Submitted on Briefs: June 13, 2018
FROM: District Court of the Eleventh Judicial District, In
and For the County of Flathead, Cause No. DC 16-209(A)
Honorable Amy Eddy, Presiding Judge
Appellant: Chad Wright, Appellate Defender, Moses Okeyo,
Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Jonathan
M. Krauss, Assistant Attorney General, Helena, Montana Edward
J. Corrigan, Flathead County Attorney, Stacy Boman, Deputy
County Attorney, Kalispell, Montana
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
non-citable cases published in the Pacific Reporter and
Tracey Jade Johnston appeals the sentence he received
following his conviction of felony possession of dangerous
drugs. He argues the sentence was illegally premised upon a
vacated conviction and that, alternatively, he received
ineffective assistance of counsel (IAC). He also challenges
the imposition of partial costs of the jury trial.
Outlined in his Presentence Investigation Report (PSI),
Johnston has an extensive criminal history, with over forty
misdemeanors and several felony convictions. In 2001,
Johnston was arrested in the Seattle-Tacoma airport on
outstanding warrants. Inebriated, he threatened to bomb the
airport and provided details about how he would carry out the
attack. A Washington jury convicted him of making bomb
threats, a felony. The Washington Supreme Court remanded the
case for a new trial due to inadequacies in the jury
instructions. State v. Johnston, 127 P.3d 707, 713
(Wash. 2006). By then, Johnston had already competed his
sentence, so he accepted an offer from the prosecution to
plead guilty to a misdemeanor, and served no additional
prison time. The PSI in the subject proceeding did not
indicate that the original felony charge had been vacated,
although Johnston so informed the District Court during
The Court: What was your first felony conviction?
Johnston: Threats to bomb property.
The Court: And when was that?
Johnston: I wanna say it was 1998. It was overturned in
appellate court by Washington State appellate court and court
The Court: All right. Well, your criminal history shows a
conviction for 2001.
Johnston: I don't know why it's still on my record
like that. It should have been nixed from the record but it
was over-turned by Washington State ...