State v. T. Erickson ( 2023 )

lAti fi r
lr U 02/21/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 22-0146
DA 22-0146
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STATE OF MON] ANA,
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F, v,
Plaintiff and Appellee, C. (.=; curt
v. ORDER
TYLER FREDERICK ERICKSON,
Defendant and Appellant.
Tyler Erickson appeals his February 2022 convictions for felony possession of dangerous
drugs in the Lake County District Court. He is represented on appeal by Michael Klinkhammer,
who filed Erickson's opening brief on July 14, 2022. The State of Montana filed its brief in
response on November 15, 2022. Klinkhammer requested and was granted an extension of time
until December 29, 2022, to file Erickson's reply brief. No reply brief was filed. On February
8, 2023, the case was submitted to a five-justice panel of this Court.
The following day, Erickson wrote a letter, which he sent directly to this Court, raising
concerns about Klinkhammer's representation of him on appeal and his failures to withdraw
from Erickson's representation on appeal and return the money his mother borrowed to finance
the appeal; to raise preserved issues that Erickson wished to appeal; to provide Erickson with a
copy of the State's brief on appeal; or to prepare and file a reply brief in the appeal. Erickson
asserts that he did not receive a copy of the State's brief until his Appellate Defender in a
different appeal provided it at Erickson's request. Erickson requests this Court for the following
relief:
to please vacate the current review of the incomplete appeal, withdraw Mr.
Klinkhammer's Opening Brief and the State's Response, remove Mr.
Klinkhammer from my case and forward the case to the Office of Appellate
Defenders to redo my appeal properly and to completion to prevent a serious
miscarriage of justice.
An indigent defendant has the right to counsel on appeal. Section 46-8-104(1)(d). MCA.
State v. Swan, 199 Mont. 459, 467, 649 P.2d 1297, 1301-02 (1982). "However, 'the right to
assistance of counsel does not grant defendants the right to counsel of their choice." State v.
Dethman, 2010 MT 268, ¶ 15, 358 Mont. 384, 245 P.3d 30 (internal citations omitted). A
defendant who has exhausted the right of direct appeal also may assert a claim for ineffective
assistance of appellate counsel in a timely filed petition for post-conviction relief. See Title 46,
ch. 21, MCA.
Here, Erickson's request comes while the Court has his direct appeal under consideration.
Under the circumstances, we deem it appropriate to allow Mr. Klinkhammer to respond to
Erickson' s letter, without revealing privileged communications or information.
IT IS THEREFORE ORDERED that the Clerk of this Court shall tile Tyler Erickson's
February 9, 2023 letter to the Supreme Court in the case file for this appeal and provide copies
of the same to all counsel of record.
IT IS FURTHER ORDERED that Michael Klinkhammer shall have twenty days from the
date of this Order to file his response to Erickson's letter and shall serve copies of the same on
his client and all counsel of record.
The Clerk is directed to provide a copy of this Order to counsel of record and to Tyler
Erickson personally.
DATED this ,21 .4.c-lay of February, 2023.
Chief Justice
/
Justices
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