State v. G. Wallace

• Court: Montana Supreme Court
• Decided: June 15, 2021
• Docket: DA 21-0271
• Status: Unpublished

Opinion

06/15/2021

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0271

DA 21-0271 FILED STATE OF MONTANA, JUN 1 5 2021 Bovven Greenwood Clerk of Suprerne Court Plaintiff and Appellee, State of Mnr,tarua

v. ORDER

GREGORY L. WALLACE,

Defendant and Appellant.

Gregory L. Wallace petitions this Court for an out-of-time appeal. He indicates that he improperly filed a Notice of Appeal with the District Court and that he discussed filing a timely appeal with his attorney. He raises several issues, including "with-holding Discovery to felonious escape in l4th,[September], yr. of 2014 ... This Court is familiar with Wallace and his criminal history.' In October 2014,the State of Montana charged Wallace with felony escape after Wallace failed to return to the Butte Pre-Release Center on September 14, 2014. The State initially brought the charge in the Powell County District Court (Cause No. DC 14-54), and on March 17, 2015, the criminal case was transferred to the Butte-Silver Bow County District Court (Cause No. DC 15-58). Wallace received a two-year suspended sentence to the Department of Corrections. The District Court ran the sentence consecutively to a prior ten-year sentence as a persistent felony offender with two years suspended for felony driving under the influence from the Yellowstone County District Court. Wallace now seeks to appeal this conviction.

I Wallace v. Kirkegard, No. OP 15-0069, Order (Mont. Feb. 10, 2015); State v. Wallace, No. DA 15-0101, Order (Mont. Feb. 25, 2015); Wallace v. Kirkegard, No. OP 16-0432, Order (Aug. 2, 2016); Wallace v. State, No. DA 19-0129, Order(Mar. 19, 2019), and Wallace v. Guyer & Kowalski, No. OP 20-0317, Order(Mont. Jun. 23, 2020). M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal "[i]ri the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage ofjustice[1" Wallace is not entitled to an out-of-time appeal. M. R. App. P. 4(6). In 2019, this Court denied Wallace's out-of-time appeal of the same criminal conviction and sentence because he could not explain the several years' delay in seeking an appeal. Wallace v. State, No. DA 19-0129, Order (Mont. Mar. 19, 2019). Wallace has not shown extraordinary circumstances for his second attempt after another years-long delay. We refuse "to reopen what has been decided[1" State v. Gilder, 2001 MT 121, ¶ 1 1, 305 Mont. 362, 28 P.3d 488(citation omitted). IT IS THEREFORE ORDERED that Wallace's Petition for an Out-of-Time Appeal is DENIED and DISMISSED. The Clerk is directed to provide a copy of this Order to counsel of record and to Gregory L. Wallace personally. DATED this 13- —day ofJune, 2021.

Chief Justice