Opinion
A-13328
07-07-2021
JEREMY BIENEK, Appellant, v. STATE OF ALASKA, Appellee.
Doug Miller, The Law Office of Douglas S. Miller, 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.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, William F. Morse, Judge. Trial Court No. 3AN-15-11144 CI
Doug Miller, The Law Office of Douglas S. Miller, 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.
MEMORANDUM OPINION
WOLLENBERG, JUDGE
Jeremy Bienek appeals the superior court's dismissal of his application for post-conviction relief. Bienek does not challenge the court's conclusion that his application failed to set forth a prima facie case for relief. Rather, Bienek contends that his post-conviction relief attorney failed to comply with the basic obligations set out in Alaska Criminal Rule 35.1. The State concedes that, based on our precedent in Tazruk v. State and Demoski v. State, a remand is appropriate.
Tazruk v. State, 67 P.3d 687 (Alaska App. 2003); Demoski v. State, 449 P.3d 348 (Alaska App. 2019).
Having reviewed the record, we conclude that a remand is necessary.Accordingly, we vacate the superior court's dismissal of Bienek's application for postconviction relief 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 and has legal foundation).
Factual and procedural background
Following a jury trial, Bienek was convicted of one count of attempted first-degree sexual assault.
AS 11.41.410(a)(1) & AS 11.31.100(a).
Several days after the jury rendered its verdict, the trial court received a letter from one of the jurors expressing "deep concerns" about the jury's deliberations. According to the letter, in reaching a decision, some of the jurors considered their own personal experiences, including "experience with either themselves [or] family members that had been either rap[]ed [or] something to that extent," and some jurors considered their dislike for Bienek's trial attorney and Bienek's decision not to testify. The author of the letter also alleged that jurors had conducted internet research on how to hang a jury, and that the author and another juror felt "bullied" into their verdicts: they were "talked over" and told to "hurry up," in part because "someone was missing the Olympics."
In response, the trial court sent a notice to the parties, attaching the letter and stating that the court was not taking any action. Bienek's trial attorney did not respond to the notice or ask the court to take any action.
Bienek appealed his conviction. On appeal, Bienek raised several claims.
Among these claims, Bienek argued that the trial court committed plain error in failing to take further action on the juror letter. We rejected Bienek's contention that the judge had a sua sponte obligation to investigate the claims of juror misconduct. We stated that, in light of the limitations set out in Alaska Evidence Rule 606(b), the onus was on Bienek's trial attorney to further pursue the issue and to establish that inquiry was permitted by Rule 606(b).
Bienek v. State, 202\ WL2692166, at* 10(AlaskaApp. June30, 2021)(unpublished). Alaska Evidence Rule 606(b) provides, in pertinent part, that "a juror may not be questioned as to any matter or statement occurring during the course of the jury's deliberations or to the effect of any matter or statement upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." In addition, the court may not receive "a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying."
Bienek also argued on appeal that the trial court erred in refusing to disclose additional records from the victim's confidential juvenile and child protection files. Although we identified three additional documents that should not have been withheld by the court as "not relevant," we concluded that Bienek's trial attorney had waived further disclosure of the particular records. We also rejected Bienek's remaining claims, and we affirmed his conviction.
Bienek, 2021 WL 2692166, at *5-6.
Id. at * 11.
While Bienek's direct appeal was pending, he filed a pro se application for post-conviction relief. In his application, Bienek raised several claims related to the juror letter, including that his trial attorney had provided ineffective assistance of counsel by not responding to the letter.
An attorney was appointed to represent Bienek in his post-conviction relief case. Under Alaska Criminal Rule 35.1(e)(2), an attorney appointed to represent an indigent post-conviction relief applicant has sixty days to file one of three documents on behalf of the applicant: (1) a statement that the litigation will proceed on the claims raised in the pro se application; (2) an amended application for post-conviction relief; or (3) a certificate stating that the claims presented in the pro se application have no arguable merit and that the applicant has no other colorable claims for post-conviction relief.
