Opinion
DA 23-0668
06-07-2024
STATE OF MONTANA, Plaintiff and Appellee, v. CLAYTON DOUGLAS KIRN, Defendant and Appellant.
ORDER
Appellant Clayton Douglas Kirn, acting on his own behalf, moves this court for "new counsel" in this appeal. Kirn presently has appointed counsel, Chad M. Wright, from the Appellate Defender Division (ADD). Kirn appeals an October 2, 2023 Butte-Silver Bow County District Court Judgment and Order of Commitment after this Court remanded the matter "for a resentencing [] based on correct sentencing information/' State v. Kirn, 2023 MT 98, ¶ 59, 412 Mont. 309, 530 P.3d 1.
Citing to various constitutional authority, rules, and case law, Kirn puts forth that he should have new counsel because of the communication difficulties and the difference in his and counsel's perspective of the appeal's success. Kirn contends that "a breakdown in the effective performance and communication" has occurred with present counsel. In requesting new counsel, Kirn "further [m]oves the Montana Supreme Court to assign [him] new counsel from outside of the Office of the Appellate Public Defender."
This Court has no authority either to appoint "outside" counsel at state expense or to retain private counsel for an incarcerated litigant. Sections 47-1 -102, 47-1 -104, and 47-1-111, MCA.
"[N]o one has a constitutional right to counsel of his choice." Section 46-8-104(1)(d), MCA; State v. Skurdal, 235 Mont. 291, 298, 767 P.2d 304, 309 (1988) (internal citation omitted). Kirn is not entitled to substitution of counsel in this appeal. While Kirn is entitled to the appointment of counsel for his direct appeal, pursuant to § 46-8-104(1)(d), MCA, that right does not extend to counsel of his choice. State v. Dethman, 2010 MT 268, ¶ 15, 358 Mont. 384, 245 P.3d 30 (citations omitted). Kirn's arguments, therefore, do not establish good cause to substitute counsel.
This Court cautions Kirn to refrain from filing pleadings on his own behalf while represented by counsel in an appeal. M. R. App. P. 10(1)(c). Accordingly, IT IS ORDERED that Kirn's Motion for Appointment of New Counsel or Representation is DENIED.
The Clerk is directed to provide a copy of this Order to counsel of record and to Clayton Douglas Kirn personally.