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11/10/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0528
DA 20-0528
FILED
STATE OF MONTANA. NOV 1 0 2020
Bowen Greenwood
Plaintiff and Appellee, Clerk of Suprerne Court
State of Montana
N. ORDER
JAY DONALD WITKOWSKI,
Defendant and Appellant.
Jay Donald Witkowski has filed a verified Petition for an Out-of-Time Appeal, and
includes a copy of the final judgment. As grounds, he indicates that he discussed a timely
appeal with his attorney but that his attorney did not file one. He contends that he should
have received a shorter sentence to run concurrently with his other conviction and that the
presiding judge was biased.
M. R. App. P. 4(6) provides that "[i]n the infrequent harsh case and under
extraordinary circumstances,amounting to a gross miscarriage ofjustice,the supreme court
may grant an out-of-time appeal."
Witkowski seeks to appeal a February 22, 2018 Valley County District Court
Judgment where the court accepted his guilty plea to aggravated kidnapping and dismissed
the other charges of felony attempted escape, felony criminal mischief, misdemeanor
unlawful restraint and misdemeanor disorderly conduct. The District Court sentenced
Witkowski to prison for a forty-year term to run consecutively to his other criminal
conviction of deliberate homicide.
We observe that Witkowski has an appeal of his homicide conviction and sentence.
State v. Witkowski, No. DA 18-0621. In October 2018, Witkowski proceeded on his own
behalf about a year after the sentence was imposed. We granted his petition for an out-of-
time appeal and appointed him counsel on his motion.
We decline to proceed with his petition. Witkowski provides no reason for his delay
now when, in 2018, he was aware of how the process for seeking untimely appeals works
in this Court. We conclude that Witkowski has not demonstrated extraordinary
circumstances to surmount several years since his conviction, and denial ofhis petition will
not impose a gross miscarriage ofjustice. Accordingly,
IT IS ORDERED that Witkowski's Petition for an Out-of-Time Appeal is DENIED.
The Clerk ofthe Supreme Court is directed to provide a copy ofthis Order to counsel
of record; to Mardell Lynn Ployhar, Assistant Attorney General; to Deborah Susan Smith,
Appellate Defender Division; and to Jay Donald Witkowski personally.
DATED this 116 day of November, 2020.
Chief Justice
Justices
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