Opinion
Court of Appeals No. A-13332 No. 6856
02-05-2020
JAMES H. SANDERSON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Dan Bair, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 4FA-16-02814 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge. Appearances: Dan Bair, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge WOLLENBERG.
James H. Sanderson appeals the dismissal of his application for post-conviction relief. The superior court dismissed Sanderson's application after his post-conviction relief attorney filed a certificate of "no arguable merit" under Alaska Criminal Rule 35.1(e)(2)(C).
On appeal, Sanderson argues that the attorney's certificate was deficient and that the superior court erred in accepting it. The State concedes error. We have independently reviewed the record, and we conclude that the State's concession is well founded. We therefore vacate the dismissal of Sanderson's application for post-conviction relief and remand for further proceedings.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess whether a concession of error "is supported by the record on appeal and has legal foundation").
Underlying facts
In 2011, Sanderson was indicted on one count of first-degree sexual assault. In June 2012, Sanderson and the State entered into a plea agreement to resolve Sanderson's case. Pursuant to the agreement, Sanderson pleaded guilty to one count of attempted second-degree sexual assault, and he received an agreed-upon sentence of 15 years with 7 years suspended (8 years to serve), with a 10-year term of probation.
AS 11.41.410(a)(1).
AS 11.41.420(a)(1) & AS 11.31.100.
In December 2016, Sanderson filed a pro se application for post-conviction relief, alleging that his trial attorney provided deficient representation and stating that he was "wrongfully convicted." At Sanderson's request, the court appointed an attorney to assist Sanderson in litigating his post-conviction relief application.
Sanderson's post-conviction attorney requested and received multiple extensions of time to investigate Sanderson's claims. In one of these motions, an associate in the attorney's law firm explained that "[w]hile we have obtained an affidavit from Mr. Sanderson and formulated an amended application, an additional avenue of investigation has come up that requires time to complete." On several occasions, the attorneys in the firm stated that they were still seeking an affidavit from Sanderson's prior attorney. And in the final request for a continuance, one of the attorneys advised the court that additional time was necessary to determine whether to file an amended application for post-conviction relief or a certificate of no arguable merit.
Ultimately, Sanderson's attorney filed a certificate asserting that the claims Sanderson presented in his application had "no arguable merit" and that "there are no other colorable claims for post-conviction relief." The attorney did not indicate whether he had communicated with Sanderson's trial attorney directly, nor did he provide more than a cursory explanation of the factual or legal issues presented by the case, the specific claims he had considered, or the investigation he had undertaken, as required by Alaska Criminal Rule 35.1(e)(3).
Sanderson's post-conviction attorney also asserted that, regardless of whether he could establish a prima facie case of ineffective assistance of counsel, Sanderson's application was time barred under AS 12.72.020(a)(3)(A) because it was filed more than eighteen months after the entry of his judgment of conviction. The attorney conclusorily stated that none of the statutory tolling provisions in AS 12.72.020(b) applied — there was no evidence suggesting that Sanderson's delay in filing was "due to a mental disease or defect" or "due to conduct on the part of an agent of the State," nor was there "newly discovered" evidence implicated in his claims. The certificate did not address the reasons why Sanderson did not file the application earlier, nor did it discuss any possible non-statutory exceptions to the limitation period.
After receiving the certificate of no arguable merit, the superior court issued a preliminary order. In the order, the court stated that it would normally require Sanderson's post-conviction attorney to supplement the certificate with an affidavit from Sanderson's trial attorney so that the court could independently assess the potential merits of Sanderson's application. But the court declined to order the attorney to file such an affidavit because it appeared to the court that Sanderson's application was, in fact, time barred, and that none of the statutory tolling exceptions applied. The court invited Sanderson, in his personal capacity, to offer an explanation as to why one or more of the exceptions applied, and it directed Sanderson's attorney to serve a copy of the order on Sanderson.
Sanderson did not respond to the court's order. The court subsequently allowed Sanderson's attorney to withdraw and dismissed Sanderson's application. In its dismissal order, the court stated that "Sanderson's claims are without merit and are, in any event[,] barred by the statute of limitations."
