Opinion
A-13573
11-16-2022
ANDREW VICTOR THOMAS, Appellant, v. STATE OF ALASKA, Appellee.
Justin Gillette, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Madison M. Mitchell, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Third Judicial District No. 3PA-16-01866 CI, Palmer, Jonathan A. Woodman, Judge.
Justin Gillette, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Madison M. Mitchell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
MEMORANDUM OPINION
WOLLENBERG, JUDGE
Andrew Victor Thomas appeals the dismissal of his application for post-conviction relief. The superior court dismissed Thomas's application after his court-appointed attorney filed a no-merit certificate under Alaska Criminal Rule 35.1 (e)(2)(C).
On appeal, the State concedes that the certificate of no merit was deficient and that the superior court applied the wrong standard in independently evaluating Thomas's potential claims. Having reviewed the pleadings and the record, we conclude that the State's concessions are well founded. We therefore vacate the dismissal of Thomas's application and remand this case 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 2010, Thomas was charged with first- and second-degree murder for stabbing and bludgeoning his long-time girlfriend, Susanna Braden, to death. During his arrest, Thomas told the troopers that he had killed Braden after he "caught her in bed with another man."
AS 11.41.100(a)(1)(A) and AS 11.41.110(a)(2), respectively.
Thomas was represented by court-appointed counsel from the Office of Public Advocacy, and he had a contentious relationship with his attorneys-disagreeing with them about what defense to mount and what pretrial investigations and motions to pursue. He made several requests for self-representation. The trial court denied these requests, finding that Thomas was not competent to represent himself. But over defense counsel's objection, the trial court allowed Thomas to act as co-counsel so that he could file several motions that counsel had refused to pursue.
At trial, Thomas, through counsel, argued that he was only guilty of manslaughter because he had acted in the heat of passion. The jury rejected this defense and found him guilty of both counts of murder. The court subsequently merged the two verdicts into a single conviction for first-degree murder and sentenced Thomas to serve 99 years.
Thomas appealed his conviction to this Court. On appeal, he argued that the trial court had erred in refusing to order the Office of Public Advocacy to pay for additional investigation, DNA testing, and expert services in psychiatry and alcohol intoxication, all of which Thomas had requested as co-counsel. We rejected this contention, holding that the trial court had erred in granting Thomas co-counsel status and that Thomas had no right to override the Office of Public Advocacy's decisions as to how to best allocate its resources and defend against the murder charges. We noted that, if Thomas believed that his attorneys' decisions were so inept as to constitute ineffective assistance of counsel, he could file a post-conviction relief application.
Thomas v. State, 382 P.3d 1206, 1208 (Alaska App. 2016).
Id. at 1208-09.
Id. at 1209.
Thomas filed a post-conviction relief application. In his pro se application, Thomas alleged that the trial court had erred in denying a number of motions, including motions relating to his requests for self-representation, substitute counsel, and funding for experts. At Thomas's request, the court appointed counsel to assist him in litigating his application, and Thomas was ultimately represented by an attorney on contract with the Office of Public Advocacy.
The attorney requested and received several extensions to investigate Thomas's potential claims, attesting that he needed more time to obtain relevant medical records, confer with Thomas and Thomas's trial counsel, engage experts, and obtain necessary affidavits.
Ultimately, the attorney filed a certificate of no merit under Alaska Criminal Rule 35.1(e)(2)(C), asserting that Thomas's pro se claims did not have "any colorable merit" and that there were "no other potential claims of colorable merit." According to the attorney, the "bulk" of Thomas's pro se claims were barred from consideration because they were direct challenges to rulings by the trial court and could have been raised on direct appeal. The attorney accordingly construed these claims as raising ineffective assistance of counsel claims against Thomas's trial attorney or appellate attorney.
.See AS 12.72.020(a)(2).
