Opinion
DA 22-0637
04-11-2023
STATE OF MONTANA, Plaintiff and Appellee. v. WALTER PURKHISER, Defendant and Appellant.
ORDER
Representing himself. Appellant Walter Purkhiser moves this Court for either new counsel or to proceed pro se in his appeal. The Appellate Defender Division filed a Notice of Appeal on Purkhiser s behalf in November 2022 of a September judgment in Lincoln County. This Court recently granted the court reporter until May 15, 2023, to prepare and file the transcripts.
Purkhiser states that he is "having a conflict of interest" with Appellate Defender Chad Wright. Purkhiser references a prior appeal of a dependent neglect decision involving his daughter. He adds that he tried to talk with the Appellate Defender about "a copy of evidence" that was part of discovery in his criminal case and alleges that the prosecuting attorney withheld information.
Purkhiser is entitled to the appointment of counsel for his direct appeal, pursuant to § 46-8-104(1)(d)? MCA; "[h]owever, Uhe right to assistance of counsel does not grant defendants the right to counsel of their choice/" State v. Dethman, 2010 MT 268,1j 15, 358 Mont. 384, 245 P.3d 30 (internal citations omitted). On appeal, Purkhiser possesses no right to represent himself. "There is no constitutional right to self-representation on the initial appeal as of right." Martinez v. Ct of Appeal. 528 U.S. 152. 155, 120 S.Ct. 684, 687 (2000), (citing Faretta v. CaL, 422 U.S. 806. 95 S.Ct. 2525 (1975) (internal citation omitted)). Purkhiser is not entitled to his requests. If the Appellate Defender Division determines that the prior case presents a conflict of interest, it will assign conflict counsel to handle Purkhiser's appeal in accordance with standard procedure.
This Court cautions Purkhiser 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 Purkhiser's Motion for New Counsel, or alternatively, to Proceed Pro Se, is DENIED and DISMISSED.
The Clerk is directed to provide a copy of this Order to counsel of record and to Walter Purkhiser personally.