July 10, 2013
STATE OF MONTANA, Plaintiff and Appellee,
JOSEPH WALKER, Defendant and Appellant.
Before the Court is the Petition for an Out-of-Time Appeal filed by Joseph Walker (Walker). Convicted by way of a guilty plea in Flathead County District Court Cause No. DC-10-158A, Walker is serving a 50-year sentence without parole eligibility for 25 years. Walker claims that he and his counsel disagreed upon strategy. He claims he wanted to appeal, but his attorney recommended and sought review of his sentence. The District Court ultimately allowed Walker's counsel to withdraw and referred the matter to the Office of Public Defender, but there is no indication other counsel was appointed.
Walker filed a petition seeking habeas corpus relief in Cause No. OP 12-0757, where he claimed: (1) his Miranda due process rights were violated; (2) the District Court failed to carry out the plea contract; (3) he was provided ineffective assistance of counsel based upon failure to raise a double jeopardy defense and to file an appeal; and (4) that his counsel was ineffective for recommending a sentence review in lieu of an appeal. This Court denied the petition, concluding that failure to carry out the plea agreement might be initiated in a motion to withdraw the guilty plea in the District Court, and that allegations of ineffective assistance of counsel could have been addressed in a timely petition for postconviction relief.
While Walker asserts the right to appeal here, he does not identify any issues that were preserved for appeal. Walker claims that his counsel was ineffective; however, there is no record upon which this issue could be reviewed on appeal or in collateral proceedings.
Walker has made no showing that failure to grant this appeal will result in a gross miscarriage of justice or that any extraordinary circumstances exist that warrant an untimely appeal. M. R. App. P. 4(6). Therefore, the petition lacks merit. Accordingly,
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 Joseph Walker.