Thomas's post-conviction counsel attested that, after reviewing the files of prior counsel and the court, the trial and sentencing transcripts, and other records, and discussing the case with Thomas and with Thomas's trial counsel, he had concluded that none of the claims were viable. The attorney provided short explanations for rejecting each claim and ultimately concluded that "Mr. Thomas's trial counsel performed well within the range of competence reasonably expected of criminal defense practitioners." He did not attach an affidavit from trial counsel.
The attorney explained that he had also considered some of Thomas's proposed claims - such as his claim that the trial court had erred in denying his requests for self-representation - as claims of ineffective assistance of appellate counsel. But he similarly concluded that none of these claims were viable. The attorney did not indicate whether he had attempted to consult with Thomas's appellate counsel but simply asserted that appellate counsel "[could] not reasonably be faulted" for failing to raise these other potential claims.
After reviewing the no-merit certificate, the superior court notified the parties that it intended to dismiss Thomas's application. After explaining that Thomas needed to "overcome the strong presumption that counsel made competent, tactical decisions by clear and convincing evidence," the court stated that it concurred with his post-conviction attorney's assessment that there were no colorable post-conviction claims and invited Thomas to file a response.
Thomas responded with several pro se filings. Among other things, Thomas asked the court to reconsider its notice of intent to dismiss, moved to amend his application to include several new claims (including a claim that his trial lawyer was ineffective for failing to investigate a traumatic brain injury he had suffered), and submitted additional records in support of these requests.
After reviewing these records, Thomas's post-conviction attorney maintained that Thomas still had no colorable post-conviction claims. The superior court agreed and, after affording Thomas another chance to respond, subsequently dismissed Thomas's application.
Why we vacate the dismissal of Thomas's application for post-conviction relief
On appeal, Thomas contends - and the State agrees - that his post-conviction attorney's no-merit certificate was inadequate, and that it was error for the superior court to accept it and dismiss Thomas's application. We agree.
Under Alaska 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."
Alaska R. Crim. P. 35.1(e)(2)(C). Pursuant to Criminal 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."
We have previously made clear, however, that an attorney may only file a certificate of "no arguable merit" if the attorney has determined that all possible claims that could be raised would be frivolous. We have distinguished between claims that are simply weak or implausible from those that are truly frivolous: "[T]here is a crucial distinction between a claim that has 'no merit', in the sense that the court will likely rule against the claim, and a claim that is 'frivolous', in the sense that no reasonable argument can be made in favor of the claim." It is the latter analysis - i.e., a determination of whether a claim is actually frivolous - that must be used when determining whether there is "no arguable merit" for purposes of a certificate filed under Rule 35.1 (e)(2)(C).
See Griffin v. State, 18 P.3d 71, 76-77 (Alaska App. 2001).
Vizcarra-Medina v. State, 195 P.3d 1095, 1099 (Alaska App. 2008).
Id. at 1100.
As both Thomas and the State observe, Thomas's attorney failed to apply this standard. Although the attorney articulated the correct standard for assessing Thomas's potential claims - i.e., whether the claims had "any colorable merit" - he did not properly apply it. That is, instead of assessing whether Thomas had any arguable claims, the attorney analyzed whether the claims were likely to succeed.
Id. (holding that a claim was not "frivolous" - and thus a certificate of no merit was improperly filed - where the attorney determined only that he was unlikely to be able to prove the underlying assertions of fact by clear and convincing evidence).
For instance, the attorney asserted that Thomas's appellate lawyer could not "reasonably be faulted" for failing to argue on direct appeal that the trial court erred in denying Thomas's motions to represent himself. According to the attorney, "there was abundant evidence in the record supporting the trial court's decision not to permit Mr. Thomas to represent himself." But this analysis conflates the question of whether the claim was colorable with whether it was meritorious. (The analysis was also conclusory and lacking supporting documentation or citations.)
See 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, 18 P.3d at 77, and Criminal Rule 35.1(e)(2)).
