02/01/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 21-0607
DA 21-0607
FLE0
FEB 0 1 2022
SHAWN SMAAGE, Bowen Greenwood
Clerk of Supreme Coun
State of Montana
Petitioner and Appellant,
v.
ORDER
STATE OF MONTANA,
Respondent and Appellee.
Shawn Smaage has filed a Petition for Rehearing of this Court's December 14, 2021
Order denying his petition for an out-of-time appeal of his 2015 DUI conviction.
Srnaage contends that M. R. App. P. 4(6) is "a rnere rule" and by-passes U.S.
Supreme Court precedent, namely Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029
(2000). He again argues his trial counsel abandoned him by not filing an appeal.
This Court did not overlook a material fact in our prior order, which does not conflict
with federal law. Smaage misinterprets Flores-Ortega. The high court's decision in
Flores-Ortega concerned habeas corpus relief and the need for Flores-Ortega to only show
that his counsel's failure to file a notice of appeal was without his consent. Flores-Ortega,
528 U.S. at 484, 120 S. Ct. at 1038-39. However, nothing in that decision conflict with
this Court's use of the Montana Rules of Appellate Procedure in assessing out-of-time
appeals. M. R. App. P. 20(1)(a)(i) and (iii). As noted in our previous order, Smaage has
litigated frequently and is now atternpting to appeal a judgment entered seven years ago.
While Srnaage clairns his counsel abandoned him, nothing prohibited Smaage frorn seeking
an appeal or at least raising the issue at or near the time of his conviction, or during the
years he was pursuing other cases in this Court.
Smaage is not entitled to rehearing pursuant to M. R. App. P. 20(1). Therefore,
IT IS ORDERED that the Petition for Rehearing is DENIED.
The Clerk is directed to provide a copy of this Order to counsel of record and to
Shawn Smaage personally.
DATED this — day of February, 2022.
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