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State v. Lewis

Supreme Court of Montana

September 4, 2013

STATE OF MONTANA, Plaintiff and Appellee,
v.
TIMOTHY GABRIEL LEWIS, Defendant and Appellant.

ORDER

Appellant Timothy Gabriel Lewis, appearing as a self-represented litigant (Lewis), has filed a Petition for an Out-of-Time Appeal. Lewis complains that the Sentence Review Division (SRD) does not consider any information acquired after the sentence is pronounced in district court. He argues that the psychosocial evaluation submitted to the District Court prior to his sentencing is inaccurate, that his probation conditions are discriminatory, and that some of his probation conditions violate search and seizure rights.

The psychosocial evaluation of which Lewis complains is dated March 23, 2012. When the District Court imposed sentence on December 19, 2012, the court referenced the psychosexual evaluation as a basis for its designation of the defendant as a Level 2 sexual offender. It is therefore apparent that Lewis has been aware of the contents of the evaluation as well as the conditions of his sentence since at least December 19, 2012.

It is not clear from his petition what additional information Lewis wants to present to SRD. SRD Rule 11 states that u[t]he Sentence Review Division will not consider any new material, letters, petition or matters which were not presented to the sentencing judge." Thus, the presentation of any additional information to SRD is barred by SRD rules. These rules are not subject to change by this Court as the result of an appeal, timely or not.

As indicated above, Lewis was in possession of all pertinent information with respect to his sentencing conditions and the psychosocial evaluation at the time of his sentencing. He has neither explained why he could not file a timely appeal, nor has he raised grounds which would entitle him to the relief he now seeks. Having considered the petition in its entirety, we conclude there are no extraordinary circumstances shown that amount to "a gross miscarriage of justice, " so as to justify an out-of-time appeal pursuant to M. R. App. P. 4(6). Having failed to meet these threshold criteria, the petition must be denied. Therefore,

IT IS ORDERED that the Petition for an Out-of-Time Appeal is DENIED.

The Clerk is directed to provide a copy of this Order to all counsel of record and to Timothy Gabriel Lewis at his last known address.


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