03/23/2021

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0118

DA 21-0118 FILED STATE OF MONTANA, MAR 2 3 2021 Bowen Greenwood Plaintiff and Appellee, Clerk of Supreme Court State of Montana

v. ORDER KYLE DWAYNE JONES, Defendant and Appellant.

Appearing as a self-represented litigant, Kyle Dwayne Jones petitions this Court for an out-of-time appeal. As grounds, Jones explains that in 2017, he spoke with his attorney after sentencing about seeking an appeal and that his attorney stated that Jones had no grounds for appeal. Jones contends that -the State had no probable cause to amend the robbery and kidnapping [d]own to Distribution of dangerous drugs after [he] proved [he] was innocent ofthe first alleged charges." He includes copies ofhis sentencing judgments.

A review of Jones's sentencing orders provides more background. On December 11, 2017, the Gallatin County District Court sentenced Jones for robbery (Count I) to the Montana State Prison for twenty years, with ten years suspended. For kidnapping (Count III), the District Court imposed a twenty-year sentence, with ten years suspended. to run concurrently with Count I. The court awarded 115 days of credit for time served. On October 17, 2019, in a separate sentencing order but under the same cause number, the District Court sentenced Jones to a twenty-year term with eighteen years suspended for criminal distribution of dangerous drugs. The court awarded 791 days of credit for tirne served.

We secured copies of the register of actions, charging documents, and pertinent orders. The State initially charged Jones with four offenses: robbery(Count I); kidnapping (Count II); kidnapping(Count III); and criminal possession ofdangerous drugs(Count IV).

As Jones stated, he was initially sentenced for Count I and Count III in 2017. Then, in March 2018, the District Court issued an Order RE: State's Motion to Release Evidence.

In April 2019,Jones filed a Motion to Withdraw Plea ofGuilty, and the court held a hearing on September 27, 2019. In its October 17, 2019 Order, the District Court granted Jones's motion to withdraw plea and withdrew his guilty pleas to robbery and kidnapping. The court vacated its prior sentencing order. Also, on that day, the State filed an Amended Information, charging Jones with criminal distribution of dangerous drugs, along with a plea agreement and Jones's Acknowledgement and Waiver of Rights by Plea of Guilty.

The District Court then imposed a twenty-year sentence with eighteen years suspended as mentioned above.

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[1" While the District Court vacated Jones's prior charges of robbery and kidnapping, the District Court convicted Jones of criminal distribution of dangerous drugs, pursuant to his 2019 plea agreement. Jones is currently serving a suspended sentence for this offense issued about eighteen months ago. Jones offers no reason for delay in seeking an appeal.

We note that in December 2020, the State of Montana filed a petition to revoke in District Court. His criminal rnatter is pending again in District Court. Jones has not demonstrated extraordinary circumstances, and a denial will not impose a gross miscarriage ofjustice.

Therefore, IT IS ORDERED that Jones's Petition for an Out-of-Time Appeal is DENIED.

The Clerk ofthe Supreme Court is directed to provide a copy ofthis Order to counsel of record and to Kyle Dwayne Jones personally.

DATED this day of March, 2021.

Chief Justice ).?4,,__ g.-;1 ivi.44, Justices