                                          DA 06-0537

                     IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2007 MT 209N



STATE OF MONTANA,

              Plaintiff and Respondent

         v.

BRIAN ANTHONY JOHNSTON,

              Defendant and Appellant.



APPEAL FROM:           District Court of the Twentieth Judicial District,
                       In and For the County of Lake, Cause No. DC-05-39
                       Honorable Deborah Kim Christopher, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Jim Wheelis, Chief Appellate Defender; Roberta R. Zenker,
                       Assistant Appellate Defender, Helena, Montana

                For Respondent:

                       Honorable Mike McGrath, Attorney General; Jonathan Mark
                       Krauss, Assistant Attorney General, Helena, Montana

                       Robert Long, County Attorney; Mitchell A. Young, Deputy
                       County Attorney, Polson, Montana


                                                   Submitted on Briefs: May 17, 2007

                                                              Decided: August 21, 2007


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and shall be reported by case title, Supreme Court cause number and result to the

State Reporter Publishing Company and West Group in the quarterly table of noncitable

cases issued by this Court.

¶2     Appellant Brian Anthony Johnston (Johnston) appeals from the judgment and

commitment of the Twentieth Judicial District Court, Lake County, convicting him by a

plea of guilty to the offenses of criminal possession of dangerous drugs, a felony, and

criminal possession of dangerous drugs, a misdemeanor. We affirm.

¶3     Johnston was charged in March 2005 for felony possession of dangerous drugs—

methamphetamine—and misdemeanor possession of dangerous drugs—marijuana. The

charges were based upon the observations and evidence obtained during the April 7,

2004, probation search of a trailer in which Johnston allegedly resided. Johnston entered

an Alford plea to these charges. Prior to his plea, Johnston filed motions to suppress

evidence obtained in the probation search of his residence and to dismiss the charges

based on ineffective assistance of his prior court-appointed counsel and violation of his

speedy trial rights. The District Court denied the motions. As part of his plea agreement,

Johnston failed to reserve the right to appeal the adverse determination of any pretrial

motions. Johnston was sentenced in accordance with the plea agreement.

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¶4     Johnston appeals from the denial of his motions to suppress and dismiss. Johnston

argues that he should be entitled to assert his unreserved issues on direct appeal because

the failure to reserve those rights at the time he entered his plea was “per se” ineffective

assistance of counsel, and then challenges the denial of the suppression and speedy trial

motions on their merits.

¶5     This Court reviews claims of ineffective assistance of counsel de novo. State v.

Morgan, 2003 MT 193, ¶ 7, 316 Mont. 509, ¶ 7, 74 P.3d 1047, ¶ 7. This Court reviews a

district court’s denial of a motion to suppress to determine whether its findings of fact are

clearly erroneous and whether its interpretation and application of the law is correct.

State v. DeWitt, 2004 MT 317, ¶ 21, 324 Mont. 39, ¶ 21, 101 P.3d 277, ¶ 21. We review

a denial of a motion to dismiss to determine if the district court’s interpretation of the law

was correct. Boreen v. Christensen, 267 Mont. 405, 408, 884 P.2d 761, 762 (1994).

¶6     Johnston argues: (1) the cumulative inaction and advice of Johnston’s counsel

constituted record-based and non-record-based implausible ineffective assistance of

counsel; (2) officers exceeded their lawful authority when they conducted the

warrantless, non-consensual search of a third-party mobile home pursuant to a probation

condition providing for searches of Johnston’s residence; and (3) the District Court

denied Johnston’s Sixth Amendment right to a speedy trial.

¶7     The State offers the following alternative arguments: (1) this appeal should be

dismissed because Johnston waived his right to appeal the denial of his suppression and

speedy trial motions; (2) Johnston’s claim of ineffective assistance of counsel is not

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properly before this Court on direct appeal and may be raised in postconviction

proceedings; and (3), on the merits, the District Court properly denied Johnston’s motions

to suppress evidence obtained in the probation search of the third-party residence and to

dismiss for violation of his right to speedy trial.

¶8       It is appropriate to decide this case pursuant to our Order of February 11, 2003,

amending Section 1.3 of our 1996 Internal Operating Rules and providing for

memorandum opinions. It is manifest on the face of the briefs and the record before us

that the appeal is without merit because the findings of fact are supported by substantial

evidence, the legal issues are clearly controlled by settled Montana law which the District

Court correctly interpreted, and there was clearly no abuse of discretion by the District

Court.

¶9       Johnston’s failure to preserve for appeal the denial of his suppression and speedy

trial motions when entering a guilty plea constitutes a waiver of those issues, and we thus

affirm. Further, we dismiss Johnston’s claims of ineffective assistance of counsel

without prejudice to raising those claims in postconviction relief proceedings.

¶10      Affirmed.

                                                      /S/ JIM RICE


We concur:

/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JOHN WARNER
/S/ JAMES C. NELSON


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