Opinion
Court of Appeals No. A-11265 Trial Court No. 4BE-09-223 CI No. 5990
11-27-2013
RAYMOND E. DEMIENTIEFF, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael R. Smith, Law Office of Michael R. Smith, Portland, Oregon, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Fourth Judicial District, Bethel, Raymond Funk, Judge.
Appearances: Michael R. Smith, Law Office of Michael R. Smith, Portland, Oregon, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
COATS, Senior Judge.
Raymond E. Demientieff entered a plea to sexual abuse of a minor in the second-degree. He was sentenced on August 16, 2007, and he did not appeal.
At the time of Demientieff's conviction, a defendant had two years to file an application for post-conviction relief. But in June 2008, the Alaska Legislature amended AS 12.72.020(a)(3)(A) by shortening this statute of limitations: applications for post-conviction relief must now be brought within eighteen months after the entry of the judgment, if the defendant does not appeal the conviction.
See former AS 12.72.020(a)(3)(A) (2007).
Ch. 75, § 26, SLA 2008.
The effective date of this amendment was July 1, 2008, and the legislature declared that the amendment applied to all applications for post-conviction relief submitted on or after that date.
Ch. 75, §§ 43(g), 48, SLA 2008.
Ch. 75, § 43(g), SLA 2008.
At the time this amendment took effect, ten and a half months had elapsed from the entry of the judgment against Demientieff. Thus, under the amended statute of limitations, he had seven and a half months to file for post-conviction relief — i.e., until February 16, 2009.
On May 1, 2009, Demientieff filed a pro se motion to withdraw his plea, arguing that he had received ineffective assistance of counsel. A few days later, Demientieff filed a related pro se application for post-conviction relief application, and the superior court appointed an attorney to assist Demientieff.
The State moved to dismiss Demientieff's application for post-conviction relief because it was filed beyond the eighteen-month deadline specified in AS 12.72.020(a)(3)(A). Demientieff's attorney argued that the superior court should apply the two-year limitation period codified in the former version of the statute, since that was the version of the statute that was in effect in August 2007, when judgment was entered against Demientieff.
In support of this argument, Demientieff filed an affidavit in which he asserted that no one had informed him that the legislature had shortened the limitation period from two years to eighteen months.
The superior court ruled that the eighteen-month limitation period applied to Demientieff's case and that Demientieff's application for post-conviction relief was therefore untimely.
Why we uphold the superior court's ruling that Demientieff's application for post-conviction relief was untimely
Demientieff argues that the superior court should have applied the two-year statute of limitations that was in effect on the date when Demientieff was convicted, rather than the amended statute of limitations which provided for the shorter, eighteen-month filing deadline. Demientieff contends that the superior court improperly applied the new version of the statute retroactively to him.
We are not convinced that the revised statute of limitations is being applied retroactively to Demientieff. The revised statute was enacted in June 2008, and the statute expressly provided that the new limitation period applied only to future applications for post-conviction relief — specifically, those filed on or after July 1st of that year.
See 2008 Senate Journal 3040, recording the fact that the governor signed SLA 2008, ch. 75 into law on June 10, 2008.
See ch. 75, §§ 43(g), 48, SLA 2008.
It is true that the new statute shortened the time period allotted for Demientieff to seek post-conviction relief, but it did not completely cut off Demientieff's right to seek post-conviction relief: Demientieff still had several months remaining under the revised limitation period.
(Compare State v. Creekpaum, where the Supreme Court held that the legislature did not violate the ex post facto clause when it extended the time limit for initiating criminal prosecutions for certain types of offenses, in cases where the former limitation period had not yet expired.)
753 P.2d 1139 (Alaska 1988).
Id. at 1144.
