03/10/2020

IN THE-SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0099

DA 20-0099

STATE OF MONTANA, Plaintiff and Appellee, v. ORDER RUSTY DEWAYNE WAGONER, , FILED Defendant and Appellant. MAR 1 0 2020 Clerk of So .wrie Court State oltvloritana Rusty DeWayne Wagoner has filed a verified petition for an out-of-time appeal. As grounds, he indicates that he discussed filing a timely appeal with his attorney but that he or she failed to do so. Wagoner states that he sent many letters to his attorney. He adds that when he asked about going back to court, he was advised that it was too late to change his plea. Wagoner includes copies of his Judgment, Amended Judgment, and the register of actions for his criminal case in the Thirteenth Judicial District Court, Yellowstone County.

M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal "[i]n the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage ofjustice[J" On June 28, 2019, the Yellowstone County District Court sentenced Wagoner for felony sexual intercourse without consent. The District Court, upon defense counsel's motion, amended the judgment on September 18, 2019. We observe from the case register that Wagoner first sought an out-of-time appeal with the District Court on November 14, 2019. We conclude that he may be entitled to pursue this appeal and to qualify for the appointment of counsel to represent him on appeal. Section 46-8-103(1), MCA.

IT IS ORDERED that Wagoner's Petition for an Out-of-Time Appeal is GRANTED.

IT IS FURTHER ORDERED that counsel from the Appellate Defender Division is APPOINTED to represent Rusty Wagoner. The Appellate Defender Division shall have thirty days from the date of this Order within which either to file a Notice of Appeal or a Motion to Rescind this Order Appointing Counsel. In the event Wagoner qualifies for appointed counsel,the Appellate Defender Division shall immediately order the appropriate transcripts, if they have not been already ordered.

The Clerk of the Supreme Court is directed to provide a copy of this Order to the Appellate Defender Division, to counsel of record, and to Rusty DeWayne Wagoner. ...z DATED this lb day of March, 2020.

Chief Justice