State v. T. Ortega ( 2020 )

12/01/2020 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0550 DA 20-0550 STATE OF MONTANA, DEC 0 1 2020 Bowen Greenwood Clerk of Supreme Court State of Montana Plaintiff and Appellee, v. ORDER TIFFANY ORTEGA, Defendant and Appellant. Representing herself, Tiffany Ortega has filed a verified Petition for an Out-of-Time Appeal, indicating that she failed to file a timely appeal with this Court. She states that her attorney in her underlying proceeding "did not allow [her] to go to trial" even though Tiffany asked several times. She adds that she felt as though her counsel"used [her] mental illness to persuade [her] into taking a 10[-]year plea instead ofgoing to trial." She includes copies of her final judgments, and she 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 ofjustice[.]" We secured complete copies of her Judgments as some pages were missing. On February 7, 2019, the Fourth Judicial District Court, Missoula County, stated that Tiffany had been charged with five offenses in 2018: (1)criminal endangerment;(2)theft, second offense;(3)assault;(4)criminal mischief; and (5)resisting arrest. The court dismissed the last four charges because Tiffany entered a plea of guilty to felony criminal endangerment. The court committed her to the Department of Health and Human Services(DPPHS)for a term of ten years with seven suspended. She received 210 days of credit for time served. The court also sentenced Tiffany for felony theft in a second proceeding and imposed a concurrent, three-year term to DPHHS. Tiffany does not present any legal authority to support her claims that she should have had a jury trial. She received the benefit of the bargain with a three-year term to DPPHS,minus the credit for time served, followed by seven years ofprobation. Moreover, the maximum punishment for her two offenses could have totaled a thirteen-year, consecutive prison sentence. Sections 45-5-207(3) and 45-6-301(7)(b)(i), MCA. Clearly, the sentencing court recognized her current mental health challenges in imposing a commitment to DPPHS as well as suspending a portion of her sentence. Tiffany has not demonstrated extraordinary circumstances pursuant to M. R. App. P. 4(6) or that a gross miscarriage ofjustice will occur in the denial of her petition. Therefore, IT IS ORDERED that Tiffany's Petition for an Out-of-Time Appeal is DENIED. IT IS FURTHER ORDERED that Tiffany's Motion for Appointment of Counsel is DENIED, as moot. The Clerk of this Court is directed to provide a copy of this Order to counsel of record and to Tiffany Ortega personally. s-+- DATED this day of December, 2020. Chief Justi ce (9-7/ % .4z(ct, 2