05/18/2021

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0219

DA 21-0219 jr ri ft- Fri% r .11 C, STATE OF MONTANA, MAY 1 8 2021 Plaintiff and Appellee, Bowen Greenwood Clerk of Supreme v. ORDEne of Montana Court

DAVID CUCHINE, Defendant and Appellant.

David Cuchine has filed a verified Petition for an Out-of-Time Appeal and includes a copy ofthe final judgment. Cuchine is seeking to appéal an October 31, 2019 Judgment entered by the Second Judicial District Court, Butte-Silver I3ow County, sentencing him upon his conviction offelony criminal endangerment to the Department of Corrections for ten years with five years suspended.

As grounds, Cuchine states,"I misunderstood that I couldn't file an appeal on a plea deal. So I proceeded with post conviction relief" He attaches a copy of a letter he received in January 2021 from the Region 5 Office of the Montana Public Defender, in response to his inquiries, which stated "your post-conviction relief has been stalled pending your appeal." Thus, Cuchine would like to either pursue his appeal or obtain leave to file an out-of-time appeal.

However, upon our review of this Court's docket, Cuchine does not have an appeal pending before this Court, and, therefore, the reference to an appeal in the Public Defender's letter to Cuchine appears to be incorrect. Further,the time for seeking an appeal from the October 2019 judgment has long passed.

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," but Cuchine has not demonstrated such circumstances here.

Therefore, IT IS ORDERED that Cuchine'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; to Torn Powers, Clerk of District Court, Butte Silver Bow County, under Cause No. DC 18-66; to Joshua Demers, Office of State Public Defender; and to David Cuchine personally.

DATED this )qt day of May, 2021.

Justices