Opinion
A-13551
11-30-2022
Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Second Judicial District, at Kotzebue, Trial Court No. 2KB-13-00261 CI Paul A. Roetman, Judge.
Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, 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, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Ronald K. Barr Jr. appeals the dismissal of his application for postconviction relief. Barr was convicted of physically and sexually assaulting a woman near Kotzebue, and we have previously described the facts of Barr's case in his direct appeal. Following that appeal, Barr filed an application for post-conviction relief alleging, inter alia, that his appellate attorney was ineffective for failing to argue on appeal that the trial court erred when it allowed a trooper to testify that the victim's injuries were caused by a physical assault. The superior court ultimately dismissed Barr's application. Barr now raises three issues on appeal.
Barr v. State, 320 P.3d 816, 817-19 (Alaska App. 2014).
First, Barr argues that the court erred when it characterized the State's response to his application as a motion to dismiss and asked Barr to respond. We reject this claim. Although the State's response was not labeled "Motion to Dismiss," it clearly and unambiguously asked the court to dismiss Barr's ineffective assistance of counsel claim for failure to state aprima facie claim for relief. The court therefore did not err in characterizing it as a motion to dismiss and seeking a response from Barr.
Cf. Serradell v. State, 129 P.3d 461, 463-64 (Alaska App. 2006) (holding that the court erred in dismissing an application for post-conviction relief when the State's answer failed to put the applicant on notice that the State was moving to dismiss, the court failed to notify the applicant that it intended to dismiss the application, and the court then dismissed the application less than twenty days after the State filed its answer).
In connection with this argument, Barr also argues that the court erred when it only granted him seven days to respond, in violation of Alaska Criminal Rule 35.1 (f)(1), which provides that an applicant shall have thirty days to respond to a motion to dismiss. We also reject this claim. The court imposed the seven-day time period only after Barr failed to file a response within the original thirty-day period mandated by Criminal Rule 35.1(f)(1). Additionally, we note that Barr sought and received a one-week extension after the court imposed the original seven-day deadline, and that Barr then filed a response without seeking any additional extensions. Thus, Barr has failed to demonstrate that the filing deadline imposed by the court was unreasonable or caused him prejudice.
The State filed its response on August 5,2019, and the court issued its notice of intent to rule on September 10, 2019.
Second, Barr argues that the court erred in dismissing his ineffective assistance of appellate counsel claim for failure to state a, prima facie case for relief. We reject this argument. Under Coffman v. State, when a defendant claims that their appellate counsel was ineffective for failing to raise an issue, the defendant must establish three things: (1) that the proposed additional issue is significantly stronger than the issues actually raised on appeal; (2) that the attorney had no valid tactical reason for failing to raise the issue; and (3) that, if the issue had been raised, there is a reasonable possibility that the outcome of the appeal would have been different. The superior court concluded that Barr failed to meet both the first and third prongs.
Coffman v. State, 172 P.3d 804, 813 (Alaska App. 2007).
We need not address the first prong, because we agree with the superior court that Barr failed to establish the third prong, as demonstrated by our resolution of a similar issue in Barr's direct appeal. In that appeal, Barr argued that the trial court erred when it allowed a nurse to answer a question asking whether the assault was one of the "worst beatings" she had seen in Northwest Alaska. The nurse responded that it was "a pretty bad case." We held that the court's error in permitting this question was harmless beyond a reasonable doubt because three medical professionals (a public health aid, a doctor, and the nurse in question) provided extensive testimony about the nature of the victim's injuries; two of those experts (the doctor and the nurse) testified that the victim's injuries were consistent with assault; and Barr failed to present any expert testimony that the injuries were consistent with his claim of accident. For these same reasons, we conclude that Barr has failed to establish a reasonable possibility that the outcome of his appeal would have been different if his appellate attorney had argued that the trial court erred when it permitted a trooper to testify that the victim's injuries were caused by a physical assault.
Barr, 320 P.3d at 819-21.
Id. at 820.
Id.
Barr also asserts that the trooper's testimony and the nurse's testimony, if considered together, would have established cumulative error. We similarly reject this argument, for the same reasons.
Third, Barr argues that we should modify the test for ineffective assistance of appellate counsel articulated in Coffman by eliminating the first requirement - i.e., the requirement that the proposed additional issue is significantly stronger than the issues actually raised on appeal. We need not reach this issue because, as we have explained, Barr failed to establish the third requirement of the Coffman test, and thus Barr could not succeed on his claim even if we eliminated the first requirement.
The judgment of the superior court is AFFIRMED.