State v. J. Shewalter

Montana Supreme Court·Decided August 1, 2023·No. DA 23-0398·Unpublished

Opinion

FILED 07/20/2023 08/01/2023

4A/tEbsAef ORIGINAL F" Bowen Gerwood STAXMON %COURT

scay-c-Amitc, Ole Dr. Case Number: DA 23-0398

JUL 2 0 2023 bC41471/ Bowen Cireonwo00 CLerk of Suprerne Court State Zip abate of Montana

[e-mai[ addr ss]\ [Design on of party]

IN THE SUPREME COURT OF THE STATE OF MONTANA

No. [to be assigned by Clerk of Supreme Court]

i\c_tAe_f Appellant, PETITION FOR AN OUT-OF-TIME v. APPEAL 1 \ek"L'. F:14-arel Appellee. [To ask the Court to allow you to file an out-of-time appeal, give the reasons why the appeal was not timely filed. State in the petition or supporting affidavit the issues you wish to raise on appeal and explain in detail the reasons that you did not file a timely appeal. Give only true and accurate explanations that support your petition. Include a copy of thefinal order orjudgmentfrom which you wish to appeal. M. R. App.P. 4(6)7

I petition the Court to allow me to file an out-of-time appeal for the following reason: [Check one]

❑ I improperly filed a timely Notice of Appeal only with the District Court, as more fully explained below.

kO Montana Supreme Court OUT-OF-TIME APPEAL PAGE 1 OF 4 I discussed filing a timely appeal with my attorney, but he or she failed to file it for me, as more fully explained below. 0 I failed to file the Notice of Appeal for the following reason:

thn fticktc \skin, 9_009. in Lail& 60o ni4- avii x prry44661 m fuia;‘t reLtr. r zA-m-DinAlf, &Awed 3 -41 424, , Aeived 4 (kid of_ce_i've,eAke-r, t -frold yr\ ilutic agiencle.. Kim1-44 1)01, (o_PDD &chi 11C,I, n a Lelt .-/-inr isetaf viiiiine kVA 1- cSio\wit It 1 14 i://r) i Vie? iv ---cliLi -w-1----PoL twee c ire I MI& exc. firs- ( TX-it- 46'

0 Attached as Exhibit "A," a copy of the judgment or order from which I wish to appeal. As legal authority for filing an out-of-time appeal, I cite the following which supports this petition: kt Wopeac qtbrAion 14/f-onei 02, wilrehecte o(o-45 aceloiwk -41,3 11G-N-2o.,i1C4 ,,pc}i'v -7.

DATED this „2 lid day of 3Ciltle— , 2o 4:23 .

© Montana Supreme Court OUT-OF-TIME APPEAL PAGE 2 OF 4 gnature

6'hoxi•-r P t name]

VERIFICATION UPON OATH OR AFFIRMATION

STATE OF MONTANA ) SS. County of IP p if_ )

I swear that everything stated in this petition is true and correct to the best of my knowledge.

DATED this rld day of jUe, , 20 a 3 .

Signed and sworn to or affirmed before me on this date by

TO-arl 5kiLinca ber

[Seal] [Signa re of Notary Public] AtirumN gpmas 17.Lnui Corib5 NOTARY PUBLIQ for the [Typed or printed Wal e] STATE OF MONTANA Residing in Shelby. Montana No -lax-et My Commission Expires [Title] November 19. 2023

[Resz ng!_] mr My Commission expires: A/Wet-fiber ) 4, 2.:23

CO Montana Supreme Court OUT-OF-TIME APPEAL PAGE 3 OF 4 CERTIFICATE OF SERVICE

I certify that I have filed a copy of this Petition for an Out-of-Time Appeal with the Clerk of the Montana Supreme Court and that I have mailed or hand delivered a copy to each attorney of record and any party not represented by counsel as follows:

AtT-J20141i)dr-geo [Name of o posing counsel]

5resl -ifft-g)Pg: 16 Alortin fridE_C j a &Kea /9 01

A 210-144 fir 596,20 - Nal [Address]

Counsel for 5 14 -1 frA Air

[Other p rty representing himself or herseW

[Address]

DATED this 0914C~. day of Urn- , 20023 .

