Opinion
A-13668
02-01-2023
FRANK W. LEE, Appellant, v. STATE OF ALASKA, Appellee.
Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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 Trial Court No. 1JU-18-00941 CI, First Judicial District, Juneau, Daniel Serially, Judge.
Olena Kalytiak Davis, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, 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 Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Frank W. Lee appeals the summary dismissal of his application for postconviction relief as untimely.
In 2013, following a jury trial, Lee was convicted of second-degree sexual assault. We affirmed his conviction, although we reversed or vacated several of his probation conditions. The Alaska Supreme Court denied his petition for hearing on July 31, 2017, meaning that his appeal became final on August 1, 2017.
AS 11.41.420(a)(3)(B)-(C).
Lee v. State, 2017 WL 2209876 (Alaska App. May 17, 2017) (unpublished).
See Alaska R. App. P. 507(b), (c)(3); Alex v. State, 210 P.3d 1225,1227 (Alaska App. 2009).
Under AS 12.72.020(a)(3)(A), Lee had one year from the date his appeal became final to file an application for post-conviction relief. He did not file his initial pro se application until September 17,2018 - more than six weeks after this deadline. Lee argued that his late filing should be excused because the attorney who represented him in his appeal to this Court, and his petition for hearing to the supreme court, failed to inform him of the deadline for filing an application for post-conviction relief.
The superior court dismissed Lee's application as untimely. The court assumed that an appellate attorney's unreasonable failure to consult with a defendant about the possibility of an application for post-conviction relief constituted grounds for a late filing. But the court concluded that Lee had failed to allege facts that would establish his appellate attorney was incompetent when she consulted with him about post-conviction relief.
See State v. Carlson, 440 P.3d 364, 380 (Alaska App. 2019) (explaining that a defendant's late filing of an appeal is excused "if the defendant can show (1) that the defendant's attorney unreasonably failed to consult with the defendant about the possibility of an appeal, and (2) that, but for the defense attorney's unreasonable failure to consult with the defendant about an appeal, the defendant would have filed a timely appeal" but that Alaska law is unsettled with regard to whether this rule applies to late-filed applications for post-conviction relief).
See Roe v. Flores-Ortega, 528 U.S. 470, 476-80 (2000) (explaining that the duty to reasonably consult with a defendant about an appeal is an application of the duty to provide competent representation).
Lee renews this argument on appeal. After reviewing the record, we agree with the superior court that Lee's untimely filing was not excused by an incompetent consultation from his appellate attorney. The record reflects that, in 2015, Lee's appellate attorney wrote a letter to Lee explaining the availability of post-conviction relief and the difference between a direct appeal and post-conviction relief, and also suggesting a possible post-conviction relief claim. In a second letter, over a year prior to the filing deadline, Lee's appellate attorney provided Lee with the form application for post-conviction relief to fill out and invited him to call her to discuss the petition process. The consultation about the possibility of post-conviction relief that occurred in this case did not fall below the standard of minimal competence expected of an attorney experienced in criminal law.
See State v. Jones, 759 P.2d 558, 568 (Alaska App. 1988) ("[T]he standard for ineffective representation is one of minimal competence.").
Lee separately argues that applying the statute of limitations in this case violates due process because he did not know that the deadline existed. But the decisional law of this and other jurisdictions clearly establishes that application of a statute of limitations does not violate due process solely because a defendant did not have actual knowledge of the statute. This claim accordingly has no merit.
See Flanigan v. State, 3 P.3d 372,376-77 (Alaska App. 2000) (rejecting an argument that ignorance of the statute of limitations excuses the untimely filing of an application for post-conviction relief); Demientieff v. State, 2013 WL 6227796, at *3 (Alaska App. Nov. 27, 2013) (unpublished); see also Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573,581 (2010) ("We have long recognized the 'common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally.'" (citations omitted)).
Lastly, Lee briefly argues that the deadline for filing an application for postconviction relief should be relaxed under the principle that pro se litigants are held to less stringent standards than lawyers. We acknowledge that the supreme court has repeatedly held, in civil cases involving pro se litigants, that the superior court must relax procedural requirements to a reasonable extent. But Lee cites to no cases where this principle has been applied to substantive law, or, specifically, to relax a statute of limitations. We similarly are aware of none, and we therefore reject this claim.
See, e.g., Gilbert v. Nina Plaza Condo Ass 'n, 64 P.3d 126,129 (Alaska 2003); Kaiser v. Sakata, 40 P.3d 800, 803 (Alaska 2002).
The judgment of the superior court is AFFIRMED.