State v. D. Sage ( 2021 )

04/27/2021 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0186 DA 21-0186 STATE OF MONTANA, APR 27 2021 Greenwood BowenSupreme Court Clerk of of Montana Plaintiff and Appellee, tate v. ORDER DONALD R. SAGE, Defendant and Appellant. Donald R. Sage has filed a verified Petition for an Out-of-Time Appeal, indicating that he timely discussed filing an appeal with his attorney, but that his attorney failed to file his appeal. He states that because of the COVID-19 pandemic, his attorney closed his office, and that he was unable to make further contact. When Sage ultimately made contact with his counsel, he offers that his attorney told him "to file this Out-of-Time Appeal[1" Sage explains that he does not have any court papers to include with his Petition. He references his medical condition and requests the appointrnent ofappellate counsel to assist in his appeal. 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 rniscarriage ofjustice[1" We secured copies of the register of actions and final judgment frorn the Third Judicial District Court, Anaconda-Deer Lodge County. In 2018, the State of Montana initially charged Sage with five felony counts and alternately, with a felony count and two misdemeanors. Sage and the State entered into a plea agreement whereby Sage pleaded guilty to Count I, indecent exposure (to a minor). On August 19, 2020, the District Court committed Sage to the Department of Corrections for placement at Montana State Prison for a term of twenty years with ten years suspended and imposed a ten-year parole eligibility restriction. The Amended Judgment was filed on October 19, 2020. Sage has a recent felony conviction and indicates that he has not been assigned counsel for his appeal. We conclude that Sage may be entitled to pursue this appeal and to qualify for the appointment of counsel to represent hirn on appeal. Section 46-8-104, MCA. IT IS ORDERED that Sage's Petition for an Out-of-Time Appeal is GRANTED. IT IS FURTHER ORDERED that the Appellate Defender Division is APPOINTED to represent Donald R. Sage. 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 Sage qualifies for appointed counsel, the Appellate Defender Division shall immediately order the appropriate transcripts, if they 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 Donald R. Sage personally. DATED this ny of April, 2021. /fr2"" Al /4 -"AIL Justices