Opinion
Court of Appeals No. A-11013 Trial Court No. 3AN-11-6577 CI No. 5818
03-14-2012
SIDNEY R. HERTZ, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Sidney R. Hertz, pro se, Palmer. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Mark Rindner, Judge.
Appearances: Sidney R. Hertz, pro se, Palmer. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, Bolger, Judge, and Andrews, Senior Superior Court Judge.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
[Mannheimer, Judge, not participating.]
BOLGER, Judge.
In 1984, Sidney R. Hertz was convicted of murder in the second degree. In 2011, Hertz filed an application for post-conviction relief alleging that the jury instruction for second-degree murder at his criminal trial was incorrect and that the court had improperly failed to appoint standby counsel for his first application for post-conviction relief. Hertz's application noted that he had filed many previous applications for post-conviction relief. Hertz also requested appointment of counsel to assist him with his current application.
See generally Hertz v. State, 8 P.3d 1144, 1145-46 (Alaska App. 2000) (listing prior applications); Hertz v. State, Mem. Op. & J. No. 5457, 2009 WL 792779 (Alaska App. Mar. 25, 2009) (same).
Superior Court Judge Mark Rindner denied Hertz's request for appointment of counsel, citing AS 18.85.100(c)(1), which provides that a person is not entitled to appointed counsel "for an untimely or successive application for post-conviction relief." The judge also noted that Hertz's application appeared to be barred by AS 12.72.020(a)(6), which prohibits an application for post-conviction relief if "a previous application ... has been filed."
The judge gave Hertz three weeks to file a brief explaining why his application should be accepted. Hertz filed a brief arguing that the decisions dismissing his previous post-conviction applications had not adequately addressed the merits of his claim that he had received ineffective assistance of counsel during his criminal trial proceedings. The judge dismissed Hertz's application.
On appeal, Hertz argues that Judge Rindner should have reinstated his first post-conviction relief application, which was dismissed in 1990, because he did not make a voluntary waiver of his right to counsel (in 1990) and because he did not make a voluntary decision to dismiss his first application. But we decided this issue in a previous appeal in which we determined that the superior court properly dismissed Hertz's first application after Hertz made a voluntary waiver of his right to counsel and a specific motion to dismiss.
Hertz v. State, Mem. Op. & J. No. 2358, 1992 WL 12152855 (Alaska App. Feb. 19, 1992).
Hertz also argues that Judge Rindner should have reinstated his first post-conviction relief application because he received ineffective assistance of counsel during his criminal trial proceedings. But the judge was not required to consider this substantive claim because Hertz's current application was clearly barred by the post-conviction relief statute. Judge Rindner correctly recognized that Hertz was not entitled to bring another application for post-conviction relief because he has filed many prior applications.
See AS 12.72.020(d), which provides in pertinent part: "The court may not consider a substantive claim in [a post-conviction relief] application ... until the court has first determined that ... no previous application has been filed."
Hertz also argues that Judge Rindner erred when he denied Hertz's request for appointed counsel in this case. Hertz points out that an indigent defendant pursuing a first application for post-conviction relief is entitled to the assistance of counsel for the purpose of arguing whether the application is timely. But this rule does not apply to Hertz because this is not his first application. We have never held that an applicant is entitled to the appointment of counsel for such a repetitive application. Judge Rindner correctly determined that Hertz was not entitled to appointed counsel.
See Holden v. State, 172 P.3d 815, 817-18 (Alaska App. 2007).
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The State argues that Hertz's application in this case is also barred because it is untimely, because Hertz previously raised some of his claims, and because Hertz could have raised his remaining claims in previous proceedings. We need not address these arguments. It is sufficient for us to note that, based on this record, Judge Rindner correctly concluded that Hertz was not entitled to pursue another application for post-conviction relief.
We therefore AFFIRM the superior court's judgment.