Opinion
DA 22-0010
01-18-2022
STATE OF MONTANA. Plaintiff and Appellee, v. JERRY JOE HENDERSON. Defendant and Appellant.
ORDER
Jerry Joe Henderson petitions this Court for an out-of-time appeal indicating that he discussed filing a timely appeal with his attorney, but that his attorney failed to file it for him. He states that he wishes "to appeal the nolo contendere 'Alford plea' as it is not supported by [statute] 46-18-111(1)(G)(i)(b).'' Henderson includes no copies of a sentencing judgment or a court docket's sheet. We amend the caption to comport with the Montana Rules of Appellate Procedure. M. R. App. P. 2(4).
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[.]"
This Court observes that on January 22, 2019, we issued an Order vacating Henderson's February 24, 2016 Sentencing Order and remanding the criminal matter to the Eighteenth Judicial District Court, Gallatin County, to either enter a new plea agreement or to proceed to trial. The State had filed a Notice of Concession to Henderson's argument that "the District Court violated § 46-12-204(4), MCA. when it accepted his no contest plea to sexual assault [] and imposed a sentence based on that plea.'" State v. Henderson, No. DA 17-0593, Order remanding matter (Mont. Jan. 22, 2019).
We secured copies of the register of actions and sentencing judgment from the District Court. On July 26, 2019. Henderson, through counsel entered a guilty plea via Alford to felony sexual assault, and the court held a sentencing hearing. The court sentenced Henderson to the Montana State Prison for thirty years with fifteen years suspended. The court also awarded 2, 291 days of credit for time previously served.
North Carolina v. Alford. 400 U.S. 25, 91 S.Ct 160 (1970).
Henderson's basis for an appeal is mistaken, and more than two years have elapsed since he was sentenced on remand. We note his Petition for an Out-of-Time Appeal was dated August 21, 2021, and that the Petition was filed on January 4, 2022. This Court has determined that a nolo contendere plea is not synonymous with a plea by Alford. Lawrence v. Guyer, 2019 MT 74, ¶¶ 6-9, 395 Mont. 222, 440 P.3d 1. "Because an 'Alford plea' is a guilty plea, courts are not statutorily prohibited from accepting Alford pleas in sexual offenses. Accordingly, we conclude Lawrence's Alford pleas were guilty picas, not nolo contendere pleas, and that § 46-12-204(4), MCA. did not prohibit the District Court from accepting the Alford pleas to the sexual offenses." Lawrence, ¶ 10.
We point out that, on his own behalf, Henderson sought an out-of-time appeal of his original conviction in 2017 through a petition for out-of-time appeal and included a copy of the sentencing judgment. Stale v. Henderson. No. DA 17-0593.
Like Petitioner Lawrence. Henderson changed his plea in 2019, and he pleaded guilty via Alford to the sexual offense. The District Court correctly accepted his plea and sentenced him accordingly. Henderson has not demonstrated extraordinary circumstances to warrant an out-of-time appeal, and this denial will not result in a gross miscarriage of justice. M. R. App. P. 4(6). Therefore, IT IS ORDERED that Henderson's Petition for an Out-of-Time Appeal is DENIED.
The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record and to Jerry Joe Henderson personally.