                                                                                         03/31/2020


            IN THE SUPREME COURT OF THE STATE OF MONTANA                             Case Number: DA 19-0635


                                         DA 19-0635
                                                                         FILED
 STATE OF MONTANA,                                                        MAR 3 1 2020
                                                                        Bowen Greenwood
              Plaintiff and Appellee,                                 Clerk of Supreme Court
                                                                         State of Montana


       v.                                                          ORDER

 MYRON CUNNINGTON,

               Defendant and Appellant.



       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 ofthe 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 offelony criminal possession ofdangerous
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-
103(2), MCA,and Anders v. Califbrnia,386 U.S.738,87 S. Ct. 1396(1967). In thefinders
brief, counsel raised the issue of whether the District Court erred when it denied
Cunnington's motion for substitution ofjudge filed at the cammencement ofhis 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 ofan appeal or cross-appeal is with prejudice and constitutes the
finaljudgment ofthe 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,


                                             2
      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 ofthe Supreme Court is directed to provide a copy ofthis Order to counsel
of record and to Myron Cunnington personally.
      DATED this3 I     day of March, 2020.




                                                             Chief Justice




                                                               Justices




                                           3
