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State v. Heffernan

Supreme Court of Montana

July 2, 2013

STATE OF MONTANA, Plaintiff and Appellee,
v.
JOSHUA WALLACE HEFFERNAN, Defendant and Appellant.

ORDER

Joshua Wallace Heffernan (Heffernan) has filed a petition for an out-of-time appeal. As grounds, Heffernan states that his attorney did not "notify me completely of my right to appeal." Claiming that he was prosecuted "illegally, " Heffernan seeks to appeal his sentence, imposition of adult probation and the requirement that he register as a sex offender.

Heffernan was charged originally in 2009 with sexual intercourse without consent. Heffernan agreed to plead guilty to felony criminal endangerment, for a three-year deferred sentence pursuant to a plea bargain. After failing to abide by the terms of his supervision, in June of 2011, the Lewis and Clark County Attorney filed a petition to revoke the deferred sentence. Heffernan admitted to the violations. Testimony and evidence was presented and the District Court again deferred imposition of his sentence for three years from June 30, 2011.

Shortly thereafter, on August 16, 2011, the County Attorney filed another petition to revoke the deferred sentence. Heffernan admitted to the violations of his probation and evidence and testimony was presented to the District Court. The District Court imposed a 10-year sentence to the Department of Corrections, with five years suspended. The amended judgment and commitment was filed on January 9, 2012.

Heffernan pled guilty to a reduced charge after which the District Court afforded him two opportunities for community-based supervision and treatment. After pleading guilty and thereby waiving all non-jurisdictional defects for an appeal, Heffernan squandered the opportunities offered by way of a deferred sentence.

Heffernan's unsupported assertions do not justify an out-of-time appeal. Heffernan has not established any extraordinary circumstances or that he might have suffered a gross miscarriage of justice if this untimely appeal is denied. M. R. App. P. 4(6).

IT IS ORDERED that the petition for an out-of-time appeal is DENIED.

The Clerk is directed to provide a copy hereof to counsel of record and to Joshua Wallace Heffernan.


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