IN THE SUPREME COURT OF THE STATE OF MONTANA

DA 19-0635

STATE OF MONTANA,

Plaintiff and Appellee,

v.

MYRON CUNNINGTON,

Defendant and Appellant.

FILED

MAR 3 1 2020

Bowen Greenwood

Clerk of Supreme Court

State of Montana

ORDER

On November 6, 2019, self-represented litigant Myron Cunnington filed an

Affidavit and "Petition to Vacate Judgment" in his Flathead County District Court Cause

No. DC-13-381 (B), that was docketed as a Notice of Appeal. After receipt of the record,

Cunnington timely filed his opening brief. The Assistant Attorney General for the State of

Montana moves this Court for the appeal's dismissal because "an additional appeal or other

collateral relief is inappropriate in this matter."

The State provides the procedural backdrop, which we summarize here. In February

2014, Cunnington pleaded guilty to two counts of felony criminal possession of dangerous

drugs in the Flathead County District Court. The District Court sentenced him to the

Montana State Prison for two, consecutive five-year terms in April 2014. Cunnington

began serving his probationary term and in October 2015, the State filed a petition for the

revocation of his suspended sentence. In late November, the court revoked Cunnington's

sentence and imposed two, five-year prison terms (hereinafter 2015 sentence upon

revocation). Cunnington initially applied for review with this Court's Sentence Review

Division and then later vacated this review because Cunnington would be seeking an

appeal.

On February 24, 2016, counsel for Cunnington filed a notice of appeal of the 2015

sentence upon revocation. Appellate counsel later sought withdrawal, pursuant to § 46-8-

03/31/2020

Case Number: DA 19-0635
103(2), MCA, and Anders v. Califbrnia, 386 U.S. 738, 87 S. Ct. 1396 (1967). In the finders

brief, counsel raised the issue of whether the District Court erred when it denied

Cunnington's motion for substitution ofjudge filed at the cammencement of his revocation

proceedings. Appellate counsel pointed out that Judge Allison had represented Cunnington

in the Youth Court in the 1980s and that Cunnington may have believed that the

substitution procedure was available to him at the start of the revocation proceedings.

Ciinnington did not file a response in the time allowed by this Court. In a December 16,

2016 Order, after independently examining the record, this Court dismissed Cunnington's

appeal, concluding that "there are no arguments with potential legal merit that could be

raised on appeal in this case." State v. Cunnington, No. DA 16-0124, Order (Mont.

Dec. 13, 2016).

The State now requests dismissal because Cunnington's instant appeal is untimely

and procedurally barred. The State points out that Cunnington had the opportunity to raise

such issue in his direct appeal and that his counsel on appeal did so. Regardless, the State

posits that Cunnington is foreclosed from seeking an appeal of the 2015 sentence upon

revocation because this Court has already had such an appeal and because Cunnington has ,

not demonstrated extraordinary circumstances to warrant an out-of-time appeal. M. R.

App. P. 4(5)(b)(i) and M. R. App. P. 4(6). Moreover, the State highlights that even

construing Cunnington's appeal as a form of postconviction relief, it is improper.. See

§ 46-21-101(1), MCA (petition for postconviction relief must be filed in the sentencing

court) and § 46-22-101(2), MCA (habeas corpus relief is not available for sentences upon

revocation).

We agree with the State that this appeal is not properly before this Court. "[T]he

supreme court's dismissal of an appeal or cross-appeal is with prejudice and constitutes the

final judgment of the supreme court." M. R. App. P. 19(2). We conclude that this dismissal ,

of Cunnington's second appeal for his 2015 sentence upon revocation is warranted here.

Therefore,

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IT IS ORDERED that the State's Motion to Dismiss Appeal is GRANTED and this

appeal is DISMISSED with prejudice.

IT IS FURTHER ORDERED that Cunnington's pending "Objection to 30 Day

Extension" is DENIED, as moot.

The Clerk of the Supreme Court is directed to provide a copy o f this Order to counsel

of record and to Myron Cunnington personally.

DATED this3I day of March, 2020.

Chief Justice

Justices

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