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concluding that the attorney's no arguable merit certificate was insufficiently detailed to allow for a meaningful independent assessment by the trial court
Summary of this case from Sanderson v. StateOpinion
Court of Appeals No. A-8788.
September 28, 2005.
Appeal from the Superior Court, First Judicial District, Ketchikan, Michael A. Thompson, Judge, Trial Court Nos. 1KE-03-485 CI, 1KE-00-1193 CR.
Averil Lerman, Assistant Public Advocate, and Joshua Fink, Public Advocate, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Scott J. Nordstrand, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Charles L. Nelson of arson in the first degree, two counts of criminal mischief in the second degree, and assault in the fourth degree. Following an unsuccessful appeal, Nelson filed an application for post-conviction relief. Nelson's attorney filed a certificate under Criminal Rule 35.1(e)(2) in which the attorney concluded that he could not raise any non-frivolous issues on Nelson's behalf. The superior court accepted the attorney's certificate and dismissed Nelson's application. Nelson appeals this decision. We conclude that the attorney's certificate was inadequate to authorize the superior court to dismiss Nelson's application, and we vacate the superior court's order.
Background and proceedings
Nelson was charged with arson in the first degree, two counts of criminal mischief in the second degree, assault in the third degree, and assault in the fourth degree. After a jury trial, Nelson was acquitted of third-degree assault but convicted of the other charges. Nelson was sentenced to a composite term of 19 years and 8 months with 4 years and 6 months suspended.
AS 11.46.400(a).
AS 11.46.480(a).
AS 11.41.220(a)(1)(A).
AS 11.41.230(a)(1).
Nelson appealed his convictions. The only issue raised in his direct appeal was whether the trial court had erred in rejecting the defense motion for a mistrial after the jury panel had heard one prospective juror criticize the reliability of defense counsel based on a prior experience. We affirmed the conviction in Nelson v. State.
68 P.3d 402 (Alaska App. 2003).
Next, Nelson, representing himself, filed an application for post-conviction relief. In this application Nelson argued that he had received ineffective assistance of counsel because his trial attorney had not challenged the search warrant that resulted in the seizure of evidence used against him at his trial. (Although in his application Nelson argues that his appellate attorney was ineffective in failing to appeal this issue, Nelson's claim hinges on whether his trial attorney was ineffective in not filing a motion to suppress.) Nelson requested that an attorney be appointed to assist him with the application. The court appointed attorney Dennis McCarty to represent Nelson. McCarty entered his appearance on October 8, 2003.
On October 20, 2003, the State filed a motion to dismiss Nelson's application. On November 12, 2003, McCarty filed a certificate under Criminal Rule 35.1(e)(2) in which he stated that he had determined that there were no colorable issues that he could raise in support of Nelson's application for post-conviction relief. On November 13, 2003, Judge Thompson dismissed the application.
In response, Nelson, representing himself, filed an extensive opposition. In his memorandum, Nelson argued that his trial attorney had been ineffective in failing to argue that the State had obtained evidence against him with the use of an unlawful search warrant. He also argued that McCarty, his post-conviction relief counsel, had been ineffective in concluding that he had no colorable claims. In response, Judge Thompson wrote an extensive memorandum in which he discussed why he rejected Nelson's claim that the search warrant was invalid. Judge Thompson concluded by reaffirming his earlier order dismissing Nelson's application. Nelson appeals from that decision.
Legal background
Criminal Rule 35.1(e)(2) allows an attorney to file a certificate that he has determined that there are no claims that could reasonably be argued in support of the application for post-conviction relief. The attorney must certify that he has consulted with the applicant and with the applicant's trial counsel and has completed a review of the facts and law relevant to the application. After the attorney completes a thorough review to make sure that there are no arguable grounds for post-conviction relief, the attorney is required to "provide 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 court is then to use the attorney's explanation to "independently evaluate the attorney's assertion that the petitioner has no arguable claim to raise." Application of Criminal Rule 35.1(e)(2) to Nelson's case
Griffin v. State, 18 P.3d 71, 75-77 (Alaska App. 2001).
Id.; Criminal Rule 35.1(e)(2).