Moreover, even if we assumed that Demientieff had a protected interest in the older two-year limitation period, and that the new statute of limitations was being applied retroactively, Alaska law authorizes the legislature to enact retroactive statutes. It is true that AS 01.10.090 provides, "No statute is retrospective unless expressly declared therein." But as the Supreme Court observed in Juneau v. Commercial Union Insurance Co., this section is modified by AS 01.10.020, which provides that "[t]he provisions of ... [AS] 01.10.090 shall be observed in the construction of the laws of [this] state unless the [resulting] construction would be inconsistent with the manifest intent of the legislature."
598 P.2d 957 (Alaska 1979).
Id. at 958 n.3.
Here, the legislature's intention is manifest: it wanted the new eighteen-month limitation period to apply to all applications for post-conviction relief filed on or after July 1, 2008. Thus, even if we categorized this new limitation period as "retroactive," we would still conclude that the limitation period was lawfully enacted.
Demientieff next argues that his right to due process of law would be infringed if the amended statute of limitations were applied to him, since the new statute reduced the period of time in which he could file an application for post-conviction relief.
We rejected a similar due process argument in Xavier v. State. The defendant in Xavier was convicted of second-degree murder in 1985. Ten years later, the Alaska Legislature for the first time imposed a statute of limitations on applications for post-conviction relief. Under this new statute of limitations, Xavier had until July 1, 1996, to seek post-conviction relief. Xavier did not file his application until 2006, and the superior court dismissed it as untimely.
278 P.3d 902 (Alaska App. 2012).
Id. at 903.
On appeal, Xavier argued that enforcement of the limitation period against him constituted a violation of his right to due process of law. But this court concluded that the legislature's action was constitutional, given the fact that, even under the new law, Xavier had had nearly eleven years to file for post-conviction relief, and he had not alleged that he faced some extraordinary barrier limiting his access to the courts.
Id. at 904.
Id. at 905.
It is true that the defendant in Xavier had a much longer time to seek post-conviction relief than the eighteen months that were available to Demientieff. But even after the new, shorter limitations period took effect (on July 1, 2008), Demientieff had seven and a half to file his application for post-conviction relief. There is nothing in the record to show that this seven and a half months was insufficient for Demientieff to formulate and file his application. We accordingly conclude that the superior court did not violate Demientieff's right to due process of law when the court applied the amended statute of limitations to his case.
Demientieff additionally argues that it is unfair to apply the new limitation period to him because he was subjectively unaware that the legislature had revised the limitation period. Demientieff also makes the related claim that his attorneys in the underlying criminal case failed to represent him competently because they did not inform him of the newly shortened limitation period.
We rejected a similar claim in Flanigan v. State. The defendant in Flanigan filed an application for post-conviction relief outside the statute of limitations. He claimed that, because of the limited legal research materials available to him in the prison library, he was unaware that the statute of limitations had been amended to shorten the period of time in which he could file his application. We held that Flanigan's allegations, even if true, did not excuse his failure to file his application within the limitations period — because a litigant's ignorance of the applicable limitations period is not an excuse for failing to comply with it.
3 P.3d 372, 377 (Alaska App. 2000).
Id. at 376-77.
Ibid.
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Under Flanigan, the mere fact that Demientieff did not know that the legislature had amended the statute of limitations does not excuse his failure to file a timely application for post-conviction relief.
Nor has Demientieff alleged facts tending to show that his ignorance of the statutory amendment could be attributed to the ineffective assistance of his trial counsel. Demientieff's underlying criminal case was resolved by a plea bargain. That negotiated disposition apparently concluded Demientieff's criminal case, and he did not file an appeal.
Normally, the trial attorneys' representation of Demientieff would end at that point. Demientieff has not alleged that he discussed an application for post-conviction relief with any of the attorneys who represented him in that criminal case, or that any of these attorneys discussed the applicable statute of limitations with him. Thus, Demientieff has not offered a prima facie case that the advice or conduct of his trial attorneys contributed to the late filing of his application for post-conviction relief.
For all these reasons, we conclude that the superior court properly dismissed Demientieff s application for post-conviction relief as untimely. The judgment of the superior court is AFFIRMED.