D ORIGINAL 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DA 22-0651 

DA 22-0678 

DA 22-0679 

DA 22-0680 

STATE OF MONTANA, 

Plaintiff and Appellee, 

v. 

REX WILLIAM ALLEN, 

Defendant and Appellant. 

ORDER 

FLED 

APR 2 3 2024 

Bowen Greenwood 

Clerk of Supreme Court 

State of Montana 

Appellant Rex William Allen, via counsel, moves this Court for clarification as t6 

the status of his appeal. Counsel explains that the District Court entered orders while 

Allen's appeal remained pending in this Court and counsel is unclear as to the effect of 

those orders and whether they fulfill this Court's objectives in remanding the matter. 

On August 31, 2022, the Thirteenth Judicial District Court, Yellowstone County, 

sentenced Allen in the four criminal cases he has since appealed. Allen was represented 

by counsel appointed by the Office of Public Defender (OPD) at that time. Immediately 

after sentencing, he moved, representing himself, for removal of his current counsel, 

apPointment of new counsel, and leave to withdraw his guilty pleas. The next day, the 

District Court entered judgment in each case. 

On September 19, 2022, Allen, again representing himself, applied for Sentence 

Review. The Sentence Review Division immediately rejected his application because of 

his pending motions. 

On November 1, 2022, the State moved the District Court for an extension of time 

to respond to Allen's August 31, 2022 motions, but the District Court denied the State's 

motion the following day, asserting there were no pending motions in this case. On 

04/23/2024

Case Number: DA 22-0680
November 3, 2022, Allen, representing himself, filed another motion to withdraw his plea. 

On November 4, 2022, the District Court issued an order that granted the State an extension 

of time to respond to that motion. 

However, while that motion remained pending, Allen petitioned this Court for leave 

to pursue an out-of-time appeal on November 19, 2022. He further requested appointment 

of appellate counsel. He advised us that he had discussed filing an appeal with his 

appointed trial counsel, but counsel did not timely file an appeal in this Court. 

On November 22, 2022, Allen's public defender moved to withdraw in the District 

Court case and the District Court granted the motion. It is unclear as to whether Allen's 

counsel or the court knew that he had petitioned this Court for out-of-time appeal as Allen's 

petition is not in the District Court record. On that day, Allen, representing himself, filed 

two additional motions in the District Court: a motion to appoint counsel, and a motion he 

captioned as an "Injunction" in which he sought phone records. 

On November 29, 2022, we granted Allen's motion for out-of-time appeal and 

appointed the Appellate Defender Division (ADD) to represent him. ADD appeared and 

filed a Notice of Appeal in each case on December 19, 2022; as required by our Rules, 

ADD filed the Notice of Appeal in each case in the District Court as well. The Clerk of 

the District Court also transmitted the record to this Court on December 19, 2022. 

In spite of the Notices of Appeal, filings continued in Allen's District Court cases. 

On January 6, 2023, the State moved for an extension of time to respond to the pending 

motions, which the District Court granted. The State filed its response to Allen's motion 

to withdraw his plea on February 6, 2023, and Allen filed his reply to the State's response 

on February 27, 2023. 

At that time, we were unaware of these filings because the District Court record had 

previously been transmitted. After transcripts were filed on January 25, 2023, the record, 

which did not contain any District Court filings after December 19, 2022, was considered 

complete for purposes of appeal and ADD requested, and was granted, a series of motions 

for extension of time to file the opening brief on appeal. 

2 
On March 11, 2024, Allen, via appellate counsel, moved this Court for an order 

remanding this matter to the bistriet Court and staying this appeal pending the District 

Court's ruling on Allen's pending motions. Counsel advised us as to the existence of 

Allen's pending District Court motions for appointment of new counsel and to withdraw 

his pleas. 

On March 14, 2024, while Allen's motion for remand was pending in this Court, the 

District Court issued an Order Denying Defendant's Motion to Withdraw Guilty Pleas, 

Denying Motion to Appoint Counsel and Denying Motion to Subpoena Records. Both 

Allen and the State agree that the District Court had no jurisdiction to issue this order 

because of the pending appeal. 

On March 20, 2024, we granted Allen's motion for remand, further ordering that 

the Office of Public Defender appoint him new counsel upon remand, and staying this 

appeal pending our receipt of the District Court's rulings. At the time we issued that Order, 

we were unaware of the District Court's March 14, 2024 order as it had not been 

transmitted to this Court. 

On March 21, 2024, the District Court supplemented the record on appeal, filing its 

March 14, 2024 Order Denying Defendant's Motion to Withdraw Guilty Pleas, Denying 

Motion to Appoint Counsel and Denying Motion to Subpoena Records in this Court. 

On March 22, 2024, in spite of the District Court's order denying appointment of 

counsel, the Office of Public Defender assigned Robert Kelleher as counsel for Allen in 

the District Court cases. 

Allen now asks us for clarification as to the status of his appeal. Allen argues that 

the District Court's March 14, 2024 order is void as that court had no jurisdiction to rule 

on his pending motions at that time, and alternately the District Court failed to execute this 

Court's remand instructions because it did not appoint him counsel. He asks this Court to 

issue an Order specifying that this appeal remains on remand in the District Court and 

3 
directing that court to appoint counsel and subsequently rule on his pending motions.1

Allen further requests that he be afforded the opportunity to consult with appointed 

counsel, who may request further proceedings on the pending motions prior to the District 

Court's disposition of those motions. Allen further advises us the State does not oppose 

his motion for clarification and the State agrees the District Court lacked jurisdiction when 

it entered its order denying his motions. 

We agree that the District Court lacked jurisdiction when it disposed of Allen's 

motions. 

IT IS THEREFORE ORDERED that this case remains REMANDED to the 

Thirteenth Judicial District Court for the purpose Off ruling on Allen's pending motions. 

Since OPD has appointed counsel to represent Allen in the District Court, we need not 

direct the District Court to do so. 

IT IS FURTHER ORDERED that the District Court's March 14, 2024 Order 

Denying Defendant's Motion to Withdraw Guilty Pleas, Denying Motion to Appoint 

Counsel and Denying Motion to Subpoena Records is VOID and VACA I ED. 

IT IS FURTHER ORDERED that Allen's appointed counsel may request further 

proceedings pertaining to Allen's pending motions. 

IT IS FURTHER ORDERED that the District Court shall issue a written decision 

on Allen's pending motions after the conclusion of briefing or following an evidentiary 

hearing, if one is held. If the District Court denies Allen's motions to withdraw his guilty 

pleas, it shall file a written decision to that effect and promptly supplement the record on 

appeal with such order. The District Court shall further supplement the record on appeal 

on an ongoing basis with all further filings made in that court in this case. If the District 

1 It appears that Allen's appellate couhsel is unaware that, even though the District Court denied 

Allen's motion for appointment of counsel on March 14, 2024, OPD appointed Allen new counsel 

on March 22, 2024. 

4 
Court grants the motion, Allen, via counsel shall take appropriate action to resolve this 

appeal. 

IT IS FURTHER ORDERED the appeal in this matter is STAYED and the briefing 

schedule is vacated until the District Court issues a new decision on Allen's pending 

motions. 

The Clerk is directed to provide copies of this Order to all counsel of record, to the 

Clerk of Court for Yellowstone County, and to the Honorable Ashley Harada, presiding 

District Judge. 

Dated this- day of April, 2024. 

5 

Chie ustice 

e 

Justices