Opinion
Court of Appeals No. A-10295.
May 13, 2009.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Raymond M. Funk, Judge, Trial Court No. 4FA-07-2812 Civ.
David K. Allen, Assistant Public Advocate, Fairbanks, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant.
Corinne M. Vorenkamp, Assistant District Attorney, and Jeffrey A. O'Bryant, District Attorney, Fairbanks, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
In December 2007, Harold Thompson Prentzel III filed a petition for post-conviction relief, seeking permission to file a late appeal of his 2004 conviction for resisting arrest, a misdemeanor for which he received 30 days to serve (120 days with 90 suspended). Prentzel alleged that agents of the State had unlawfully prevented him from filing a timely appeal.
The superior court dismissed Prentzel's petition for post-conviction relief because the petition, itself, was untimely: it was filed outside the two-year period specified in the applicable statute of limitations, the pre-2008 version of AS 12.72.-020(a)(3)(A).
In the 2008 legislative session, the pertinent limitation period was reduced from two years to eighteen months, effective July 1, 2008. See SLA 2008, ch. 75, §§ 26, 43, and 48.
In this appeal, Prentzel argues that the superior court should not have dismissed his petition because (according to Prentzel) he presented a prima facie case that he had a valid excuse for failing to file his petition within the limitation period. Specifically, Prentzel claims (1) that he told his assistant public defender that he wanted to appeal his conviction, (2) that the assistant public defender promised him that the Agency would file the appeal, (3) that Prentzel relied on this assurance, but (4) that the Agency never filed the appeal, and (5) Prentzel did not realize his predicament until after the normal time for seeking post-conviction relief had expired.
Prentzel asserts that these facts, if true, would establish his entitlement to file a late petition for post-conviction relief under AS 12.72.020(b)(1)(B). This statute provides that a defendant can pursue an otherwise untimely petition if (1) the defendant has exercised diligence in pursuing the claim for relief and (2) the defendant "was physically prevented by an agent of the state from filing a timely claim".
There are several problems with Prentzel's argument. The first problem is that the exception he relies on, AS 12.72.020(b)(1)(B), does not apply to the situation he has alleged.
As an initial matter, we seriously doubt that the legislature intended assistant public defenders to be deemed "agents of the state" for purposes of this statute. It is true that assistant public defenders are salaried employees of the state (within the Department of Administration, rather than the Department of Law). But in situations where a defense attorney inexcusably fails to file an appeal on their client's behalf, there is seemingly no rationale for allowing defendants who were represented by the Public Defender Agency to file an untimely petition for post-conviction relief while, at the same time, denying this opportunity to defendants who were represented by private counsel. It appears much more likely that the phrase "agents of the state" was intended to cover employees of the Department of Corrections and, potentially, employees of the Court System.
Second, even if assistant public defenders were deemed "agents of the state" for purposes of AS 12.72.020(b)(1)(B), Prentzel presented no evidence that employees of the Public Defender Agency "physically prevented" him from filing a timely petition for post-conviction relief. Even if we were to take Prentzel's allegations at face value — i.e., even if we assumed that Prentzel relied to his detriment on false assurances that the Public Defender Agency was pursuing an appeal on his behalf, and that he therefore did not know that he needed to seek post-conviction relief — this would not prove that anyone "physically prevented" Prentzel from filing a timely petition for post-conviction relief.
For these reasons, Prentzel failed to present any evidence that he was entitled to file an untimely petition for post-conviction relief under the theory specified in his petition — that is, under the theory that a late petition was authorized by AS 12.72.020(b)(1)(B).
It is conceivable that, as a matter of due process, a defendant might have the right to file a late petition for post-conviction relief (seeking reinstatement of their right to appeal their underlying conviction) if the reason for the defendant's failure to comply with the statute of limitations was that their attorney falsely assured them that their appeal had been filed and was being pursued.
Prentzel did not raise this potential argument in the superior court, and the superior court did not consider it. We, likewise, are not required to address this constitutional question — because the undisputed evidence in Prentzel's case shows that his attorneys at the Public Defender Agency did not trick him or otherwise mislead him into delaying his application for post-conviction relief past the statute of limitations deadline. Rather (as we are about to explain in more detail), at a time when over a year remained under the statute of limitations, the Agency alerted Prentzel that no appeal had been filed. Prentzel thus had the opportunity to file either a late appeal or a petition for post-conviction relief to secure his appeal rights — an opportunity that he declined.
