State v. D. Newby ( 2022 )

08/09/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0657
DA 21-0657
STATE OF MONTANA, AUG 0 9 2022
Bowen Greenwood
Clerk of Supreme Court
State of Montana
Plaintiff and Appellee,
v. ORDER
DANIEL E. NEWBY,
Defendant and Appellant.
Daniel E. Newby moves this Court for appointment of counsel in his appeal. As
grounds, he provides that he was convicted of a crime for which incarceration was a
possibility. Newby further states that he is financially unable to afford to retain counsel
and that he meets the eligibility requirements for the appointment of counsel.
Newby appeals a December 16, 2021 Custer County District Court Memorandum
and Order Regarding Motion to Dismiss. Upon review of this Memorandum and Order,
the District Court convicted Newby, pursuant to a plea agreement in March 2021, and then
the court sentenced Newby on July 9, 2021, to the Montana State Prison. Newby's motion
is considered a postconviction motion.
There is no right to the appointment of counsel in a postconviction proceeding for
relief, although a court may order the assignment of counsel under the circumstances
outlined in § 46-8-104, MCA.
Newby is not entitled to the appointment of counsel in this appeal. Newby was
originally convicted and sentenced last year, and any timely appeal within sixty days of the
court's final judgment would entitle him to counsel's representation. Section 46-20-104,
MCA; M. R. App. P. 4(5)(b)(i). Instead of appealing the final judgment, Newby moved
the District Court for postconviction relief. Newby represented himself. He has not
demonstrated that extraordinary circumstances exist to justify appointment of counsel,
pursuant to § 46-8-104(3), MCA. Accordingly,
IT IS ORDERED that Newby's Motion for Appointment of Counsel is DENIED.
The Clerk is directed to provide a copy of this Order to the Attorney General and to
Daniel E. Newby along with a copy of this Court's Appellate Handbook for reference to
the Montana Rules of Appellate Procedure and access to its forms.
DATED this 1 42day of August, 2022.
For the Court,
Chief Justice
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