By Patrick Winderl/Havre Daily Newsfirstname.lastname@example.org
The man accused of burglarizing the home of an 81-year-old Havre woman, stealing her coin collection and forging checks from her bank account has been sentenced to three years in the custody of the Montana Department of Corrections.
State District Judge John McKeon sentenced Shane Clark Johnson, 35, to eight years with all but three suspended in connection with Johnson's guilty pleas to felony theft, burglary and forgery by common scheme. Johnson was given credit for 145 days already served.
The sentence means Johnson may not be sent to prison, and could be released within a year, a state probation and parole officer said.
Johnson also was originally charged with forcing the woman to have sex against her will. The charge of sexual intercourse without consent was dropped as part of a plea agreement with prosecutors, who have said they were reluctant to ask the woman to testify.
Prosecutors sought a prison sentence for Johnson on the other three charges. The sentence imposed by McKeon was less than Hill County Attorney Cyndee Peterson recommended, and also disappointed a police officer who worked the case.
"On behalf of the victim, we're disappointed. We here at the Havre Police Department take crimes against the elderly very seriously," said Havre Assistant Police Chief Mike Barthel. "The victim is devastated. She is concerned that potentially he could be out of jail within a year, and that he will prey on her or other elderly people."
Johnson will be sent to an assessment center in Missoula, where the DOC will decide whether to place him in prison or a treatment center. Depending on the assessment, Johnson could be granted supervised release within six to 12 months, state probation and parole officer Jerome Smith said this morning.
Smith, who recommended a prison sentence during Wednesday's hearing, said today he accepts McKeon's ruling.
"I've been in this business for 15 years, and whatever the court decides is fine with me," he said.
Smith prepared a presentence investigation report, which is used by the judge and prosecutor to help determine an appropriate sentence. Peterson questioned Smith about his report on Johnson during the sentencing hearing.
Johnson has nine prior misdemeanor convictions, including three for assault and two for disorderly conduct, according to Smith. He testified that most or all of the charges stem from Johnson's alcohol abuse. Based on those charges, the circumstances surrounding the new felony charges, and Johnson's alcohol issues, Smith recommended 10 years in prison with five suspended.
"This 81-year-old woman is terribly afraid of (Johnson)," he told the judge. "She feels he should serve the full five years. Frankly, I think a sentence to (Montana State Prison) in this case is a good sentence."
On cross-examination, defense attorney Jeremy Yellin asked Smith to explain his recommendation.
"I think the nature of the offenses are particularly serious and grievous," Smith responded. "This man preyed on an 81-year-old individual. If one were to look at the circumstances of the offense - some things occurred that were quite serious."
The answer drew a heated response from Yellin.
"You're talking about the allegation that Shane raped this lady?" he asked.
Smith replied that that was a concern, but that he was not specifically referring to the alleged assault.
Yellin asked Smith if he believed the court should consider the dropped charge during sentencing.
"You're talking about unproven allegations, allegations that never saw the light of day," Yellin said. "Because nothing was proven, nothing happened as far as this court is concerned, isn't that correct?"
"That's correct," Smith replied.
As part of his sentence recommendations, Yellin called Johnson's mother, Donna Biem. Johnson was released to her custody when he bonded out of jail in July.
"Shane has turned his life around 100 percent since he got out of jail," she said. "It's like we have the real Shane back in our life."
Next, Yellin called chemical dependency counselor Rachel Lopez to testify. Lopez, who has worked with Johnson since July, said Johnson has made progress in his treatment.
"I feel like he has really taken responsibility for his own behavior," she said. "I never hear him say anything negative about the authority that is very present in his life, which I would say is very unusual."
McKeon asked for closing comments from Peterson and Yellin. Peterson reaffirmed her request that McKeon sentence Johnson to prison.
"He preyed upon an 81-year-old woman," she said. "He burglarized her home and stole from her. He broke the trust of an elderly woman, and he needs to be penalized for that. For her safety, and the safety of the community, the defendant needs to go to prison."
Yellin argued that Peterson was seeking a prison term based on the dropped rape charge.
"The request for additional jail time is nothing more than an effort to placate the victim," he said. " Shane is a 35-year-old man with no felony record. We're asking for a suspended sentence in this case with credit for time served. Shane is not a risk to the community unless he is drinking, and he continues to deal with that."
Next, Johnson made a brief statement.
"I'm sorry for what I did. I apologize for doing it and I won't do it again," he said.
McKeon took several moments before handing down the sentence. In addition to the three-year sentence, McKeon ordered Johnson to pay $643 in restitution and perform 100 hours of community service.
McKeon cited the violation of personal and public trust and Johnson's criminal history as reasons for the sentence.
"These are very serious offenses," McKeon said. "They involve three felonies, some of which occurred over a period of time. It represents how you preyed upon an elderly individual, and gained her trust, then violated that trust. You also have a significant criminal history that I cannot ignore."
According to the charging document, the woman employed Johnson to do some work around her house. Johnson broke into the woman's home and stole a coin collection and a number of checks, which he forged and cashed, the document said. Police were alerted to the thefts by a local bank that reported Johnson had tried to cash a suspicious check.
When questioned by bank employees, Johnson fled, leaving his ID card at the bank. During the subsequent investigation, the woman told police Johnson had entered her home without permission on several occasions, and once attacked her and forced her to have sex, the document said.