DA 22-0195

IN THE SUPREME COURT OF THE STATE OF MONTANA

2023 MT 102N

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

JONATHAN WILLIAM PRESLEY,

 Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis and Clark, Cause No. BDC 2020-193

Honorable Michael F. McMahon, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, Jeavon C. Lang, Assistant Appellate 

Defender, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant 

Attorney General, Helena, Montana

Kevin Downs, Lewis and Clark County Attorney, Katie Jerstad, Deputy 

County Attorney, Helena, Montana

Submitted on Briefs: April 5, 2023

 Decided: May 30, 2023

Filed:

____________________________________

Clerk

05/30/2023

Case Number: DA 22-0195
2

Justice Beth Baker delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating 

Rules, we decide this case by memorandum opinion. It 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 Jonathan Presley appeals his conviction in the First Judicial District Court, arguing 

that his guilty plea was involuntary because of an advisement error regarding the maximum 

and minimum penalties he faced. Because the prosecutor corrected the mandatory 

minimum error in open court with acknowledgment from the court and because Presley 

was sentenced to the minimum sentence, we conclude that there was no manifest 

miscarriage of justice warranting plain-error review and affirm Presley’s sentence.

¶3 Presley has been required to register as a violent offender since 2010. On April 6, 

2020, the State charged Presley with failing to register, a felony offense. Four days later, 

the State gave notice that it would seek to sentence Presley as a repeat persistent felony 

offender (PFO) under § 46-18-502(2), MCA, stating that he had been sentenced as a PFO 

before and had committed the failure-to-register offense within five years of his release 

from prison. The notice advised Presley that “he could be imprisoned in the state prison 

for a term of not less than 10 years or more than 100 years . . .” and that, unless he met a 

statutory exception, “the imposition of the first five years of a sentence imposed under the 

statute may not be deferred or suspended.” (Emphasis added.) The Montana statute for 
3

sentencing repeat PFOs, however, provides that the first ten years may not be deferred or 

suspended. Section 46-18-502(3), MCA. 

¶4 Presley appeared in court on August 5, 2020, to change his plea. Before Presley 

pleaded guilty, the District Court advised him of his rights in the following exchange:

THE COURT: Initially, sir, are you aware of the maximum penalty which 

this Court can impose if you plead guilty to fail to register by a violent or 

sexual offender, a felony?

(Discussion between Ms. O’Sullivan [Presley’s counsel] and Mr. Presley)

MR. PRESLEY: Yes.

THE COURT: Mr. Presley?

MR. PRESLEY: Yes. 

THE COURT: And you are aware of the maximum possible penalty is 

imprisonment of not more than five years and may be fined not more than 

10,000 or both?

MR. PRESLEY: Yes. 

(Emphasis added.) The court then advised Presley of his right to a jury trial and various 

other rights he would be waiving. Presley confirmed he was satisfied with his attorney. 

The court then confirmed with Presley’s counsel that Presley intended to make an open 

plea. At this point, the prosecutor, Katherine Jerstad, interjected and was recognized by 

the court:

MS. JERSTAD: Thank you, Your Honor. 

Just with respect to the maximum possible punishment; I agree that 

under failing to register it is a five-year max.
4

However, in this specific case the State did file a notice of intent to 

perceive [sic] as a persistent felony offender at sentencing and sentence the 

defendant as a persistent felony offender. 

And under the subsection having to do with his having been a 

persistent felony offender at the time of his last felony offense, I believe his 

minimum exposer [sic] in this case is ten years to the State prison.

I just didn’t -- I know that goes more to sentencing, but as far as 

advising him of the maximum exposure, I thought it would be important to 

recognize that.

THE COURT: Thank you.

(Emphasis added.) The court then found that Presley understood his rights, the charge 

against him, and the possible punishment. The court accepted Presley’s Alford plea to the 

single count of failing to register. 

¶5 Five days later, Presley appeared for sentencing. The prosecutor made a 

recommendation of a minimum of ten years to the Montana State Prison. The court asked 

the prosecutor:

THE COURT: Miss Jerstad, in the notice that was filed, it’s indicated on 

page 3 that you state, “Except as provided in Montana Code Annotated 

46-18-222, the imposition of the first five years of his sentence imposed 

under the statute may not be deferred or suspended.” And you rely upon 46-

18-502(2) with respect to the PFO, and my review of that statute provides 

that it must run consecutive to any sentence. But also, it’s the all [sic] ten 

years cannot be suspended. The first ten years, not the first five years. 

So I’m a little confused, and I am just asking for some direction from the 

State.

The prosecutor responded that the five-year unsuspended minimum stated in the notice was 

“an erroneous typo,” explaining that the State intended to proceed under the repeat PFO 

statutory subsection and mistakenly had left in the five-year reference, which was to the 
5

minimum for a first-time PFO sentence. The prosecutor summed up, “It should be a 

ten-year minimum, and that’s what the State’s asking the Court to do in this case.” The 

court responded, “Thank you.” Presley’s counsel followed with her sentencing 

recommendation. She acknowledged that Presley was being sentenced as a repeat PFO 

under § 46-18-502(2), MCA, but recommended that the court find Presley met a statutory 

exception to the ten-year minimum due to his mental capacity.1 She asked the court to 

consider instead an eight-year concurrent sentence, a sentence of ten suspended years, or a 

sentence of ten years with five suspended. The court sentenced Presley to ten unsuspended 

years in the Montana State Prison.

