State v. W. Purkhiser ( 2023 )

ORIGINAL 04/11/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0637
DA 22-0637
FILED
STATE OF MONTANA, t DR 1 1 2023
Bovv*.n G
Cle SL.:::,rerne Court
Plaintiff and Appellee, Stattrk or Montana
v. ORDER
WALTER PURKHISER,
Defendant and Appellant.
Representing himself, Appellant Walter Purkhiser moves this Court for either new
counsel or to proceed pro se in his appeal. The Appellate Defender Division filed a Notice
of Appeal on Purkhiser's behalf in November 2022 of a September judgment in Lincoln
County. This Court recently granted the court reporter until May 15, 2023, to prepare and
file the transcripts.
Purkhiser states that he is "having a conflict of interest" with Appellate Defender
Chad Wright. Purkhiser references a prior appeal of a dependent neglect decision
involving his daughter. He adds that he tried to talk with the Appellate Defender about "a
copy of evidence" that was part of discovery in his criminal case and alleges that the
prosecuting attorney withheld information.
Purkhiser is entitled to the appointment of counsel for his direct appeal, pursuant to
§ 46-8-104(1)(d), MCA; "[h]owever, '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). On appeal, Purkhiser possesses
no right to represent himself. "There is no constitutional right to self-representation on the
initial appeal as of right." Martinez v. Ct. of Appeal, 528 U.S. 152, 155, 120 S. Ct. 684,
687 (2000), (citing Faretta v. Cal., 422 U.S. 806, 95 S. Ct. 2525 (1975) (internal citation
omitted)). Purkhiser is not entitled to his requests. If the Appellate Defender Division
determines that the prior case presents a conflict of interest, it will assign conflict counsel
to handle Purkhiser's appeal in accordance with standard procedure.
This Court cautions Purkhiser to refrain from filing pleadings on his own behalf
while represented by counsel in an appeal. M. R. App. P. 10(1)(c). Accordingly,
IT IS ORDERED that Purkhiser's Motion for New Counsel, or alternatively, to
Proceed Pro Se, is DENIED and DISMISSED.
The Clerk is directed to provide a copy of this Order to counsel of record and to
Walter Purkhiser personally.
DATED this It14/4\--day of April, 2023.
Chief Justice
(2/J-e4-/
io #7 •
Justices