Initially, the superior court denied without prejudice Bienek's request for an appointed attorney, reasoning that the case was premature because the direct appeal was still pending. Bienek filed a petition for review of this order. The State conceded error, and we reversed. See Bienek v. State, File No. A-12513 (Order dated July 20, 2016).
Bienek's post-conviction attorney filed multiple requests for extensions of time to comply with this rule. In these requests, the attorney represented both that he was still investigating the case and that our decision in the direct appeal might affect the post-conviction relief case. For reasons that are unclear from the record, given that the post-conviction relief case was still in its earliest stage, Bienek's attorney also answered interrogatories from the State. In these discovery responses, Bienek (through his attorney) stated that his pro se application was based solely on the juror letter, and that an investigator had spoken with the juror who wrote the letter.
See State v. Jones, 759 P.2d 558, 565-66 (Alaska App. 1988) (discussing the three basic phases of a post-conviction relief proceeding and noting that the filing of a response on the merits commences the second phase, during which the full range of discovery mechanisms are available to the parties).
But despite an apparent investigation, the post-conviction attorney never filed any affidavits - either from Bienek's trial attorney or from the juror. The attorney also never filed a document that complied with any of the three options set out in Alaska Criminal Rule 35.1(e)(2). That is, the attorney did not expressly attest that the litigation would proceed on the claims alleged in Bienek's pro se application, nor did the attorney file an amended application or a certificate of no arguable merit. And despite noting that issues remained unresolved due to the pendency of the direct appeal (including issues related to the confidential records), and that a stay might be appropriate, the attorney never directly moved to stay the post-conviction relief proceeding.
But these statements suggest that Bienek's attorney was either unfamiliar with, or had a fundamental misunderstanding of, the record in Bienek's case. Contrary to Bienek's postconviction attorney's contention, the State did disclose the victim's prior accusation prior to trial, and the parties heavily litigated its admissibility; evidence of this accusation was therefore already available as part of the trial court record. Indeed, Bienek was directly challenging the trial court's refusal to admit evidence of the prior accusation as part of his direct appeal. There were confidential records pending review before this Court. But, as noted earlier, these records were the victim's juvenile and child protection records, and the bulk of the records were sealed and therefore unavailable to Bienek's post-conviction relief counsel. As an alternative to an extension of time to comply with Rule 35.1(e), Bienek's attorney did raise the possibility of staying the post-conviction relief proceeding pending the outcome of the direct appeal - an approach that would have made sense given this Court's pending review of the sealed confidential records. But the attorney never directly requested a stay. At one point, in reply to the State's opposition to one of the requested extensions, Bienek's attorney stated that he needed additional time to review records that he claimed were in the sole possession of this Court. In particular, the attorney stated that confidential records before this Court contained evidence that the victim had previously falsely accused another person of sexual assault and that the State had failed to disclose this information to Bienek, thus providing a possible basis for post-conviction relief.
Eventually, the superior court ruled that no more extensions would be granted. After the final extension expired without compliance by Bienek's attorney with Criminal Rule 35.1(e)(2), the State filed a motion to dismiss Bienek's application for failure to present a prima facie case for relief. The State acknowledged that Bienek's post-conviction relief attorney had not complied with Rule 35.1(e) - i.e., the attorney had not elected one of the three options provided in Rule 35.1(e)(2) - but the State argued that this lack of action, in combination with Bienek's responses to the interrogatories clarifying that the pro se application relied solely on the juror letter, showed that the attorney had chosen to rely on the pro se application.
The State incorporated by reference arguments from an earlier motion to dismiss that had been denied without prejudice when the court granted Bienek's attorney a final extension to comply with Criminal Rule 35.1(e)(2).
In its motion to dismiss, the State argued that any evidence of juror misconduct was in admissable-both because the contents of the juror letter were barred by Alaska Evidence Rule 606(b) and because, without a proper affidavit from the juror, the letter was unauthenticated hearsay. The State also noted that Bienek's post- conviction attorney had never filed an affidavit from Bienek's trial attorney or explained why an affidavit was unavailable.
See Alaska R. Evid. 801 and 901.
Bienek's post-conviction attorney filed an opposition to the motion to dismiss. But in the opposition, Bienek's attorney responded only to the State's Rule 606(b) argument. The attorney argued that some of the allegations in the juror letter met the exception to the rule concerning "extraneous prejudicial information" or "outside influence." The attorney acknowledged the State's other arguments in a footnote, but failed to address them.
The superior court granted the State's motion to dismiss. The court ruled that most of the juror letter was inadmissible under Evidence Rule 606(b), and to the extent one portion of the letter was admissible under the Rule 606(b) exception for extraneous prejudicial information, that particular allegation of juror misconduct was not prejudicial to Bienek. The court also noted that Bienek had failed to obtain an affidavit from his trial attorney addressing the attorney's apparent failure to act on the juror letter and thus concluded that Bienek had failed to establish a prima facie case of ineffective assistance of counsel.
Why we remand for further proceedings
Bienek now appeals, arguing that the superior court erred in dismissing his application for post-conviction relief without addressing his attorney's failure to comply with the requirements of Criminal Rule 35.1(e)(2) and the facial inadequacy of the attorney's pleadings. We agree.
In Alaska, a criminal defendant has both a constitutional and statutory right to counsel to pursue a first application for post-conviction relief. The constitutional right to counsel further requires that this assistance be effective. We have repeatedly emphasized the need for courts reviewing post-conviction relief applications to ensure that these rights are protected.
Grinols v. State, 74 P.3d 889, 894 (Alaska 2003) (holding that the due process clause of the Alaska Constitution guarantees the right to counsel to pursue a first post-conviction relief application); AS 18.85.100(c).
Grinols, 74 P.3d at 895.
See Demoski v. State, 449 P.3d 348, 351 (Alaska App. 2019); Tazruk v. State, 67 P.3d 687, 690 (Alaska App. 2003); Griffin v. State, 18 P.3d 71, 76-77 (Alaska App. 2001).
As explained above, Alaska Criminal Rule 35.1(e)(2) requires an attorney appointed to represent an indigent applicant for post-conviction relief to file one of three things: (1) a statement that the litigation will proceed on the claims alleged in the pro se application; (2) an amended application drafted by the attorney; or (3) a certificate that the applicant has no arguable claims for relief. In order to ensure that indigent litigants have received zealous advocacy and a thorough investigation, a no-arguable-merit certificate-the third option under Rule 35.1 (e)(2)-must include a full description of the claims considered, the materials reviewed, the investigation conducted, and the reasons why the attorney concluded that all the applicant's potential claims had no arguable merit.
Griffin 18 P.3d at 75; see also Demoski, 449 P.3d at 349; Tazruk, 67 P.3d at 690.
Alaska R. Crim. P. 35.1(e)(3); Griffin, 18 P.3d at 77.
In Tazruk v. State, the appointed attorney pursued the first option, filing a statement that the litigation would proceed on the claims raised in Tazruk's pro se application. But all of the claims were facially meritless or facially inadequate to survive the State's motion to dismiss. And when the State moved to dismiss based on these deficiencies, Tazruk's attorney chose not to file an opposition to the motion.
Tazruk, 67 P.3d at 689.
Id. at 689-90.
Id. at 690-91.
We concluded that, based on that record, it was impossible to determine whether Tazruk's attorney had provided constitutionally adequate representation. We reasoned that the absence of any opposition to the State's motion to dismiss appeared to be the post-conviction-relief equivalent to a "slow plea," and the lack of any record indicating why Tazruk's attorney concluded that Tazruk's claims had no arguable merit left the courts incapable of assessing whether the attorney zealously represented Tazruk's interests. We therefore remanded the case to the superior court and directed Tazruk's attorney to file a certificate of no arguable merit-i. e., to provide a detailed explanation of why he concluded that Tazruk's claims had no arguable merit.
Id. at 691.
Id.
Id.; see also Vann v. State, 2016 WL 936765, at *2 (Alaska App. Mar. 9, 2016) (unpublished) (holding that a remand was necessary where the post-conviction attorney's amended application was facially inadequate - in part because it lacked an affidavit from the defendant's trial attorney- and the attorney's opposition to the State's motion to dismiss was unresponsive).
We recently expounded on Tazruk's requirements in Demoski v. State. In Demoski, the appointed attorney chose the second option - i.e., the attorney filed an amended application. But the amended application asserted a claim that any competent attorney would have recognized was procedurally barred. And, when the State pointed this out in a motion to dismiss, Demoski's attorney filed an opposition that made no substantive response to the State's argument.
Demoski v. State, 449 P.3d 348, 349-52 (Alaska App. 2019).
Id. at 349, 351.
Id.
Id.
We concluded that Demoski's attorney either failed to realize that Demoski's claim was procedurally barred, or Demoski's attorney knew that the claim was deficient and should have filed a certificate of no arguable merit. We noted that Demoski's attorney had affirmatively disclaimed reliance on previously-asserted ineffective assistance of counsel claims, and we remanded Demoski's case for the attorney to provide a detailed explanation of the claims he considered and why he concluded that they had no arguable merit.
Id. at 351.
Id.; see also Duncan v. State, 2008 WL 5025424, at *3 (Alaska App. Nov. 26, 2008) (unpublished) (holding that a remand was required where the post-conviction attorney elected to proceed on claims raised in the pro se application - claims that were clearly procedurally barred - and did not substantively respond to the State's assertion in its motion to dismiss that the claims were barred).
In reaching this conclusion, we emphasized the obligation of trial courts "to ensure that indigent post-conviction relief litigants receive zealous and competent representation." We explained that "[w]hen an attorney files an application for post-conviction relief that appears to be facially defective, and when that attorney fails to offer any substantive explanation for why it is not defective, the trial court's dismissal of the application without further action leaves open the possibility that the applicant has not received effective assistance of counsel." We identified several types of applications that are "plainly deficient" on their face, and thus trigger a court's duty to ensure that the applicant is receiving adequate representation, including an application that "alleges ineffective assistance of counsel, but does not contain either the required affidavit from trial counsel or an explanation as to why the affidavit could not be obtained."
Demoski, 449 P.3d at 351.
Id.
Id. at 351 n. 18.
In Bienek's case, the record of proceedings raises similar concerns. As an initial matter, the attorney did not affirmatively choose any of three options required of him by Alaska Criminal Rule 35.1 (e)(2). The failure to pursue one of the three required filings means that there is an insufficient record that Bienek's attorney investigated and developed the claims Bienek alleged in his pro se application - and other possible claims to which Bienek's attorney himself alluded.
See Tazruk v. State, 67 P.3d 687, 691 (Alaska App. 2003); see also Griffin v. State, 18 P.3d 71, 75 (Alaska App. 2001) (noting an appointed attorney's obligation to investigate an applicant's pro se claims and any additional colorable claims for relief); Tazruk, 67 P.3d at 693-94 ("In general, when an attorney is appointed to represent a client who has filed an application for post-conviction relief, the attorney has a duty to investigate whether there are any non-frivolous grounds to obtain post-conviction relief." (citing Alaska R. Crim. P. 35.1(e)(2))).
Moreover, even assuming that Bienek's opposition to the State's motion to dismiss signaled tacit agreement with the State's assertion that Bienek's attorney was proceeding on Bienek's pro se application, the pro se application itself was facially deficient. Alaska Criminal Rule 35.1(d) states, "Affidavits, records, or other evidence supporting [an application for post-conviction reliefs] allegations shall be attached to the application or the application shall recite why they are not attached." This means that a defendant seeking post-conviction relief must generally "supply supporting affidavits from people who could testify to the pertinent information if called to the stand - or, alternatively, the defendant must explain why such affidavits can not be obtained."
Allen v. State, 153 P.3d 1019, 1026 (Alaska App. 2007).
Here, all of Bienek's pro se claims concerned alleged juror misconduct based on the juror letter, but the statements in the juror letter were hearsay. And Bienek's post-conviction attorney never filed an affidavit from the juror who wrote the letter. When the State moved to dismiss partially on this ground, Bienek's attorney never responded to the argument; that is, Bienek's attorney never addressed the fact that he had not obtained an affidavit, even after the flaw was pointed out to him.
See Alaska R.Evid. 801.
In addition, Bienek's post-conviction attorney never filed an affidavit of Bienek's trial counsel or offered a reason why an affidavit could not be obtained. We have repeatedly held that a defendant claiming ineffective assistance of counsel must either present an affidavit from his former attorney (addressing the allegations of attorney error) or explain its absence.
Tazruk, 67 P.3d at 689-90; State v. Jones, 759 P.2d 558, 570 (Alaska App. 1988); see also Peterson v. State, 9SS?.2d 109, 113-14 (Alaska App. 1999) ("We have repeatedly stated that the trial attorney's affidavit is an essential component of the defendant's prima facie case [of ineffective assistance of counsel] - that without the affidavit (or an explanation of why the affidavit can not be obtained), the defendant's pleading is subject to summary dismissal.").
We, of course, do not have a record of the post-conviction attorney's decision-making, and we therefore cannot definitively determine whether the obvious deficiencies were intentional or were the result of attorney incompetence. We note, however, that the attorney repeatedly stated that he was pursuing an investigation; he also stated that he had spoken with the juror who wrote the letter. And at various points, he referred to issues being litigated in the direct appeal, including issues related to the confidential records, that might prove pertinent to a post-conviction relief application. Because the attorney did not expressly pursue one of the options under Criminal Rule 35.1(e)(2), we have no record that the attorney affirmatively elected to proceed solely on the basis of the juror letter and forgo any remaining issues.
Although the State notes that Bienek's attorney took some steps in addition to those taken in Tazruk and Demoski - including filing a substantive opposition to the State's motion to dismiss-the State candidly acknowledges that there were "problems with Bienek's pro se application that [the attorney] chose not to amend." In particular, the application did not analyze or explain how Bienek's trial attorney's performance was ineffective, nor was the application supported by admissible evidence, factual citations to the criminal record, or an affidavit from trial counsel. The State recognizes that it is "evident that the application was plainly deficient on its face" and that this Court has grounds to remand under Tazruk and Demoski. We agree and conclude that a remand for further proceedings in this case is required.
On remand, Bienek's post-conviction relief attorney must affirmatively elect, and diligently pursue, one of the options set out in Criminal Rule 35.1(e)(2).
We question, however, whether a certificate of no arguable merit would be appropriate given our decision in Bienek's direct appeal. As we have previously noted, a certificate of no merit is only warranted when there is no argument that can be made in favor of reliefi.e., when the claims are truly frivolous, as opposed to simply lacking merit. See Griffin, 18 P.3d at 73 (noting that, in evaluating the minimum standard necessary for a public attorney to withdraw based on the assertion that an appeal is frivolous, the United States Supreme Court has distinguished between the conclusion that the appeal has '"no merit,' in the sense that an appellate court will likely rule against the claims raised... [and] 'frivolous'i.e., that no reasonable argument can be made in favor of the appeal" (citing Smith v. Robbins, 528 U.S. 259, 279-81 (2000))); see also Vizcarra-Medina v. State, 195 P.3d 1095, 1099 (Alaska App. 2008) (noting the "crucial distinction" between a frivolous claim and a claim with no merit); George v. State, 2020 WL 2896342, at *2 (Alaska App. June 3, 2020) (unpublished) (explaining the distinction between a "frivolous" claim and one simply lacking merit, "in the sense that the court will likely rule against the claim," and providing that the former applies for purposes of a certificate of no arguable merit).
Conclusion
We VACATE the superior court's order dismissing Bienek's application for post-conviction relief and REMAND this case to the superior court for further proceedings consistent with this decision. We do not retain jurisdiction.