State v. Tweed

• Decision Date: 10 December 2002
• Docket Number: No. 02-050.,02-050.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Edward Wayne TWEED, Defendant and Appellant.
• Court: Montana Supreme Court

59 P.3d 1105

2002 MT 286

STATE of Montana, Plaintiff and Respondent, v. Edward Wayne TWEED, Defendant and Appellant.

No. 02-050.

Supreme Court of Montana.

Submitted on Briefs October 3, 2002.

Decided December 10, 2002.

Chad Wright, Appellate Defender, Helena, Montana; Eldena Bear Don't Walk, Anna Starkson, Student Interns, Criminal Defense Clinic, University of Montana, Missoula, Montana, For Appellant.

Mike McGrath, Montana Attorney General, Mark W. Mattioli, Assistant Montana Attorney General, Helena, Montana; Robert M. McCarthy, Silver Bow County Attorney, Samm Cox, Deputy Silver Bow County Attorney, Butte, Montana, For Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Edward Wayne Tweed presents an out-of-time appeal of the denial by the Second Judicial District Court, Silver Bow County, of his motion to withdraw two guilty pleas entered on counts of sexual intercourse without consent. We reverse and remand.

¶ 2 I. Did the District Court err by granting Tweed an out-of-time appeal?

¶ 3 II. Did the District Court abuse its discretion by denying Tweed's motion to withdraw his guilty pleas?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 Charged by information for the sexual abuse of the young daughters of his live-in girlfriend over a three-year period, Edward Wayne Tweed pleaded guilty before the Honorable James E. Purcell pursuant to a plea agreement. In exchange for the State dropping two counts of felony sexual assault, Tweed pleaded guilty to two counts of sexual intercourse without consent. The plea agreement specified that the State agreed to recommend 30-year concurrent sentences to the Montana State Prison on each count with 20 years suspended. At the change-of-plea hearing on December 14, 2000, the court conducted a brief colloquy and Tweed entered his guilty pleas, which the court accepted.

¶ 5 Tweed appeared for sentencing before the Honorable Kurt Krueger, the newly elected district court judge, on March 1, 2001. Judge Krueger rejected the terms of the plea agreement and, in accordance with the recommendations of the probation officer who conducted the presentence investigation, sentenced Tweed to concurrent terms of 30 years with only 10 years suspended.

¶ 6 Tweed filed a motion to withdraw his guilty plea on March 12, 2001, claiming that he reasonably relied upon the statement by Judge Purcell that the court would follow the pretrial agreement on sentencing. At the hearing on June 14, 2001, Tweed alleged that his attorney provided ineffective assistance by assuring him that the court would follow the sentencing recommendations of the plea agreement. The court concluded that Tweed's counsel provided effective assistance and denied Tweed's motion to withdraw his guilty pleas by order filed on July 23, 2001.

¶ 7 On August 31, 2001, the District Court granted trial counsel's motion to withdraw from representation and appointed the Montana Appellate Defenders' Office as counsel of record. Although the record indicates Tweed's intention to appeal the denial of his motion to withdraw his guilty pleas, neither trial counsel nor appellate counsel filed a timely notice of appeal.

¶ 8 On December 7, 2001, Tweed's appellate counsel filed a motion and brief in the District Court requesting an out-of-time appeal. Tweed averred that appellate counsel had relied upon the verbal assurance of Tweed's trial counsel that trial counsel had filed a notice of appeal and requested the production of transcripts when, in fact, neither filing had occurred. The County Attorney did not oppose the motion, and the court granted Tweed an out-of-time appeal on January 8, 2002. With the District Court's permission to proceed with an out-of-time appeal, appellate counsel filed a notice of appeal in the District Court on January 18, 2002. The case and controversy was submitted for consideration by this Court nearly six months after the District Court denied Tweed's motion to withdraw his guilty pleas.

ISSUE I

¶ 9 Did the District Court err by granting Tweed an out-of-time appeal?

¶ 10 As a matter of first impression, we discuss the jurisdiction and procedure for obtaining an out-of-time appeal. The record in this case reveals that Tweed intended to appeal the District Court's denial of his motion to withdraw his two guilty pleas, but neither his trial counsel nor appellate counsel filed the notice of appeal. Tweed filed a motion with the District Court requesting an out-of-time appeal and argued that he had been denied his right to effective assistance of counsel when counsel failed to perfect an appeal as he had requested. Upon a finding that the State raised no objection to the out-of-time appeal, the District Court granted Tweed's motion.

