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In re Shooting at 60 Big Buck Trail, (Debra Cooksey)

Supreme Court of Montana

January 29, 2019



         Self-represented Petitioner Debra Cooksey has filed a petition for a writ of supervisory control, seeking the return of firearms and ammunition seized in a criminal proceeding in the Fourteenth Judicial District Court, Musselshell County. Debra includes several attachments, including a copy of a "Motion to Compel Court Order Return of Seized Property" and the State's Response to such motion, both filed in the District Court. Before the State of Montana could file its response to her petition, as directed by this Court's December 18, 2018 Order, Cooksey filed a motion to stay pending appeal. The State responds to both petition and motion, requesting their denials and dismissals.

         As presented in her petition, Debra seeks fulfillment of a December 13, 2010 Order Granting Motion for Release of Property, issued in the Fourteenth Judicial District Court, Musselshell County (Cause No. SW-09-13). In September 2010, a jury convicted Bobby Cooksey, Debra5s husband, of deliberate homicide in the District Court (Cause No. DC-09-13). Debra explains that the Musselshell County District Court granted her request for the return of several guns, rifles, and ammunition. She states, however, that she has never received this property. Debra includes a copy of the 2010' District Court's Order, relinquishing the firearms and ammunition to Debra, and ordering that Debra make arrangements to retrieve the property. In Debra's motion to stay pending appeal, she claims that this property was "determined to be hers alone." She includes a copy of a December 31, 2018 District Court's Order Denying Motion to Compel with her motion for a stay.

         The State argues that Debra's petition is not appropriate for supervisory control. The State responds that Debra leaves out the procedural history between 2010 and 2018. The State points to this Court's 2012 Opinion where we stated:

On June 24, 2011, Bobby Cooksey's wife Debra appeared in this case through counsel and moved to intervene in the appeal to raise issues concerning satisfaction of restitution ordered as part of Bobby Cooksey's sentence. This Court granted that motion over the State's objection that Debra Cooksey had no standing to intervene in Bobby Cooksey's appeal of his criminal conviction. The District Court determined that Debra Cooksey failed to support her claim of ownership in the property or her claim that the property was exempt from execution to satisfy the restitution owed by Bobby Cooksey. Bobby Cooksey did not raise any issue on appeal concerning his sentence or the portion of the sentence that required him to pay restitution. After further consideration this Court has concluded that the motion to intervene was improvidently granted.
For the reasons stated above, the motion of Debra Cooksey to intervene is denied.

State v. Cooksey, 2012 MT 226, ¶¶ 47-48, 366 Mont. 346, 286 P.3d 1174. The State points out that this Court denied Debra's motion to intervene in the criminal proceeding. The State contends that Debra has no lawful claim to this property because the property is to be part of the restitution for the family of Bobby Cooksey's victim.

         The State reiterates that the December 13, 2010 Order, to which Debra refers, has been superseded by multiple subsequent proceedings. The State provides that while Debra moved the District Court to compel the return of this property in July 2018, the District Court has since ruled on her motion after she sought extraordinary relief with this Court. The State also includes a copy of a December 31, 2018 District Court's Order, [1] which outlined the earlier proceedings for Debra's late husband, Bobby Cooksey, and his criminal matter. The District Court stated last month:

Mr. and Mrs. Cooksey have been afforded multiple opportunities to establish ownership of and their entitlement to the guns and ammunition at issue, both at the trial court level and on appeal.[2] Despite such, they have failed to do so. This [c]ourt long ago declared as much such and, at least with respect to Mr. Cooksey, the Supreme Court affirmed as this [c]ourt's order concluding that he did not timely appeal the Court's April 18, 2011 Order Denying Debtor's Claimed Exemptions. Neither has Mrs. Cooksey. For the foregoing reasons as well as those noted in the State's response, Mrs. Cooksey's "Motion to Compel Court Order return of seized Property" should be denied and the guns and ammunition at issue sold and the proceeds applied to Mr. Cooksey's restitution obligation as previously ordered by this [c]ourt."

         Order Denying Motion to Compel, at 6 (Fourteenth Judicial Dist. Ct. Dec. 31, 2018) (footnote added). The State concludes that her petition for a writ of supervisory control should be denied because Debra has an adequate remedy of appeal.

         The State refers to Debra's recently filed motion for a stay pending appeal. The State highlights that Debra shows no legal authority for her request nor does she have an appeal pending. M. R. App. P. 22. The State contends that she has presented no sufficient argument for a stay in an original proceeding here and that she has no legal standing in the criminal proceeding below.

         This Court's finds the State's arguments very persuasive. We conclude that neither supervisory control or mandamus are appropriate here because Debra is not entitled to possession of this property. Therefore, IT IS ORDERED that Debra's Petition for a Writ of Supervisory Control and Debra's Motion for Stay Pending Appeal are DENIED and DISMISSED.

         The Clerk of the Supreme Court is directed to provide a copy of this Order to the Hon. Randal I. Spaulding, Fourteenth Judicial District Court; to all counsel of record; to Michael H. Thomas, Musselshell County Sheriff; and to Petitioner Debra Cooksey personally.


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