Submitted on Briefs: March 20, 2019
FROM: District Court of the Eighth Judicial District, In and
For the County of Cascade, Cause No. BDC 15-417 Honorable
Elizabeth A. Best, Presiding Judge.
Appellant: Joseph Llewellyn Johnson, Self-Represented,
Appellee: Joshua A. Racki, Cascade County Attorney, Great
Justice Beth Baker delivered the Opinion of the Court.
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
Joseph Llewellyn Johnson appeals the Eighth Judicial District
Court's denial of his motion to withdraw his pleas.
Johnson alleges he received ineffective assistance of counsel
before entering the pleas. We affirm.
On August 21, 2015, the State charged Johnson with Count I,
Sexual Servitude of Child, a felony, in violation of §
45-5-310(1), MCA, for actions that occurred in June 2015. The
State filed an amended information, adding Count II, Sexual
Servitude of Child, in violation of §§ 45-5-310(1)
and -103, MCA, and Counts III and IV, Promoting Prostitution,
felonies, in violation of § 45-5-602(1)(c) and (f), MCA.
Johnson signed a plea agreement, agreeing to plead guilty to
Amended Count III and nolo contendere to Amended
Count IV, both felony charges of Aggravated Promotion of
Prostitution, in violation of § 45-5-603(1)(b), MCA. In
exchange, the State agreed to dismiss Counts I and II.
Johnson signed an acknowledgment of his waiver of rights. The
court held a hearing on the change of plea on June 13, 2016.
At the hearing, the District Court informed Johnson of the
maximum sentence for Amended Counts III and IV and the rights
he was waiving by making his plea. The court sentenced
Johnson in accordance with the plea agreement to 20 years
with 7 years suspended on one count of Aggravated Promotion
of Prostitution and to 20 years, all suspended, on the second
After his sentencing, Johnson filed a pro se motion to
withdraw his guilty plea, maintaining that he involuntarily
entered his guilty pleas as a result of ineffective
assistance of counsel. Johnson argued that his trial counsel
was ineffective for failing to move to dismiss Counts I and
II, Sexual Servitude of Child, because the Legislature
repealed § 45-5-310(1), MCA, effective July 1, 2015,
before his plea agreement. The District Court denied
Johnson's motion to withdraw his pleas, reasoning that
Johnson intelligently, knowingly, and voluntarily entered his
pleas. With regard to Johnson's claim of ineffective
assistance of counsel, the court dismissed Johnson's
claim, explaining: "Here, Johnson points to his
lawyer's failure to move to dismiss Count I, which was
based on a statute that has since been repealed. This
argument is illogical. Count I was dismissed as part of the
plea agreement, and Johnson did not plead guilty to it."
Johnson argues on appeal that his conviction cannot stand
because the Legislature repealed the sexual servitude of
children statute, § 45-5-310, MCA, before he pleaded
guilty. See 2015 Mont. Laws ch. 285, § 28.
Johnson maintains that the State charged him with a
nonexistent criminal offense and that he received no actual
benefit from the dismissal of the charges.
Contrary to Johnson's argument, the 2015 Montana
Legislature did not decriminalize sexual servitude of a
child. The statute in effect at the time of his crimes,
§ 45-5-310, MCA ...