                                                                                               03/28/2017


                                          DA 16-0457
                                                                                           Case Number: DA 16-0457

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 74N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

KELLY DEAN WORTHAN,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Twenty-First Judicial District,
                       In and For the County of Ravalli, Cause No. DC 03-104, 260
                       Honorable James A. Haynes, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Kelly Dean Worthan, self-represented, Deer Lodge, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein,
                       Assistant Attorney General, Helena, Montana

                       William E. Fulbright, Ravalli County Attorney, Hamilton, Montana


                                                   Submitted on Briefs: March 15, 2017

                                                              Decided: March 28, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Kelly Dean Worthan (Worthan) appeals the June 21, 2016 order of the

Twenty-first Judicial District Court, Ravalli County, denying his motion requesting

appointment of “private counsel.” This issue arose when Worthan first filed a “Motion

for Counsel” on April 18, 2016, in his Ravalli County criminal proceeding. Worthan was

previously convicted of two counts of Sexual Intercourse Without Consent, two counts of

Incest, and one count of Tampering With Witnesses and Informants. His convictions

were affirmed on appeal. State v. Worthan, 2006 MT 147, 332 Mont. 401, 138 P.3d 805.

Worthan later filed a petition for postconviction relief, asserting a claim of ineffective

assistance of trial counsel. The petition was denied by the District Court, which was

affirmed on appeal. Worthan v. State, 2010 MT 98, 356 Mont. 206, 232 P.3d 380.

¶3     Upon receipt of Worthan’s initial motion for counsel, the District Court entered an

order noting that the motion was not clear about the type of relief Worthan sought. The

court ordered the Office of Public Defender (OPD) to “file a report with the Court which

describes whether Worthan has any valid” postconviction claims that merited the

appointment of a public defender.      In response, OPD filed a motion to rescind its
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appointment to represent Worthan, stating that the District Court had “improperly and

prematurely” appointed the office because Worthan’s motion was “simply a vague and

rambling request for counsel to undertake research, investigations, procure expert

testimony etc., without any explanation of why he requires these services.” The District

Court granted the motion and rescinded the appointment of OPD on May 4, 2016.

¶4    On June 6, 2016, Worthan filed his motion for appointment of “private counsel,”

asserting that OPD had advised him that it could not represent him due to a conflict of

interest, and that he needed the assistance of counsel to obtain newly discovered evidence

for development of a second petition for postconviction relief. The District Court denied

the motion, noting that the motion failed to demonstrate entitlement to any relief or any

extraordinary circumstances that would entitle Worthan to appointment of counsel.

Worthan appeals from this order.

¶5    Worthan presents the same arguments on appeal as he did to the District Court,

and requests leave to file a second petition for postconviction relief. The State answers

that Worthan was not entitled to appointment of counsel because he did not file a petition

for postconviction relief, and that his request for leave to file a second petition for

postconviction relief should be denied.

¶6    If a hearing is required or if the interests of justice require, a district court may

order the appointment of counsel for a postconviction petitioner. Section 46-21-201(2),

MCA; Lacey v. State, 2017 MT 18, ¶ 40, 386 Mont. 204, ___ P.3d ___.


                                            3
¶7     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for noncitable memorandum opinions.

Having reviewed the briefs and record on appeal, we conclude that Worthan has not

demonstrated reversible error by the District Court and that the issues raised are

controlled by settled law, which the District Court properly applied. Worthan did not file

a petition for postconviction relief and was not entitled to appointment of counsel to

investigate possible claims. Thus, the “interests of justice” were not established. Section

46-21-201(2), MCA. Further, the issue of a second petition for postconviction relief was

not presented to the District Court because such a petition was not filed.

¶8     Affirmed.



                                                 /S/ JIM RICE


We concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ BETH BAKER




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