Opinion
A-13311 7069
08-23-2023
RAYMOND C. KATCHATAG, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Ann B. Black, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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-16-09226 CI, Anchorage, Pamela Scott Washington, Judge.
Michael L. Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
Ann B. Black, 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.
MEMORANDUM DECISION
HARBISON JUDGE
Raymond C. Katchatag appeals the dismissal of his application for postconviction relief.
In his pro se application, Katchatag alleged that his trial attorney provided ineffective assistance of counsel and that newly discovered evidence required the court to vacate his conviction for second-degree theft. The State moved to dismiss the application because it was not accompanied by the necessary affidavits in support of the allegations, as required by Alaska Criminal Rule 35.1(d).
An attorney was appointed to represent Katchatag, but the attorney did not file an amended application, correct Katchatag's deficient application, or respond to the State's motion to dismiss. The superior court issued multiple notices instructing the attorney to comply with the procedural requirements of Alaska Criminal Rule 35.1(d) and (e)(2), and to otherwise respond to the State's motion to dismiss, but these notices went unanswered. Eventually, the superior court dismissed Katchatag's application as deficient. Katchatag's attorney then requested relief from the court's order, indicating that she wished to rely on Katchatag's pro se application, but the court declined to set aside the dismissal.
On appeal, Katchatag does not challenge the superior court's conclusion that his application was deficient. Rather, based on our precedents in Tazruk v. State and Demoski v. State, Katchatag contends that his post-conviction relief attorney failed to comply with the basic obligations set out in Criminal Rule 35.1, thus requiring us to remand this case so that an attorney may comply with these obligations.
Tazruk v. State, 67 P.3d 687, 690-92 (Alaska App. 2003); Demoski v. State, 449 P.3d 348, 350-51 (Alaska App. 2019).
Having reviewed the record, we agree with Katchatag that a remand is necessary. Accordingly, we vacate the superior court's dismissal of Katchatag's application for post-conviction relief and remand this case for further proceedings.
Factual and procedural background
Katchatag was charged with first-degree robbery and subsequently entered a plea of no contest to second-degree theft. He did not file a direct appeal, but he did file a pro se application for post-conviction relief, claiming that he had newly discovered material evidence of his innocence, that he had received ineffective assistance from his trial counsel, and that he should be permitted to withdraw his plea to correct manifest injustice. Katchatag asserted that the victim, Leland Chasteen, had recanted and now denied Katchatag's involvement in the theft.
AS 11.41.500(a)(1) and AS 11.46.130(a)(3), respectively.
Like many pro se applications, Katchatag's application was not accompanied by the affidavits necessary to support his claims -namely, affidavits from Chasteen and from Katchatag's trial attorney. In his application, Katchatag explained that he could not obtain Chasteen's affidavit because both he and Chasteen were incarcerated and that a probation officer told him to have an attorney obtain Chasteen's affidavit for him.
Before an attorney was appointed to represent Katchatag, the State filed a motion to dismiss Katchatag's application for "failing to meet the procedural requirements of [Criminal] Rule 35.1(d)." Rule 35.1(d) states that "[a]ffidavits, records, or other evidence supporting [the application's] allegations shall be attached to the application, or the application shall recite why they are not attached."
The superior court initially appointed the Public Defender Agency to represent Katchatag, but the Agency withdrew because of a conflict of interest. The court then appointed the Office of Public Advocacy (OPA). The court also issued an order requiring OPA to comply with Criminal Rule 35.1(e)(2) within sixty days and to respond to the State's motion to dismiss. Under Criminal Rule 35.1(e)(2), an attorney appointed to represent an indigent applicant seeking post-conviction relief has sixty days to file one of three documents on behalf of the applicant: (1) a statement that the litigation will proceed on the claims raised in the pro se application; (2) an amended application for post-conviction relief; or (3) a certificate stating that all of the applicant's potential claims have no arguable merit.
