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DA 22-0478

IN THE SUPREME COURT OF THE STATE OF MONTANA

2024 MT 111N

STATE OF MONTANA

 Plaintiff and Appellee,

 v.

JOSIAH BRACKETT,

 Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and For the County of Gallatin, Cause No. DC-20-495C

Honorable John C. Brown, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Rufus I. Peace, Peace Law Group, LLC, Jacksonville, Florida

For Appellee:

Austin Knudsen, Montana Attorney General, Roy Brown, Assistant 

Attorney General, Helena, Montana

Audrey Cromwell, Gallatin County Attorney, Bozeman, Montana

Submitted on Briefs: April 10, 2024

 Decided: May 28, 2024

Filed:

__________________________________________

Clerk

05/28/2024

Case Number: DA 22-0478
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Chief Justice Mike McGrath delivered the Opinion of the Court.

¶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 Josiah Brackett appeals an adverse ruling from the Eighteenth Judicial District 

Court, Gallatin County, on four counts of stalking, felonies, in violation of § 45-5-220, 

MCA.

¶3 We affirm.

¶4 The District Court issued a permanent protective order against Brackett on April 22, 

2020, for repeated unwanted contacts with petitioner A.L. Despite the protective order, his 

behavior directed at A.L. escalated. Brackett continued contacting A.L. via social media 

by leaving likes, comments, messages, and making phone calls, even though A.L. had 

blocked at least nine different social media accounts for Brackett’s persistent unwanted, 

offensive, and threatening communications. A.L. later reported that, through the course of 

Brackett’s conduct, she was “extraordinarily concerned for her wellbeing and safety” and 

was “afraid for her life.”

¶5 On December 28, 2020, Brackett was charged by information with four counts of 

felony stalking for contacting A.L. on dozens of occasions between July and December 

2020, all in violation of a protective order against him. The District Court issued an arrest 
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warrant the same day, and Brackett was arrested in California, extradited to Montana, and 

incarcerated at the Gallatin County Detention Center (GCDC) upon his arrival.

¶6 In April 2021, Brackett was charged with three additional counts of stalking for 

attempting to contact A.L. directly from the GCDC.

¶7 Almost a year later, on March 3, 2022, Brackett signed a plea agreement with the 

State where he agreed to plead guilty to four counts of stalking and waive his right to 

appeal. In the agreement, Brackett affirmed he was waiving his “right to appeal [his] 

conviction,” his right to “any factual dispute” regarding his guilt, and his “right to have the 

State prove each element of the offense(s) beyond a reasonable doubt.” The State agreed 

to withdraw the other three stalking counts and recommended commitment to the 

Department of Health and Human Services (DPHHS) for five years on each count. At his 

allocution the following day, Brackett affirmed that he understood the consequences of 

pleading guilty, specifically including the rights detailed in the plea agreement, the 

consequences of his plea, and his satisfaction with his attorney. Further, the District Court 

and defense counsel had the following exchange: 

[DISTRICT COURT]: Do you believe [Brackett] understands the 

constitutional rights he’s waiving today by pleading guilty to those four 

counts?

[DEFENSE COUNSEL]: I believe he does. We’ve had some lengthy 

discussions about them and discussed them at length multiple times, and I do 

believe that he understand the rights he is waiving today.

[COURT]: And do you believe he makes that waiver knowingly and 

voluntarily?

[DEFENSE COUNSEL]: I do.
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¶8 On June 30, 2022, the District Court sentenced Brackett to DPHHS for 18 years 

with 10 suspended.

¶9 On appeal, Brackett contends the stalking statute, § 45-5-220, MCA, is 

unconstitutional under Counterman v. Colorado, because the Montana statute requires only 

an objective mens rea element for stalking, where the First Amendment requires that a 

defendant have “some subjective understanding of the threatening nature of his 

statements.” ___ U.S. ___, ___, 143 S. Ct. 2106, 2111 (2023). Brackett argues that 

Counterman should be applied retroactively; that § 45-5-220, MCA, should thus be ruled 

unconstitutional; and that his conviction should accordingly be vacated and his case 

remanded for a new trial.

¶10 We decline to consider the merits of Brackett’s appeal, finding that he waived his 

right to challenge the conviction.

¶11 “Where a defendant voluntarily and knowingly pleads guilty to an offense, the plea 

constitutes a waiver of all non-jurisdictional defects and defenses, including claims of 

constitutional rights violations which occurred prior to the plea.” State v. Watts, 2016 MT 

331, ¶ 9, 386 Mont. 8, 385 P.3d 960 (citing State v. Lindsey, 2011 MT 46, ¶ 19, 359 Mont. 

362, 249 P.3d 491) (emphasis added).

¶12 We affirmed the district court on the same issue in Watts. There, the defendant was 

charged with partner-family-member assault (PFMA) following four separate PFMA 

convictions. Watts, ¶ 4. The State filed a notice to classify the defendant as a persistent 

felony offender based on his prior PFMA convictions. Watts, ¶ 4. The defendant entered 

a plea agreement with the State where he agreed to plead guilty, and the State agreed to 
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withdraw the persistent felony offender notice. Watts, ¶ 4. Like Brackett here, the 

defendant waived his right to appeal the conviction. Watts, ¶ 10. Nevertheless, the 

defendant appealed, arguing the PFMA statute underlying his conviction was 

unconstitutional because it treated heterosexual and homosexual couples differently. 

Watts, ¶ 10. Citing Montana’s “long standing jurisprudence” around the issue, we held 

that Watts failed to preserve his right to appeal the conviction and affirmed the district 

court. Watts, ¶ 10.

¶13 Brackett likewise alleges that he was charged under an unconstitutional statute. He 

does not dispute that the alleged as-applied constitutional violation occurred prior to 

entering the plea agreement, under which he waived his right to an appeal. Like the 

defendant in Watts, Brackett did not preserve “the right to challenge his conviction based 

on the constitutionality of the underlying statute.” Watts, ¶ 10 (citing State v. Krebs, 2016 

MT 288, ¶ 6, 385 Mont. 328, 384 P.3d 98).

¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our 

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the 

Court, the case presents a question controlled by settled law or by the clear application of 

applicable standards of review. 

¶15 Affirmed.

/S/ MIKE McGRATH

We Concur:

/S/ INGRID GUSTAFSON

/S/ LAURIE McKINNON

/S/ DIRK M. SANDEFUR

/S/ JIM RICE