DA 15-0610

IN THE SUPREME COURT OF THE STATE OF MONTANA

2016 MT 293N

JEREMIAH ALLEN JOHNSON,

 Plaintiff and Appellant,

 v.

STATE OF MONTANA,

 Defendant and Appellee.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DV-15-861

Honorable Robert L. Deschamps, III, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jeremiah Allen Johnson (Self-Represented), Great Falls, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,

Assistant Attorney General, Helena, Montana

Kirsten H. Pabst, Missoula County Attorney, Jennifer Clark, Deputy

County Attorney, Missoula, Montana

Submitted on Briefs: October 19, 2016

 Decided: November 15, 2016

Filed:

__________________________________________

Clerk

11/15/2016

Case Number: DA 15-0610
2

Justice Michael E Wheat 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 Jeremiah Allen Johnson (Johnson) appeals from the September 8, 2015 Order of 

the Fourth Judicial District Court, Missoula County, denying his petition for

postconviction relief (PCR). We affirm.

¶3 Johnson was convicted of aggravated assault and assault with a weapon on 

February 13, 2013. Johnson appealed his conviction to this Court, arguing that the 

District Court erred in denying both his motion for a mistrial and his challenge for cause 

of a prospective juror. He also claimed that the court erred in failing to give a cautionary 

instruction to the jury. We affirmed his conviction in a memorandum opinion on May 

13, 2014. State v. Johnson, 2014 129N, No. DA 13-0306, 2014 Mont. LEXIS 253. 

¶4 On August 11, 2015, Johnson filed a PCR petition with the District Court, alleging 

trial errors including prosecutorial misconduct, Brady1 violations, judicial misconduct, 

and three separate ineffective assistance of counsel claims. On September 8, 2015, the 

court dismissed the petition, finding that his claim was barred under § 46-21-105(2), 

MCA, and further concluding that each of the six issues he raised in his claim 

 

1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). 
3

substantively failed under § 46-21-201(1)(a), MCA.2 Johnson now appeals the District 

Court’s denial of his PCR petition.

¶5 We review a district court’s denial of a PCR petition to determine if the court’s 

findings of fact are clearly erroneous and if its conclusions of law are correct. McGarvey 

v. State, 2014 MT 189, ¶ 14, 375 Mont. 495, 329 P.3d 576.

¶6 Section 46-21-105, MCA, provides, in relevant part:

(2) When a petitioner has been afforded the opportunity for a direct 

appeal of the petitioner’s conviction, grounds for relief that were or could 

reasonably have been raised on direct appeal may not be raised, considered, 

or decided in a proceeding brought under this chapter. Ineffectiveness or 

incompetence of counsel in proceedings on an original or an amended 

original petition under this part may not be raised in a second or subsequent 

petition under this part.

(3) For purposes of this section, “grounds for relief” includes all 

legal and factual issues that were or could have been raised in support of 

the petitioner’s claim for relief.

Additionally, we will not exercise plain error review over PCR claims unless the 

petitioner alleges newly discovered evidence “which establishes that the petitioner did 

not commit the underlying offense.” Adgerson v. State, 2007 MT 336, ¶ 12, 340 Mont. 

242, 174 P.3d 475.

¶7 In this case, Johnson admits that he relied exclusively on the trial record to support 

his PCR petition, but contends that the issues he raises were not previously evident from 

the trial transcript. We disagree. Johnson was afforded the opportunity for a direct 

appeal and previously raised three alleged errors in this Court, based on the same trial 

 

2 Section 46-21-201(1)(a), MCA, requires the court to conduct an initial review of a PCR 

petition and provides that “[f]ollowing its review of the responsive pleading, the court may 

dismiss the petition as a matter of law for failure to state a claim for relief . . . .”
4

record he relies upon here. The trial record does not provide any new legal or factual 

issues that could not have been reasonably discovered and raised in the petitioner’s direct 

appeal. As such, we conclude that the District Court did not err in finding that each of

Johnson’s six claims for relief are based on asserted error that was evident on the trial 

record and thus could and should have been raised on direct appeal. Furthermore, 

Johnson does not ask us to exercise plain error review in this case, nor does he allege any 

newly discovered, exculpatory evidence to warrant such review. Because we have 

determined that Johnson’s claim is barred under § 46-21-105(2), MCA, we decline to 

address the merits of his claims for postconviction relief.

¶8 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. 

¶9 Affirmed.

/S/ MICHAEL E WHEAT

We Concur: 

/S/ MIKE McGRATH

/S/ LAURIE McKINNON

/S/ BETH BAKER

/S/ JAMES JEREMIAH SHEA