Opinion
A-13002
10-13-2021
RICHARD DEREMER, Appellant, v. STATE OF ALASKA, Appellee.
Richard DeRemer, in propria persona, Seward, Appellant. Michal Stryszak, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Third Judicial District No. 3PA-17-01363 CI, Palmer, Jonathan A. Woodman, Judge.
Richard DeRemer, in propria persona, Seward, Appellant.
Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
SUMMARY DISPOSITION
Richard DeRemer was convicted, following a jury trial, of first-degree murder, first-degree arson, and other related felonies for killing David McKinney and then setting McKinney's house on fire. DeRemer's convictions were affirmed by this Court on direct appeal.
DeRemer v. State, 2008 WL 612871 (Alaska App. Mar. 5, 2008) (unpublished) (DeRemer I).
Following his direct appeal, DeRemer filed an application for postconviction relief, asserting that he was entitled to a new trial based on newly discovered evidence. The superior court dismissed the post-conviction relief application on the pleadings. DeRemer appealed, and we affirmed the dismissal, concluding that, given the nature and strength of the State's case, DeRemer had failed to show that the alleged newly discovered evidence (even if assumed to be true and admissible) would probably produce an acquittal on retrial.
See DeRemer v. State, 2015 WL 7201207, at *l (Alaska App. Nov. 12, 2015) (unpublished) (DeRemer II).
Id.
DeRemer subsequently filed a second application for post-conviction relief, alleging that his first post-conviction relief attorney was ineffective for failing to properly litigate his post-conviction relief claims. The superior court dismissed the second postconviction relief application on the pleadings. DeRemer now appeals that dismissal.
See Grinols v. State, 74 P.3d 889, 894 (Alaska 2003), aff'd in part, 74 P.3d 889 (Alaska 2003) (holding defendants have a right under the Alaskan Constitution to effective counsel in post-conviction proceedings and that they may challenge counsel's effectiveness in a second post-conviction relief application despite statutory limitation against successive post-conviction relief applications).
On appeal, DeRemer raises four claims. We address each in turn.
First, DeRemer contends that his original post-conviction relief attorney was ineffective because she allegedly refused to ask the Office of Public Advocacy for additional funding in order to hire a private investigator. DeRemer maintains a private investigator was necessary to interview a witness that could corroborate DeRemer's claim that Terry Sudbury (the alternate murder suspect at DeRemer's trial) loaded his shotgun with zipperteeth. DeRemer raised this claim in his second application for postconviction relief, and it is therefore preserved for our review.
For a further explanation of DeRemer's trial and his claim that he was entitled to a new trial based on newly discovered evidence that Sudbury loaded his shotgun with zipperteeth (a zippertooth was found embedded in the victim's skull alongside number 8 birdshot), see DeRemer II, 2015 WL 7201207, at *2-5.
On appeal, the State argues that this claim was properly dismissed by the superior court because (1) DeRemer failed to plead a prima facie case of ineffective assistance of counsel and failed to offer admissible evidence supporting the claim; and (2) the underlying basis of the claim - that DeRemer would be entitled to a new trial based on the zipperteeth evidence that the witness would allegedly have corroborated- had already been litigated in DeRemer's first post-conviction relief application and resolved against him on appeal.
We do not need to reach the State's first argument because we agree that the underlying basis for the claim has already been resolved against DeRemer. DeRemer's claim rests on his assertion that, if his post-conviction relief attorney had acted competently, she would have obtained witness corroboration that Sudbury loaded his shotgun with zipperteeth. But when we affirmed the dismissal of DeRemer's first application for post-conviction relief, we assumed (for purposes of the appeal) that this corroboration had been obtained and was admissible. We nevertheless concluded that it would not be enough to secure a new trial for DeRemer, given the nature and strength of the State's case. In other words, we have already ruled against DeRemer on the prejudice prong of his ineffective assistance of counsel claim. That claim was therefore properly dismissed by the superior court as procedurally barred.
Id. at *3-4.
See AS 12.72.020(a)(5) (stating that a post-conviction relief claim that "was decided on its merits or on procedural grounds in any previous proceeding" is procedurally barred); see also Brown v. State, 803 P.2d 887, 888-89 (Alaska App. 1990) (holding that principles of collateral estoppel and res judicata apply in post-conviction relief proceedings to bar claims previously raised).
DeRemer's second claim on appeal is that his original post-conviction relief attorney was ineffective because she refused to investigate DeRemer's assertion that the State withheld exculpatory evidence concerning another potential witness during discovery in his underlying criminal case. DeRemer raises this claim for the first time on appeal. He did not raise this claim in his second application for post-conviction relief. Because DeRemer did not raise this claim in the proceedings in the superior court, it is not properly before this Court and is waived.
See Harvey v. Cook, 172 P.3d 794, 802 (Alaska 2007); Groff v. Kohler, 922 P.2d 870, 875 (Alaska 1996); Rhames v. State, 1993 WL13156663, at *3-5 (Alaska App. Apr. 7, 1993) (unpublished).
DeRemer's third claim on appeal relates to his second claim. He contends that he has new evidence related to his claim that the State withheld exculpatory information during discovery. Like DeRemer's second claim, this claim was not raised in his second post-conviction relief application and is instead being raised for the first time on appeal. Again, because DeRemer did not raise this claim in the proceedings before the superior court, it is not properly before this Court and is waived.
In conjunction with this claim, DeRemer submitted multiple documents in an appendix to his appellate brief. These documents included an affidavit from a witness who told DeRemer about an overdose that allegedly happened at the victim's house some months before the murder. (DeRemer argues that this overdose is exculpatory because it widens the net of potential suspects who may have murdered the victim, as individuals in the community were allegedly discussing burglarizing the victim's home in search of opiate or prescription drugs.) But the witness's affidavit is dated after the superior court dismissed DeRemer's second post-conviction relief application. It was clearly not part of the record before the superior court, and is therefore not properly before this Court. See Alaska R. App. P. 210(a). Many of the other documents contained in DeRemer's appendix and his supplemental appendix are similarly not part of the record on appeal and are therefore not properly before this Court.
Harvey, 172 P.3d at 802; Groff, 922 P.2d at 875; Rhames, 1993 WL 13156663, at *3-5.
DeRemer's final claim on appeal is that his trial attorney was ineffective in sixteen different ways. This claim was not raised in DeRemer's second application for post-conviction relief, although DeRemer's opposition to the State's motion to dismiss mentioned parts of this claim. The State argues that DeRemer's claims of ineffectiveness against his trial attorney are untimely, procedurally barred, deficient, and not properly before this Court. We agree that these claims are procedurally barred because they could have been raised in DeRemer's first post-conviction relief application.
See AS 12.72.020(a)(6); Grinols v. State, 10 P.3d 600, 607 (Alaska App. 2000), aff'd in part, 74 P.3d 889 (Alaska 2003) (applying res judicata to bar claims in a second postconviction relief petition that could have been brought in a first petition).
Accordingly, because all of DeRemer's claims on appeal are either procedurally barred or not properly before this Court, we AFFIRM the judgment of the superior court.