Opinion
A-13521 7058
05-31-2023
RICHARD DORSEY, Appellant, v. STATE OF ALASKA, Appellee.
Claire F. De Witte, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District No. 3AN-17-05530 CI Anchorage, Erin B. Marston, Judge.
Claire F. De Witte, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
ALLARD, JUDGE
Richard Dorsey appeals the dismissal of his application for postconviction relief. For the reasons explained here, we agree that this case must be remanded to the superior court for further proceedings.
Factual background
Richard Dorsey was convicted, following a jury trial, of multiple counts of first-degree sexual assault, attempted first-degree sexual assault, and physical assault for acts he committed against five different women between 2001 and 2004.
Dorsey appealed his convictions to this Court. We affirmed his convictions in an unpublished memorandum opinion. Dorsey then filed a pro se application for post-conviction relief, raising several claims for post-conviction relief. The superior court appointed a contract attorney from the Office of Public Advocacy to represent Dorsey on his application. The attorney filed an amended post-conviction relief application raising only one claim of ineffective assistance of counsel. This claim alleged that Dorsey's trial attorney was ineffective for failing to present alibi evidence as to one of the sexual assaults - i.e., failing to present evidence that Dorsey was on bed rest from injuries when the sexual assault allegedly occurred.
Dorsey v. State, 2016 WL 3033898 (Alaska App. May 25, 2016) (unpublished).
The State moved to dismiss the amended application for failure to state a prima facie case for relief because the trial transcript showed that the trial attorney had presented evidence that Dorsey was on bed rest at the time of one of the sexual assaults.
Dorsey's attorney filed an opposition to the State's motion to dismiss. In the opposition, the attorney conceded that the one claim of ineffective assistance of counsel raised in the amended post-conviction relief application was factually incorrect. The attorney also listed the claims raised by Dorsey in his pro se application, providing only a conclusory explanation for why each claim was allegedly deficient. None of the explanations were supported by citations to the record.
In the amended application for post-conviction relief, the contract attorney stated that she had "reviewed around 2,000 pages worth of trial and appellate documents in preparation for this amended complaint." In the opposition conceding that the ineffective assistance of counsel claim was factually incorrect, the attorney referred to her original review as "thorough" but indicated that she had conducted "a more thorough review" after receiving the State's motion to dismiss.
In the opposition to the State's motion to dismiss, Dorsey's attorney referred to Alaska Criminal Rule 35.1(e)(2)(C), which permits appointed counsel to file a certificate of no merit in a post-conviction relief case. The attorney then asserted that "[t]his filing along with the amended petition meets the criteria for a certificate under Rule 35.1(e)(2)([C])." However, despite referring to the filing as a certificate of no merit, the attorney continued to maintain that Dorsey had established a prima facie case for relief, and argued that the court should deny the State's motion to dismiss and grant Dorsey an evidentiary hearing.
The superior court did not treat the attorney's filing as a certificate of no merit. Instead, the superior court granted the State's motion to dismiss, finding that the ineffective assistance of counsel claim raised in the amended application was (as the contract attorney had conceded) "directly contradicted by the record in the underlying criminal case." The court also found that Dorsey had "waived" all the other postconviction relief claims from his pro se application by not including them in his amended application.
This appeal followed.
Why we conclude that a remand for further proceedings is required
On appeal, Dorsey argues that the superior court erred when it failed to treat the opposition to the State's motion to dismiss as a certificate of no merit. We agree.
When an attorney is appointed to represent an indigent defendant who has filed a pro se application for post-conviction relief, the attorney must choose one of three ways to proceed: (1) the attorney may file a statement indicating that the litigation will proceed on the claims alleged in the pro se application; (2) the attorney may file an amended application for post-conviction relief; or (3) the attorney may file a certificate of no merit.
Because the superior court has a duty to ensure that indigent applicants receive competent and zealous representation, Alaska Criminal Rule 35.1(e) establishes certain procedures that must be followed if the attorney chooses to file a certificate of no merit.
As an initial matter, the attorney must file an affidavit stating that (1) the attorney does not have a conflict of interest; (2) the attorney has reviewed the facts of the underlying proceeding or action challenged in the application, and the pertinent law; (3) the attorney has consulted with the applicant and, if appropriate, with trial counsel; and (4) the attorney has determined that the claims presented in the application have no arguable merit and that the applicant has no other colorable claims for post-conviction relief.
Additionally, the certificate of no merit shall include "a full description" of (1) the claims the attorney has considered; (2) the materials the attorney has reviewed; (3) the investigations the attorney has conducted; and (4) the reasons why the attorney has concluded that all of the applicant's potential claims have no arguable merit. In other words, the certificate of no merit "must fully explain why the attorney believes that the petitioner has no colorable claim to post-conviction relief," and must include "a full explanation of all the claims the attorney has considered and why the attorney has concluded that these claims are frivolous." As we have indicated multiple times, "no arguable merit" is synonymous with "frivolous." An attorney's belief that a post-conviction relief claim is unlikely to succeed does not necessarily mean that the claim has "no arguable merit."
Alaska Criminal Rule 35.1(e)(3).
Griffin v. State, 18 P.3d 71, 77 (Alaska App. 2001).
See id. at 74-75; see Tazruk v. State, 67 P.3d 687, 691-92 (Alaska App. 2003); see Demoski v. State, 449 P.3d 348, 351 (Alaska App. 2019).
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 that is likely to fail).
After an attorney files their certificate of no merit with the court, the court should ensure that the applicant has been served with a copy of the certificate and that the applicant understands that they are entitled to file a "response" to the certificate of no merit in which they can address any points of disagreement with the attorney's evaluation of their claims and/or raise any post-conviction relief claims that the attorney did not address in the certificate of no merit. The prosecuting attorney should likewise be given an opportunity to respond to the certificate of no merit and to point out any deficiencies in the certificate that require correction.
Id.
The trial court then conducts its own independent review of the certificate of no merit, the applicant's response to the certificate, and the underlying record to determine whether it agrees with the attorney that there are no colorable claims that can be raised. The court should also give the attorney notice and an opportunity to correct any deficiencies in the certificate of no merit.
Id.; see Pierren v. State, 2021 WL 3521080, at *2 (Alaska App. Aug. 11, 2021) (unpublished).
If the court finds that there is a colorable claim, the court "may grant leave to file an amended application or direct that the proceedings otherwise continue."
If the court finds that there are no colorable claims, the court shall dismiss the applicant's post-conviction relief application and instruct the appointed attorney that they will be permitted to withdraw once they consult with the applicant about their right to appeal, and then file and perfect a notice of appeal with this Court if the applicant requests an appeal.
Wassilie v. State, 331 P.3d 1285, 1289 (Alaska App. 2014).
None of these procedures were followed in this case. Instead, the attorney was allowed to file a hybrid "opposition" to the State's motion to dismiss combined with a certificate of no merit, but without complying with the procedures needed to properly file a certificate of no merit. The trial court then erred in dismissing the case without reviewing and requiring correction of what was essentially a deficient certificate of no merit.
Accordingly, we conclude that a remand is required so that the proper procedures can be followed. On remand, the attorney assigned to Dorsey shall be given the opportunity to either litigate one or more claims of post-conviction relief on Dorsey's behalf or file a more complete certificate of no merit.
Tazruk v. State, 67 P.3d 687, 691-92 (Alaska App. 2003); Demoski v. State, 449 P.3d 348, 351 (Alaska App. 2019).
Conclusion
The superior court's order dismissing Dorsey's application for postconviction relief is VACATED, and this case is REMANDED to the superior court for further proceedings in accordance with the guidance provided here.