State v. Borra ( 2023 )

12/05/2023 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 23-0670 DA 23-0670 STATE OF MONTANA, Plaintiff and Appellee, v. ORDER KEITH M. BORRA, F 7d Defendant and Appellant. DEC 5 2023 Bowen Greenw000 Clerk of Supreme C curt State of Montartu Keith M. Borra has filed a verified Petition for an Out-of-Time Appeal, indicating that he failed to file the Notice of Appeal because his attorney failed to inform him of his right to file an appeal. He states that "[his attorney] did not discuss an appeal at all." Borra represents he learned he may have appealable issues, such as jury selection. Borra includes a copy of the judgment he seeks to appeal. On December 9, 2019, the Fergus County District Court found that a jury had found Borra guilty of three criminal counts. The District Court imposed a five-year, unsuspended sentence to the Department of Corrections (DOC) for felony stalking and a consecutive, five-year, unsuspended DOC term for felony tampering with a witness or informant. The court sentenced Borra to a concurrent, six-month jail term for misdemeanor attempted violation of a protective order. Borra received 230 days of credit for time served. 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 of justice[.]" "Extraordinary circumstances do not include mere mistake, inadvertence, or excusable neglect." M. R. App. P. 4(6). Upon review, this Court concludes that extraordinary circumstances do not exist. Borra seeks relief almost four years after sentencing, and he does not provide any reason for the delay. He has also served almost half of his sentence. Borra has not shown he is entitled to an out-of-time appeal, and denial of his Petition will not amount to a gross injustice. Therefore, IT IS ORDERED that Borra's Petition for an Out-of-Time Appeal is DENIED and DISMISSED. The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record and to Keith M. Borra personally. DATED this S -day of December, 2023. Chief Justice ( -2—' / Justice 2