No. 95-310

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,

Plaintiff and Defendant,

LYLE HENRY JOHNSON,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Douglas G. Harkin, Judge presiding

COUNSEL OF RECORD:

For Appellant:

Lyle Johnson, Pro Se, Deer Lodge, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; John

Paulson, Assistant Attorney General, Helena, Montana

Betty Wing, Deputy County Attorney, Missoula,

Montana

Filed:

Submitted on Briefs: April 11, 1996

Decided: May 17, 1996
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing and West Publishing Companies.

Lyle Johnson pled guilty in the Fourth Judicial District

Court, Missoula County, to a charge of indecent exposure. He was

sentenced to five years' imprisonment on the charge and a consecutive term of forty-five years' imprisonment as a persistent felony

offender. He was designated a dangerous offender, and the court

recommended that he be ineligible for parole or early release until

he completes the sex offender program at the prison. Appearing pro

se, Johnson appeals. We affirm.

The issues are whether Johnson was afforded effective

assistance of counsel; whether the sentence imposed is disproportionate because it includes persistent felony offender enhancement;

whether the State's notice of intent to introduce evidence of prior

acts violated Johnson's rights; and whether the District Court

acted impartially during the sentencing hearing.

The several deficiencies which Johnson alleges in the

performance of his trial counsel relate to counsel's alleged

failure to warn Johnson of the possible length of his sentence or

to fully investigate the defenses of brain damage, state of mind,

and misidentification by the victims. As the State's brief

explains, the alleged deficiencies are either unsupported in the

record or are based upon JohnsonIs misunderstandings of the law and

of his attorney's role in the proceedings. Johnson has not shown

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through reference to the record that his guilty plea resulted from

any inadequacy on the part of his attorney or that his attorney's

performance was in any way deficient under the standard set forth

in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.Zd 674.

Johnson's sentence is within the maximum statutory guidelines;

therefore, it does not violate the Eighth Amendment prohibition

against cruel and unusual punishment and any review of the sentence

lies with the Sentence Review Division. See State v. DeSalvo

(19951, 273 Mont. 343, 903 P.2d 202. As to his unsupported and

conclusory allegation that the prosecution's notice of intent to

introduce evidence of prior acts violated his rights, Johnson has

waived this issue because he failed to raise it in District Court.

Finally, the record does not support any claim of bias or inattentiveness on the part of the District Court.

We affirm the judgment of the District Court.

We concur:

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May 17, 1996

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent ,by United States mail, prepaid, to the

following named:

Lyle Johnson

700 Conley Lake Road

Deer Lodge, MT 59722

Joseph P. Mazurek, Attorney General

John Paulson, Assistant Attorney General

Justice Building

Helena, MT 59620

Betty Wing

Deputy County Attorney

Missoula County Courthouse

Missoula, MT 59802

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA