Opinion
Court of Appeals No. A-13116 No. 6870
05-20-2020
ROBERT LEE BELLUOMINI, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, 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. 3AN-16-04993 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Mark Rindner, Judge. Appearances: Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, 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 Harbison, Judge. Judge ALLARD.
Robert Lee Belluomini appeals the dismissal of his application for post-conviction relief. The superior court dismissed Belluomini's application after his court-appointed attorney filed a certificate of no merit under Alaska Criminal Rule 35.1(e)(2)(C). The State concedes that the certificate of no merit was deficient and that the superior court failed to independently evaluate Belluomini's potential claims. Having reviewed the pleadings and record, we conclude that the State's concessions are well founded.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (holding that an appellate court must independently review the proceedings below to ensure that the error confessed is supported by the record on appeal and has legal foundation).
In 2010, Belluomini was convicted by a jury of two counts of second-degree sexual abuse of a minor and one count of third-degree sexual abuse of a minor for conduct involving his girlfriend's fifteen-year-old daughter. He filed an appeal, and we affirmed Belluomini's convictions, but we directed the superior court to merge the convictions and resentence Belluomini.
AS 11.41.436(a)(1) and AS 11.41.438(a)(1), respectively.
Belluomini v. State, 2015 WL 3536608, at *1 (Alaska App. June 3, 2015) (unpublished).
Belluomini then filed an application for post-conviction relief, alleging his attorneys at trial and sentencing were ineffective. The court appointed an attorney to represent Belluomini, who conducted an investigation and later filed a certificate pursuant to Criminal Rule 35.1(e)(2)(C) stating that Belluomini had no arguable claims for relief. Based on the certificate of no merit, and with no discussion of Belluomini's potential claims, the superior court dismissed Belluomini's application for post-conviction relief.
On appeal, Belluomini contends that the certificate of no merit was deficient. Under Rule 35.1(e)(3), a certificate of no merit must include a full description of the claims the attorney considered, the materials the attorney reviewed, the investigations the attorney conducted, and the reasons why the attorney has concluded that all of the applicant's potential claims have no arguable merit. With regard to this final requirement, the attorney "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."
In this context, "no arguable merit" means no reasonable argument can be made in favor of the claim. See Vizcarra-Medina v. State, 195 P.3d 1095, 1099 (Alaska App. 2008) (noting the "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").
See Griffin v. State, 18 P.3d 71, 77 (Alaska App. 2001).
Belluomini argues, and the State concedes, that his attorney did not adequately explain in the certificate, or the memorandum she filed in support of the certificate, why she concluded that Belluomini had no colorable claims for post-conviction relief. Both Belluomini and the State have identified claims, which Belluomini included in his original application or are apparent from the record, that the post-conviction relief attorney either failed to mention or cursorily rejected. We have independently reviewed the pleadings, and we agree with the parties that the certificate was deficient for failing to describe these potential claims and why the attorney concluded they were frivolous.
Belluomini also contends that the superior court failed to perform its independent judicial function under Rule 35.1(f)(2). When an attorney files a certificate of no merit, the court must examine the certificate and its supporting documentation and independently assess whether it is true that the defendant has no non-frivolous claims for relief. If the court tentatively concurs with the attorney's certificate of no merit, Rule 35.1(f)(2) requires the court to inform the defendant that it intends to dismiss the application, and to explain its reasons for doing so, before giving the defendant a chance to respond.
See Alaska R. Crim. P. 35.1(f)(2); see also Tazruk v. State, 67 P.3d 687, 692 (Alaska App. 2003) (noting that the duty to independently assess whether the defendant has no non-frivolous claims for relief derives not only from court rule, but also the court's constitutional duty to ensure that a defendant receives zealous and competent representation in the post-conviction relief litigation).
See Griffin, 18 P.3d at 76.
Belluomini argues that in the superior court's notice of intent to dismiss the application, the court did not engage in any substantive discussion of his potential claims, but instead baldy referenced the certificate of no merit filed by his attorney. The State agrees, and points out that the court did not even have an adequate record before it with which to conduct the required independent evaluation because Belluomini's attorney failed to provide the court with the complete record and transcripts from his criminal case. Under these circumstances, we agree with the parties that it appears the court failed to perform the independent judicial assessment required by Rule 35.1(f)(2), which we have said "is crucial to the protection of indigent petitioners' right to counsel."
See id. at 77.
Finally, we note that there are two other procedural deficiencies in this case. First, Belluomini's attorney neglected to serve him with her no-merit filings. As we said in Bavilla v. State, "A defendant cannot be expected to respond to a no-merit certificate that he has never received;" "[i]t is therefore incumbent on the trial court to ensure that the defendant receives a copy of the attorney's no-merit certificate, and that the defendant has adequate time to review and respond to the certificate." Second, like the attorney in Bavilla, the attorney here failed to provide affidavits from Belluomini's prior attorneys to support her determination that any claim that the attorneys were ineffective would be frivolous. This omission is significant because Belluomini's post-conviction relief attorney appears to have unjustifiably, and without explanation, accepted trial counsel's unsworn representations over Belluomini's. Both of these procedural deficiencies lend further support for a remand in this case.
Bavilla v. State, 2018 WL 5832217, at *2 (Alaska App. Nov. 7, 2018) (unpublished).
Id. at *3.
For all these reasons, we REVERSE the superior court's dismissal of Belluomini's post-conviction relief application, and we remand his case to the superior court for further proceedings.