Self-represented defendant Larry DeWayne Adams (Adams) has filed a Petition for an Out-of-Time Appeal. Adams has an extensive history of postconviction litigation before the District Court, this Court and the U.S. District Court for the District of Montana. Adams was convicted in a 1999 jury trial of Aggravated Assault, Criminal Possession of Dangerous Drugs, Misdemeanor Possession of Switch Blade Knives and Misdemeanor Possession of Drug Paraphernalia. The Twenty-First Judicial District Court imposed a 20-year prison term for Aggravated Assault with a consecutive 10-year sentence for use of a dangerous weapon, 5 years to be served consecutively for Criminal Possession of Dangerous Drugs, and 6 months for each of the two misdemeanors, to be served consecutively. The District Court also restricted Adams from parole eligibility until he is 65 years of age. Adams was 43 years of age at the time of sentencing.
Adams' trial counsel failed to file an appeal, but Adams filed a petition for postconviction relief alleging ineffective assistance of counsel based upon failure to appeal, failure to file a motion to dismiss for lack of speedy trial, and failure to offer a lesser-included instruction on Aggravated Assault. Adams also challenged the sentence enhancement as a violation of his constitutional rights. On appeal, we reversed and remanded to allow Adams to file an amended petition and to raise all claims that could have been raised on appeal and those that would ordinarily be heard in a postconviction proceeding. State v. Adams, 2002 MT 202, ¶ 22, 311 Mont. 202, 54 P.3d 50. The trial court denied Adams' petition and he appealed to this Court.
In a 2001 legislative amendment, § 46-18-221, MCA, was amended to require a unanimous separate jury finding beyond a reasonable doubt, that the defendant had used a weapon. Adams claimed the 1997 version of the statute was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), because it did not require a separate finding. We concluded that Adams' use of a weapon was uncontroverted and the result would have been the same if submitted to the jury. Consequently, the trial error was harmless.
Adams v. State, 2007 MT 35, ¶ 53, 336 Mont. 63, 153 P.3d 601.
Adams was successful in part in his 29 U.S.C. § 2254 proceedings in Cause No. CV 07-103-M-JCL, where the U.S. District Court determined he was entitled to resentencing to a term that excluded the 10-year weapon enhancement. On February 10, 2010, Adams was resentenced where the weapon enhancement was stricken and the two misdemeanor sentences were ordered to be served concurrently.
On April 21, 2010, Adams filed an untimely petition for postconviction relief in the District Court, which the court denied. On appeal, this Court affirmed the District Court order denying the petition for postconviction relief in Cause No. DA 12-0271, Adams v. State, 2013 MT 23N. In the postconviction petition, Adams claimed that his counsel was ineffective based upon failure to appeal from the amended sentence imposed in February 2010.
In Cause No. OP 10-0338, Adams sought a writ of habeas corpus from this Court based upon ineffective assistance of counsel in the resentencing proceeding. This Court denied the petition on August 31, 2010.
In the instant case the Attorney General took the unusual action of filing a response objecting to Adams' Petition for an Out-of-Time Appeal and urging the Court to deny the motion summarily. The response notes that Adams' counsel informed him there was no legal basis for challenging the sentence, but that he might have recourse before the Sentence Review Division. The State asserts that an attorney is not ineffective for failure to file a meritless appeal and that our Order in OP 10-0338 procedurally foreclosed Adams from raising this issue again.
We agree. To justify an untimely appeal here, Adams has the burden to establish "extraordinary circumstances amounting to a gross injustice." M. R. App. P. 4(6). As stated above, since his 1999 conviction, Adams has litigated extensively in the Twenty-First Judicial District Court, the U.S. District Court and before this Court. There is absolutely no justification for an out-of-time appeal here. 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 ...