Opinion
A-13764
01-18-2023
BEN J. LATHAM, Appellant, v. STATE OF ALASKA, Appellee.
Ben J. Latham, in propria persona, Anchorage, Appellant. RuthAnne Beach, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Anchorage, Trial Court No. 3AN-18-08176 CI, Adolf V. Zeman, Judge.
Ben J. Latham, in propria persona, Anchorage, Appellant.
RuthAnne Beach, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
SUMMARY DISPOSITION
Ben J. Latham appeals the dismissal of his second application for postconviction relief. Because all of the claims Latham made in his application were either untimely or had previously been raised and rejected in other cases, we affirm the superior court's order.
See AS 12.72.020(a)(5) (providing that an application for post-conviction relief may not include a claim that was decided on its merits or on procedural grounds in any previous proceeding); AS 12.72.025 (establishing that an application based on an allegation that an attorney provided ineffective assistance in a prior application must be filed within one year after the court's decision on the prior application is final).
In 1986, Latham pleaded no contest to one count of second-degree criminal mischief. He was given an entirely suspended sentence and placed on probation. In 1997, the superior court found that Latham had violated his probation, and it extended Latham's probation by 1 year but declined to impose any term of imprisonment. Latham subsequently filed two separate applications for post-conviction relief.
We affirmed Latham's conviction and sentence on direct appeal. Latham v. State, 790 P.2d 717, 719 (Alaska App. 1990).
In this appeal, Latham challenges the superior court's order dismissing the second of these applications. In this second application, Latham focused on a 1995 change in the law relating to sentence appeals. Prior to 1995, AS 12.5 5.120(a) permitted a defendant to appeal a sentence of 1 year or more to this Court on the grounds that the sentence was excessive. But the legislature amended AS 12.55.120(a) in 1995 to bar a defendant from filing an excessive sentence appeal to this Court in a felony case unless their sentence of imprisonment exceeds 2 years. (The amendment does not impact the defendant's right to file a petition for sentence review to the Alaska Supreme Court.)
AS 12.55.120(a); Rozkydal v. State, 938P.2d 1091,1095 (Alaska App. 1997); Alaska R. App. P. 215(a)(5).
In his application, Latham claimed that the 1995 change in the law impacted his right to appeal the sentence that was imposed when he violated his probation. Latham asserted that, because he did not know that the law would change at the time he entered his original plea to criminal mischief in 1986, he did not enter a knowing plea. Latham also claimed that the attorney who represented him in his probation case was incompetent for failing to advise him to withdraw his plea based on the change in law and for failing to file a petition for sentence review in the supreme court following the order extending his probation. The superior court dismissed Latham's application, and this appeal followed.
As the superior court noted, Latham raised and lost claims relating to the 1995 change in law in three previous cases: (1) his first application for post-conviction relief; (2) a civil suit he filed against the Alaska Public Defender Agency; and (3) a civil suit he filed against former Governor Sarah Palin. In the most recent of those cases, the Alaska Supreme Court explained that "[p]rior litigation has conclusively established that Latham was not injured by the 1995 law" because "Latham would have been unable to appeal his sentence as excessive under either the pre-1995 version [of the statute] or the post-1995 version."
Latham v. State, 2003 WL 22250341 (Alaska App. Oct. 1, 2003) (unpublished).
Latham v. Alaska Pub. Def. Agency, 2006 WL 1667661 (Alaska June 14, 2006) (unpublished).
Latham v. Palin, 251 P.3d 341 (Alaska 2011).
Id. at 342, 344-45.
Because the claims Latham raised in his second application for postconviction relief were nearly identical to the claims he raised and lost in these three previous cases, we affirm the superior court's order dismissing Latham's application as successive.
Latham raises one additional claim on appeal. He asserts that, although he lodged an amended application, the superior court erred in declining to consider the amended application before dismissing it. But we have reviewed the amended application, and it contains only one new claim - that Latham's first post-conviction relief attorney provided him with ineffective assistance of counsel for not submitting affidavits explaining why Latham did not file a petition for review of his sentence with the supreme court.
Under AS 12.72.025, a claim that the applicant received ineffective assistance from the attorney who represented them in a prior application must be filed within one year after the court's decision on the prior application is final. Latham's second application was not filed until 2018 - long after the statutory deadline. We accordingly conclude that this claim was untimely.
Alaska Statute 12.72.025 was enacted under SLA 2007, ch. 24, § 25, which took effect on July 1, 2007. This statute included a grace period - giving a person whose application for post-conviction relief was denied before its effective date until July 1, 2008 to file a claim. See SLA 2007, ch. 24, § 36(c). Thus, Latham became statutorily barred from filing after July 1, 2008.
The judgment of the superior court is AFFIRMED.