson later pled guilty to
the assaults and went to trial on the burglary charge. Upon
conviction at trial, the District Court sentenced Johnson to
ten years in prison, with three years suspended, on the
burglary and concurrent six-month sentences on the assault
charges. Johnson appealed his burglary conviction on the sole
contention that the District Court abused its discretion when
it denied his motion to excuse a juror for cause. This Court
affirmed the conviction on appeal. State v. Johnson,
2014 MT 11, ¶ 20, 373 Mont. 330, 317 P.3d 164.
On May 12, 2015, Johnson timely filed a Petition for
Postconviction Relief claiming ineffective assistance of
counsel based on nine asserted trial errors. The District
Court noted most factual underpinnings for the allegations
were record-based and known to Johnson at the time of his
appeal. Finding some assertions of error to be
non-record-based, the Court issued a Gillham
order for further explanation from Johnson's
By affidavit, trial counsel addressed various assertions of
error. Counsel explained that a defense investigator
informally interviewed assault victim Tommy McDonald by
telephone regarding the severity of his injuries. Counsel
stated he advised Johnson that McDonald's injuries were
so severe the State potentially could amend one of the
misdemeanor assault charges to aggravated assault, a felony.
With that in mind, Johnson elected to plead to the two
misdemeanor assault charges. Regarding the State's
original plea offer in April 2012, counsel stated he
discussed the offer with Johnson, who was then not in jail,
but Johnson rejected it out of hand.
Upon consideration of Johnson's petition, counsel's
affidavit, and the State's response, the District Court
addressed each of Johnson's claims. The court ultimately
dismissed the petition without a hearing on the grounds that
Johnson's record-based assertions of error failed to a
state a cognizable claim for postconviction relief and that
Johnson failed to provide sufficient evidentiary support to
sustain his non-record-based claims.
This Court reviews a district court's denial of a
petition for postconviction relief to determine whether the
court's findings of fact are clearly erroneous and
whether its conclusions of law are correct. Hamilton v.
State, 2010 MT 25, ¶ 7, 355 Mont. 133, 226 P.3d
588. We review a district court's decision regarding
whether to hold an evidentiary hearing in a postconviction
proceeding for an abuse of discretion. Herman v.
State, 2006 MT 7, ¶ 13, 330 Mont. 267, 127 P.3d
422. This Court reviews de novo mixed ...