Opinion
DA 22-0755
01-24-2023
STATE OF MONTANA, Plaintiff and Appellee, v. JAY DONALD WITKOWSKI, Defendant and Appellant
ORDER
Jay Donald Witkowski moves for the appointment of counsel in this appeal, explaining that he has "been incarcerated since December 31, 2016, and can not afford to hire [a] legal attorney." Witkowski states he is appealing the denial of his "Motion to Vacate judgment/conviction and sentence," and includes a copy of the December 14, 2022 Valley County District Court's Order on Motions to Withdraw Guilty plea and Dismiss Charges and to Vacate Judgment/Conviction and Sentencing. In its Order, the District Court pointed out that it had no jurisdiction because of his pending appeal with this Court.
It is necessary to clarify the procedural history of Witkowski's cases. Witkowski has had four appeals with this Court, including two postconviction appeals that are now pending. In October 2018, Witkowski, on his own behalf, sought an untimely appeal of his deliberate homicide conviction and sentence from the Valley County District Court, imposed in 2017. We granted his petition for out-of-time appeal and appointed counsel. State v. Witkowski. No. DA 18-0621, Order (Mont. Nov. 14, 2018). In that appeal, this Court affirmed and remanded to strike or omit certain sentence conditions. State v. Wilkowski, No. DA 18-0621, 2021 MT 297N, ¶¶ 2, 16, 2021 Mont. LEXIS 937.
In October 2020, Witkowski attempted to appeal his February 2018 conviction and sentence for aggravated kidnapping. We denied his petition for an out-of-time appeal, stating "Witkowski provides no reason for his delay now when, in 2018, he was aware of how the process for seeking untimely appeals works in this Court." State v. Witkowski, No. DA 20-0528. Order, at 2 (Mont. Nov. 10, 2020). Witkowski currently has appeals pending from the District Court's dismissal of his petition for postconviction relief for both of his convictions. This Court has explained several times that Witkowski is not entitled to appointment of counsel in a postconviction matter when he has represented himself. Under Montana law, there is no right to the appointment of counsel in a postconviction proceeding for relief. See § 46-8-104, MCA. Witkowski represented himself in his postconviction proceedings before the District Court.
Upon review of this appeal, it is improperly filed. More than two years ago, this Court denied his appeal of the final judgment concerning his aggravated kidnapping conviction and sentence. That decision was a final judgment and with prejudice. M. R. App. P. 19(2). Witkowski cannot properly return to this Court with an appeal of the same criminal case by filing an untimely motion in the District Court and then attempting to appeal the late decision to this Court. See § 46-16-105(2), MCA (2017) (a court may pennit the plea of guilty to be withdrawn, "within 1 year after judgment becomes final[.]"). Therefore, IT IS ORDERED that Witkowski's appeal is DISMISSED sua sponte and his Motion for Appointment of Counsel is DENIED, as moot.
The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record and to Jay Donald Witkowski personally.
The Clerk is also directed to CLOSE this matter as of this Order's date.