Summary
holding superior court was required to convert appellant's coram nobis petition to post-conviction relief action and give appellant opportunity to amend application to conform with Criminal Rule 35.1 ’s requirements
Summary of this case from McDonald v. StateOpinion
Court of Appeals No. A-11149 No. 6170
04-22-2015
TIMOTHY RAY MOORE JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Michael Sean McLaughlin, 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. Trial Court No. 3AN-03-7743 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge. Appearances: Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Michael Sean McLaughlin, 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. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
In this appeal, Timothy Ray Moore Jr. argues that the superior court erred in failing to convert his coram nobis petition into an application for post-conviction relief, and in failing to appoint an attorney to assist him in arguing that his application was not time-barred.
For the reasons explained here, we agree with Moore that the superior court should have converted his coram nobis petition into an application for post-conviction relief. We also conclude that a remand is necessary to determine whether Moore was entitled to assistance of counsel in litigating the timeliness of his application.
Facts and procedural history
In 2004, Moore pleaded no contest to third-degree misconduct involving a controlled substance. In his various pleadings, Moore reports that he served his sentence and was released on probation in 2006. He also reports that in 2009, several years after his release, he was convicted of a federal crime. According to Moore, his prior state conviction meant that he received a federal sentence that was double the sentence he would have received if he did not have the 2004 state conviction.
AS 11.71.030(a)(1).
In October 2011, Moore filed a pro se pleading in the superior court entitled "Petition for A Writ of Error Coram Nobis Seeking Nunc Pro Tunc [Setting Aside] of Prior Conviction." In that pleading, Moore argued that his attorney in the 2004 state criminal case was ineffective because he told Moore that the state conviction could not be used to enhance a future federal sentence.
The superior court denied Moore's coram nobis petition without any explanation for the denial. Moore filed a motion for reconsideration. The superior court denied the motion for reconsideration, providing only the following explanation:
[Moore's] state case ... received its final order on February 17, 2010[,] wherein Superior court Judge Pro Tem Ashman terminated all remaining probation on the state case
only. No further action was taken in this case, and historically, the final order upon dismissal of the appeal by the Alaska Supreme Court and the Alaska Court of Appeals
dated September 1, 2009.
Therefore, since there are no further proceedings in this case, the motion for reconsideration is hereby DENIED.
Moore now appeals, arguing that this explanation is insufficient and that the court erred in failing to convert his coram nobis petition into an application for post-conviction relief under Alaska Criminal Rule 35.1.
Our resolution of Moore's appeal
We agree with Moore that the superior court's explanation was insufficient. The dismissal appears to be based on the mistaken belief that Moore's collateral attack on his conviction should be dismissed because Moore had completed serving all of his jail time and his probation had been terminated. This is incorrect. A criminal judgment is not moot even after the terms of its judgment have been fulfilled precisely because collateral consequences (like the sentencing enhancement in Moore's federal case) often remain.
Sibron v. New York, 392 U.S. 40 (1968); Mead v. State, 504 P.2d 855, 856 n.1 (Alaska 1972).
We also agree with Moore that the superior court erred in failing to convert Moore's coram nobis petition into an application for post-conviction relief. The writ of coram nobis is a common law writ of error for persons who are no longer "in custody," and thus cannot file a habeas corpus petition. Alaska courts are required to treat both coram nobis and habeas corpus petitions as applications for post-conviction relief under Alaska Criminal Rule 35.1. The superior court therefore erred in failing to convert Moore's petition into an application for post-conviction relief, and in failing to give Moore an opportunity to amend his application to conform with the requirements of Criminal Rule 35.1.
Chaidez v. United States, 133 S.Ct. 1103, 1106 n.1 (2013); 7 Wayne R. LaFave, Post Conviction Review: Collateral Remedies, § 28.9(a) (2014).
Alaska R. Civ. P. 86(m); Fisher v. State, 315 P.3d 686, 687 (Alaska App. 2013); see Hertz v. State, 8 P.3d 1144, 1147 (Alaska App. 2000).
The State argues that Moore's application for post-conviction relief was untimely and that the superior court's failure to convert Moore's coram nobis petition was therefore harmless. Under the version of the post-conviction relief statute in effect when Moore was convicted, Moore had two years from the entry of judgment of conviction (that is, until January 9, 2006) to bring an application for post-conviction relief. Because Moore did not file his petition for coram nobis until 2011, the petition is almost certainly untimely.
Former AS 12.72.020(a)(3)(A) (2004).
However, as the State acknowledges, if this were Moore's first application for post-conviction relief, Moore would be entitled to the benefit of appointed counsel under Holden v. State for the limited purpose of assessing, and, if appropriate, litigating the timeliness of his application.
172 P.3d 815 (Alaska App. 2007).
The State nevertheless asserts that Moore is not entitled to appointment of counsel under Holden because it appears that Moore filed a prior (timely) application for post-conviction relief that was subsequently dismissed by the superior court at Moore's request.
Moore was apparently represented by counsel in his first application for post-conviction relief, which was withdrawn by the defense for unknown reasons and dismissed by the superior court.
Based on the very limited record currently before us, we cannot determine why Moore's first application was dismissed or whether it was dismissed with prejudice. Thus, because we do not have an adequate record to determine the circumstances of Moore's first application, we conclude that a remand is required.
On remand, the superior court should treat Moore's petition for coram nobis as an application for post-conviction relief and determine whether this is his first or second application. If the superior court determines that it is Moore's first application, the court shall appoint an attorney for the limited purpose of assisting Moore in litigating whether his application is time-barred.
See Holden, 172 P.3d at 818.
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Conclusion
We VACATE the judgment of the superior court and REMAND for further proceedings consistent with this decision. We do not retain jurisdiction.