        I N THE SUPREME CObRT OF THE STATE OF MON rANA




THE STATE OF MONTANA,

                      Plaintiff and Respondent,



CLYDE ALLEN JOHNSON.

                      Defendant and Appellant.


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

COUNSEL OF RECORD:

         For Appellant:

               William F. 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, 1998
Justice James C. Nelson delivered the Opinion ofthe Court


I1     Pursuant to Section 1, Paragraph 3jc), Montaiia Supreme Court 1990 6ntlcmal

Operating Rules, the following decision shall not be cited as precedent but 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 to

West Group in the quarterly table of noneitable cases issued by this Court.

q7     This is an appeal by 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 are moot. Therefore, we affirm.

                                       Background

el3    On March 5, 1996, Johnson entered an AEford plea to a charge of attempted dehberatc

homicide and a plea of guilty to a charge of criminal endangerment in Ravalli County Cause

No. CR 95-81, These pleas were entered under the terms of a March 5, 1996 written plea

agreement (the plea 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 of these charges following a jury trial on November 20 and 21, 1995, and this

conviction has been affirmed on appeal to this Court. State v. Johnson, 1998 MT 107,     --


P2d       55 St. Rep.

74     As part of the plea agreement, the State agreed to recommend certain sentences
covering both Johnson's pleas in Cause No. C 95-81 and his conviction in Cause No. CX

94-57. Spec~fically, plea agreement. In pertinent part. prov~dedfor a reccmme~~dat~on
                   the

of imprrsonment as follows:

       Sexual Intercourse Without 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

              The Defendant will be denied parole eligibility and 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 sentence Johnson 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 10 years on each count for use of a weapon. 'The court designated

Johnson as a persistent felony offender and enhanced the sentence with an additional term
of 30 years imprisonment. T'ne court &en imposed an additional restriction on parole

eligibility:

               1 mrill separately require, in regard to the Criminal Endangerment and
       -Attempted Deliberate 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 [Cause KO. CR 94-57].
               The Court's intent there is tlnat !understand y o ~may be appealing the
                                                                  i
       Sexual Intercourse Without Consent conviction. The Court's intent is that even
       if that conviction should be overturned by some turn of fate, you will still be
       serve [sic] 20 years without parole in regard to this particular offense.

                                              [Cause No. CR 95-81] uere to he served
The sentences imposed for the shooting ~nctdent

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 agreement that 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 sentence would be reconsidered, and that if the plea agreement was

interpreted to provide othenvise, then he had entered into it upon 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 of the plea

agreement were clear and unambiguous and that Johnson's claimed belief to the contrary was

simply a "panic" reaction to what he in fact knew all along. This appeal followed
                                         Discussion

#!7    On appeal Johnson arLguesthat the Districr Court erred 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 or misnnderstanding

as to the application of the parole restriction. We conclude, however, that we need not

address Johnson's substantive arguments.

78     The underlying basis for Johnson's appeal is his claimed understanding that the plea

agreement reqtiircd rccanjideration of the parole restriction i m p ~ s e d part of the sentence
                                                                          as

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 of the sexual

intercourse without consent charges in Cause No. CR 94-57. Accordingly, the issues which

he raises on appeal are effectively moot. Regardless of Johnson's belief, he will have 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:
