State v. S. Malatare ( 2023 )

06/13/2023 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 23-0178 DA 23-0178 STATE OF MONTANA, JUN 1 3 2023 Bowen Greenwood aerk of Supreme Court State of Montana Plaintiff and Appellee, v. ORDER SHAWN WAYNE MALATARE, Defendant and Appellant. Self-represented Shawn Wayne Malatare moves this Court for a ninety-day extension of time as well as requesting several documents and transcripts in this appeal because he does not have aeccess to the record. Malatare appeals a January 21, 2023 Judgment imposing a prison sentence for a felony conviction of partner or family member assault from the Twentieth Judicial District Court, Lake County. This Court observes that Malatare is without counsel in this appeal. Upon review of this Court's file with Malatare's pleadings, Malatare submitted a verified Petition for an Out-of-Time Appeal, Judgment, and a Notice of Appeal through the mail after March 15, 2023. While he served the Lake County Attorney, Malatare did not serve the Attorney General. More disconcerting to this Court is that the Petition for an Out-of-Time Appeal was not sent to the Court for consideration, pursuant to M. R. App. P. 4(6). Instead, most likely due to the timeliness of Malatare's appeal, the Clerk of the Supreme Court filed the submitted Notice of Appeal, in lieu of the Petition, and attached a copy of the Judgment. At least two inherent problems arise because of the Clerk's actions. When this Court did not receive the Petition for an Out-of-Time Appeal, then the Court could not consider his pleadings as well as the right to the appointment of counsel for his recent conviction. A criminal defendant has the right to assistance of counsel's representation in a direct appeal. Sections 46-8-103(1), and 46-8-104(1), MCA. The Office of the Public Defender represented Malatare in his underlying proceeding, and the Appellate Defender Division has no notice of Malatare's appeal. The Clerk of the Supreme Court does not have authority to decide to file the Notice of Appeal instead of filing a Petition for an Out-of- Time Appeal, no matter the timeliness in a civil or criminal case. M. R. App. P. 4(5)(a)(i); 4(5)(b)(i), and 4(6). This Court received the District Court record, including some transcripts, on April 28, 2023. It is not readily apparent if all transcripts were filed because the transcripts are not listed individually in this Court's docket. Since that time, Malatare has tried to represent himself while incarcerated to put forth an extension of time. Therefore, based on the foregoing, IT IS ORDERED that Malatare is APPOINTED counsel to represent him in this appeal. The Appellate Defender Division shall have thirty days from the date of this Order within which to file either a Notice of Appearance or a Motion to Rescind this Order appointing counsel. The Appellate Defender Division shall immediately order all other necessary transcripts. IT IS FURTHER ORDERED that Malatare's Motion requesting documents and transcripts is DENIED, as moot. IT IS FURTHER ORDERED that the Motion for an Extension of Time is GRANTED and that the opening brief is DUE on or before Monday August 28, 2023. Counsel for Malatare may seek additional extensions of time. The Clerk of the Supreme Court is directed to provide a copy of this Order to: the Appellate Defender Division, counsel of record, and Shawn Wayne Malatare personally. DATED this (5441 day ofJune, 2023. For the Court, Chief Justice 2