Opinion
A-13051
08-11-2021
DAVID LESTER PIERREN JR., Appellant, v. STATE OF ALASKA, Appellee.
Dan Bair, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court No. 3AN-17-04607 CI, Third Judicial District, Anchorage, Jack W. Smith, Judge.
Dan Bair, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
TERRELL, JUDGE
David Lester Pierren Jr. appeals the dismissal of his application for post-conviction relief. The superior court dismissed Pierren's application after his court-appointed attorney filed a certificate of no arguable merit under Alaska Criminal Rule 35.1(e)(2)(C). Pierren argues that the certificate of no arguable merit was deficient and that the superior court failed to independently evaluate Pierren's potential claims. Having reviewed the pleadings and record, we agree with Pierren, and we reverse the dismissal of Pierren's application.
Facts and proceedings
Pierren was convicted, following a jury trial, of multiple counts of sexual abuse of a minor for conduct involving his ex-girlfriend's daughter, beginning when she was about six years old. We affirmed his convictions and sentence on direct appeal, and the Alaska Supreme Court denied his petition for hearing from our decision.
Pierren v. State, 2016 WL 5462034, at *1, 3 (Alaska App. Sept. 28, 2016) (unpublished).
Id. at *3-5; Pierren v. State, Supreme Court File No. S-16519 (Order dated Dec. 19, 2016).
Pierren then filed a pro se application for post-conviction relief. In the pro se application, Pierren made multiple claims of ineffective assistance of counsel on the part of his trial and appellate attorneys.
The court appointed an attorney to represent Pierren. The attorney filed a certificate of no arguable merit, which discussed some of the claims Pierren had raised in his pro se application. After discussing this certificate with Pierren, she supplemented the certificate with an affidavit further discussing Pierren's potential claims for relief, including short discussions of claims that Pierren had made in his pro se application that she had not previously addressed.
The superior court then requested that the attorney clarify certain factually erroneous representations in her filings and explain what potential claims, other than those raised by Pierren, she had considered. The attorney filed a response that had the requested clarifications and that addressed one additional potential claim, i.e., a claim that Pierren had not been brought to trial within the time limits set in Alaska Criminal Rule 45. The attorney did not provide citations for any of the factual assertions she made concerning the record of Pierren's criminal case.
Pursuant to Criminal Rule 35.1(f)(2), the court issued a notice of its intent to permit the attorney to withdraw and to dismiss the application for post-conviction relief, and it invited Pierren and the State to respond. In the notice, the court recounted the attorney's filings, stated that it was "satisfied that counsel's filings represent a thorough review and reasoned disposition of possible claims for post-conviction review in this case," and stated that it was "accept[ing] counsel's assertion that there [were] no colorable post-conviction relief claims in this case."
Pierren filed a response to the court's notice. In the response, he disputed multiple factual assertions the attorney had made in her filings. Additionally, he stated that he was unaware of other facts the attorney had asserted and that he would like to see the records the attorney had reviewed concerning those facts. He also contended that there was merit to some of the claims he had raised in his pro se application.
The court dismissed Pierren's application in a written order. The court stated that "[a]ll of [Pierren's] identified objections to the report of counsel are addressed in the filings of counsel," that Pierren "simply disagree[d] with the findings [and] conclusions of counsel," and that it found "counsel's review thorough and dispositive of any post-conviction issues."
Why we reverse the superior court's dismissal of Pierren's application for post-conviction relief
Criminal Rule 35.1(e)(2)(C) allows an attorney who has been appointed to represent a post-conviction relief applicant to file a certificate stating that the applicant has no arguable claims for relief. Under Criminal Rule 35.1(e)(3), a certificate of no arguable merit must include a full description of the claims the attorney considered, the materials the attorney reviewed, the investigations the attorney conducted, and the reasons why the attorney has concluded that all of the applicant's potential claims have no arguable merit.
When an attorney files a certificate of no arguable merit, the court is required to examine the certificate and its supporting documentation and to independently evaluate whether the applicant has any non-frivolous claims for relief.This duty is imposed by Criminal Rule 35.1(f)(2), but it also arises under the Alaska Constitution - because it is the court's constitutional duty to ensure that a post-conviction relief applicant receives zealous and competent representation.
See Demoski v. State, 449 P.3d 348, 350-51 (Alaska App. 2019); Tazruk v. State, 67 P.3d 687, 690 (Alaska App. 2003); Griffin v. State, 18 P.3d 71, 75-77 (Alaska App. 2001).
If the court tentatively agrees with the attorney that the applicant has no non-frivolous claims for relief, the court must provide the applicant and the State with notice that it intends to dismiss the application for post-conviction relief and must give the applicant an opportunity to respond.
We have reviewed the record in this case and have identified several deficiencies in the attorney's filings and the superior court's analysis.
First, the post-conviction relief attorney did not provide affidavits from Pierren's trial or appellate attorneys. We have held that claims for post-conviction relief based on ineffective assistance of counsel should be accompanied by affidavits of counsel or an explanation why such affidavits are unavailable. Pierren's pro se application alleged ineffective assistance of his trial and appellate attorney, yet the post-conviction attorney rejected these claims, in part based on her conclusion that the trial and appellate attorneys made reasonable tactical decisions. Thus, the post-conviction attorney should have provided affidavits from the trial and appellate attorneys.
