Opinion
A-13625
02-02-2022
DONALD R. DOYON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Dan Bair, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Kenneth M. Rosenstein, 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Unpublished See Alaska Appellate Rule 214(d)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, First Judicial District, Ketchikan, Trevor Stephens, Judge. Trial Court No. IKE-17-00173 CI
Appearances: Dan Bair, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Kenneth M. Rosenstein, 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
Donald R. Doyon appeals the superior court's dismissal of his application for post-conviction relief. He asserts that the superior court erred when it accepted the certificate of no merit filed by his post-conviction relief attorney regarding the effectiveness of his criminal trial and appellate attorneys. The State concedes that the 1 certificate of no merit is deficient because it failed to adequately explain why the postconviction relief attorney rejected the ineffective assistance of counsel allegations raised by Doyon in his pro se application for post-conviction relief. The State also concedes that the certificate failed to adequately explain the additional "potentially colorable" claims that the post-conviction relief attorney apparently considered or the reasons why the attorney rejected these claims as frivolous. Lastly, the State concedes the certificate failed to establish that the post-conviction attorney had adequately reviewed the appellate record to determine whether the appellate attorney had provided effective assistance of counsel. Notably, the attorney did not directly assert that he had reviewed the trial transcript; nor did he file a copy of the transcript for the trial court's independent review.
See Alaska R. Crim. P. 35.1(e)(3) (describing requirements of certificate ofno merit); see also Griffin v. State, 18 P.3d 71, 77 (Alaska App. 2001) (holding that the certificate of no merit filed "must fully explain why the attorney believes that the petitioner has no colorable claim to post-conviction relief," and must include a "full explanation of all the claims the attorney has considered and why the attorney has concluded that these claims are frivolous").
As the State also notes, the appellate attorney initially asserted three points on appeal, but the appellate attorney ultimately raised only one of these points on appeal. The postconviction attorney's certificate of no merit does not mention this fact; it also does not provide any analysis regarding why it was reasonable for the appellate attorney to abandon the other points on appeal.
We have reviewed the certificate of no merit and we agree that the State's concessions of deficiency are well-founded. Accordingly, we remand this case to the superior court to give the attorney an opportunity to either correct the certificate of no merit's deficiencies or to proceed with litigation of any non-frivolous claims of postconviction relief that may exist. 2
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess whether a concession of error is supported by the record and has legal foundation).
Although the State agrees that remand is appropriate in this case, the State also requests that we rule on a merit argument that Doyon's post-conviction relief attorney raised prior to the filing of the certificate of no merit. Prior to filing the certificate of no merit, Doyon's attorney filed an amended post-conviction relief application arguing that Doyon was entitled to the ameliorative benefits of Senate Bill 91, which went into effect approximately eight months after his sentencing. The superior court dismissed this claim on the pleadings and then directed the attorney to file a certificate of no merit. Doyon has separately appealed that ruling.
In response, the State argues that the superior court was correct to dismiss this claim. We agree.
Doyon was convicted of second-degree misconduct involving a controlled substance because he sold .88 grams of heroin to a police informant. When Doyon committed this offense in 2014, second-degree misconduct involving a controlled substance was a class A felony. And when Doyon was sentenced for the offense in November 2015, the offense was a class A felony. Approximately eight months after Doyon was sentenced, however, the legislature reduced the offense to a class C felony as part of Senate Bill 91, a comprehensive criminal justice reform bill. However, the legislature subsequently repealed many parts of Senate Bill 91, including the provision that changed Doyon's offense from a class A felony to a class C felony. The effective 3 date of the repeal legislation was July 1, 2019. Therefore, as of today, Doyon's offense remains a class A felony.
Doyon v. State, 2018 WL 3301671, *l (Alaska App. July 5, 2018) (unpublished).
See former AS 11.71.020(a)(1), (d) (2015) (defining second-degree misconduct involving a controlled substance as, among other actions, delivery of "any amount of a schedule IA controlled substance" and designating it as a class A felony); AS 1 l.7l.l4O(d)(l 1) (classifying heroin as a schedule IA controlled substance).
Among other things, SB 91 repealed AS 11.71.020 and amended AS 11.71.040(a) (thereby creating as a class C felony the offense of delivering less than one gram of a schedule IA controlled substance, which includes heroin). See SLA 2016, ch. 36, § 45.
Doyon acknowledges that he was sentenced before the effective date of Senate Bill 91; he also acknowledges that the relevant ameliorative changes of Senate Bill 91 have since been repealed. He nevertheless contends that he is entitled to the benefit of these changes. We disagree.
Doyon also appears to argue that the trial court should have required the postconviction relief attorney to address the Senate Bill 91 arguments in his certificate of no merit. We find no merit to this argument.
It is true that, under Alaska law, a sentencing court may take into consideration ameliorative changes in sentencing provisions that did not become effective until after the date of the offense for which the defendant is to be sentenced, or were impending when the defendant was sentenced. This is allowed because those changes, as "the most recent expressions of legislative policy in the highly subjective realm of sentencing... are useful and relevant" in determining an appropriate sentence. But Senate Bill 91 was not pending at the time of Doyon's sentencing. Moreover, the changes made in Senate Bill 91 that were applicable to Doyon's offense and sentence were subsequently repealed by the legislature. Thus, in Doyon's case, "the most recent expressions of legislative policy in the highly subjective realm of sentencing" warrant 4 no change to Doyon's sentence based on Senate Bill 91 because, as of today, Doyon's criminal offense is again punishable as a class A felony.
Whittlesey v. State, 626 P.2d 1066, 1068 (Alaska 1980); Sundberg v. State, 636 P.2d 619, 622 (Alaska App. 1981); see also Maeckle v. State, 792 P.2d 686, 690-91 (Alaska App. 1990) (remanding for reconsideration of sentence in light of legislative amendments adopted following initial sentencing hearing).
Whittlesey, 626 P.2d at 1068.
See, e.g., Colegrove v. State, 2018 WL 6119889, *2 (Alaska App. Nov. 21, 2018) (unpublished). In Colegrove, we concluded that the trial court had erred when it ignored the defendant's request that the court take into consideration recently passed bills reducing the maximum penalty of his offense from a class A misdemeanor punishable by up to 1 year of imprisonment to a violation punishable only by a fine. But we also noted that the legislature had, since Colegrove's sentencing, again amended his offense, making it a class B misdemeanor punishable by no more than 5 days' imprisonment. We directed the trial court to reconsider Colegrove's sentencing "in light of the current classification of his offense." Id. (emphasis added).
We AFFIRM the summary dismissal of Doyon's post-conviction relief claim that he should benefit from the passage of Senate Bill 91. We otherwise REMAND this case for further proceedings regarding the deficient certificate of no merit. 5