After the court issued its order, an OPA contract attorney entered an appearance for Katchatag, but the attorney did not file the missing affidavits, take one of the three actions required by Rule 35.1(e)(2), or respond in any way to the State's motion to dismiss. Indeed, over three months passed without any responsive pleading from Katchatag's attorney. The superior court then issued a notice of its intention to dismiss Katchatag's application and gave the attorney an additional month to respond. But again the attorney did not comply with the court's order.
Instead, the attorney raised the issue of whether Katchatag's application was timely, and she insisted that the court issue a ruling on timeliness. In response, the State filed a motion to strike the attorney's motion for a decision on timeliness because the timeliness of Katchatag's application was not a question before the court - in other words, the State was not contesting the timeliness of Katchatag's application. The court issued an order stating that the application was "accepted for consideration."
Even after the court issued this ruling, Katchatag's attorney did not file a response to the State's motion to dismiss, did not take steps to complete Katchatag's pro se application by providing the missing affidavits, and did not otherwise comply with Criminal Rule 35.1(e)(2).
The court then issued a second notice of intent to dismiss Katchatag's application, again ordering the attorney to take action on Katchatag's behalf. In response, the attorney requested an additional sixty days to file an amended application, and the court granted this request. But the attorney still did not file an amended application, respond to the court's order to comply with Criminal Rules 35.1(d) and (e)(2), or file a response to the State's motion to dismiss.
Finally, approximately fifteen months after the attorney had entered her appearance, the superior court dismissed Katchatag's application as deficient. The only substantive pleading the attorney had filed before this was the motion in which the attorney raised the question of whether the application was timely and insisted that the court answer this question - even though the State had not challenged the timeliness of the application.
The following month, Katchatag's attorney filed a motion asking the court to vacate the dismissal order so that she could proceed on Katchatag's pro se application, file an amended application, or file a certificate of no merit. A week later, the attorney filed a notice of intent to rely on Katchatag's pro se application. The attorney did not acknowledge that the pro se application was deficient, nor did she indicate that she planned to cure the deficiency by belatedly filing the necessary affidavits. The superior court denied the attorney's motion to vacate the dismissal, and this appeal followed.
Why we vacate the dismissal of Katchatag's application
On appeal, Katchatag contends that the superior court erred in dismissing his application for post-conviction relief without addressing his attorney's failure to comply with the requirements of Criminal Rule 35.1(e). Based on our precedents in Tazruk and Demoski, Katchatag contends that his attorney's failure to comply with this rule requires us to remand his case so that a completed application may be filed on his behalf.
See Tazruk, 67 P.3d at 690-92; Demoski, 449 P.3d at 351.
As we have explained, Criminal Rule 35.1(e)(2) requires an attorney appointed to represent an indigent post-conviction relief applicant to pursue one of three courses of action on behalf of their client. First, the attorney may proceed on the claims alleged in the pro se application. If the attorney chooses this option, the attorney must determine whether the application complies with the requirements Criminal Rule 35.1(d) and, if not, must complete the application. Second, an attorney may choose to file an amended application, which may allege different claims from those alleged in the original pro se application. If the attorney chooses this option, the amended application must conform to the requirements of Rule 35.1(d). Lastly, the attorney may choose to file a certificate stating that the applicant has no arguable claims for relief. If this option is pursued, the certificate must include a full description of the claims considered, the materials reviewed, the investigation conducted, and the reasons why the attorney concluded that all the applicant's potential claims had no arguable merit.
In Tazruk, the appointed attorney pursued the first option, filing a statement that the litigation would proceed on the claims raised in Tazruk's pro se application.But all of the claims were facially meritless or facially inadequate to survive the State's motion to dismiss. And when the State moved to dismiss based on these deficiencies, Tazruk's attorney did not file an opposition to the motion. We concluded that, based on that record, it was impossible to determine whether Tazruk's attorney had provided constitutionally adequate representation. We therefore remanded the case to the superior court.
Tazruk, 67 P.3d at 690.
Id. at 691.