© Montana Supreme Court OUT-OF-TIME APPEAL PAGE 4 OF 4 FILE 07/20/2023 Bowen Greenwo d CLERK OF THE SUPREME CO. RT STATE OF MONTANA LYN Case Number: DA 23-0398 HON. DEBORAH KIM CHRISTOPHER CLE 20th Judicial District Court FILE 2 Lake County Courthouse 106 Fourth Avenue E ZOZZ OCT 214 A 9: 3b 3 Poison, MT 59860 (406) 883-7360 4 5

6 MONTANA TWENTIETH JUDICIAL DISTRICT COIJRT, LAKE COUNTY 7 STATE OF MONTANA, Cause No. DC-06-45

9 Plaintiff, JUDGMENT ON 10 SECOND REVOCATION vs. 11 JASON DANIEL SpEWALTER, 12 Defendant. 13 14 The Defendant, JASON DANIEL SHEWALTER, came before the Court on October 13, 15 2022 for his adjudicatory hearing on his Amended Second Petition to Revoke filed July 7, 2022. 16 The State called Columbia Falls Police Officer Wayne Stufflebeem to testify for the second time but 17 the first time with the Defendant actually present. Officer Stufflebeem was sworn and testified. The 18 State called Probation & Parole Officer Linn, who was also sworn and testified. Plaintiff and

19 Defendant's counsel made argument to the Court. Defendant also spoke. The Court determined the 20 State evidence was proven by a preponderance sufficient to support the petition to revoke. 21 IT IS THEREFORE ORDERED the Defendant's suspended sentence entered on December 22 6, 2018, for the offense of CRIMINAL POSSESSION WITH INTENT TO DISTRIBUTE, a 23 Felony, as specified in MCA 45-9-103(1), is revoked. 24 IT IS FURTHER OR.DERED the Defendant is sentenced to the Department of Corrections 25 for a term .of 5 years, with a recommendation for participation in NEXUS and mental health 26 treatment. The Court recommends .the Department of Corrections reimpose the Defendant's

JUDGMENT ON SECOND REVOCATION: STATE V. SHEWALTER 1 original conditions in the initial judgment filed September 26, 2006 should the Department 2 consider any sort of early or conditional release. 3 THE COURT STATES its reasons for said sentence are as follows: 4 1. It provides punishment to the Defendant for violating the terms of his probation;

5 and 6 2. It provides an opportunity for rehabilitation through chemical dependency and 7 mental health treatment, so Defendant could be successful after completion of

8 treatment.

9 If either party believes that the written Judgment filed herein does not conform to the oral

10 pronouncement of this Court at the time of sentencing, either the Defendant or the State may 11 request a hearing to modify the written, filed Judgment. This request must be made by either 12 the State or the Defendant within 120 days of the filing of the written Judgment. In the event

13 such a request is made, a hearing will be held to consider the motion at which the Defendant must

14 be present unless Defendant waives the right to be present. If no request for modification is filed

15 by either the State or the Defendant within 120 days, the right to a modification hearing shall be 16 waived.

17 DONE in Open Court this 13th day of October, 2022. 18 DATED this 21' day of October, 2022. 19

20 Deborah KimeC7§ 1°-e istopheth r i 21 District Judge 22 23 10/472 g /2022/4 cc: LCAO (Lupotka) OPD (Durham) 24 25 26

JUDGMENT ON SECOND REVOCATION: STATE V. SHEWALTER 2 FILED Date: 7/20/2023 Lake County District Court User: MRENSVOLD 07/20/2023 Time: 04:46 PM Case Register Report Bowen Greenwood Page 1 of 3 DC-24-2006-0000045-IN CLERK OF THE SUPREME COURT STATE OF MONTANA

State of Montana vs. JASQN DANIEL SHEWALTER Case Number: DA 23-0398

Filed: 3/21/2006 Subtype: Information Status History Closed 9/21/2006 Reopened 7/26/2018 Closed 12/6/2018 Reopened 6/10/2022 Prosecutors YOUNG, MITCHELL A. (No longer on case) Do Not Send Notices ESCHENBACHER, STEVEN (No longer on case) Do Not Send Notices LAPOTKA, JAMES (Primary attorney) Send Notices Defendants Def. no. 20 SHEWALTER, JASON DANIEL Attorneys DORAN, GARY G., (No longer on case) Do Not Send Notices MARROW, JEREMIE Do Not Send Notices DURHAM, KIMBERLY (Primary attorney) Send Notices Charges No. Revision Statute Description 10 Original: 111111 45-09-0103 CRIMINAL POSSESSION WITH INTENT TO DISTRIBUTE 20 Original: 111111 61-08-0346 R. O. W. VIOLATION - FAIUYIELD TO EMERGENCY VEHICLE 30 Original: 111111 45-10-0103 CRIMINAL POSSESSION OF DRUG PARAPHERNALIA Judge History Date Judge Reason for Removal 3/21/2006 Christopher, Deborah K. Current Register of Actions Def. Doc. Seq.

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State v. J. Shewalter, (Mo. 2023).

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