Opinion
Court of Appeals No. A-9813.
November 25, 2009.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger, Judge, Trial Court No. 4FA-05-2649 Civ.
James M. Hackett, Fairbanks, and Richard Charley, in propria persona, Eloy, Arizona, for the Appellant.
Terisia K. Chleborad, 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 Bolger, Judges.
MEMORANDUM OPINION
Richard Charley is appealing the superior court's dismissal of his second petition for post-conviction relief. When this Court reviewed Charley's initial appellate documents, we noted that Charley had not been represented by counsel in the superior court during the litigation of his petition. We therefore remanded Charley's case to the superior court so that the superior court could determine (1) whether Charley qualified for appointed counsel (as a financial matter), and (2) whether the appointment of counsel was necessary for a fair determination of the issues raised in Charley's second petition for post-conviction relief.
(In Grinols v. State, 10 P.3d 600, 621-23 (Alaska App. 2000), this Court concluded that, under the due process clause of the Alaska Constitution, the superior court has the authority to appoint counsel to represent a defendant who is pursuing a second petition for post-conviction relief if "the circumstances of [the] defendant or the difficulties in presenting a particular matter are such that [a] fair and meaningful hearing cannot be had without the aid of counsel". Id. at 623.)
On remand, the superior court determined that Charley was financially eligible for court-appointed counsel, and the court further determined that Charley should receive appointed counsel under the Grinols test — in other words, that the appointment of counsel was necessary for a fair presentation of Charley's claims. The superior court therefore directed that Charley receive the assistance of court-appointed counsel "to represent him [in] this second [post-conviction relief] application and [in any] appeal of the dismissal of the PCR application."
Pursuant to this ruling, the superior court appointed Attorney James M. Hackett to represent Charley.
From the wording of the superior court's order, it appears that the superior court expected Mr. Hackett to perform two roles: first, he would help Charley investigate, reformulate, and re-argue his claims for post-conviction relief, and then — if the court again dismissed Charley's petition — he would help Charley pursue an appeal of the superior court's decision.
But the record contains no indication that Hackett took any steps to investigate or reformulate Charley's claims for post-conviction relief, or to re-argue Charley's claims in any fashion to the superior court. Instead, Hackett simply filed a brief in the current appeal. That is, Hackett filed an appellate brief that discusses the superior court's initial order dismissing Charley's pro se petition for post-conviction relief — the ruling that was issued before Hackett entered the case and was directed to assist Charley in the post-conviction relief litigation.
Moreover, Mr. Hackett's brief to this Court is an Anders brief. In this brief, Mr. Hackett concedes that the superior court was right when it initially dismissed Charley's pro se petition for post-conviction relief.
See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), as limited by Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (holding that if an attorney appointed to represent an indigent defendant on appeal concludes that the defendant has no non-frivolous issues to raise, the attorney must file a brief explaining all of the potential appellate issues that the attorney considered, and also explaining why the attorney concluded that none of these potential issues have any arguable merit.)
If we understand the superior court's order correctly, the record suggests that Mr. Hackett failed to abide by the terms of his appointment. The superior court appointed Mr. Hackett to investigate or reformulate Charley's potential claims for post-conviction relief, and to re-argue Charley's case to the superior court — or, at least, to provide a detailed explanation of why Charley had no colorable claim for relief. See Tazruk v. State, 67 P.3d 687, 688-89 (Alaska App. 2003); Griffin v. State, 18 P.3d 71, 77 (Alaska App. 2001) (construing Alaska Criminal Rule 35.1(e)(2)). The record contains no indication that Mr. Hackett did these things — and, thus, it appears that Charley has still been denied the legal representation that the superior court deemed necessary when it issued the order appointing counsel.
Accordingly, we VACATE the superior court's order dismissing this petition for post-conviction relief, and we must again REMAND this case to the superior court for further proceedings.