¶6 On appeal, Presley contends that his plea was involuntary because the District Court 

never directly informed Presley of the possible maximum and minimum penalties and thus 

violated constitutional protections and two Montana statutes, §§ 46-12-210(1)(a)(ii-iii) and 

46-16-105(1)(a), MCA. Presley asks this Court to exercise plain error review because he 

made no contemporaneous objection nor requested a withdrawal of plea. 

¶7 “Unpreserved issues alleging violations of a fundamental constitutional right are 

reviewable under the common law plain error doctrine.” State v. Valenzuela, 2021 MT 

244, ¶ 8, 405 Mont. 409, 495 P.3d 1061. “Plain error review is appropriate when failure 

to review the alleged error ‘may result in a manifest miscarriage of justice, leave unsettled 

the question of the fundamental fairness of the proceedings, or compromise the integrity of 

the judicial process.’” Valenzuela, ¶ 8 (citation omitted). 

1 Presley does not raise this argument on appeal.
6

¶8 We review the voluntariness of a plea de novo. State v. Warclub, 2005 MT 149, 

¶ 24, 327 Mont. 352, 114 P.3d 254. Before accepting guilty pleas, courts are required to 

determine that the defendant understands the maximum and mandatory minimum penalty 

provided by law. Section 46-12-210(1)(a)(ii-iii), MCA; see also § 46-16-105(1), MCA 

(requiring courts to accept a guilty plea when a defendant enters it in open court and the 

court has informed the defendant of the consequences of the plea). 

¶9 Our review of the record does not reveal that the claimed error undermined the 

fairness of the proceedings or that failure to review Presley’s challenge may lead to a 

manifest miscarriage of justice. Both errors regarding the mandatory minimum that Presley 

describes—one in the PFO notice and one by the court during the change of plea hearing—

were corrected by the State in open court. Before Presley entered his plea, the prosecutor 

corrected the court’s recitation of the failure-to-register penalty by stating explicitly that 

Presley’s minimum exposure was ten years as a repeat PFO. The court acknowledged the 

correction and went on to find that Presley understood the penalties he faced. At 

sentencing, the court asked about the error in Presley’s notice and the prosecutor again 

clarified that Presley faced a minimum of ten years. Although the court never stated the 

maximum sentence for a repeat PFO (100 years), the maximum was accurately stated in 

the State’s notice, the State only ever recommended the minimum sentence, and ultimately 

Presley received the minimum sentence. At all relevant times, Presley was represented by 

counsel, who indicated no misunderstanding about the possible penalties. There is no 

indication that, had the court repeated the prosecutor’s statement or further articulated the 

penalties, Presley would not have pleaded guilty and would have insisted on going to trial. 
7

See State v. Winzenburg, 2022 MT 242, ¶¶ 23-26, 411 Mont. 65, 521 P.3d 752 (holding 

that where a district court advised a defendant that he faced a two-year mandatory 

minimum for robbery rather than a five-year mandatory minimum for a PFO penalty, the 

defendant’s waiver of counsel was knowingly entered in part because the court informed 

the defendant that the sentencing options would change once the State filed the PFO notice 

and because the defendant was represented by counsel when the defendant received the 

notice). 

¶10 Presley’s citations to our decisions in State v. Melone and State v. Roach are not 

persuasive. In Melone, the defendant received a PFO notice, but during his change-of-plea 

hearing he was advised of only the penalty for the underlying offense and the prosecutor 

made the indefinite comment that he “would still face the potential penalty as a repeat 

offender.” 2000 MT 118, ¶ 18, 299 Mont. 442, 2 P.3d 233. We held that “[t]he 

prosecutor’s statement was insufficient because it was not information provided by the 

court, nor did it inform [the defendant] of the maximum penalty he faced.” Melone, ¶ 18.

In Roach, the district court misstated the maximum penalty for a felony charge and 

misstated that the sentences for two felony charges would run concurrently instead of 

consecutively. State v. Roach, 1999 MT 38, ¶ 11, 293 Mont. 311, 975 P.2d 817. We held 

that the errors meant that the defendant had not knowingly entered his plea. Roach, ¶ 17.

Here, however, Presley was on notice that he was being charged as a repeat PFO with a 

possible sentence of 10-100 years and heard in open court before entering his plea—stated 

by the prosecutor and acknowledged by the court—that he faced a mandatory minimum of 

ten unsuspended years. 
8

¶11 We agree with Presley that the court could have been clearer in following up with 

him regarding the sentence he faced. Presley alludes to the record evidence regarding his 

cognitive delays, but his statements of confusion in the record appear to pertain to various 

charges in a separate case and not to his possible sentence for failing to register. The court 

made several attempts to accommodate Presley’s mental status by continuing sentencing 

to review Presley’s mental evaluation, informing Presley that if he was unsure how to 

respond to questions that he could consult quietly with counsel before answering, and 

ensuring that Presley understood the contents of his presentence investigation report and 

mental health evaluation despite Presley’s difficulty reading. Presley’s ten-year sentence 

on these facts does not compromise the fairness and integrity of the judicial process; we 

accordingly decline to exercise plain-error review. See Valenzuela, ¶ 10. 

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

Internal Operating Rules, which provides for memorandum opinions. Presley has not 

satisfied the plain-error threshold for his claim; the judgment is affirmed.

/S/ BETH BAKER

We Concur: 

/S/ MIKE McGRATH

/S/ LAURIE McKINNON

/S/ DIRK M. SANDEFUR

/S/ JIM RICE