Opinion
Court of Appeals No. A-8678.
December 15, 2004.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Dale O. Curda, Judge, Trial Court No. 4BE-01-359 CI.
Averil Lerman, Assistant Public Advocate, and Joshua Fink, Public Advocate, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
George A. Black was convicted of first-degree sexual assault and we affirmed Black's conviction on direct appeal.
AS 11.41.410 (a)(1).
Black v. State, Alaska App. Memorandum Opinion and Judgment No. 4391 at 12 (May 9, 2001), 2001 WL 488020 at *6.
Black filed an application for post-conviction relief and the superior court appointed an attorney to represent him. Black's attorney filed a certificate under Alaska Criminal Rule 35.1(e)(2)(B) that requested that he be allowed to withdraw from the case because Black's application did not allege a colorable claim for relief. The superior court dismissed Black's application.
The State concedes that the attorney's certificate does not adequately explain why the attorney concluded that Black's application asserted no arguable claim for post-conviction relief. We have reviewed the certificate, and we conclude that the State's concession is well-founded. Accordingly, we vacate the superior court's dismissal and remand for further proceedings.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (holding that an appellate court must independently assess the State's concession of error in a criminal case).
Alaska Criminal Rule 35.1(e)(2)(B) declares that if an appointed attorney concludes, after investigating the case, that the applicant has no non-frivolous claim for post-conviction relief, the attorney must file a certificate declaring this fact. When an attorney files this certificate, Criminal Rule 35.1(f)(2) requires the superior court to independently assess the potential merits of the defendant's case.
In Griffin v. State, we discussed the obligations placed on an appointed attorney in these circumstances. We concluded that it was impossible for the superior court to carry out its duty of independent review unless the attorney's certificate contained substantially more than a bare assertion that the applicant has no arguable claims for relief:
18 P.3d 71 (Alaska App. 2001).
[I]f the [defendant's] attorney is permitted to file a certificate containing only the four bare assertions listed in [Criminal] Rule 35.1(e)(2)(B)(i)-(iv) . . ., it will be impossible for the trial court to perform the independent assessment required by Rule 35.1(f)(2).
. . . .
In order for the court to perform its role under Rule 35.1(f)(2) — and thereby fulfill its duty to make sure that indigent litigants do in fact receive zealous investigation and presentation of any colorable claims for post-conviction relief — the attorney seeking to withdraw from the 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.
To reconcile Rule 35.1(e)(2)(B) with Rule 35.1(f)(2), and to avoid the constitutional problems that would arise if we interpreted Rule 35.1(e)(2)(B) narrowly, we hold that the "certificate" described in Rule 35.1(e)(2)(B) must fully explain why the attorney believes that the petitioner has no colorable claim to post-conviction relief.
Id. at 76-77.
In addition, the attorney must certify "that the application cannot be amended to assert one or more colorable claims for relief."
Id. at 75.
In Goldsbury v. State, we ruled that an attorney had failed to present a sufficiently detailed certificate under Rule 35.1(e)(2)(B). In that case, the attorney stated in one conclusory paragraph that the applicant's four claims of ineffective assistance of counsel were frivolous. But the certificate did not discuss Goldsbury's claims in an identifiable way. We vacated the superior court's dismissal because the certificate was "so lacking in factual detail and explanation, that it was impossible for the superior court to fulfill [its duty] to independently assess the potential merit of [the applicant's] claims."
93 P.3d 468 (Alaska App. 2004).
Id. at 470-71.
Id. at 470.
Id.
Id.
Black's application claimed that he had received ineffective assistance of counsel on three grounds. First, Black claimed that his attorney failed to apply for public money to obtain the testimony of the state employee who had examined critical evidence submitted by the Bethel Police Department. Second, Black claimed that his attorney had failed to offer a report from the State Crime Laboratory in evidence. Third, Black claimed that his attorney had failed to call witnesses who could provide an alibi.
Black also claimed that the prosecutor had committed misconduct on two grounds. Black claimed the prosecutor had failed to present exculpatory evidence to the grand jury and that the prosecutor had failed to disclose exculpatory evidence regarding one of the State's witnesses.
The attorney's certificate filed in this case repeated the four sections of Criminal Rule 35.1(e)(2)(B) but did not discuss the claims individually. The attorney filed an affidavit in conjunction with the certificate, but the affidavit did not discuss all the claims raised in Black's pro se application.
The State concedes that these filings do not discuss and analyze Black's claims in sufficient detail for the superior court to discharge its independent duty to review the potential merit of Black's claims before dismissing the application. After reviewing the record, we accept the State's concession. Black's attorney did not discuss all the claims Black raised in his application and did not assert why he concluded that all the claims were frivolous.
See Griffin, 18 P.3d at 77.
For these reasons, we VACATE the decision of the superior court and reinstate Black's application for post-conviction relief. We remand the case to the superior court for further proceedings on Black's application.