Submitted on Briefs: September 19, 2018
FROM: District Court of the Seventh Judicial District, In and
For the County of Richland, Cause No. DC 15-92 Honorable
Elizabeth A. Best, Presiding Judge
Appellant: Chad Wright, Appellate Defender, Koan Mercer,
Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Mardell
Ployhar, Assistant Attorney General, Helena, Montana Mike
Weber, Richland County Attorney, Sidney, 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
noncitable cases published in the Pacific Reporter and
Appellant Cody Wayne Johnston (Johnston) appeals the sentence
imposed by the Seventh Judicial District Court, Richland
County, for his convictions after jury trial of deliberate
homicide and tampering with physical evidence. We affirm.
Johnston was sentenced to life plus 10 years in Montana State
Prison for his crimes relating to the disappearance of Nicole
Waller (Waller). Waller disappeared on February 14, 2013,
after she and Johnston ended their romantic relationship. Her
body was never found. At the sentencing hearing, the State
maintained that "[S]omewhere out there rests the body of
Nicole. The defendant knows exactly where she is, but he
refuses to tell us." When imposing the sentence of life
plus 10 years, the District Court stated, "This sentence
that I intend to impose considers the severe and substantial
impact the defendant's choices had on everyone, including
Nicole Waller and her entire family. And the fact that he has
chosen not to disclose where she is, even to this day, has
done nothing to mitigate and actually has aggravated the pain
and suffering for the family and the community." The
written sentence similarly stated that the court considered
"the severe and substantial impact of the
Defendant's choice to commit homicide and subsequently
hide the evidence of the crimes, deny responsibility, and
refuse to tell the family where the body of their loved one,
Nicole Waller, can be found."
Although Johnston maintained his innocence at sentencing, he
does not challenge his conviction on appeal, and instead
argues the District Court improperly relied on information
related to his claim of innocence when imposing the
sentence-that he failed to disclose the location of the
victim's body, and failed to show remorse for his
actions. Additionally, Johnston challenges the court's
imposition of conditions of a suspended sentence when no
portion of his sentence was suspended.
"This Court reviews a sentence for legality only."
State v. Rennaker, 2007 MT 10, ¶ 41, 335 Mont.
274, 150 P.3d 960 (citations omitted).
of silence and remorse in sentencing
Johnston argues the District Court imposed a longer sentence
due to his failure to disclose the location of Waller's
body and his failure to show remorse. Before we turn to the
issue of whether the court improperly based its sentence on
these factors, we must determine three preliminary matters
related to an appeal of this nature. Rennaker,
¶ 47. First, we must determine whether Johnston invoked
his right to remain silent or maintained his innocence.
Rennaker, ¶ 47. Here, Johnston did not
expressly invoke his right to remain silent, but he
maintained his innocence throughout the proceeding,
testifying at his trial and sentencing hearing. During
sentencing, he stated, "I pray for Nicole's family.
I pray that they find some peace. I pray every day that
Nicole is found and brought home to her family. While saying
that, I respectfully affirm my innocence and look forward to
my appeal of freedom." See Rennaker, ¶ 47
(defendant testified at trial and sentencing hearing);
State v. Cesnik, 2005 MT 257, ¶ 21, 329 Mont.
63, 122 P.3d 456 (defendant testified at trial and maintained
"Secondly, if there is a conflict between the oral
pronouncement of sentence and the subsequent written
sentence, the oral pronouncement of sentence controls."
Rennaker, ¶ 48 (citations omitted). Here, the
court's oral pronouncement of the sentence and the later
written judgement are similar in that they both mentioned
Johnston's failure to disclose the location of
Waller's body and his lack of remorse. Thus, because
there is no conflict or omission between the two, no
resolution is required.
Thirdly, we consider the evidence the District Court used to
determine the sentence. Rennaker, ¶ 49.
"[A] sentencing court can consider any evidence relevant
to a defendant's sentence, including evidence relating to
the crime, the defendant's character, background history,
mental and physical condition, and any other evidence the
court considers to have probative force."
Rennaker, ¶ 49 (internal quotations and
citations omitted). Although "a court cannot sentence a
defendant or augment a sentence based on a defendant's