¶ 11 Article VII, Section 2 of the Montana Constitution establishes Supreme Court appellate jurisdiction. This Court has long held that the time limits for filing an appeal are mandatory and jurisdictional. Joseph Eve & Co. v. Allen (1997), 284 Mont. 511, 514, 945 P.2d 897, 899. When a defendant fails to comply with the manner and time frames required by Rule 5, M.R.App.P., for perfecting an appeal, this Court lacks jurisdiction to hear the appeal. Foster Apiaries, Inc. v. Hubbard Apiaries (1981), 193 Mont. 156, 159, 630 P.2d 1213, 1215 (citing Price v. Zunchich (1980), 188 Mont. 230, 235, 612 P.2d 1296, 1299). Our Rules of Appellate Procedure do not establish jurisdiction, but the Rules set forth the procedures that must be followed to invoke Supreme Court jurisdiction so that the Court may hear an appeal.

¶ 12 Section 46-20-101(2), MCA, provides that the only method of review in criminal cases shall be by notice of appeal. And, Rule 5(b), M.R.App.P., requires a convicted person to file notice within 60 days after entry of judgment to perfect an appeal. Failing that, a district court may grant a motion to extend the time for filing notice for another 30 days "upon a showing of excusable neglect or good cause." Rule 5(c), M.R.App.P. Thus, Rule 5(c), M.R.App.P., contemplates that the defendant will file a late notice of appeal within the 30-day extension or within 10 days from entry of the order granting the motion for an extension, whichever occurs later. Consequently, under Rule 5, M.R.App.P., if a defendant takes no action to perfect an appeal within 90 days following entry of judgment, the district court loses its authority to grant a time extension and the appeal is out-of-time. Zell v. Zell (1977), 172 Mont. 496, 500, 565 P.2d 311, 313.

¶ 13 Since Tweed's counsel failed to file a notice of appeal within 60 days after the entry of judgment, as required by Rule 5(b), M.R.App.P., and also failed to file a motion for an extension of time during the subsequent 30-day period, as allowed by Rule 5(c), M.R.App.P., Tweed's appeal is out of time. ¶ 14 An out-of-time appeal is a remedy that may be available to a criminal defendant who, through no fault of his own, misses a deadline for filing an appeal. State v. Garner, 1999 MT 295, ¶ 10, 297 Mont. 89, ¶ 10, 990 P.2d 175, ¶ 10. However, our Rules of Appellate Procedure include no specific provision for an out-of-time appeal. Rule 21(b), M.R.App.P., which deals with extensions of time generally, provides, in pertinent part:

[T]he court for good cause shown may upon motion extend the time prescribed by these rules or by its order for doing any act, and may thereby permit an act to be done after the expiration of such time if the failure to act was excusable under the circumstances; except the court in a civil case may not extend the time for filing a notice of appeal, except as provided in Rule 5. Within the text of each motion requesting an extension of time submitted to the court for its consideration, counsel shall note that opposing counsel has been contacted concerning the motion and whether opposing counsel objects to the motion.

While Rule 21(b), M.R.App.P., specifically precludes an out-of-time appeal in a civil case, the Rule does not preclude this Court from addressing a motion for an out-of-time appeal in a criminal matter.

¶ 15 We hold that the District Court lacks jurisdiction to grant an out-of-time appeal, as occurred in this case. In holding that this Court has exclusive jurisdiction to grant a motion for an out-of-time appeal arising from a district court judgment, we also conclude that such a motion is an original proceeding before this Court and the provisions of Rule 17, M.R.App.P., apply. In order to obtain an out-of-time appeal, the pro se defendant or defendant's counsel shall file a motion with this Court. Within the text of the motion, the movant shall note that opposing counsel has been contacted concerning the motion and whether opposing counsel objects to the motion. Rule 21(b), M.R.App.P. At our discretion, we may order a summary response or responsive briefing from opposing counsel. Rule 17(f) and (h), M.R.App.P. The record submitted to this Court with a motion for an out-of-time appeal must be sufficient to allow the Court to determine the reasons for the failure to file a timely appeal. If we determine that the record is not sufficient, we may put aside our review and remand the matter to the district court for an evidentiary hearing and factual findings on the circumstances of the failure. Upon a showing that the failure to notice a criminal appeal in a timely manner was "excusable under the circumstances," pursuant to Rule 21(b), M.R.App.P., this Court may conclude that an out-of-time appeal is the appropriate remedy. In such an event, we will order the matter remanded to the district court with an instruction to vacate and re-enter judgment to afford the defendant a second opportunity to act within the statutory time frames for filing notice of appeal. Accord Rodriquez v. U.S. (1969), 395 U.S. 327, 332, 89 S.Ct. 1715, 1718, 23 L.Ed.2d 340

; U.S. v. Pearce (1993 9th Cir.), 992 F.2d 1021, 1023.

¶ 16 Tweed's assertion that he requested counsel to file an appeal stands...