State v. S. Johnson ( 2023 )

12/07/2023 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 23-0703 DA 23-0703 _________________ STATE OF MONTANA, Plaintiff and Appellee, v. ORDER SETH JOSEPH JOHNSON, Defendant and Appellant. _________________ Through counsel Colin M. Stephens, Seth Joseph Johnson petitions for an out-of- time appeal from the April 4, 2023 order of the Ninth Judicial District Court, Teton County, in Cause No. DC-06-013. The Attorney General’s Office does not object to this motion. Stephens asserts that Johnson’s previous counsel had moved the District Court to allow Johnson to withdraw certain admissions he had made in response to a revocation petition. In March 2023, while the motion was pending before the court, Johnson terminated that attorney’s representation. On April 11, 2023, Stephens appeared to represent Johnson in the District Court matter. However, unbeknownst to Stephens or Johnson, the District Court had entered an order denying Johnson’s motion to withdraw the admissions on April 4, 2023. A copy of the order was served on Johnson’s previous counsel but was not forwarded to Stephens or Johnson. Unaware of the ruling, Stephens filed a reply brief and then awaited the District Court’s decision. Stephens’s office subsequently inquired with the Teton County Clerk of Court about the status of the case on two occasions but was informed that nothing further had occurred in the case. On November 6, 2023, in response to a Notice of Submittal that Stephens had filed, court staff advised him of the April 4, 2023 order. Stephens argues it would be unjust to deny Johnson the right to appeal when the untimeliness of the Notice of Appeal was caused by these circumstances outside of Johnson’s control. We grant out-of-time appeals under M. R. App. P. 4(6) when an appellant establishes the existence of “extraordinary circumstances amounting to a gross miscarriage of justice,” which would exist if we were to deny the petition here. IT IS THEREFORE ORDERED that the petition for an out-of-time appeal is GRANTED. IT IS FURTHER ORDERED that, on or before January 5, 2024, Stephens shall prepare, file, and serve a notice of appeal and a request for transcripts, if necessary, in compliance with the Montana Rules of Appellate Procedure. The Clerk is directed to provide copies of this Order to all counsel of record. 2 Electronically signed by: Mike McGrath Chief Justice, Montana Supreme Court December 7 2023