In Demoski, the appointed attorney chose the second option, filing an amended application. But the amended application asserted a claim that any competent attorney would have recognized was procedurally barred. And, when the State pointed this out in a motion to dismiss, Demoski's attorney filed an opposition that made no substantive response to the State's argument. We concluded that Demoski's attorney either incompetently failed to realize that Demoski's claim was procedurally barred, or Demoski's attorney knew that the claim was deficient and should have filed a certificate of no arguable merit. We noted that Demoski's attorney had affirmatively disclaimed reliance on previously-asserted ineffective assistance of counsel claims, and we remanded Demoski's case for the attorney to provide a detailed explanation of the claims he considered and why he concluded that they had no arguable merit.
Demoski, 449 P.3d at 349; Alaska R. Crim. P. 35.1(e)(2)(B).
Demoski, 449 P.3d at 351.
Id. at 349.
Id. at 351.
In the present case, although the superior court ordered the attorney to comply with Criminal Rule 35.1(e)(2), the attorney did not choose any of the three options. Additionally, the attorney did not respond to the State's motion to dismiss, even though the court ordered her to do so.
Over fifty days after the superior court dismissed the application, the attorney belatedly announced her intention to choose the first option - i.e., to proceed on the claims raised in Katchatag's pro se application. But even then, the attorney did not acknowledge that she had been repeatedly told that she could not proceed on the pro se application because it was facially deficient, and she did not indicate any intention to correct the identified deficiencies.
The pro se claims in Katchatag's application concerned allegedly new evidence (statements made by Chasteen), as well as an allegation of ineffective assistance of trial counsel. Under Criminal Rule 35.1(d), "Affidavits, records, or other evidence supporting [an application for post-conviction relief's] allegations shall be attached to the application or the application shall recite why they are not attached." Thus, a defendant seeking post-conviction relief must generally "supply supporting affidavits from people who could testify to the pertinent information if called to the stand - or, alternatively, the defendant must explain why such affidavits can not be obtained."
Allen v. State, 153 P.3d 1019, 1026 (Alaska App. 2007).
Katchatag's pro se application did not include affidavits from Chasteen, Katchatag, or Katchatag's trial attorney. When the State moved to dismiss on this ground, Katchatag's post-conviction attorney never addressed the fact that she had not obtained these affidavits, nor did she explain why the affidavits could not be obtained.
We have repeatedly held that a defendant claiming ineffective assistance of counsel must either present an affidavit from his former attorney (addressing the allegations of attorney error) or explain its absence. Peterson v. State, 988 P.2d 109, 113-14 (Alaska App. 1999).
In Alaska, a criminal defendant has both a constitutional and statutory right to competent counsel when pursuing a first application for post-conviction relief. We have repeatedly emphasized the need for courts reviewing post-conviction relief applications to ensure that this right is protected.
Grinols v. State, 74 P.3d 889, 894-95 (Alaska 2003) (holding that the due process clause of the Alaska Constitution guarantees the right to effective counsel when pursuing a first application for post-conviction relief); AS 18.85.100(c).
See Tazruk, 67 P.3d at 690; Demoski, 449 P.3d at 351.
Here, despite repeated court orders requiring action by Katchatag's attorney, the attorney took no action and did not pursue any of the three options identified in Criminal Rule 35.1(e)(2). This left Katchatag effectively unrepresented, in violation of his statutory and constitutional rights to counsel. Under these circumstances, rather than dismissing his application, the superior court should have concluded that the attorney was unwilling or unable to represent Katchatag and appointed a new attorney to represent him.
We accordingly conclude that the superior court's order dismissing Katchatag's application must be vacated, and this case must be remanded so that Katchatag may be afforded the right to counsel to pursue his application for postconviction relief. On remand, OPA shall assign a new attorney to represent Katchatag in the superior court. This attorney must affirmatively elect, and diligently pursue, one of the options set out in Criminal Rule 35.1(e)(2).
Conclusion
We VACATE the superior court's order dismissing Katchatag's application for post-conviction relief and REMAND this case to the superior court for further proceedings consistent with this opinion.