Griffin, 18 P.3d at 77.
Id.
Nelson's current counsel concedes that McCarty made a good faith effort to comply with Criminal Rule 35.1(e)(2). But Nelson's counsel argues that the certificate McCarty filed was inadequate. She argues that the superior court therefore erred in dismissing Nelson's post-conviction relief application. We agree with Nelson's attorney.
Under Criminal Rule 35.1(e)(2), McCarty was required to set out in detail every issue that he considered, to demonstrate that he had fully considered the issue and that the issue was frivolous.
We turn first to the major issue underlying Nelson's ineffective assistance claim, which he raised in the application that he filed without the assistance of an attorney. Nelson contended that the State searched his house under the authority of an unlawful warrant, and that his attorney should have moved to suppress the evidence on this ground. McCarty's discussion of this issue is difficult to follow and does not explain what probable cause the State had to obtain the warrant. The certificate also does not address Nelson's various claims that the warrant was unlawful.
On this point, we note that Judge Thompson wrote an extensive memorandum explaining the search and seizure issue and dealing with Nelson's individual claims. It appears that Judge Thompson, after McCarty had filed the certificate and Nelson objected, reviewed the record of the search warrant proceeding on his own. Judge Thompson appears to have done the review and to have given the explanation that McCarty should have provided. And it appears that Judge Thompson's analysis disposes of this issue. Nelson's appellate counsel apparently concedes that the unlawful search warrant claim has no merit. But McCarty's treatment of this issue was inadequate and demonstrates the inadequacy of the certificate that he filed.
In his certificate, McCarty also raised the issue of whether Nelson's trial attorney was ineffective because she did not have Nelson's clothing tested by a laboratory. The explanation of this issue in the certificate is unclear. But apparently Nelson wanted to have the burned clothing that the police found in his residence tested for any traces of gasoline or other accelerants. We assume that the arson was committed by use of an accelerant such as gasoline, and that Nelson contended that testing his clothing would show that the clothing had no traces of gasoline or any other accelerant. Apparently Nelson alleged that his trial attorney advised him that the Public Defender Agency would not do the testing because it did not have funds to do so. The trial attorney apparently denied saying there were no funds, but stated that after discussing testing with Nelson, "there was agreement that there was no purpose to be served by having a lab test." (There is no affidavit from the attorney, this is just McCarty's representation in the certificate.) In his certificate McCarty concludes that there was no possibility that Nelson's trial attorney overlooked the possibility of testing. He then concludes that because the decision to not test was tactical, there was no colorable claim of ineffective assistance that he could raise on Nelson's behalf.
McCarty's discussion in his certificate shows that Nelson and his attorney discussed testing the burned clothing that the police found at his residence. Nelson contended that the clothing should have been tested. His attorney apparently stated that she had discussed testing with Nelson and that they had concluded that testing would not be fruitful. But the certificate does not discuss why testing might have been important and whether Nelson's trial attorney made a competent tactical decision to not test the clothing. The certificate is inadequate because it failed to explain these issues.
We turn now to another issue set out in McCarty's certificate. Under the heading "Inconsistent Testimony of Prosecution Witnesses" in the certificate, McCarty's discussion in total is as follows:
Trial counsel pointed out the inconsistencies in witness examination and closing. These are the types of issues dealt with in jury deliberations. There are no indications that any such inconsistencies rose to a level such that Counsel failed to appropriately address the issues.
The certificate does not explain what inconsistencies in witness testimony and in closing argument McCarty examined. This conclusory statement provides no basis for a court to conduct the independent judicial review of the certificate that is required by Criminal Rule 35.1(f)(2). Under that rule, an attorney seeking to withdraw from a case must provide 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. Only then can the court meaningfully assess and independently evaluate the attorney's assertion that the petitioner has no arguable claim to raise." The discussion of this issue in the certificate is therefore inadequate.
Id.
We conclude that the certificate filed in Nelson's case did not comply with Criminal Rule 35.1(e)(2). We accordingly VACATE the superior court's order dismissing Nelson's petition for post-conviction relief and we REMAND this case to the superior court for further proceedings.