Opinion
Court of Appeals No. A-11237 Trial Court No. 3AN-12-4694 CI t/w 3AN-00-5765 CR No. 6056
05-14-2014
JEROME D. LOGAN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jerome D. Logan, pro se, Hudson, Colorado, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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 authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge.
Appearances: Jerome D. Logan, pro se, Hudson, Colorado, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge ALLARD.
Jerome D. Logan was convicted of first-degree murder, second-degree murder, and third-degree assault. More than seven years after his convictions were affirmed on direct appeal, Logan filed a pro se application for post-conviction relief, alleging that he had received ineffective assistance of counsel from the attorneys who represented him at trial and on appeal. The superior court dismissed Logan's application as untimely. Logan filed a pro se appeal.
Logan v. State, 2004 WL 1837674, at *1 (Alaska App. Aug. 18, 2004) (unpublished).
See AS 12.72.020(a)(3)(A) (providing that an application for post-conviction relief must be filed within eighteen months of conviction or, if the conviction was appealed, within one year after the appellate court's decision is final under the Alaska Rules of Appellate Procedure).
We conclude that we must remand the case for a determination of Logan's right to counsel under Holden v. State. Under AS 12.72.020, an indigent defendant has no statutory right to court-appointed counsel to pursue a time-barred application for postconviction relief. But in Holden, we recognized that an attorney's expertise may be required to interpret the provisions of AS 12.72.020 and to determine whether any of the statutory exceptions to the statute of limitations apply to this particular case. We therefore held that when an indigent defendant files a first application for post-conviction relief and that application appears to be untimely under the statute, the defendant has a right to court-appointed counsel under the Alaska Constitution to litigate the limited issue of the petition's timeliness.
172 P.3d 815 (Alaska App. 2007).
AS 18.85.100(c)(1).
Holden, 172 P.3d at 818.
Id.
In the current case, Logan was not represented by an attorney during the litigation of his application for post-conviction relief in the superior court. He is likewise not represented by an attorney in this appeal. The record also does not show that Logan was ever informed of his limited right to a court-appointed attorney or that he knowingly and intelligently waived this right.
The State argues that a remand is unnecessary because, unlike in Holden, Logan never requested appointment of counsel and it is not clear that he would actually accept the assistance of court-appointed counsel. But the superior court had an affirmative duty to inform Logan that he had the right to court-appointed counsel to litigate the limited issue of timeliness. The superior court likewise had the duty, if Logan wished to waive that right and proceed pro se, to ensure that Logan knowingly and intelligently waived that right and was competent to do so.
See Alaska R. Crim. P. 39(b)(4) ("In the absence of a request by a defendant otherwise entitled to appointment of counsel, the court shall appoint counsel unless the court finds that the defendant understands the benefits of counsel and knowingly waives the right to counsel."); see also Gregory v. State, 550 P.2d 374, 379 (Alaska 1976); Evans v. State, 822 P.2d 1370, 1373-74 & n.2 (Alaska App. 1991); James v. State, 739 P.2d 1314, 1315 (Alaska App. 1987).
Id.
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We accordingly remand Logan's case to the superior court. If Logan wishes to assert his right to counsel, and if he establishes that he qualifies for court-appointed counsel by virtue of his indigency, the superior court shall appoint counsel to represent Logan, vacate its order dismissing Logan's petition, and allow Logan to relitigate the timeliness of his petition for post-conviction relief.
If, on the other hand, Logan properly waives his right to an attorney, and the court finds that he is competent to represent himself, then the superior court shall transmit its findings to this Court within ninety days. After the superior court transmits its findings, we will resume our consideration of Logan's appeal on its merits.
Conclusion
This case is REMANDED to the superior court for further proceedings consistent with this decision. We retain jurisdiction.