Opinion
DA 22-0083
10-03-2023
STATE OF MONTANA, Plaintiff and Appellee, v. WES LEE WHITAKER, Defendant and Appellant.
ORDER
On his own behalf, Wes Lee Whitaker has filed a Motion to Disqualify the Appellate Defender Office. Whitaker is represented by counsel from the Appellate Defender Division. He states that "[t]he appellate defender[']s continued representation will further prejudice [him] by not allowing [him] to present claims of constitutional magnitude so that [he is] not barred by [§] 46-12-105(2)[.MCA]...." He contends that he should be allowed to provide thirty constitutional claims in his appeal. He further states that he has asked his attorney "to fix the record and so far [his attorney] refuses." Whitaker also raises a claim of conflict of interest because his underlying trial counsel allegedly contacted the Appellate Defender Division concerning a pre-trial motion.
Whitaker does not provide whether he seeks to represent himself on appeal. This Court points out that only one office of the Appellate Defender Division exists for appellate litigants who cannot afford to retain private counsel. Section 47-1-301, MCA.
Whitaker is entitled to the appointment of counsel for his direct appeal, pursuant to § 46-8-104(1)(d), MCA; "[h]owever, 'the right to assistance of counsel does not grant defendants the right to counsel of their choice."' State v. Dethman, 2010 MT 268, ¶ 15, 358 Mont. 384, 245 P.3d 30 (internal citations omitted). While not readily apparent to him, Whitaker will benefit from the services of appointed legal counsel and counsel's judgment in the research, analysis, and presentation of an opening brief. Whitaker cannot request substitution of other counsel when this appeal has been pending for more than eighteen months.
Whitaker's motion is not well taken. The Montana Rules of Appellate Procedure govern the appeal proceedings in this Court. Pursuant to M. R. App. P. 12(1)(b), parties "are encouraged to limit the number of issues to 4 or fewer[.]" The record is defined as the original papers and exhibits filed in the District Court and the transcripts. M. R. App. P. 8(1). Moreover. Whitaker has not presented a conflict of interest.
This Court cautions Whitaker to refrain from filing pleadings on his own behalf while represented by counsel in an appeal. M. R. App. P. 10(1)(c). Accordingly, IT IS ORDERED that Whitaker's Motion to Disqualify the Appellate Defender Division is DENIED and DISMISSED.
The Clerk is directed to provide a copy of this Order to all counsel of record and to Wes Lee Whitaker personally.