Opinion
A-14037
11-20-2024
RAYMOND CLYDE DOUGLAS JR., Appellant, v. STATE OF ALASKA, Appellee.
Quinlan Steiner, Steiner Law, LLC, under contract with the Public Defender Agency, and Terrence Haas, Public Defender, Anchorage, for the Appellant. Madison M. Mitchell, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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 Trial Court No. 3AN-19-09449 CI, Anchorage, Eric A. Aarseth, Judge
Quinlan Steiner, Steiner Law, LLC, under contract with the Public Defender Agency, and Terrence Haas, Public Defender, Anchorage, for the Appellant.
Madison M. Mitchell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Raymond Clyde Douglas Jr. pleaded guilty to third-degree sexual assault for engaging in sexual activity with his girlfriend's niece while she was incapacitated.After pleading, however, Douglas filed an application for post-conviction relief seeking to withdraw his plea based on the newly discovered evidence that DNA belonging to another male was discovered on a cervical swab taken from the victim.
AS 11.41.425(a)(1)(B).
The superior court dismissed Douglas's application because, inter alia, Douglas failed to show that the newly discovered evidence would likely lead to an acquittal. As the court pointed out, the presence of another male's DNA did not meaningfully undermine the other evidence against Douglas: the victim knew Douglas and identified him as the perpetrator; the victim and Douglas stated that the victim kicked Douglas's glasses off, which the police found on the floor; Douglas confessed to the crime; and, during his confession, Douglas explained that he did not ejaculate, meaning there was little reason to think Douglas's DNA would be present on the swab.
See Salinas v. State, 373 P.2d 512, 514-15 (Alaska 1962) (requiring that a motion for a new trial based on newly discovered evidence establish that the evidence is such that it "would probably produce an acquittal" at a new trial).
On appeal, Douglas does not challenge the superior court's reasons for dismissing his application. Instead, Douglas argues that the newly discovered evidence claim filed by his attorney was "facially meritless" for a reason not identified by the State or the superior court, and that he is therefore entitled to a remand. Specifically, Douglas asserts that the claim was meritless because, under Alaska case law, a new DNA test is not "newly discovered evidence" if it was performed on forensic evidence known to the defendant at the time of trial.
Lindeman v. State, 244 P.3d 1151, 1156 (Alaska App. 2011) (new DNA tests of blood previously gathered at a crime scene were not newly discovered evidence "because they were based on evidence available at trial" (citing Osborne v. State, 163 P.3d 973, 984 (Alaska App. 2007))); see also AS 12.73.010-.090 (statutory scheme for post-conviction DNA testing procedure).
Applying that case law to guilty pleas, Douglas argues that because the existence of the swab had been disclosed before Douglas pleaded guilty, the subsequent DNA test of that swab is not newly discovered evidence as a matter of law. Douglas argues that this rule rendered his application "facially meritless" and that he is therefore entitled to a new attorney and a remand for further litigation.
We find no merit to this contention. The best support for Douglas's argument comes from Demoski v. State. In that case, Demoski's attorney filed a claim that was clearly barred on procedural grounds and, when the State sought dismissal on those grounds, the attorney "failed to provide any substantive response - that is, he failed to offer any argument for why the claim was not procedurally barred." On appeal, we explained that the attorney's decision to file a claim that was clearly procedurally barred, combined with his failure to offer any argument for why the claim was not barred, necessarily led to the conclusion that the attorney either failed to realize the claim was barred, or else intentionally filed a frivolous claim to avoid the more "onerous" task of filing a certificate of no merit. We therefore remanded the case for the superior court to determine if Demoski's attorney engaged in a competent investigation, and, if not, to vacate the dismissal of Demoski's application and to appoint a new attorney to represent him.
Demoski v. State, 449 P.3d 348 (Alaska App. 2019).
Id. at 351.
Id. at 350-51; see also Griffin v. State, 18 P.3d 71 (Alaska App. 2001); Alaska R. Crim. P. 35.1(e)(2)(C).
Demoski, 449 P.3d at 351-52.
This case, however, is noticeably different from Demoski. For starters, the alleged deficiency on which Douglas relies is not the sort of "clear" procedural bar at issue in Demoski, as evidenced by the fact that the State did not identify this issue in the superior court, and that the only support Douglas provides is case law involving trials, not guilty pleas. Furthermore, because the State did not seek dismissal on this ground, Douglas's attorney never had the opportunity to respond to this alleged deficiency, reformulate the claim so as to avoid it, or investigate other potential claims. We cannot fault Douglas's attorney for failing to respond to arguments the State never made.
As this Court recently explained in Amarok v. State, remands like the one we granted in Demoski are limited to those "narrow category of cases" in which "the representation is so facially inadequate as to obviate the need to show prejudice." That is not the case here.
Amarok v. State, 543 P.3d 259, 261, 265 (Alaska App. 2024).
The judgment of the superior court is AFFIRMED.