Opinion
DA 21-0589
11-23-2021
STATE OF MONTANA, Plaintiff and Appellee, v. MIKEL S. LETHERMAN, Defendant and Appellant.
ORDER
Representing himself, Mikel S. Letherman has filed a verified Petition for an Out-of-Time Appeal and includes the first page of the sentencing judgment, Letherman is currently held in the Yellowstone County Detention Center. We amend the caption to comport with M. R. App. P. 2(4), and we note that Letherman only served the Deputy County Attorney and not the Attorney General. M. R. App. P. 10(2).
As grounds, Letherman indicates that he failed to file the Notice of Appeal because he was not aware of the rule for filing a timely appeal within sixty days of the written judgment. He states that he seeks an appeal because he contests the underlying charge.
The Thirteenth Judicial District Court, Yellowstone County, found Letherman guilty of felony operation of non-commerical vehicle by person with alcohol concentration of 0.08 or more, following a January 2021 bench trial. On June 29, 2021, the District Court sentenced Letherman, who appeared with stand-by counsel, to the Department of Corrections for twenty-four months. The court's Judgment was filed on July 14, 2021.
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[.]"
Letherman has a recent felony conviction and indicates that he is presently without counsel. We conclude that Letherman may be entitled to pursue this appeal and to qualify for the appointment of counsel to represent him on appeal. Section 46-8-104, MCA.
Accordingly, IT IS ORDERED that Letherman's Petition for an Out-of-Time Appeal is GRANTED.
IT IS FURTHER ORDERED that the Appellate Defender Division is APPOINTED to represent Mikel Stetson Letherman in this appeal. The Appellate Defender Division shall have thirty days from the date of this Order within which either to file a Notice of Appeal or a Motion to Rescind this Order Appointing Counsel. The Appellate Defender Division shall immediately order the appropriate transcripts, if they have not been already ordered.
The Clerk is directed to provide a copy of this Order to the Appellate Defender Division; to Scott Twito and Victoria Callender, Yellowstone County Attorney's Office; to Austin Knudsen, Attorney General, along with a copy of the filed Petition; and to Mikel Stetson Letherman personally.