In the superior court, Prentzel submitted an affidavit from his attorney, a former assistant public defender. In her affidivit, Prentzel's public defender conceded that Prentzel asked her to file an appeal in December 2004, after he was found guilty based on his Cooksey plea. (Indeed, we note that the whole point of entering a Cooksey plea is to allow the defendant to pursue an appeal.)
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974) (establishing a procedure under which a defendant may plead guilty or no contest but nevertheless preserve the right to appeal a dispositive issue).
Because it was not yet time to file the appeal (the district court had not yet issued its written judgement), and because this public defender was about to take extended leave, she left instructions for another attorney in the Public Defender Agency to file an appeal on Prentzel's behalf. But this was never done. According to Prentzel's public defender, when she returned to work months later, "[she] learned that the appeal had not been filed" — that the attorney who was supposed to be handling her cases "neglect[ed] to file the appeal".
When the public defender discovered this problem, she contacted Prentzel, explained the situation to him, and offered to file a late appeal. At the same time, the public defender suggested to Prentzel that there might be some benefit in not filing an appeal. The potential benefit of not filing an appeal arose from the fact that the district court had released Prentzel on bail, and had stayed the execution of his 30-day jail sentence, pending the planned appeal. Prentzel's public defender told him that "[if] he . . . [left] things as they were, with no remand date scheduled, . . . it might be quite a while before the court noticed that [his jail] time was still unserved."
At the end of this conversation, according to the public defender, "Mr. Prentzel decided not to file an appeal."
We express no opinion as to whether an attorney violates the Rules of Professional Conduct by giving legal advice of this nature to a client who has been released on bail pending appeal — i.e., advice to "lie low" and hope that the sentencing court never discovers that the client has decided not to file the appeal. However, even assuming that this type of advice is improper, Prentzel would not be entitled to relief if he chose to follow his public defender's suggestion. See Arnett v. State, 938 P.2d 1079, 1082-83 (Alaska App. 1997). The defendant in Arnett sought post-conviction relief based on the claim that his attorney gave him incompetent representation by advising him to abscond in the middle of trial. This Court held that, even if the defendant's claim was true, the defendant's complicity in this illegal act disqualified the defendant from obtaining post-conviction relief. Id. at 1083.
In the public defender's affidavit, she conceded that "[o]ver the next year (or more), [Prentzel] occasionally changed his mind about [filing an appeal]", but then he always "re-changed his mind". Both Prentzel's public defender and her supervisor at the time (another former assistant public defender), stated in their affidavits that even though Prentzel was in contact with the Agency (for various reasons) during the several years following his December 2004 conviction, Prentzel never directed the Agency to pursue an appeal of that conviction.
Prentzel's public defender added that, when she reviewed Prentzel's file so that she could prepare her affidavit, she found a corroborating note written by Prentzel sometime in 2005. (The month was obliterated by a hole punch.) In that note, Prentzel stated that he was "not sure [he] wish[ed] to appeal".
Prentzel's own affidavit in support of his application for post-conviction relief is consistent with his public defender's account. In his affidavit, Prentzel confirmed that, about a year after he entered his plea, his public defender told him that no appeal had ever been filed. Since Prentzel entered his plea in December 2004, his recollection of the timing of this conversation is consistent with his public defender's affidavit. In other words, under both Prentzel's and his public defender's accounts, their conversation — and the public defender's offer to file a late appeal — occurred no later than December 2005.
Because Prentzel's judgment of conviction was entered in December 2004, he had until December 2006 — at least one year after his conversation with his public defender — to file an application for post-conviction relief if he believed that he had been wrongfully deprived of his right to appeal. See former AS 12.72.020(a)(3)(A) (2006).
In his written decision in this case, Superior Court Judge pro tempore Raymond M. Funk, recognized the importance of this fact. Judge Funk wrote that Prentzel "clearly knew [that] no appeal had been filed after a year[,] and [Prentzel] could have filed a late appeal as [his public defender] discussed with him[,] or he could, at that time, have filed his application for post-conviction relief. He did neither."
In other words, Prentzel may have initially relied on the Public Defender Agency's promise to file his appeal — but, by the end of 2005, he knew that no appeal had been filed. At that point, Prentzel had one more year to take action: either by having the Agency file a late appeal, or by filing a petition for post-conviction relief to reinstate his appeal rights. But he took no action. Moreover, Prentzel presented no evidence that, during this year of inaction, the Public Defender Agency misled him about the status of his appeal or otherwise prevented him from filing a petition for post-conviction relief to secure his right to appeal.
For these reasons, the judgement of the superior court is AFFIRMED.