Opinion
DA 22-0341
07-13-2022
STATE OF MONTANA, Plaintiff and Appellee, v. RICHARD WAYNE SPARKS, Defendant and Appellant.
ORDER
Richard Wayne Sparks has filed a verified Petition for an Out-of-Time Appeal, indicating that he improperly filed an appeal only with the District Court. Sparks provides that he asked his attorney to file a timely appeal for him but that his counsel did not do so. He states that he suffers from severe mental health issue, which, he argues, could have been raised as a defense. Sparks also moves for appointment of counsel.
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[.]"
Sparks includes a copy of a July 21, 2021 Judgment and Order of Commitment issued in the Second Judicial District Court, Silver Bow County. According to the court's register of actions. Sparks, on his own behalf, filed a motion to withdraw his guilty plea with the District Court as well as several other motions. Sparks also attaches a copy of a February 3, 2022 letter, explaining that once the court issues a decision, then Sparks may seek an appeal.
Upon review, we conclude that Sparks is entitled to an appeal but that he is not entitled to appointment of counsel to represent him. Section 46-8-104(3), MCA. On March 4, 2022, the District Court denied his motions in a written order, and about two months later, the court denied Sparks's motion for reconsideration. Sparks appeals the court's order deciding his postconviction motions, not the July 21, 2021 Judgment and Commitment. There is no right to the appointment of counsel in a postconviction proceeding for relief, although a court may order the assignment of counsel under the circumstances outlined in § 46-8-104. MCA. Instead of seeking a timely appeal with this Court, he sought relief in the District Court as a self-represented litigant. His delay in seeking a timely appeal is due to the motions he filed in District Court in lieu of seeking a direct appeal of his convictions and sentences. Accordingly, IT IS ORDERED that Sparks's Petition for an Out-of-Time Appeal is GRANTED and that Sparks is DIRECTED to prepare, serve, and file a Notice of Appeal with this Court on or before Tuesday, August 16, 2022. Failure to do so may result in dismissal of this appeal.
IT IS FURTHER ORDERED that the Sparks's Motion for Appointment of Counsel is DENIED.
The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record and to Richard Wayne Sparks along with a copy of this Court's Appellate Handbook.