# D ORIGINAL

IN THE SUPREME COURT OF THE STATE OFMONTANA DA 22-0651 DA 22-0678 DA 22-0679 DA 22-0680

STATE OF MONTANA,

Plaintiffand 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 whetherthey fulfill this Court's objectives in remandingthematter. 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 ofPublic 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 enteredjudgment 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 pendingmotions. On November 1, 2022, the State moved the District Court for an extension oftime 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 22-0678November 3, 2022, Allen, representinghimself, filed another motion towithdrawhis plea.

OnNovember4,2022, theDistrictCourtissued an orderthat grantedthe State an extension oftime to respond to that motion. However, while that motionremainedpending,Allenpetitionedthis Court for leave to pursue an out-of-time appeal onNovember 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 orthe court knewthathehadpetitionedthis Court forout-of-timeappeal asAllen'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 ofAppeal 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 ofthe Notices ofAppeal, filings continued in Allen's District Court cases. On January 6, 2023, the State moved for an extension oftime to respond to the pending motions, which the District Court granted. The State filed its response to Allen's motion to withdrawhis plea on February 6, 2023, and Allen filed his reply to the State's response
on February 27, 2023. Atthattime, wewereunaware ofthese filings becausethe 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 ofappeal and ADD requested, and was granted, a series ofmotions for extension oftime to file the openingbriefon 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 ofnew counsel and to withdraw his pleas. OnMarch 14,2024,whileAllen's motion forremandwaspendinginthis 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 ofthepending 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 appealpendingourreceiptoftheDistrictCourt's rulings. Atthetimeweissuedthat Order,
we were unaware of the District Court's March 14, 2024 order as it had not been transmitted to this Court. OnMarch 21, 2024,theDistrict Court supplemented therecord 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 SubpoenaRecords in this Court. On March 22, 2024, in spite ofthe District Court's order denying appointment of counsel, the Office ofPublic Defender assigned Robert Kelleher as counsel for Allen in the District Court cases. Allen now asks us for clarification as to the status ofhis appeal. Allen argues that the District Court's March 14, 2024 order is void as that court had nojurisdiction to rule
on hispendingmotions atthattime, and alternatelytheDistrict Court failed to executethis Court's remand instructionsbecause 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

3directing 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 ofthose motions. Allen further advises us the State does not oppose his motion for clarification andthe State agrees theDistrict Court lackedjurisdictionwhen it entered its order denyinghis 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 O ff 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 VACAIED. IT IS FURTHER ORDERED that Allen's appointed counsel may request further proceedings pertainingto 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 ofbriefing or following an evidentiary hearing, ifone is held. Ifthe 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. Ifthe District

1 It appears that Allen's appellate couhsel is unaware that, even though the District Court denied Allen'smotion forappointmentofcounsel onMarch 14, 2024, OPD appointedAllennewcounsel 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 ofthis Order to all counsel ofrecord, to the Clerk of Court for Yellowstone County, and to the Honorable Ashley Harada, presiding District Judge. Dated this

- day ofApril, 2024.

5 

### Chie ustice



## e Justices