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State v. Johnston

Supreme Court of Montana

July 3, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
TRACEY JADE JOHNSTON, Defendant and Appellant.

          Submitted on Briefs: June 13, 2018

          APPEAL 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

          For Appellant: Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana

          For 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

          OPINION

          JIM RICE JUSTICE

         ¶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 non-citable cases published in the Pacific Reporter and Montana Reports.

         ¶2 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.

         ¶3 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 sentencing:

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 of appeals.
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 ...

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