Opinion
A-13402
03-23-2022
KIP EDWARD LYNCH, Appellant, v. STATE OF ALASKA, Appellee.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Trial Court No. 3AN-17-09660 CI Anchorage, Erin B. Marston, Judge.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge. [*]
MEMORANDUM OPINION
ALLARD, JUDGE
Kip Edward Lynch was convicted, following a jury trial, of first- and second-degree murder for killing his wife and infant daughter shortly after he returned from military deployment in Afghanistan. This Court affirmed his convictions and 80-year sentence on direct appeal.
See Lynch v. State, 2017 WL 1968277, at *l-2 (Alaska App. May 10, 2017) (unpublished).
Lynch subsequently filed a pro se application for post-conviction relief, alleging newly discovered evidence related to the military psychotherapist who testified at his trial. The military psychotherapist testified that Lynch was malingering with regard to the cognitive effects of a self-inflicted gunshot wound to the head. (Lynch shot himself after killing his wife and daughter). According to various newspaper articles that Lynch submitted as part of his pro se post-conviction relief application, the military psychotherapist who evaluated him was part of a unit that had since been disbanded because the unit was routinely under-diagnosing post-traumatic stress disorder and over-diagnosing malingering in an effort to save the military from the costs of long-term treatment and disability benefits.
Lynch does not concede that the gunshot wound was self-inflicted. At trial, Lynch asserted that somebody else had killed his wife and daughter and that person had also shot him in the head. Id. at *2-3.
After Lynch filed this pro se application, a contract attorney from the Office of Public Advocacy was appointed to represent him. This attorney later filed a certificate of no merit under Alaska Criminal Rule 35.1(e)(2)(C), asserting that there were no non-frivolous post-conviction relief claims that could be raised in Lynch's case. With respect to the newly discovered evidence claim regarding the military psychotherapist, Lynch's attorney asserted that there was no evidence, other than the newspaper articles, to support Lynch's claim that the psychotherapist's diagnosis in Lynch's case-i. e., that Lynch was malingering-was invalid. In addition, Lynch's attorney claimed that, even if there was additional evidence to support the assertions in the newspaper articles, such evidence was "unavailable and unlikely to be available" because (according to the articles themselves) the military had denied Freedom of Information Act requests from the media regarding the now-discredited unit.
The attorney's certificate did not say whether the attorney himselfhad made any efforts to obtain information directly from the military about Lynch's specific case and the diagnosis that Lynch had received.
The attorney served Lynch with a copy of the certificate of no merit, but it is unclear if the attorney informed Lynch that he was entitled to respond to the attorney's certificate. When Lynch failed to respond to the certificate of no merit, the superior court issued an order summarily dismissing Lynch's post-conviction relief application for failure to state a prima facie case. In its order, the court did not discuss the substance or merit of the attorney's assertion that Lynch had no non-frivolous claims for relief. The court simply noted that the attorney had filed a no-merit certificate and that Lynch had failed to file any response.
Lynch now appeals the dismissal of his post-conviction relief application. The State concedes that the superior court erred when it dismissed Lynch's application without explaining why the court agreed with the attorney's assertion that Lynch could raise no arguable claims for relief. We conclude that the State's concession is well-founded.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess whether a concession of error "is supported by the record on appeal and has legal foundation").
When a defense attorney files a certificate of no merit, the superior court is required to independently assess whether, in fact, the defendant has no non-frivolous claims for relief. The court's duty to independently assess whether a defendant has no non-frivolous claims for relief derives from Criminal Rule 35.1(f)(2) and from the court's constitutional duty to ensure that the defendant receives "zealous and competent representation" in the post-conviction relief proceeding.
Griffin v. State, l8P.3d7l, 76 (Alaska App. 2001) (holding that, when an indigent petitioner's attorney files a no-merit certificate detailing all of the considered claims, "the court must independently assess whether 'it appears . . . that the applicant is not entitled to relief" (quoting Alaska R. Crim. P. 35.1(f)(2)); see Demoski v. State, 449 P.3d 348, 349-50 (Alaska App. 2019); One v. State, 127 P.3d 853, 856 (Alaska App. 2006); see also Lampley v. State, 353 P.3d 844, 845 (Alaska App. 2015) (noting that the court should "issue an order explaining its own reasons" for concluding there is no arguable merit to the petition).
Griffin, 18 P.3d at 77 (explaining that the "independent judicial assessment required by Rule 35.1(f)(2) is crucial to the protection of.. . [the] right to counsel," which includes the "right to a zealous advocate," particularly given that a defendant is "normally entitled to only one petition for post-conviction relief); see David v. State, 372 P.3d 265, 270 (Alaska App. 2016); Wassilie v. State, 331 P.3d 1285, 1290 (Alaska App. 2014); Tazruk v. State, 67 P.3d 687, 690 (Alaska App. 2003).
In order to conduct this independent assessment, the superior court must have access to an adequate record of the underlying criminal proceedings. Here, however, Lynch's attorney did not provide the superior court with the pertinent transcripts, pleadings, and orders from Lynch's criminal trial. Therefore, the superior court had no record from which to conduct its independent assessment.
We note that the superior court judge was not the trial judge in Lynch's case, and he was therefore unfamiliar with the criminal record.
In addition, there is nothing in the record to suggest that the superior court independently evaluated the attorney's claim that there was no point in seeking additional evidence from the military. Although the military may have denied the media's Freedom of Information Act requests, Lynch's attorney would, presumably, be seeking only the records that were relevant to his client, Lynch. The attorney would therefore stand in a materially different position from the media representatives who filed the earlier Freedom of Information Act requests.
Accordingly, we agree with the State that the superior court committed error when it summarily dismissed Lynch's application for post-conviction relief, and we must therefore remand this case for further proceedings on Lynch's application. On remand, Lynch's attorney shall provide the superior court with an adequate record, and the superior court must then conduct the required independent assessment of the attorney's assertion that Lynch has no colorable claims for post-conviction relief.
If the superior court concludes that the attorney has conducted an adequate investigation and that there are in fact no non-frivolous claims that can be raised in Lynch's case, the court shall issue a tentative decision explaining its conclusion and indicating its intent to dismiss Lynch's application for failure to state a prima facie case.Lynch and the prosecutor must then be given an opportunity to respond to the court's tentative decision. If those responses do not change the court's analysis, the court may then issue its order dismissing Lynch's application for post-conviction relief.
See Lampley, 353 P.3d at 845.
Id.
If, on the other hand, the superior court concludes that Lynch's attorney has not conducted an adequate investigation of Lynch's potential claims, or if the superior court concludes that there are non-frivolous claims that could be argued on Lynch's behalf, the superior court shall reject the attorney's certificate of no merit, and the litigation of Lynch's application shall continue.
We do not reach the other issues raised by Lynch in this appeal - issues relating to the sufficiency of the attorney's certificate of no merit, the adequacy of the attorney's investigation of Lynch's case, and the substantive merit of the attorney's conclusions about Lynch's potential claims for relief. These matters should be addressed, in the first instance, by the superior court.
The judgment of the superior court is REVERSED, and this case is remanded to the superior court for further proceedings as outlined in this opinion. We do not retain jurisdiction of this case.
[*] Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).