Opinion
Court of Appeals No. A-11654 No. 6355
06-29-2016
NORMAN WASSILIE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Doug Miller, Law Office of Douglas S. Miller, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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. 4BE-11-229 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Bethel, Charles W. Ray Jr., Judge. Appearances: Doug Miller, Law Office of Douglas S. Miller, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d). --------
In May 2011, Norman Wassilie filed a pro se application for post-conviction relief in which he challenged the criminal judgement entered against him in State v. Wassilie, File No. 4BE-03-1663 CR. An attorney was appointed to represent Wassilie. This attorney later filed a certificate of no arguable merit under Alaska Criminal Rule 35.1(e)(2) — i.e., a certificate asserting that Wassilie had no arguable claims for post-conviction relief.
But the attorney's certificate failed to comply with the requirements we established in Griffin v. State, 18 P.3d 71 (Alaska App. 2001). In this certificate, the attorney declared that the single claim raised in Wassilie's pro se application had no arguable merit. But the attorney did not say whether he had investigated or even considered whether Wassilie might have other potential grounds for relief — or, if so, why the attorney concluded that none of these potential claims had any arguable merit.
Despite the fact that the attorney's certificate failed to comply with Griffin, the superior court issued an order declaring that the court agreed with the attorney's assessment (i.e., that Wassilie had no arguable claim for post-conviction relief). In its order, the court gave notice that it intended to dismiss Wassilie's post-conviction relief application unless, within the next 60 days, Wassilie amended his petition or otherwise responded to his attorney's assertion that there was no arguable claim to pursue.
But the court did not serve a copy of this order on Wassilie personally; the court served only the prosecutor and the post-conviction relief attorney. This was a violation of Criminal Rule 35.1(f)(2), which declares that when a defendant's attorney has filed a certificate of no arguable merit, both the prosecuting attorney and the defendant personally "shall be given an opportunity to reply to the proposed ... dismissal".
There is nothing in the record to indicate that Wassilie's attorney corrected this problem by furnishing Wassilie with a copy of the court's order and advising him that he had a right to respond to the impending dismissal. Indeed, the record indicates just the opposite — because, several months later, Wassilie wrote a letter to the superior court inquiring what had happened to his application for post-conviction relief.
The superior court responded to Wassilie's letter by sending him a copy of its earlier order, along with a cover letter which gave Wassilie the contact information for his attorney. But in its cover letter to Wassilie, the superior court did not alert Wassilie to the obvious problem that the 60-day response time specified in its earlier order had long ago expired, and that Wassilie's application could be dismissed at any time.
(Instead, the court sent letters to the post-conviction relief attorney and to that attorney's supervisor (the statewide Public Defender), directing them to "keep your clients posted about the status of their cases.")
A few weeks later, the superior court issued an order dismissing Wassilie's application for post-conviction relief. In its order, the court briefly described the procedural history of the case, and then the court declared that "[m]ore than enough time has passed for any party or its counsel to have objected to [the] dismissal".
Wassilie subsequently sent a letter to the Alaska Supreme Court, questioning the validity of this dismissal. The supreme court referred Wassilie's letter to this Court, and we concluded that this letter should be treated as a notice of appeal. See our earlier decision in this case: Wassilie v. State, 331 P.3d 1285, 1287 (Alaska App. 2014).
Based on this procedural history, the State concedes that the superior court committed error when it accepted the attorney's certificate of no arguable merit and when, based on that certificate, the court later dismissed Wassilie's petition for post-conviction relief. We conclude that the State's concession of error is well-founded.
Accordingly, the judgement of the superior court is REVERSED.