Opinion
DA 22-0651 DA 22-0678 DA 22-0679 DA 22-0680
11-29-2022
STATE OF MONTANA, Plaintiff and Appellee, v. REX ALLEN, Defendant and Appellant.
ORDER
Rex Allen has filed a verified Petition for an Out-of-Time Appeal and a Motion to Appoint Appellate Counsel. Allen explains that he discussed filing a timely appeal with his attorney and that his attorney failed to file the appeal. Allen is currently incarcerated in the Montana State Prison.
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[.]"
In Allen's accompanying Notice of Appeal, he lists five criminal cases from the Thirteenth Judicial District Court. Yellowstone County. We secured copies of the final judgments. The District Court dismissed the oldest criminal case, Case No. DC 21-0833, pursuant to a plea agreement, on September 7, 2022. The District Court sentenced Allen in four other proceedings in open court on August 31, 2022, with a filing date of September 1, 2022. In Case No. DC 21-1392. the court sentenced Allen to the Montana State Prison (MSP) to a fifteen-year sentence with five years suspended for felony robbery by accountability. In Cause No. 21-1466, the court committed Allen to the Department of Corrections (DOC) for a three-year term for felony theft. In Case No. 21-1604, the court committed Allen to the DOC for a three-year term for felony attempted theft. In Case No. 22-0189, the court sentenced Allen to MSP for a three-year term for felony theft.
Allen seeks an appeal of his four criminal cases in his Petition. Although all five cases appear to have been resolved through one plea agreement, the judgments may not collectively be appealed in one initial appeal. Section 46-20-104(1), MCA; M. R. App. P. 4(5)(b)(i). Allen does, however, state that he attempted to have a timely appeal of his recent convictions and sentences. He may be entitled to representation of counsel. Section 46-8-104, MCA. We conclude that he has demonstrated the necessary circumstances for his appeals to proceed.
IT IS THEREFORE ORDERED that:
1. Allen's Petition for an Out-of-Time Appeal is GRANTED in Cause No. DA 22-0651, State of Montana v. Rex William Allen, for Yellowstone County District Court Case No. DC 21-1392;
2. The Clerk of the Supreme Court is directed to file in this appeal, Cause No. DA 22-0651, Allen's Petition for Out-of-Time Appeal with the attachments Allen submitted with his Petition; the Notice of Appeal Allen lodged shall be retained as an attachment pending appellate counsel's additional filings, as directed below.
IT IS FURTHER ORDERED that Allen's Petition for Out-of-Time Appeal is GRANTED in each of the following matters:
1. State of Montana v. Rex William Allen, Yellowstone County District Court Case No. DC 21-1466;
2. State of Montana v. Rex William Allen. Yellowstone County District Court Case No. DC 21-1604; and
3. State of Montana v. Rex William Allen, Yellowstone County District Court Case No. DC 22-0189.
The Clerk of this Court is directed to open a separate direct appeal for each of these three matters, each with an individual Cause Number (DA 22-0678, DA 22-0679 and DA 22-0680), and to file in each new appeal a copy of this Order and a copy of Allen's Petition for an Out-of-Time Appeal and Motion to Appoint Appellate Counsel.
IT IS FURTHER ORDERED that Allen's Motion to Appoint Appellate Counsel is GRANTED and the Appellate Defender Division is APPOINTED to represent Rex William Allen in each of these appeals. The Appellate Defender Division shall have thirty days from the date of this Order within which to file in each of the four appeals either a Notice of Appeal or a Motion to Rescind this Order Appointing Counsel. If Allen is determined to qualify for appointed counsel, the Appellate Defender Division shall immediately order the appropriate transcripts.
The Clerk of the Supreme Court is directed to provide a copy of this Order to: the Appellate Defender Division; counsel of record; and Rex William Allen personally.