Opinion
Court of Appeals No. A-9826.
July 30, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-05-10959 CI.
Carl E. Brown, pro se, Eloy, Arizona. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Carl E. Brown appeals the superior court's order denying his application for post-conviction relief. The State concedes that the superior court should not have dismissed Brown's amended application. Having reviewed the record, we agree, and we therefore reverse the court's decision and remand the case for further proceedings.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (holding that in criminal cases an appellate court must independently evaluate the government's concession of error).
Brown filed a pro se application for post-conviction relief on August 24, 2005. That application alleged a violation of Brown's confrontation clause rights, ineffective assistance by his trial counsel in failing to assert his confrontation clause rights, and discrimination in jury selection. There were some deficiencies in Brown's filing, but the court eventually accepted the application. On April 12, 2006, the State filed a motion to dismiss, arguing that Brown's claims had either been addressed in his direct appeal or were not properly raised in an application for post-conviction relief.
Brow n subsequently filed two requests for "stay," which appear to have been requests for additional time to correct what Brown perceived to be the deficiencies in his application. In his first request, filed May 8, 2006, Brown asked the court "to stay any further rulin[g]" so he could amend his application to include affidavits from his trial attorneys. The second and final request, filed on September 13, 2006, asked the court to "extend the stay pending further discovery for an additional 30 (thirty) days." Apparently neither the court nor the State responded to these requests for more time.
On October 10, 2006 — less than thirty days later — Brown filed an amended application for post-conviction relief and a motion for leave to file an amended application. In his amended application, Brown abandoned the claims he had raised in his first application and instead argued that his appellate attorney had been incompetent. (Brown did not identify this attorney or attach an affidavit from the attorney.)
The same day Brown's amended application was filed, the superior court granted the State's motion to dismiss Brown's original application. The court did not address Brown's amended application. Instead, it granted the State's motion to dismiss on the grounds the State advanced in its opposition to the original application. The record thus suggests that the superior court denied Brown's application before it had received and reviewed Brown's amended application.
Brown filed a motion for reconsideration of this decision. He attached his amended application to the motion, but he gave it a new date: October 24, 2006. The court therefore may have concluded that Brown had attached a new, late-filed amended application. The court denied the motion for reconsideration without comment.
Normally, a court is not required to give advance notice of its intent to dismiss a post-conviction relief application when the court grants a dismissal in response to a motion by the State and for the reasons advanced in that motion. But here the superior court never responded to Brown's requests for more time to correct the deficiencies in his application for post-conviction relief. Brown justifiably might have assumed that the court would not grant the State's motion to dismiss without some notice to him setting a date by which he was required to correct any deficiencies in his application.
Tall v. State, 25 P.3d 704, 707 (Alaska App. 2001).
Conclusion
The superior court's decision dismissing Brown's application for post-conviction relief is VACATED, and Brown's case is REMANDED to the superior court for further proceedings on his amended application.