Opinion
Court of Appeals No. A-8699.
July 5, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge. Trial Court No. 4FA-02-2559 CI.
Linda Wilson, Deputy Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for the Appellant.
John K. Bodick, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart,
MEMORANDUM OPINION AND JUDGMENT
Anthony Lee Brown was convicted of first-degree murder in 1976. He was sentenced to life imprisonment and the sentence was upheld on appeal. (Alaska no longer has life sentences, but Brown was convicted and sentenced under Alaska's former criminal code.) Brown's eligibility for discretionary parole was not restricted at the time of sentencing.
Brown v. State, 601 P.2d 221 (Alaska 1979).
Id. at 235.
Brown applied for discretionary parole several times, starting in 1991. The present case involves Brown's most recent application for discretionary parole, which the Alaska Parole Board (the Board) denied in 2000. Brown contends that the Board violated his due process rights by considering hearsay information. He claims that this hearsay was inaccurate and that he received insufficient notice of this information so that he was unable to demonstrate its inaccuracy. The Board ultimately denied Brown's application for release on discretionary parole, and, in addition, prohibited Brown from applying for parole release during the remainder of his life sentence. Brown requested reconsideration, but the Board ultimately denied his request in a letter dated October 7, 2000.
On March 27, 2002, Brown filed a civil suit against his parole officer and the Board, claiming that the Board relied on erroneous information presented by the parole officer. Superior Court Judge Eric T. Sanders dismissed the suit, finding that a challenge to a parole decision must be brought in a post-conviction relief proceeding.
On September 19, 2002, Brown filed a petition for post-conviction relief challenging the Board's decision. The matter was assigned to Superior Court Judge Randy M. Olsen. The State moved for summary disposition, arguing that Brown's petition was barred under the statute of limitations and, in the alternative, that it failed on the merits. Brown opposed the motion. Judge Olsen issued a written decision on the pleadings, granting the State's motion. Judge Olsen first concluded that Brown's application was time-barred under the applicable statute of limitations for post-conviction relief applications — because it was filed over a year after the Board's decision. Judge Olsen also went on to conclude that summary dismissal was appropriate on the merits, after specifically addressing Brown's application attacking the decision of the Board. Brown appealed Judge Olsen's decision.
In an order issued March 8, 2004, we ruled that, because Brown's petition was time-barred, Brown was not entitled to court-appointed counsel in attacking the first aspect of the Board's decision — i.e., the decision to deny Brown's application for parole release in 2000. However, in that same order, we ruled that Brown was entitled to court-appointed counsel to challenge the second aspect of the Board's decision — i.e., the decision to prohibit Brown from ever again seeking parole release.
In August 2004, the State filed a motion to dismiss Brown's appeal in its entirety. The State argued that the sole remaining issue on appeal — the Board's decision to prohibit Brown from seeking parole release in the future — was not litigated in the superior court, and therefore Brown should not be allowed to litigate that issue on appeal. Brown opposed. We denied the State's motion, finding, based on our limited examination of the record, that Brown's claim was preserved. We did leave this argument open for the State to argue in its brief.
In 2005, the Board decided to discontinue its practice of denying discretionary parole without provision for further review. Pursuant to this new policy, the Board provided Brown with an amended notice allowing him to reapply for parole in 2010.
Relying on the fact that Brown was now eligible to reapply for discretionary parole, the State filed a motion to dismiss this appeal as moot.
We denied the State's motion to dismiss, finding that the State could present its mootness claim in its brief, and that Brown had raised an additional due process issue with regard to allegations of misconduct at the close of the parole hearing that did not appear to be moot.
Why we uphold Judge Olsen's order dismissing Brown's application for post-conviction relief on the ground that the application was barred by the statute of limitations
Alaska Statute 12.72.020(a)(4) provides that a petition for post-conviction relief may not be brought if "one year or more has elapsed from the final administrative decision of the Board of Parole . . . that is being collaterally attacked." Exceptions apply to this limitation; however, Brown does not raise any of those exceptions here.
See AS 12.72.020(b).
Brown's petition for post-conviction relief was filed more than one year after the Board's final rejection of his application for parole. The Board issued its initial decision on June 6, 2000, and the Board denied Brown's request for reconsideration on October 7, 2000. Brown's petition for post-conviction relief was not filed until September 2002.
As we explained earlier, Brown initially sought to challenge the Board's decision by filing a civil action — an action that was dismissed when Judge Sanders ruled that Brown's sole available method for attacking the Board's decision was a petition for post-conviction relief. Under these facts, Brown might argue that his filing of the initial civil action should be the event that determines the timeliness of his attack on the Parole Board's decision. However, Brown filed his initial civil action on March 27, 2002 — again, more than one year after the Board issued its final decision.
For these reasons, we conclude that Brown's petition for post-conviction relief is time-barred.
We conclude that Brown's claims, which are based upon the Board's decision prohibiting Brown from applying from parole release during the remainder of his sentence, are moot because the Board has changed its policy
As we have stated, in a prior order we ruled that Brown was entitled to court-appointed counsel to challenge the Board's decision prohibiting him from ever again seeking parole release. In 2005, the Board discontinued the practice of permanently denying discretionary parole and sent a notice to Brown allowing him to reapply for parole in 2010. We denied the State's motion to dismiss the appeal as moot, opting to allow the parties to brief this issue.
Now, having considered the briefs submitted by the parties, we conclude that the issue is indeed moot. Brown argues that we should nevertheless consider his claim under the public interest exception to the mootness doctrine. We consider three factors in determining whether an issue falls within the public interest exception: "(1) whether the disputed issues are capable of repetition, (2) whether the mootness doctrine, if applied, may cause review of the issues to be repeatedly circumvented, and (3) whether the issues presented are so important to the public interest as to justify overriding the mootness doctrine."
Akpik v. State, Office of Mgmt. Budget, 115 P.3d 532, 535 (Alaska 2005) (quoting Kodiak Seafood Processors Ass'n v. State, 900 P.2d 1191, 1196 (Alaska 1995)).
In early 2005 the Board decided to change its policy and practice of permanently denying discretionary parol. The Board decided that no discretionary parole applicant will be prohibited from applying for discretionary parole for a period of more than ten years. On the tenth year following the Board's decision denying an application for discretionary parole, an offender will be allowed to reapply for discretionary parole and the Board will hold a new parole hearing. The Board set a date to review Brown's parole status.
Brown argues that the Board could just as easily change its policy back to what it was before the recent change. He argues that, if the Board took such an action, he would have to reinitiate legal proceedings. Brown's contention is highly speculative. The current policy of the Board is to discontinue the policy of permanently denying consideration of an applicant for discretionary parole. We see no reason to review a policy of the Board which is not currently in effect and which, in all likelihood, will not be reinstated.
We accordingly AFFIRM Judge Olsen's order dismissing Brown's application for post-conviction relief.