March 12, 2014
STATE OF MONTANA, Plaintiff and Appellee,
RUSSELL SCOTT AVERY, Defendant and Appellant.
Appellant Russell Scott Avery (Avery) has filed a motion for the appointment of counsel in this appeal. As grounds, he states that as an indigent inmate and neither he nor his family is financially able to retain counsel to represent him. He also indicates that he lacks knowledge of his rights and civil procedures.
If financially unable to retain private counsel, a person charged with a felony or a misdemeanor for which a sentence of incarceration may be imposed is entitled to the appointment of counsel pursuant to § 46-8-101(2), MCA. The defendant is entitled to the representation of counsel through entry of the final judgment and appeal. Section 46-8-103(1), MCA, There is no right to the appointment of counsel once the right of appeal has been exhausted.
A court may order the assignment of counsel under the circumstances outlined in § 46-8-104, MCA, which include extraordinary circumstances that require appointment of counsel to prevent a miscarriage of justice. This appeal is from a Missoula County District Court order denying Avery's petition for postconviction relief. Avery represented himself in those proceedings and filed a brief in support of his petition. He can do so again on appeal. We conclude that none of the circumstances justifying appointment of counsel under § 46-8-101(2), MCA, exist here. Therefore, IT IS ORDERED that Avery's motion for the appointment of counsel is DENIED. The Clerk is directed to provide a copy hereof to counsel of record and to Russell Scott Avery.