State v. J. Perkins ( 2020 )

UNuaatiAL
12/01/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 20-0557
DA 20-0557
FLED
STATE OF MONTANA, DEC 0 1 2020
BOWe n
Greenwood
Court
Clerk of Supreme
Montana
Plaintiff and Appellee, State nf
v. ORDER
JASON M.PERKINS,
Defendant and Appellant.
Representing himself, Jason Miles Perkins has filed a verified Petition for an
Out-of-Time Appeal, indicating that he discussed filing a timely appeal with his attorney,
but that his attorney failed to file it for him. He includes copies of a letter and an affidavit
frorn a different attorney advising him to file a motion to withdraw guilty plea in the
Twenty-second Judicial District Court, Carbon County. Perkins does not indicate whether
he has filed such motion in District Court.
M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal "Nil the
infrequent harsh case and under extraordinary circumstances amounting to a gross
miscarriage ofjustice[d"
We secured copies of the Acknowledgement of Rights and Plea Agreement as well
as Perkins's Sentence and Judgment. On November 13, 2017, Perlcins, represented by
counsel, entered into a plea agreement whereby the two counts offelony sexual assault and
felony sexual intercourse without consent were presented for victimizing two minor
children, along with the acknowledgment of a possible maximum punishment of300 years
in the Montana State Prison. Perkins pleaded guilty to the two counts of sexual assault in
exchange for dismissal ofthe third offense. The State and Perkins agreed to recommend a
fifteen-year commitment to the Department of Corrections(DOC)with all but five years
suspended along with a concurrent, suspended fifteen-year commitment to the
District Court. This Plea Agreement specifically stated:
There is a plea agreement under §46-12-211, subsection (1)(c), MCA,which
is filed herewith. ... I further understand that, under a lawful sentence which
may be imposed for the offenses to which I have pled guilty and, if the Court
irnposes a sentence greater than that recommended in the plea agreement, I
would not be allowed to withdraw my guilty pleas as a matter of law.
Acknowledgement of Rights and Plea Agreement, at 4 (emphasis in original). On
September 11, 2018, the District Court, after making a thorough inquiry of Perkins
regarding the voluntariness of his pleas, his understanding of his constitutional rights, and
the consequences of waiving such rights, sentenced Perkins to fifteen years, with no time
suspended, in a prison designated by the DOC, followed by a consecutive, unsuspended
fifteen years.
Perkins provides no reason why he waited more than two years to seek an appeal of
his conviction and sentence. We conclude that Perkins has not demonstrated extraordinary
circumstances to warrant an out-of-time appeal, amounting to a gross rniscarriage ofjustice
in this denial of his Petition. Accordingly,
IT IS ORDERED that Perkins's Petition for an Out-of-Time Appeal is DENIED.
The Clerk ofthe Supreme Court is directed to provide a copy ofthis Order to counsel
of record; to Rochelle Loyning, Clerk of District Court, Carbon County, under Cause No.
DC-16-04; and to Jason Perkins personally.
+
DATED this -- day of December, 2020.
Chief Justice
e"c.:2*
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Justices