December 17, 2013
STATE OF MONTANA, Plaintiff and Appellee,
DANIEL JUSTIN CARRELL, Defendant and Appellant.
Daniel Justin Carrell (Carrell) has filed a petition for an out-of-time appeal. Carrell claims that the Yellowstone County Office of Public Defender denied him legal counsel, and as a result, that he did not know that he had a limited time to file an appeal.
Yellowstone County arrested Carrell in March 2010, for felony Driving Under the Influence of Alcohol (DUI). He pled guilty in October 2011. Prior to Yellowstone County sentencing, Ravalli County charged Carrell with a separate felony DUI in December 2011.
Carrell pled guilty in Ravalli County while represented by counsel. He was sentenced on April 25, 2012. The Yellowstone County District Court imposed a consecutive sentence on June 8, 2012. Carrells Yellowstone County plea agreement clarifies that Carrell had fired his retained counsel in Yellowstone County. The plea agreement states "I [, Carell, ] discharged my prior attorney and am proceeding pro se." Carrell further indicates that his Ravalli County counsel advised him to proceed pro se in Yellowstone County.
Carrell failed to appeal from either his Ravalli or Yellowstone County sentences. The Sentence Review Division did not decrease his Yellowstone County sentence.
Carrell has petitioned this Court three times previously. As part of his most recent petition for a writ of habeas corpus, Carrell claimed that he received ineffective assistance of counsel and that he had been sentenced twice for the same DUI in both Yellowstone and Ravalli Counties. We denied that petition on February 20, 2013. We determined that "Carrell waived his right to counsel in Yellowstone County, not that he was denied counsel."
Carrell now argues that he was unaware of the limited time to appeal because he "was denied legal counsel." However, evidence in the record directly contradicts Carrell's argument. We will permit out-of-time appeal only "[i]n the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice." M. R. App. P. 4(6). Carrell has failed to establish that any extraordinary circumstances exist and has further failed to identify any potentially meritorious issues to raise in an appeal. Therefore,
IT IS ORDERED that this petition for an out-of-time appeal is DENIED.
The Clerk is directed to provide a copy hereof to counsel of record and to Daniel Justin Carrell.