State v. Worthan, 2017 MT 74N

Kelly Dean Worthan is a convicted felon: two counts of Sexual Intercourse Without Consent, two counts of Incest, and one count of Tampering With Witnesses and Informants; convictions were previously affirmed on direct appeal.
Worthan previously filed a postconviction petition alleging ineffective assistance of trial counsel; the district court denied relief and the denial was affirmed on appeal.
On April 18, 2016 Worthan filed a “Motion for Counsel” in Ravalli County seeking counsel to investigate and develop grounds for another postconviction petition.
The district court provisionally directed the Office of Public Defender (OPD) to report on whether Worthan had valid postconviction claims; OPD moved to rescind its appointment, describing Worthan’s motion as vague and premature; the court rescinded OPD’s appointment.
Worthan then moved for appointment of “private counsel,” asserting OPD had conflicts and that counsel was needed to obtain newly discovered evidence for a second postconviction petition; the district court denied the motion for lack of entitlement and lack of extraordinary circumstances.
Worthan appealed the denial; the Montana Supreme Court affirmed, holding Worthan was not entitled to appointed counsel because he had not filed a postconviction petition and did not show the interests of justice required appointment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Worthan was entitled to appointed counsel to investigate and develop a new postconviction claim	Worthan: OPD conflicted; he needs appointed (private) counsel to obtain newly discovered evidence and prepare a second petition	State: No petition was filed; appointment is not required—no entitlement shown	Court: Denied — no reversible error; appointment not required because no petition filed and no extraordinary circumstances shown
Whether the district court erred in rescinding OPD’s appointment	Worthan: OPD could not represent him due to conflict and court should not have rescinded	OPD/State: OPD was prematurely appointed given Worthan’s vague, non-specific motion	Court: Rescission was proper given OPD’s description and Worthan’s vague motion
Whether Worthan should be granted leave to file a second postconviction petition	Worthan: Requests leave to file second petition based on newly discovered evidence	State: Opposes; not presented to district court because no petition filed	Court: Not addressed substantively — issue not presented because no petition was filed
Whether the “interests of justice” under §46-21-201(2), MCA, required appointment of counsel	Worthan: Interests of justice require counsel to investigate potential claims	State: Interests of justice not shown absent a filed petition and extraordinary circumstances	Court: Interests of justice not established; appointment discretionary and properly denied

State v. Worthan, 332 Mont. 401, 138 P.3d 805 (Mont. 2006) (direct appeal affirming Worthan’s convictions)
Worthan v. State, 356 Mont. 206, 232 P.3d 380 (Mont. 2010) (affirming denial of Worthan’s first postconviction petition)