Wilcock v. State

• Court: Montana Supreme Court
• Decided: March 23, 2021
• Docket: DA 21-0110
• Status: Unpublished

Opinion

03/23/2021

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0110

DA 21-0110

ERNEST BRENT WILCOCK, MAR 2 3 2021 Bovvo Clerk of Supreme Court Petitioner and Appellant, State of Montana

v. ORDER

STATE OF MONTANA,

Respondent and Appellee.

Ernest Brent Wilcock has filed a verified Petition for an Out-of-Time Appeal and includes a copy of his plea agreement along with the final judgment. Wilcock indicates that his attorney did not file an appeal for him as he requested. He offers that when he asked counsel to file an appeal and withdraw his plea, his counsel told him that he "had no grounds." This Court is familiar with the background of Wilcock's case. In 1998, Wilcock entered a guilty plea to sexual intercourse without consent in the Eleventh Judicial District Court, Flathead County. Wilcock is serving an eighty-year prison sentence with thirty years suspended. The District Court imposed two parole eligibility restrictions. Presently, Wilcock is appealing the District Court's July 28, 2020 Order Re: Petition for Writ of Habeas Corpus, wherein the court denied and dismissed with prejudice his request to withdraw his guilty plea. M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal "[i]n the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage ofjustice[1" Wilcock's Petition does not qualify as an "infrequent harsh case." His appeal cannot proceed because it is inappropriate. "A district court's denial ofa petition for writ ofhabeas corpus in a criminal proceeding is not appealable to this Court." Thomas v. Doe,2011 MT 283,¶ 3, 362 Mont.454, 266 P.3d 1255. Wilcock is precluded from appealing the District Court's denial of a petition for a writ of habeas corpus to this Court. Even so, Wilcock is not entitled to relief. In 2011 and 2018, Wilcock filed petitions for habeas corpus relief with this Court, which were denied. Wilcock v. State, No. OP 11-0442, Order (Mont. Sept. 13, 2011) and Wilcock v. Salmonsen, No. OP 18-0600, Order (Mont. Oct. 30, 2018). As we explained therein, Wilcock is both time-barred and procedurally barred from challenging the validity of his conviction, including his plea agreement. We also cautioned Wilcock not to file pleadings concerning his 1998 conviction and sentence. His request for out-of-time appeal is more than untimely after some twenty-two years since his conviction. Wilcock has not demonstrated extraordinary circumstances,and a denial ofhis Petition does not amount to a gross miscarriage ofjustice. Accordingly, IT IS ORDERED that Wilcock's Petition for an Out-of-Time Appeal is DENIED and DISMISSED. The Clerk of this Court is directed to provide a copy of this Order to counsel of record and to Ernest Wilicerk personally. DATED this day of March, 2021.

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