January 7, 2014
STATE OF MONTANA, Plaintiff and Appellee,
GARY LEE ENZLER, Defendant and Appellant.
Gary Lee Enzler (Enzler) has filed a petition for an out-of-time appeal and moved for the appointment of counsel. On December 8, 2011, Enzler was convicted upon a guilty plea in Lewis and Clark County District Court of sexual assault for which he received a 45-year sentence with 29 years suspended.
Enzler clearly regrets having entered the guilty plea and claims that he is actually innocent. He contends that he was provided ineffective assistance of counsel by his public defenders. Attached to the petition is a copy of an amended judgment and commitment which was filed on January 12, 2012. The amended judgment confirms the Court found there was a factual basis to believe Enzler committed the offense, determined that Enzler entered his plea knowingly and voluntarily and that he was aware of his constitutional and statutory rights. In fact, the amended judgment states "The Court gave the defendant the opportunity to withdraw his guilty pleas. The defendant stated he was agreeable to the Court's recommendation and decided not to withdraw his guilty pleas."
Enzler filed a petition for a writ of habeas corpus with this Court where we determined the guilty plea significantly limits any remedy that may now be available to him. Or. Denying Writ of Habeas Corpus, Enzler v. Mahoney, No. OP 13-0746 (Mont. Nov. 16, 2013).
Enzler bears the burden of establishing that if this petition is denied, he will be subjected to "extraordinary circumstances amounting to a gross injustice." M. R. App. P. 4(6). He has failed to persuade the Court he will suffer such consequences or to justify the lengthy delay in seeking an out-of-time appeal.
Since we have decided to deny the petition, we decline to consider the motion for appointment of counsel.
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 Gary Lee Enzler.