Why we vacate the dismissal of Sanderson's application for post-conviction relief
On appeal, the State and Sanderson (now represented by new counsel) agree that the certificate of no arguable merit was inadequate, and that it was error for the superior court to allow Sanderson's attorney to withdraw and to dismiss Sanderson's application without requiring the attorney to provide a full explanation of why he concluded that Sanderson had no colorable (i.e., non-frivolous) claims for relief. Absent such detail, the parties contend, the superior court had an inadequate record to "meaningfully assess and independently evaluate" the merits of Sanderson's application as required by Alaska Criminal Rule 35.1(f)(2).
See Griffin v. State, 18 P.3d 71, 77 (Alaska App. 2001).
Under Criminal Rule 35.1(e)(2)(C), an attorney appointed to represent an indigent defendant in post-conviction relief proceedings must investigate the applicant's claims. Following that investigation, if the attorney determines "that the claims presented in the application have no arguable merit and that the applicant has no other colorable claims for post-conviction relief," the attorney may file a certificate of "no arguable merit." Pursuant to Rule 35.1(e)(3), this certificate must include a "full description" of (1) "the claims the attorney has considered"; (2) "the materials the attorney has reviewed"; (3) "the investigations the attorney has conducted"; and (4) "the reasons why the attorney has concluded that all of the applicant's potential claims have no arguable merit."
If the court tentatively concurs with the attorney's certificate, the court must inform the applicant of its intent to permit counsel to withdraw and to dismiss the post-conviction relief action. The court must also explain its reasons for doing so and must give the applicant an opportunity to personally respond. Only after the court considers any response filed by the applicant, and still concludes that there are no colorable claims for relief, can the court allow the attorney to withdraw and dismiss the application.
Id.
Id.; Griffin, 18 P.3d at 76.
In Griffin v. State, we upheld the constitutionality of this procedure, so long as the attorney seeking to withdraw "provide[s] the court with a full explanation of all the claims the attorney has considered and why the attorney has concluded that these claims are frivolous." The need for this explanation is grounded in the applicant's right to zealous and effective legal representation: Only if the court has an adequate record can it "meaningfully assess and independently evaluate" the attorney's assertion that the applicant truly has no arguable claim to raise.
Griffin, 18 P.3d at 77.
Id.
In One v. State, we further held that, if the attorney asserts that the application is time barred, then the no arguable merit certificate must also explain "why the attorney has concluded that the facts of the petitioner's case present no arguable exception to the applicable statute of limitations."
One v. State, 127 P.3d 853, 854 (Alaska App. 2006).
Here, the superior court concluded, based on the attorney's certificate, that Sanderson's application was time barred — a threshold consideration that would have precluded the court from reaching the merits. But, as the parties note, the attorney's certificate contained only conclusory assertions on this point. The attorney stated that none of the statutory exceptions to the limitations period applied without explaining why he reached this conclusion. He did not describe his investigative efforts or detail his findings with respect to his conclusion that Sanderson's delay was not caused by a mental disease or defect, or by conduct of a State agent. Nor did the attorney address what steps he took to investigate Sanderson's statement in his pro se application that he was "wrongfully convicted." The attorney also failed to discuss whether he had investigated any equitable exceptions to the limitation period.
See Alex v. State, 210 P.3d 1225, 1228-29 (Alaska App. 2009) (explaining that a defendant's constitutional "right to the assistance of counsel applies . . . to the litigation of whether there is an applicable exception to the statute of limitations" and remanding for further proceedings given applicant's possible claim for equitable tolling (citing Holden v. State, 172 P.3d 815, 818 (Alaska App. 2007))).
The certificate's inadequacies with respect to timeliness might be harmless if the certificate otherwise sufficiently demonstrated that Sanderson had no valid underlying claims, and if the superior court fulfilled its duty under Rule 35.1(f)(2) to independently evaluate the potential merit of Sanderson's claims. But Sanderson's attorney did not identify what factual or legal issues were presented in the case, nor did he analyze why these potential issues had no arguable merit. And although the attorney indicated in his continuance motions that he had "formulated an amended application" and even pursued "an additional avenue of investigation," he did not explain what potential claims or investigative avenues were explored and why he ultimately rejected them.
