Opinion
A-13796
07-03-2024
DANNY JOSEPH NICKOLAI, Appellant, v. STATE OF ALASKA, Appellee.
Barbara Dunham, Assistant Public Advocate, and James Stinson, Public Advocate, Anchorage, for the Appellant. Madeline M. Magnuson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
This is a summary disposition issued under Alaska Appellate Rule 214(a). Summary dispositions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d).
Appeal from the Superior Court No. 3AN-12-11886 CI, Third Judicial District, Anchorage, Erin B. Marston, Judge.
Barbara Dunham, Assistant Public Advocate, and James Stinson, Public Advocate, Anchorage, for the Appellant.
Madeline M. Magnuson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
Danny Joseph Nickolai was convicted, following a jury trial, of first-degree sexual assault, attempted first-degree sexual assault, and second-degree sexual assault for his conduct against H.M. We affirmed Nickolai's convictions on direct appeal. Nickolai filed a pro se application for post-conviction relief, raising various claims of ineffective assistance of counsel. Nickolai's appointed post-conviction relief attorney filed a certificate of no merit, and the superior court dismissed Nickolai's application. Nickolai now appeals, arguing that the superior court erred in dismissing his post-conviction relief application because the certificate of no merit was deficient in various ways.
AS 11.41.410(a)(1), AS 11.41.410(a)(1) & AS 11.31.100(a), and AS 11.41.420(a)(1), respectively. Our unpublished decision in Nickolai's direct appeal incorrectly states that he was convicted of two counts of first-degree sexual assault and one count of second-degree sexual assault. See Nickolai v. State, 2016 WL 3033897, at *1 (Alaska App. May 25, 2016) (unpublished).
Nickolai, 2016 WL 3033897, at *1.
On appeal, the State concedes that the certificate of no merit was deficient and that the case must be remanded. Having reviewed the record, we agree that this concession is well-founded. We therefore vacate the superior court's order, and remand this case to the superior court for further proceedings.
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").
We note that the attorney who filed the certificate of no merit was found to have provided ineffective assistance of counsel with regard to the initial filing of this appeal. Nickolai is therefore entitled to the appointment of a different attorney on remand. On remand, the new post-conviction relief attorney should diligently pursue one of the options set out in Alaska Criminal Rule 35.1(e)(2).
The attorney on appeal is not the attorney who filed the certificate of no merit.
See Lynch v. State, 2022 WL 856056, at *2-3 (Alaska App. Mar. 23, 2022) (unpublished).
The judgment of the superior court is VACATED and this case is REMANDED to the superior court for further proceedings.