                                                                                           January 22 2013


                                          DA 11-0386

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 9N


LYLE H. JOHNSON,

              Petitioner and Appellant,

         v.


STATE OF MONTANA,

              Respondent and Appellee.


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DC-94-11338
                       Honorable Karen S. Townsend, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Lyle H. Johnson (Pro Se), Shelby, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant
                       Attorney General, Helena, Montana

                       Fred Van Valkenburg, Missoula County Attorney, M. Shaun Donovan,
                       Deputy County Attorney, Missoula, Montana



                                                   Submitted on Briefs: December 4, 2012

                                                              Decided: January 22, 2013



Filed:

                       __________________________________________
                                         Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), 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     Lyle H. Johnson (Johnson) appeals from an order from the Fourth Judicial District

Court, Missoula County, which denied his motion to modify his sentence. Johnson

argues on appeal that because he is proceeding pro se, the District Court should have

construed his petition more liberally so as to afford him the relief that he has requested.

We affirm.

¶3     Johnson pled guilty to felony indecent exposure on February 13, 1995. He was

sentenced to a term of five years in the Montana State Prison for the indecent exposure

charge and to a concurrent forty-five year term for being a persistent felony offender.

Johnson appealed his conviction, and we affirmed in a noncite opinion. In August of

1996, Johnson petitioned the Sentence Review Division to reconsider his sentence. The

Sentence Review Division found that Johnson’s sentence was not excessive, but rather

concluded that it was inadequate. Accordingly, the Sentence Review Division issued an

order that amended the judgment to prohibit him from becoming eligible for parole until

he has served thirty years of his sentence and completed all phases of the Sex Offender

Treatment Program at the prison.


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¶4       Because Johnson committed his offense in 1994, he has been eligible to earn

“good time allowance” that operates as a credit towards his sentence pursuant to

§ 53-30-105, MCA (1993)1. See Orozco v. Day, 281 Mont. 341, 354, 934 P.2d 1009,

1016 (1997) (holding that prisoners have liberty interest in good time allowance as

permitted by the statute in effect at the time the offense was committed). On April 12,

2011, after learning that he had been receiving good-time allowance credit towards his

discharge date but not towards his parole eligibility date, Johnson filed a letter with the

District Court titled “Petition for Modification of Sentence.” In the letter, Johnson

claimed that he would have been eligible for parole sometime in 2009 if he had been

credited good time allowance towards his parole eligibility date. He accordingly asked

the District Court to suspend the balance of his sentence and allow him to complete the

remainder of the Sex Offender Program “on the streets.” The District Court held that it

did not have jurisdiction to modify Johnson’s sentence and issued an order denying his

request on June 1, 2011.

¶5       “No provision of law allows a court to vacate a conviction simply upon the motion

of the defendant.” State v. Baker, 1999 MT 251, ¶ 14, 296 Mont. 253, 989 P.2d 335.

There must be a statutory basis for a trial court to modify a validly pronounced sentence.

Baker, ¶ 14. When a prisoner fails to cite a statutory basis for a sentence modification

motion, we consider the motion under the postconviction relief statute. Baker, ¶ 15. The

postconviction relief statute in effect at the time Johnson committed his offense had a



1
    Section 53-30-105, MCA (1993) subsequently has been amended and then repealed.
                                             3
five-year statute of limitations. Section 46-21-102, MCA (1993). Thus, the District

Court correctly held that Johnson’s request for modification was untimely. 2

¶6     We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our 1996 Internal Operating Rules, as amended in 2006, which provides for

memorandum opinions. The issues are clearly controlled by settled Montana law, and we

find no reason in fact or law to disturb the District Court’s order.

¶7     Affirmed.



                                                          /S/ Mike McGrath


We Concur:

/S/ Beth Baker
/S/ Michael E Wheat
/S/ Patricia O. Cotter
/S/ Brian Morris




2
  We note that while the District Court properly considered Johnson’s letter, Johnson’s
complaint that his sentence is illegal and his good time allowance has not been credited
toward his parole eligibility date, may more appropriately be addressed in a writ of
habeas corpus filed pursuant to §§ 46-22-101 et seq., MCA.
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