Peterson v. State, 988 P.2d 109, 113 (Alaska App. 1999) ("We have repeatedly held that a defendant asserting ineffective assistance of counsel must provide the court with an affidavit from the former attorney, addressing the various claims of ineffective representation, or must explain why such an affidavit cannot be obtained."); Tazruk, 67 P.3d at 689-90 (citing Peterson, 988 P.2d at 113-14); Demoski, 449 P.3d at 351 n.18 (noting that an application for post-conviction relief is "plainly deficient on its face" if "the petition alleges ineffective assistance of counsel, but does not contain either the required affidavit from trial counsel or an explanation as to why the affidavit could not be obtained"); see also Alaska R. Crim. P. 35.1(d) (requiring that "[a]ffidavits, records, or other evidence supporting its allegations shall be attached to the application or the application shall recite why they are not attached").
Second, the post-conviction relief attorney's filings do not adequately explain why she rejected each of the claims Pierren made in his pro se application. An attorney "must provide the court with a full explanation of all the claims the attorney has considered and why the attorney has concluded that these claims are frivolous." In this case, the attorney discussed in detail her investigation and analysis of some of Pierren's pro se claims, but she provided only a cursory rejection of other claims, particularly the claims discussed in the affidavit supplementing the certificate.
Griffin, 18 P.3d at 77.
Third, it is not clear that the post-conviction relief attorney used the correct legal standard when rejecting Pierren's post-conviction relief claims. An attorney may file a certificate of no arguable merit only when the attorney has determined that all possible claims would be frivolous. If a claim is colorable - i.e., if it has some arguable merit, even if it is unlikely to succeed - the attorney has a duty to argue that claim. Here, the attorney stated that potential claims were unlikely to succeed and that the actions of the trial and appellate attorneys were competent, as opposed to saying that it would be frivolous to argue otherwise.
See id. at 73; Bavilla v. State, 2018 WL 5832217, at *2 (Alaska App. Nov. 7, 2018) (unpublished).
See Griffin, 18 P.3d at 73; see also Vizcarra-Medina v. State, 195 P.3d 1095, 1100 (Alaska App. 2008).
Fourth, it does not appear that the attorney considered potential claims for relief that were not based on allegations made by Pierren. An attorney filing a certificate of no arguable merit "must certify both that the petitioner's '[existing] application does not allege a colorable claim for relief' and that the application cannot be amended to assert one or more colorable claims for relief." But in this case, when the superior court asked the attorney to explain what other claims she considered, other than those raised by Pierren in his pro se application, the attorney discussed a different claim that Pierren had made - albeit in a bar complaint rather than his pro se application.
Griffin, 18 P.3d at 75 (alteration in original) (quoting former Alaska R. Crim. P. 35.1(e)(2)(B)(iv) (2001)); accord Alaska R. Crim. P. 35.1(e)(2)(C)(iv).
The apparent failure to consider potential claims other than those Pierren raised was not for lack of identifiable issues. For example, as Pierren points out in this appeal, in Pierren's direct appeal of his conviction, he argued that the superior court erred by refusing to admit evidence that the victim reported being sexually abused by a different boyfriend of her mother in Idaho four years before she reported the abuse by Pierren. We explained that it was not clear what evidence there was of this prior allegation because "the police reports were inadmissible hearsay; [the victim] had no memory of the prior sexual abuse or the prior allegations; and [the victim's mother] had only limited knowledge of the initial allegations and knew that there had been no actual criminal charges." And we noted that Pierren's trial attorney had "never proposed an expert to substantiate [the] claim that [the victim's] current allegations against Pierren could be a manifestation of her early sexualization due to her alleged prior sexual abuse in Idaho." Noting "the paucity of admissible evidence that existed on the Idaho allegations," we upheld the superior court's decision to preclude this evidence.
Pierren v. State, 2016 WL 5462034, at *2-4 (Alaska App. Sept. 28, 2016) (unpublished).
Id. at *3.
Id. at *4.
Id.
Even though we rejected Pierren's argument that the superior court should have admitted evidence about the report of sexual abuse in Idaho in part because Pierren's trial attorney did not present admissible evidence as to what occurred or an expert witness to explain the relevance of any sexual abuse, the post-conviction attorney apparently did not consider whether Pierren's trial attorney acted competently with respect to the Idaho report - or, more accurately, whether it would be frivolous to argue that the trial attorney acted incompetently.
Finally, the superior court did not engage in the necessary independent evaluation. As we have explained, before dismissing a case pursuant to a certificate of no arguable merit, a court is required to examine the certificate and its supporting documentation and to independently evaluate whether the defendant has any non- frivolous claims for relief. This duty is imposed by rule and by the Constitution. The court, in its notice of intent to dismiss and its dismissal order, appears to have deferred to the attorney, rather than conducting an independent judicial assessment. This failure is illustrated by Pierren's response to the notice of intent to dismiss. In the response, Pierren contested multiple factual assertions that the attorney made in her filings and challenged the attorney's legal conclusions. The court nonetheless dismissed the application without conducting an independent review and analysis of additional points raised by Pierren's response.
Conclusion
For the foregoing reasons, we REVERSE the superior court's dismissal of Pierren's post-conviction relief application, and we remand his case to the superior court for further proceedings.