                                                                                              03/26/2020


           IN THE SUPREME COURT OF THE STATE OF MONTANA                                   Case Number: DA 20-0102


                                         DA 20-0102
                                                                             RLED
BRIAN D. SMITH,
                                                                            MAR 26 2020
                                                                         Bowen Greenwood
             Petitioner and Appelldnt,                                 Clerk df Supreme Court
                                                                          State of Montana

      v.                                                              ORDER

STATE OF MONTANA,

             Respondent and Appellee.


       Brian D. Smith moves this Court to appoint counsel and to expand the record by
including the Missoula County District Court record for his underlying criminal case, Cause
No. DC-11-161. The State of Montana has not filed a response.
       As grounds, he provides that he is indigent and incarcerated. Smith states that he
"needs access to files in possession ofthe public defender's office in Missoula, 0"in order
to argue his case on appeal. He states that he believes he is entitled to those files and that he
has not been provided these documents since 2012. In lieu of granting his motion for
counsel,Smith offers, in the altemative,that this Court order the District Court to release the
entire record for DC-11-161 from the public defender's office to him.
       Smith is appealing the District Court's denial ofhis second petition for postconviction
reliefin Cause No.DV-16-698. This Court is familiar with Smith's criminal history. Smith
pleaded guilty to felony aggravated assault, and in May 2012,the District Court sentenced
him to a twenty-year prison term without parole. Smith did not timely appeal his conviction
and sentence. This Court denied his petition for an out-of-time appeal in July 2013. State v.
Smith,No.DA 13-0399,Order(Mont.July 10,2013). In 2016,Smith sought postconviction
reliefin the District Court,and the court denied his petition in Cause No.DV-16-698. Smith
appealed, and we affirmed. Smith v. State, No.DA 17-0146,2018 MT 115N,12, 11,2018
Mont. LEXIS 150.
       Smith is not entitled to representation from appellate counsel nor expansion of the
record. There is no right to the appointment of counsel in a proceeding on a motion for
postconviction relief, although a court may order the assignment of counsel under the
circumstances outlined in § 46-8-104, MCA.             Smith represented himself in his
postconviction proceeding before the District Court. Smith has not demonstrated that
extraordinary circumstances exist to justify appointment of counsel, pursuant to § 46-8-
104(3), MCA. Smith is not entitled to his public defender's files now, some seven years
later, when he did not have them in seeking postconviction relief. Smith presents no grounds
to support his motion that this record on appeal needs to be supplemented with either these
files from the public defender's office or from the underlying District Court record for his
criminal conviction and sentence, given that his instant appeal concerns another denial ofhis
petition for postconviction relief. Section 46-21-105(2), MCA. Accordingly,
      IT IS ORDERED that Smith's Motion for Appointment of Counsel is DENIED.
      IT IS FURTHER ORDERED that Smith's Motion to Expand the Record is DENIED.
       The Clerk is directed to provide a copy ofthis Order to counsel ofrecord and to Brian
D. Smith personally.
       DATED this      May of March, 2020.
                                                 For the Court,




                                                                  Chief Justice




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