Opinion
OP 22-0682
12-13-2022
GREGG ALLEN ZINDELL. Petitioner, v. MONTANA EIGHTH JUDICIAL DISTRICT COURT, HON. JOHN A. KUTZMAN, Presiding, Respondent.
ORDER
Gregg Allen Zindeli petitions this Court for a writ of supervisory control over the Eighth Judicial District Court, Judge John A. Kutzman presiding. We have amended the caption to reflect the District Court as the appropriate respondent.
Zindeli explains that he filed a second petition for postconviction relief in the District Court, which has been pending since 2017. He includes copies of two Notices of Issue filed by the State, first on July 21, 2021, and again on December 20, 2021, advising the District Court that the matter was ripe for resolution. Zindeli asserts that supervisory control is warranted because of the District Court's failure to rule on his petition. He requests that this Court either "take over" his postconviction matter or "order the District Court to make a determination on the Postconviction."
Zindeli appealed his 2013 conviction, but the appeal was dismissed on counsel's motion for voluntary dismissal. See State v. Gregg Zindeli, No. DA 13-0549, Order dismissing appeal (Mont. Nov. 1, 2013). He later appealed the 2015 District Court denial of his first petition for postconviction relief, and this Court affirmed. Zindeli v. State, No. DA 15-0185, 2016 MT 222N, 2016 Mont. LEXIS 796 (Sept. 6, 2016).
Supervisory control may be appropriate on a case-by-case basis. "This extraordinary remedy can be invoked when the case involves purely legal questions and urgent or emergency factors make the normal appeal process inadequate." State v. Spady, 2015 MT 218, ¶ 11, 380 Mont. 179, 354 P.3d 590 (citing M. R. App. P. 14(3); 1 Redding v. McCarter, 2012 MT 144, ¶ 17, 365 Mont. 316, 281 P.3d 189). The case must meet one of three additional criteria: (a) The other court is proceeding under a mistake of law and is causing a gross injustice; (b) Constitutional issues of state-wide importance are involved; or (c) The other court has granted or denied a motion for substitution of a judge in a criminal case. M. R. App. P. 14(3)(a)-(c).
We secured a copy of the court's register of actions. As stated, Zindeli filed his second petition with the District Court on May 30, 2017. On November 20, 2019, the court ordered a response from the State. After receiving additional time, the State filed its response on January 22,2020. In addition to the State's Notices of Issue, Zindeli has made several further filings, the most recent in July 2022. This matter appears ripe for a decision in the District Court.
Although it is unclear why Zindell's petition remains pending, we cannot conclude that the criteria for supervisory control are met here. We decline to exercise our original jurisdiction to control the discretion of a district court over a matter that is simply awaiting a decision. Zindeli has not demonstrated that the District Court is proceeding upon a mistake of law, causing a gross injustice. M. R. App. P. 14(3)(a). By this Order, we draw the District Court's attention to the matter. Zindell's postconviction claims require resolution in that court, and he retains a right of appeal to this Court should the judgment be unfavorable to him.
IT IS THEREFORE ORDERED that Zindell's Petition for Writ of Supervisory Control is DENIED and DISMISSED.
The Clerk of the Supreme Court is directed to provide a copy of this Order to the Honorable John A. Kutzman. Eighth Judicial District Court; to Tina Henry, Clerk of Court, Cascade County, under Cause No. CDV-14-446; to counsel of record, and to Gregg Allen Zindeli personally. 2