The attorney made a similar error with respect to analyzing potential ineffective assistance claims against trial counsel. For example, as the State itself notes, a non-frivolous argument could be made that trial counsel was ineffective for failing to raise an intoxication defense to first-degree murder, given that Thomas's blood alcohol content at the time of the murder was 0.256 percent. While the post-conviction attorney asserted in his certificate that trial counsel was "leery of offering multiple alternative defenses to a jury at trial" and therefore "made the tactical choice to present what appeared to be Mr. Thomas's strongest defense, heat of passion," and it is unclear whether this claim would succeed on the merits, there were arguments that could be advanced in favor of running an alternative defense. This is particularly true in light of the limited evidence that supported the heat-of-passion defense-e.g., the record shows that Braden was fully clothed at the time of her death, and the eyewitness to Braden's killing denied having sex with her.
See AS 11.81.630 (providing that evidence of intoxication may be offered to negate an element of an offense that requires the defendant to have "intentionally cause[d] a result").
The attorney evaluated other claims against trial counsel based on whether the claim was likely to succeed under Risher v. State, rather than on whether there was a "colorable argument that a zealous advocate could advance in support of the claim."
Risher v. State, 523 P.2d 421,425 (Alaska 1974) (holding that, to succeed on a claim of ineffective assistance of counsel, the defendant must demonstrate that his attorney was incompetent and that he was prejudiced).
Johnson v. State, 77 P.3d 11, 13 (Alaska App. 2003).
In addition to the substantive deficiencies with the certificate, there was a procedural deficiency: Thomas's post-conviction attorney failed to provide any affidavits from Thomas's prior attorneys. We have repeatedly held that defendants claiming ineffective assistance of counsel must either submit an affidavit from their former attorney addressing the allegations of error, or explain why they could not obtain such an affidavit - even in cases involving no-merit certificates. Although the post-conviction attorney stated that he had communicated with Thomas's trial counsel regarding Thomas's claims, he did not submit an affidavit from Thomas's trial attorney or explain why one could not be obtained. And despite considering several potential claims of ineffective assistance of appellate counsel and resolving them against Thomas, there is no indication that the attorney ever attempted to contact Thomas's appellate lawyer to discuss the application, nor did he submit an affidavit from appellate counsel.
See, e.g., Tazruk v. State, 67 P.3d 687, 689-90 (Alaska App. 2003); State v. Jones, 759 P.2d 558, 570 (Alaska App. 1988); Sanderson v. State, 2020 WL 567644, at *3 (Alaska App. Feb. 5, 2020) (unpublished).
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 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 attorney filing a certificate of no merit to obtain affidavits from a defendant's prior attorneys (citing Tazruk, 67 P.3d at 689-90)); see also Bavilla v. State, 2018 WL 5832217, at *3 (Alaska App. Nov. 7, 2018) (unpublished).
Finally, the superior court itself applied the wrong standard in assessing the no-merit certificate. When an attorney files a no-merit certificate, the court is required to examine the certificate and its supporting documentation to independently assess whether the defendant has any colorable claims. This duty arises under Alaska Criminal Rule 35.1(f)(2) and the court's constitutional mandate to ensure that a defendant receives competent representation during post-conviction proceedings.
Griffin v. State, 18 P.3d 71, 76 (Alaska App. 2001).
Id. at 77; Tazruk, 67 P.3d at 690.
Here, the superior court's analysis compounded the attorney's errors. The court failed to note the absence of attorney affidavits or any explanation of why affidavits could not be obtained. And it engaged in a merits-based analysis before concluding that Thomas could not overcome the presumption that his trial and appellate counsel made competent, tactical decisions. At this juncture, the court was required to determine whether Thomas had any arguable claims - not whether Thomas would ultimately succeed in establishing a case for ineffective assistance of counsel.
For these reasons, we agree with the parties that the no-merit certificate was deficient, and that the superior court erred in accepting it.
Conclusion
We VACATE the superior court's decision dismissing Thomas's post-conviction relief application, and we reinstate Thomas's post-conviction relief application. This case is REMANDED to the superior court for further proceedings.