State v. K.A.B., DA 22-0601

CitationDA 22-0601
Case DateNovember 22, 2022
CourtUnited States State Supreme Court of Montana

STATE OF MONTANA, Plaintiff and Appellee,

K.A.B., Defendant and Appellant.

No. DA 22-0601

Supreme Court of Montana

November 22, 2022


Appellant K.A.B. moves this Court for appointment of counsel in this appeal. As grounds, K.A.B. states that "[o]n November 15, 2004, the First Judicial District Court ordered that a hearing would take place on Youth's K.A.B.'s Motion to Correct or Modify Judgment." K.A.B. provides that being "unable to take an appeal while the motion remained pending," any appeal would be premature. K.A.B. further states that "the District Court formally gave notice that the hearing would not take placef,]" on August 22,2022.

This Court observes that K.A.B. provided no copy of the court's notice or order when K.A.B. submitted his Notice of Appeal. We requested and reviewed a copy of the August 22, 2022 Order as well as the register of actions.

K.A.B.'s original youth court proceeding commenced in 2003. The court record indicates that Youth Court supervision was transferred to adult court on May 11,2004. On October 11,2011, the District Court ordered that the records in the case be sealed, and on September 11, 2014, upon motion, the District Court entered an order to destroy the court files.

K.A.B. filed a "Defendant's Pro Se Notice of Issue" with the District Court on August 18, 2022. The District Court denied his Notice of Issue on August 22, 2022, wherein the Judge hand-wrote that "(1) Sentence/disposition expired long ago and (2) Juvenile file destroyed Denied."

K.A.B. has not presented a proper final judgment from the District Court. "An appeal may be taken by the defendant only from a final judgment of conviction and orders


after judgment which affect the substantial rights of the defendant." Section 46-20-104(1), MCA. The court sentenced K.A.B. years ago and sealed the court's records in 2011. K.A.B. cannot revive a closed proceeding upon filing a notice of issue in the District Court more than a decade later. As such, his appeal is not properly before this Court. M. R. App. P. 4(5)(b)(i).

Furthermore, K.A.B. is not entitled to appointment of counsel. There is no right to the appointment of counsel in a postconviction proceeding. Section 46-8-104, MCA. Therefore, IT IS ORDERED that K.A.B.'s appeal is DISMISSED sua sponte and with prejudice for the reasons listed above.

IT IS FURTHER ORDERED that K.A.B.'s Motion for Appointment of Counsel is DENIED as moot.

The Clerk of the Supreme...

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