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State v. Johnston

Supreme Court of Montana

October 16, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
CODY WAYNE JOHNSTON, Defendant and Appellant.

          Submitted on Briefs: September 19, 2018

          APPEAL 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

          For Appellant: Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana Mike Weber, Richland County Attorney, Sidney, 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 noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 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.

         ¶3 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."

         ¶4 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.

         ¶5 "This Court reviews a sentence for legality only." State v. Rennaker, 2007 MT 10, ¶ 41, 335 Mont. 274, 150 P.3d 960 (citations omitted).

         Consideration of silence and remorse in sentencing

         ¶6 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 his innocence).

         ¶7 "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.

         ¶8 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, ΒΆ 49 (internal quotations and citations omitted). Although "a court cannot sentence a defendant or augment a sentence based on a defendant's ...


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