Opinion
Court of Appeals No. A-9913.
August 20, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Robert B. Downes, Judge, Trial Court No. 4FA-07-1086 CI.
William W. Carroll, in propria persona, Eloy, Arizona, for the Appellant. Blair M. Christensen, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
William W. Carroll appeals the superior court's dismissal of his third application for post-conviction relief. Carroll argues that the superior court erred when it dismissed his application because it was a successive application. We affirm the superior court because Carroll's application was barred by AS 12.72.020. Background facts and proceedings
In December 2000, the grand jury charged Carroll with one count of first-degree murder, three counts of attempted first-degree murder, and one count of first-degree assault. On October 29, 2001, following Carroll's no contest pleas, the superior court sentenced Carroll on one count of second-degree murder and one count of first-degree assault. Superior Court Judge Richard D. Savell imposed 40 years with 20 years suspended for second-degree murder and 5 years for first-degree assault, with 1 year of the assault sentence consecutive to the second-degree murder sentence. Carroll did not appeal.
AS 11.41.110(a)(2) AS 11.41.200(a), respectively.
In November 2003, Carroll filed an application for post-conviction relief, asserting that he had received ineffective assistance of counsel before entering his no contest pleas. The superior court dismissed this first application on July 28, 2004. Carroll did not appeal.
In March 2005, Carroll filed a second application for post-conviction relief, contending that he received ineffective assistance of counsel from his trial attorney and from the attorney who appeared on the first application for post-conviction relief. The superior court dismissed the second application in November 2006. Carroll did not appeal.
In February 2007, Carroll filed a "Petition for Writ of Habeas Corpus." In this filing, Carroll asked that his two previously dismissed applications for post-conviction relief be joined to the petition. The petition alleged that his trial attorney and his attorneys in his two applications for post-conviction relief provided ineffective assistance.
Apparently on its own motion and pursuant to Alaska Civil Rule 86(m), the superior court concluded that Carroll's petition for a writ of habeas corpus should have been brought as an application for post-conviction relief. Because Carroll had filed two previous applications, the court ruled that Carroll's filing was barred by AS 12.72.020(a)(6) because it was a successive application. This order was distributed on March 13, 2007.
The next day, the State filed a motion to convert the petition to an application for post-conviction relief and to dismiss the application because it was barred by the statute of limitations and did not plead a prima facie case for relief because Carroll had not included an affidavit from any of the attorneys he claimed provided him with ineffective assistance.
Carroll moved for reconsideration of the court's dismissal, arguing that under Grinols v. State, the statutory bar in AS 1 2 .72 .0 2 0(a)(6) did not apply. The superior court denied the motion.
10 P.3d 600 (Alaska App. 2000).
Carroll moved for appointment of counsel for appeal. The superior court denied the motion, citing AS 18.85.100(c).
Discussion
We held in Grinols that a defendant who believes he received ineffective assistance during the litigation of a first application for post-conviction relief must be allowed to file a second application on this ground despite the statutory bar against successive applications in AS 12.72.020(a)(6). An applicant asserting such a "layered" claim must plead facts, which if true, show (1) that the applicant was diligent in raising the ineffective counsel claim, (2) that the prior post-conviction relief attorney was incompetent, (3) that the underlying claim was meritorious, and (4) that there is a reasonable possibility that the outcome of the defendant's original trial court proceedings would have been different but for counsel's incompetence.
Id., 10 P.3d at 618. See also Grinols v. State, 74 P.3d 889, 895 (Alaska 2003) (holding that "the due process clause of the Alaska Constitution requires that a defendant be given a chance to challenge the effectiveness of counsel in a second petition for post-conviction relief").
Grinols, 10 P.3d at 619-20.
Here, Carroll's filing was not a second application, but a third one. A review of the record reveals that Carroll has not pled facts to satisfy the Grinols requirement for a "layered" claim of ineffective assistance, even if Carroll was authorized to pursue a double "layered" claim in a third application. Carroll claims that he received ineffective assistance because there was "structural" error — an error so fundamental that it cannot be reviewed for harmless error — in the pre-March 2005 criminal code and that his attorneys did not litigate that issue. It is true that aspects of Alaska's pre-March 2005 sentencing law did not satisfy the Sixth Amendment to the United States Constitution as interpreted in Blakely v. Washington. But there are two obvious flaws in Carroll's claim. First, in Washington v. Recuenco, the United States Supreme Court held that a Blakely error is not structural error. Second, Carroll cannot show that he was prejudiced by the flaws in the pre-March 2005 presumptive sentencing law. Carroll entered no contest pleas to second-degree murder and first-degree assault. Second-degree murder is an unclassified felony with indeterminate sentencing; presumptive sentencing does not apply. Carroll did receive an unadjusted 5-year presumptive term for first-degree assault, of which 1 year was imposed consecutively to the 20 years of imposed imprisonment for second-degree murder. But a sentencing judge's decision to impose a presumptive term consecutively does not raise a Blakely issue. And no Blakely issue is presented when a sentencing court imposes the unadjusted presumptive term for first-degree assault.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
548 U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006).
Id. at 222, 126 S. Ct. at 2553.
See State v. Herrmann, 140 P.3d 895, 897 (Alaska App. 2006) (noting that, until a defendant can show that he has been prejudiced by the sentencing law's departure from Blakely, then the issue of the constitutionality of the pre-2005 presumptive sentencing law is not presented).
Carlson v. State, 128 P.3d 197, 203-04 (Alaska App. 2006); Page v. State, 657 P.2d 850, 855 (Alaska App. 1983).
Edmonds v. State, 118 P.3d 17, 21 (Alaska App. 2005).
Additionally, a prima facie claim of ineffective assistance requires that an applicant file an affidavit from the allegedly ineffective attorney addressing the ineffectiveness claims or explain why the affidavit is unavailable. Carroll's filing in this case does not include affidavits from prior counsel addressing his claims, nor has Carroll explained why such affidavits are not available.
See Peterson v. State, 988 P.2d 109, 112 (Alaska App. 1999) (citing Steffensen v. State, 837 P.2d 1123, 1126-27 (Alaska App. 1992)).
Carroll also argues that he is entitled to appointed counsel. But AS 18.85.100(c)(1) provides that a criminal defendant is not entitled to appointed counsel to bring a successive application for post-conviction relief. Furthermore, Carroll has not convinced us that due process would require the court to appoint counsel in this particular case.
See Grinols, 10 P.3d at 623; Administrative Rule 12(e)(1).
There is one aspect of Carroll's judgment that is plain error. The judgment includes a description that 10 years of Carroll's 20-year term for second-degree murder is "presumptive." This is wrong. As we noted above, second-degree murder is an unclassified felony that is not governed by presumptive sentencing. Accordingly, Carroll's judgment should be amended to strike the provision in the judgment describing 10 years of the second-degree murder sentence as presumptive.
Conclusion
The judgment of the superior court is AFFIRME D. The superior court shall amend Carroll's judgment as directed above.