State v. N. Winzenburg

1 tii I !"i 10/27/2020 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0502 DA 20-0502 FILED STATE OF MONTANA, OCT 2 7 2020 Plaintiff and Appellee, Bowen Greenwood Clerk of Supreme Court State of Montana v. ORDER NICHOLAS LEE WINZENBURG, Defendant and Appellant. Nicholas Lee Winzenburg has filed a verified Petition for an Out-of-Time Appeal and includes attachments. As grounds, he states that he did not know how to file an appeal properly. He notes that he started the process but failed to complete it because of all "the paperwork and unfamiliar terms." 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 ofjustice[d" Winzenburg includes a copy ofthe judgment he seeks to appeal. A Flathead County jury found Winzenburg guilty of felony robbery on November 27, 2017. On January 11, 2018, the Flathead County District Court entered its Judgment and Sentence, where it imposed a twenty-year sentence to Montana State Prison with no time suspended. The District Court stated that Winzenburg appeared pro se and with standby counsel. According to a December 4, 2017 letter from Winzenburg's standby counsel, she directed him how to proceed as a self-represented litigant, how to request counsel for an appeal, and when to file an appeal after his sentencing hearing, if Winzenburg chose to do so. Winzenburg presents a verified petition and supporting documentation. He explains his two-year delay in seeking an appeal. This Court has determined that this is the infrequent harsh case where extraordinary circumstances exist under the limited information presented. Upon review ofhis attachments, this Court has concern as relayed in the letters to Winzenburg from the Office of State Public Defender. In a December 4, 2017 letter, his standby counsel stated: At this time, I do not know what sentencing recommendation the State is going to make at the sentencing hearing. You should write to [the County Attorney] directjy to ask him what he intends to recommend at the sentencing hearing. According to the letter that he sent you, he intends to ask for additional time because you went to trial. I would encourage you to bring this up to the Judge at the sentencing hearing as it is inappropriate to punish someone for exercising their Constitutional right to a jury trial. Moreover, it is unclear whether Winzenburg requested an ability to pay hearing as suggested in a December 28, 2017 letter before the District Court imposed restitution of $3,584. We conclude that Winzenburg has demonstrated extraordinary circumstances pursuant to M. R. App. P. 4(6). Accordingly, IT IS ORDERED that Winzenburg's Petition for an Out-of-Time Appeal is GRANTED. IT IS FURTHER ORDERED that the Appellate Defender Division is APPOINTED to represent Nicholas Lee Winzenburg. The Appellate Defender Division shall have thirty days from the date ofthis Order within which either to file a Notice of Appeal or a Motion to Rescind this Order Appointing Counsel. In the event Winzenburg qualifies for appointed counsel, the Appellate Defender Division shall immediately order the appropriate transcripts, ifthey have not been already ordered. The Clerk of the Supreme Court is directed to provide a copy of this Order to the Appellate Defender Division, to counsel of record, and to Nicholas Lee Winzenburg personally. The Clerk of this Court is directed to provide a copy of this Order to counsel of record and to Nicholas Lee Winzenburg personally. DATED this day of October, 2020. Chief Justice 2 L-46/ 1 -ee- Justices 3