Cf. One, 127 P.3d at 854-55 (recognizing that an attorney might not provide a full analysis of an applicant's underlying claims if the attorney's investigation demonstrated, and the attorney fully explained why he concluded, that the application was time barred and that no exceptions to the time bar applied).
Moreover, as the superior court noted, the attorney did not submit an affidavit from Sanderson's trial attorney or explain why one could not be obtained. Nor did he submit the affidavit that he had apparently obtained from Sanderson himself, attach any of the discovery or other materials he reviewed, or even lodge the underlying criminal case to make it part of the post-conviction record.
See Harmon v. State, 2016 WL 191989, at *5-6 (Alaska App. Jan. 13, 2016) (unpublished) (noting the importance of affidavits or similar testimony by prior attorneys in developing a record sufficient for the trial court to independently assess a no merit certificate); Frank v. State, 2004 WL 2914975, at *3 (Alaska App. Dec. 15, 2004) (unpublished) (Mannheimer, J., concurring) (discussing the need for a post-conviction relief attorney filing a certificate of no merit to obtain affidavits from a defendant's prior attorneys (citing Tazruk v. State, 67 P.3d 687, 689-90 (Alaska App. 2003))).
See Fajeriak v. State, 520 P.2d 795, 806 (Alaska 1974) (requiring "the portions of the record relied on in the post-conviction proceeding [to] be specifically indicated to the trial judge"); see also Frank, 2004 WL 2914975, at *4 (Mannheimer, J., concurring) (explaining that "[w]hen an attorney files a certificate of 'no arguable merit' . . . , the superior court has a duty to examine the certificate (and its supporting documentation) and independently assess whether it is true (as the attorney asserts) that none of the petitioner's potential claims have any arguable merit"); Beshaw v. State, 2012 WL 1368146, at *6 (Alaska App. Apr. 18, 2012) (unpublished) (noting that without the record of the materials reviewed, the court has no basis to meaningfully assess whether the attorney zealously represented the applicant as required by Griffin and Rule 35.1(e)(2)).
(We also note that, when the court announced its tentative intent to dismiss Sanderson's application as untimely, the court invited Sanderson to respond solely on the question of timeliness. Sanderson was never afforded an opportunity to respond personally as to the underlying merits of his application, even though the court ultimately dismissed his application as both untimely and without merit.)
For these reasons, we agree with the parties that the conclusory explanations offered in the attorney's no arguable merit certificate were insufficient to allow the superior court to independently and meaningfully evaluate the timeliness and underlying merits of Sanderson's application. It was therefore error for the superior court to dismiss Sanderson's post-conviction relief application based on this certificate.
See Goldsbury v. State, 93 P.3d 468, 470 (Alaska App. 2004) (vacating dismissal of post-conviction relief application because "the attorney's [no arguable merit] certificate was so conclusory, so lacking in factual detail and explanation, that it was impossible for the superior court to fulfill the duty imposed by Criminal Rule 35.1(f)(2)"); see also One, 127 P.3d at 856 (vacating dismissal of post-conviction relief application because the attorney's no arguable merit certificate "failed to fully explain why [the applicant] had no arguable defense" to the statute of limitations period); Nelson v. State, 2005 WL 2373454, at *3 (Alaska App. Sept. 28, 2005) (unpublished) (concluding that the attorney's no arguable merit certificate was insufficiently detailed to allow for a meaningful independent assessment by the trial court); Black v. State, 2004 WL 2914986, at *2 (Alaska App. Dec. 15, 2004) (unpublished) (same).
Conclusion
We VACATE the decision of the superior court dismissing Sanderson's post-conviction relief application, and we reinstate Sanderson's application for post-conviction relief. This case is remanded to the superior court for further proceedings.