State v. J. Rodriguez ( 2023 )

D ORIGINAL 10/24/2023
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 23-0606
DA 23-0606
PILE
STATE OF MONTANA,
OCT 2 4 2023
Bowen Greenwooa
Plaintiff and Appellee, Clerk of Supreme Court
State of Montana
v. ORDER
JUAN ANASTASIO RODRIGUEZ,
Defendant and Appellant.
Juan Anastasio Rodriguez has filed a Motion for Appointed Counsel in his recently
filed appeal. As grounds, Rodriguez states that "he is indigent, has been incarcerated in
the Montana State Prison, and is unable to work or procure funds with which to retain
counsel for representation in this matter."
In his Notice of Appeal, Rodriguez provides the cause number from the Eighth
Judicial District Court, Cascade County, and that he appeals "the final judgment or order
entered in such action on the 23rd day of August, 2023." Rodriguez explains that he awaits
an order on his pending Request for Modification of the Amended Sentencing Order and
Judgment, "pursuant to [§] 46-18-116, MCA in Cause no. ADC-14-528(b)."
This Court is familiar with Rodriguez's history for the underlying criminal case. In
December 2017, a jury found Rodriguez guilty of felony sexual intercourse without consent
in the Cascade County District Court. The District Court imposed a consecutive,
seventy-five year prison term with twenty-five years suspended.' Rodriguez received 836
In May 2015, the District Court revoked Rodriguez's concurrent, deferred imposition of
sentences, originally imposed in 2010 and again in 2011 for felony burglary and felony tampering
with witnesses or information. He received two, concurrent terms of ten-years with five years
suspended to the Department of Corrections. Through counsel, he appealed. State v. Rodriguez,
No. DA 16-0353, 2018 MT 241N, 2018 Mont. LEXIS 326 (Sept. 25, 2018).
days of credit for time served. Through counsel, Rodriguez appealed an April 5, 2018
Sentencing Order and Judgment. State v. Rodriguez, 2021 MT 65, 403 Mont. 360, 483
P.3d 1080. This Court affirmed his conviction and sentence. Rodriguez, Ill 3, 38.
We secured copies of the District Court's docket sheet and recent Judgments. On
August 23, 2023, the District Court issued an Amended Sentencing Order and Judgment,
based on the State's concession that Rodriguez was entitled to additional credit for time
served as supplied in Rodriguez's companion case for postconviction relief. The court
stated "that the credit for time served was calculated incorrectly and should be corrected to
reflect an entitlement of 1,193 days[J" The court amended its Sentencing Order and
Judgment to reflect the credit as well as reiterated the reasons for the sentence as stated in
the original March 30, 2018 Sentencing Order and Judgment. The court closed the case on
that same day.
On September 28, 2023, Rodriguez filed a Request for Modification of Amended
Sentencing Order and Judgment as well as a brief in support. Rodriguez also moved the
court for appointment of counsel. On October 5, 2023, the court issued an Order Denying
Request for Modification and Motion to Appoint Counsel. The court pointed out that
Rodriguez sought a new sentencing hearing to which he was not entitled. The court stated:
"The Amended Sentencing Order and Judgment was entered for the limited purpose of
properly crediting Rodriguez for time served. It was, not a substantive change of the
sentence[J"
Rodriguez is not entitled to a second appeal of his criminal conviction and sentence.
Pursuant to Montana law, "[a]ri appeal may be taken by the defendant only from a final
judgment of conviction and orders after judgment which affect the substantial rights of the
defendant." Section 46-20-104(1), MCA. The court's Amended Sentencing Order and
Judgment awarded Rodriguez another 357 days of credit for time served. This Order after
judgment, as the District Court reasoned, does not affect his substantial rights; it gave him
more credit for time served. We conclude that his appeal is improperly before this Court.
Rodriguez is not entitled to the appointment of counsel. Accordingly,
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IT IS ORDERED that:
1. Rodriguez's appeal is DISMISSED sua sponte and with prejudice;
2. Rodriguez's Motion for Court Appointed Counsel is DENIED, as moot; and
3. This matter is CLOSED as of this Order's date.
The Clerk is directed to provide a copy of this Order to counsel of record and to
Juan Anastasio Rodriguez personally.
14/1-1—>
DA I ED this al —day of October, 2023.
at'ey•--
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