Villanueva v. State of Montana

ORIGINAL 08/15/2023

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 23-0426

DA 23-0426 F" D JESUS VILLANUEVA, AUG 15 2023 Greerevoodurt Bowen Supierne Co Petitioner and Appellant, Clerk of State o f Mor1t3 ,10

v. ORDER STATE OF MONTANA, Respondent and Appellee.

Jesus Villanueva has filed a verified Petition for an Out-of-Time Appeal, indicating that he failed to file the Notice of Appeal timely due to his disabilities of dyslexia and dysgraphia. He provides a copy of the final judgment and has served opposing counsel.

Villanueva also moves for counsel.

Villanueva seeks to appeal a June 21, 20231 Order denying his petition for postconviction relief, issued 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 of justice[1" Villanueva's appeal is timely. He has sixty days from the date of the court's order to file an appeal. M. R. App. P. 4(5)(a)(i). Villanueva had until August 20, 2023, to file a timely appeal. We conclude that Villanueva has demonstrated extraordinary circumstances to warrant granting his Petition.

Villanueva, however, is not entitled to appointment of counsel in this appeal. There is no right to the appointment of counsel in a postconviction proceeding for relief.

The District Court's Order initially indicated that it was signed by the District Court Judge on June 21, 2022. The District Court has since amended its Order.

Villanueva represented himself in the District Court. Although a court may order the assignment of counsel under the circumstances outlined in § 46-8-104, MCA, Villanueva has not demonstrated that extraordinary circumstances exist to justify appointment of counsel, pursuant to § 46-8-104(3), MCA. Therefore, IT IS ORDERED that Villanueva's Petition for an Out-of-Time Appeal is GRANTED. The Clerk of the Supreme Court is directed to file Villanueva's submitted Notice of Appeal as of this Order's date.

IT IS FURTHER ORDERED that Villanueva's Motion for Appointment of Counsel is DENIED.

The Clerk is also directed to provide a copy of this Order to counsel of record and to Jesus Villanueva along with a copy of this Court's Civil Appellate Handbook.

DATED this I 6 - day of August, 2023.