IN

### THE SUPREMECObRT 

### OF THE STATE 

### OF MON rANA



### THE STATE OF MONTANA, Plaintiff and Respondent,

CLYDE ALLEN JOHNSON. Defendant and Appellant.

APPEAL FROM: District Court ofthe Twenty-Fmt Jud~eial District. In and for the County of Ravalli, The Honorable Jeffrey 

### tl.Langton, Judge 

### presiding. COUNSEL OFRECORD: For Appellant: WilliamF. Hooks, Appellate Defender Office, Helena, Montana; J.G. Shoekley, Victor. Montana For Respondent: Joseph P. Ma/urek, Attorney General, Jennlfer Anders, Assistant Attorney General, Helena, Montana; George H. Corn, Ravall~ County .\ttomey. IIarnilton, Montana
Submitted on Briefs: April 8, 1998Justice James 

### C.Nelson delivered the Opinion oftheCourt

I1 Pursuant to Section 1, Paragraph 3jc), Montaiia Supreme Court 1990 6ntlcmal OperatingRules, the following decision shall not be cited asprecedent but shall be filed as

apublic document with the Clerk ofthe Supreme Court and shall be reported by case title, Supreme Court cause number and result to the State Reporter Publishing Company and to West Groupin the quarterly table ofnoneitable cases issued by this Court. 

## q7 This is an appealby the defendant, Clyde Allen Johnson (Johnson), from the August 21, 1996 opinion and order of the Twenty-First Judicial District Court, Ravalli County, denying his motion to withdraw his guilty plea. 

### We hold that the issues raised by Johnson in his appeal aremoot. Therefore, we affirm. 

### Background el3 On March 5, 1996,Johnson entered an AEfordpleato a charge ofattempted dehberatc homicide and a plea ofguilty to a charge ofcriminal endangerment in Ravalli County Cause No. CR 95-81, These pleas were entered under the terms of a March 5, 1996written plea agreement (theplea agreement). The State had also previously charged Johnson in Ravalli County Cause No. CR 94-57 with three counts of sexual intercourse without consent. He

was convicted ofthese charges following ajury trial on November 

### 20 and 21, 1995,and this conviction has been affirmed on appeal to this Court. State v. Johnson, 1998MT 107, -- 

### P2d 55 St. Rep. 74 As part of the plea agreement, the State agreed to recommend certain sentencescovering both Johnson's pleas in CauseNo. 

### C 95-81 and his conviction in Cause No. CX 

### 94-57. Spec~fically, the plea agreement. In pertinent part. prov~ded for a reccmme~~dat~on of imprrsonment as follows: 

### Sexual IntercourseWithout Consent 20 

### years (In Cause No. CR 94-57) Persisteat Felony Offender 30 

### years Criminal Endangerment (1 

### Count) 10 

### years

Re Tom Stanley,Janet Stanley and Don Porter Weapon Enhancement 10 

### years Attempted Deliberate Homicide 

### (1 Count)re Marlene Porter 20 

### years Weapon Enhancement 10 

### years

To run consecutively for a total of 100

### years with 20

### years of said term suspended TheDefendant will be denied parole eligibilityand participation in the supervised release program until he has served 20 

### years in Montana State Prison. 

### '15 At the sentencing hearing the State and defense counsel recommended that the trial court sentenceJohnson in accordance with the plea agreement. The court sentenced Johnson to a term of 20 years in the state prison on each of the three charges of sexual intercourse without consent. to be served concurrently, with a parole restriction requiring the entire sentence to be served. The court also imposed terms of 10 vears imprisonment on the criminal endangerment charge, 20 years imprisonment on the attempted deliberate homicide charge, and an additional 10years on each count for use of a weapon. 'The court designated Johnson as a persistent felony offender and enhanced the sentence with an additional termof 30 years imprisonment. T'ne court &en imposed an additional restriction on parole eligibility: 1mrill separately require, in regard to the Criminal Endangerment and -AttemptedDeliberate Homicide sentencing [Cause No. 

### CR 95-81]. that you serve 20 years without parole; that to be served concurrently with the parole restriction on Sexual Intercourse Without Consent [CauseKO.CR 94-57]. The Court's intent there is tlnat ! understand yo~i may be appealing the SexualIntercourse Without Consent conviction. The Court's intent is that even ifthat conviction should be overturned by someturn of fate, you will still be serve [sic]20 years without parole in regard to this particular offense. The sentences imposed for the shooting ~nctdent [CauseNo. 

### CR 95-81] uereto he served consecutively, for a total of 100 years in prison, with 20 years suspended. Johnson is ineligible for parole for 20 years. 

### 76 Johnson objected to the parole restriction, and, ultimately, moved to withdram his guilty plea in Cause No. CR 95-81 on the ground that it was his understanding when he signed the plea agreementthat the parole restriction in the plea agreement would not apply in Cause No. CR 94-57. Specifically, Johnson contended that it was his belief that if his conviction for sexual intercourse without consent in Cause No. 94-57 was overturned on appeal, then the whole sentencewould be reconsidered, and that if theplea agreement was interpreted to provide othenvise, then he had entered into itupon a fundamental mistake or misunderstanding as to the consequences of the agreement. The trial court disagreed and denied Johnson's motion to withdraw his guilty plea, concluding that the terms oftheplea agreement were clear and unambiguous and that Johnson's claimed beliefto the contrary was simply a "panic" reaction to what he in fact knew all along. This appeal followedDiscussion 

### #!7 On appeal Johnson arLguesthat the Districr Courterred and abused its discretion when it denied his motion to withdraw his guilty plea and that the court failed to adequately interrogate and advise him prior to the entry of his plea in Cause No. CR 95-81. He also contends that his guilty plea was entered upon a fundamental mistake ormisnnderstanding

as to the application of the parole restriction. We conclude, however, that we need not address Johnson's substantive arguments. 

### 78 Theunderlying basis for Johnson's appeal is his claimed understanding that the plea agreementreqtiircd rccanjideration ofthe parole restriction imp~sed as part ofthe sentence in Cause No. CR 95-81, if his conviction of certain other charges included under the plea agreement--specifically the sexual intercourse without consent charges in Cause No. CR 

### 94- 57--was overturned on appeal. 79 As indicated above, however, we have affirmed Johnson's conviction ofthe sexual intercourse without consent charges in Cause No. CR 94-57. Accordingly, the issues which he raises on appeal areeffectively moot. RegardlessofJohnson's belief, he willhave to senrc

a minimum of 20 years before he is parole eligible whether or not the 20-year parole restriction attaches to the sentence imposed in Cause No. CR 94-57 or Cause Lo.CR 95-81. T10 Affirmed.We Concur: