Opinion
Court of Appeals No. A-9760.
August 13, 2008.
Appeal from the Superior Court, Fourth Judicial District, Trial Court No. 4FA-03-144 CI, Fairbanks, Jane F. Kauvar, Judge.
Doug Miller, Assistant Public Advocate, and Joshua Fink, Public Advocate, Anchorage, for the Appellant. Tamara E. de Lucia, 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 Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Burns J. Frank killed Richard John by stabbing him with a knife. For this misconduct, a jury convicted Burns of second-degree murder. We affirmed Frank's conviction on direct appeal. Frank applied for post-conviction relief and an attorney was appointed to represent him. Frank's attorney filed a certificate under Criminal Rule 35.1(e)(2)(C) stating that he should be allowed to withdraw from the case and that Frank's application did not allege a colorable claim for relief. The superior court then dismissed Frank's application. Because the attorney's certificate did not satisfactorily explain why Frank had no colorable claim for relief, we vacated the dismissal of Frank's application and remanded for further proceedings.
AS 11.41.110.
Frank v. State, Alaska App. Memorandum Opinion and Judgment No. 4698 at 2 (Apr. 30, 2003), 2003 WL 1987850 at *1.
Frank v. State, Alaska App. Memorandum Opinion and Judgment No. 4950 at 2 (Dec. 15, 2004), 2004 WL 2914975 at *1.
Id. at 5, 2004 WL 2914975 at *2-3.
On remand, the superior court appointed Frank a new attorney. This attorney deposed Frank's trial attorney and filed a copy of the deposition with the court. Shortly thereafter, Frank's new attorney filed a no-merit certificate under Criminal Rule 35.1(e)(2)(C), declaring that Frank had no colorable for post-conviction relief claim and that his application could not be amended to allege a colorable claim. A copy of this certificate was sent to Frank. In an affidavit accompanying the certificate, the attorney noted that Frank had yet to comment on his trial attorney's deposition.
Less than two weeks later, the court received a letter from Frank inquiring about the status of his case. An administrative assistant wrote back to Frank, explaining that his attorney had filed the deposition of Frank's trial attorney with the court and informing Frank that his attorney was waiting for Frank's comments.
Frank wrote back about a month later to notify the court that he had been transferred from the prison facility in Florence, Arizona, to the Red Rock Correctional Center in Eloy, Arizona. In this letter, Frank wrote that when he tried to call his attorney, he was told that the attorney was no longer representing him and that he should stop calling.
A few days later, the superior court dismissed Frank's case in a one-sentence order: "The court having reviewed the pleadings on file, the evaluation of counsel, and upon due consideration having found there is no colorable claim of ineffectiveness of assistance of counsel, . . . [this] case is dismissed with prejudice."
If an attorney files a no-merit certificate under Criminal Rule 35(e)(2)(C), Criminal Rule 35.1(f)(2) imposes certain procedural requirements on the superior court if the court tentatively agrees that the applicant is not entitled to relief. Under the rule, the superior court "shall indicate to the parties its intention to permit counsel to withdraw and dismiss the application and its reasons for so doing." The rule further provides that "the applicant . . . shall be given an opportunity to reply to the proposed withdrawal and dismissal."
The State concedes that the superior court dismissed Frank's case without following the rule, but argues that Frank "was constructively afforded the opportunity to be heard prior to the dismissal," primarily because his attorney sent a copy of the no-merit certificate to Frank. But under the rule, the superior court is required to explain the reasons why it intends to dismiss an application, and then allow the applicant to respond. The superior court did neither. Accordingly, we must again VACATE the order dismissing Frank's application and REMAND for further proceedings.
Griffin v. State, 18 P.3d 71, 76 (Alaska App. 2001).
In D ecember 2004, this Court remanded Frank's post-conviction relief case to the superior court because of two procedural errors. First, Frank's court-appointed attorney filed a certificate of "no arguable merit" under Alaska Criminal Rule 35.1(e)(2), but the attorney failed to offer a detailed explanation of why he concluded that Frank had no colorable claims for post-conviction relief. Then, in response to the attorney's certificate, the superior court issued an order dismissing Frank's petition for post-conviction relief — without explaining why the court agreed with the attorney, and w ithout giving Frank an opportunity to respond to the contemplated dismissal. See Frank v. State, Alaska App. Memorandum Opinion No. 4950 (December 15, 2004), 2004 WL 2914975.
It is both disappointing an d frustrating to discover that, three and a half years later, this Court must again remand Frank's case to the superior court because Frank's new attorney and the superior court have repeated these errors.
In Griffin v. State, 18 P.3d 71, 77 (Alaska App. 2001), we held that even though an attorney appointed to represent an indigent petitioner for post-conviction relief may properly move to withdraw from the case under Criminal Rule 35.1(e)(2) if the petitioner has no arguable claim for relief, the petitioner's constitutional right to zealous representation is not adequately protected unless the attorney's "no arguable merit" certificate contains "a full explanation of all the claims the attorney has considered and why the attorney has concluded that these claims are frivolous".
According to the "no arguable merit" certificate filed by Frank's most recent attorney, the attorney investigated only two potential claims for post-conviction relief: first, that Frank's trial attorney incompetently failed to pursue pre-trial suppression motions, and second, that Frank's trial attorney had a conflict of interest that should have disqualified him from representing Frank at trial. These are the two potential claims that this Court identified in our previous decision in Frank's case.
Frank's new attorney apparently believed that he was not obliged to consider any other claims, becau se this Court had not identified any other potential claims for relief in our decision. This belief was mistaken. When this Court identified the two claims described above, we did not say that no other claims were possible, or that no other potential claims needed to be considered. Rather, we identified these two claims from a record that was concededly incomplete — because Frank's earlier attorney had not fulfilled his constitutional obligation to fu lly investigate Frank's potential claims for relief.
When we remanded Frank's case to the superior court, we did so with the expectation that a new attorney would undertake a fresh investigation of all of Frank's potential claims for relief, not just the two that we were able to identify from the record before us in the previous appeal.
Moreover, the current record fails to establish that Frank's new attorney conducted an adequate investigation of even the two claims identified in our prior decision.
According to the attorney's certificate, the new attorney investigated these two claims by taking the deposition of Frank's trial attorney. But in the certificate, the new attorney merely recited the trial attorney's answers to the questions about these two claims — and then, based on the trial attorney's answers, the new attorney declared that neither of Frank's claims had any arguable merit. Such an investigation is not legally adequate.
Frank's new attorney failed to assert that he reviewed the record of Frank's trial to see if the trial attorney's answers were supported by the record. Similarly, Frank's new attorney failed to assert that he had interviewed any other witnesses or had conducted any other investigation to see if there might be some arguable reason to doubt the trial attorney's explanations.
It may be that the new attorney did, in fact, conduct this type of investigation to check the accuracy of the trial attorney's answers. But if the new attorney took these actions, the attorney's certificate fails to indicate it. As a result, it is impossible to tell whether the attorney took the steps necessary to zealously pursue Frank's potential claims for post-conviction relief.
For this same reason, the superior court could not properly issue a notice of tentative dismissal based on the attorney's certificate in this case. That certificate failed to provide sufficient detail for the superior court to properly fulfill its constitutional duty in these circumstances: the duty to independently confirm that Frank's attorney zealously investigated Frank's potential claims for relief before the attorney declared that Frank's potential claims were frivolous.
And finally, the superior court committed the same procedural error as before: based on the attorney's certificate, the court issued a summary order dismissing Frank's petition for post-conviction relief without explaining why the court agreed with Frank's new attorney's appraisal of the case, and without giving Frank an opportunity to respond to the contemplated dismissal.
It is dispiriting to have to issue another decision like this in Frank's case. But as this Court explained in Griffin, and as this Court explained in our previous decision in Frank's case, a defendant's constitutional right to zealous representation demands adherence to these procedural requirements by both the defendant's appointed attorney and the superior court.