Summary
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
Summary of this case from Bienek v. StateOpinion
Court of Appeals No. A-10034.
November 26, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Stephanie E. Joannides, Judge, Trial Court No. 3AN-05-07538 CI.
Beth G.L. Trimmer, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant.
W. H. Hawley, 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
Ricky D. Duncan was convicted of second-degree robbery and felony concealment of merchandise after he stole several cartons of cigarettes from a convenience store and struggled with the store clerks on his way out the door. We affirmed his convictions on appeal. Duncan then filed this application for post-conviction relief, arguing that the jury had insufficient evidence to convict him of these offenses.
Duncan v. State, Memorandum Opinion and Judgment No. 4712 (June 4, 2003), 2003 WL 21279423.
The State moved to dismiss the application, arguing that it was procedurally barred under AS 12.72.020(2) because Duncan had raised the same argument in his direct appeal. Duncan's court-appointed attorney did not contest that the claims were procedurally barred, and the superior court dismissed the application.
On appeal from that decision, Duncan's attorney filed an Anders brief asserting that the superior court properly dismissed Duncan's application and that there were no non-frivolous claims to raise on Duncan's behalf. Although the State filed an appearance, we did not require the State to file a brief.
Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), limited by Smith v. Robbins, 528 U.S. 259, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000).
When we are faced with a brief that asserts the defendant has no arguable claims to raise in an application for post-conviction relief, our obligation is to independently assess the record to determine if that assertion is true. We cannot do this on the record before us because it contains no explanation of what claims Duncan's post-conviction relief attorney considered and why he determined those claims were frivolous. We therefore remand the case to the superior court and direct Duncan's attorney to provide this explanation to the superior court, as required by our decision in Griffin v. State. Facts and proceedings
18 P.3d 71 (Alaska App. 2001).
Duncan was convicted at a jury trial of second-degree robbery and felony concealment of merchandise. He appealed his robbery conviction to this court, arguing that there was insufficient evidence for the jury to convict him of that offense. We rejected that claim and affirmed Duncan's conviction.
AS 11.41.510(a)(1) and AS 11.46.220(c)(1)(C), respectively.
State v. Duncan, Opinion No. 4712 at 2, 2003 WL 21279423 at *1.
Id. at 2-3, 2003 WL 21279423 at *1-2.
Duncan subsequently filed a pro se application for post-conviction relief. The superior court appointed the Office of Public Advocacy to represent him. On September 28, 2006, Dan Bair, Duncan's appointed attorney, filed notice that he would proceed on the insufficiency of evidence claims raised in Duncan's pro se petition.
The State filed a motion to dismiss the petition, pointing out that Duncan had already litigated a claim of insufficient evidence on direct appeal and that, under AS 12.72.020(2), he was barred from raising that claim again in an application for post-conviction relief. Bair filed this opposition to the State's motion:
The State has sought dismissal of Mr. Duncan's claims that there was insufficient evidence to convict him of Robbery in the Second Degree and Felony Concealment and that a judgment of acquittal should have been granted by the Superior Court based on the State's position that those issues were covered, or could have been covered, in Mr. Duncan's direct appeal.
After recently receiving input from Mr. Duncan regarding the State's Motion to Dismiss, Mr. Duncan's position is that he was grabbed, assaulted, taken to the floor in front of the cash register, let up, told to leave the store, and at that time the cigarette cartons fell out of his coat — not at
some later time. Further, the store's surveillance videos were a blur.
Bair attached the trial transcript to this pleading, but no affidavit.
The superior court granted the State's motion to dismiss, ruling that Duncan's claims of insufficient evidence were barred by AS 12.72.020(2) because they had been, or could have been, litigated in his direct appeal.
Beth Trimmer, also of the Office of Public Advocacy, then filed an Anders brief in this court, arguing that the superior court correctly dismissed Duncan's petition. Trimmer urges us not to remand the case to the superior court, but rather to presume that Bair competently represented Duncan because Bair read the trial transcript and filed an opposition to the State's motion to dismiss.
Discussion Why we remand this case to the superior court
Under Griffin v. State, an attorney who is appointed to represent an indigent petitioner for post-conviction relief has three alternatives: (1) go forward on the claims raised in the pro se petition for relief; (2) draft and file an amended application, or (3) explain to the court in detail why the petitioner has no colorable claims for relief.
Tazruk v. State, 67 P.3d 687, 688-89 (Alaska App. 2003) (citing Griffin, 18 P.3d at 77 (construing Alaska R. Crim. P. 35.1(e)(2))).
As noted earlier, Bair pursued the first course of action: He filed notice that he would proceed on the claims raised in Duncan's pro se petition — the claims that there was insufficient evidence to support his convictions. And yet Bair did not contest — nor could he, given the well-established law on this point — that AS 12.72.020(2) bars an applicant for post-conviction relief from raising claims that were, or could have been, litigated on direct appeal. Duncan had already argued in his direct appeal that there was insufficient evidence to convict him of robbery, and nothing that prevented him, procedurally, from also arguing that there was insufficient evidence to convict him of concealment of merchandise. For these reasons, we conclude the superior court properly dismissed these claims.
See Grinols v. State, 10 P.3d 600, 607 (Alaska App. 2000); Brown v. State, 803 P.2d 887, 888-89 (Alaska App. 1990).
But that does not end our inquiry. In superior court, Bair in effect conceded that there were no non-frivolous claims to raise on Duncan's behalf. As discussed in more detail below, our duty in this circumstance is to independently assess the record to determine if this assertion is true. We cannot do that on the record before us.
We faced a similar situation in Tazruk v. State. Tazruk's post-conviction relief attorney, like Bair, elected to go forward on the claims raised in Tazruk's pro se petition. After the State filed a motion to dismiss, Tazruk's attorney filed a notice informing the court that he would not be filing an opposition, but noting that the court was still obliged to independently assess the merits of the State's motion. After concluding that Tazruk had failed to make a prima facie case with respect to any of his claims, the superior court dismissed the application.
67 P.3d 687 (Alaska App. 2003).
Id. at 689.
Id.
Id. at 690.
We held that the superior court had properly dismissed the application. But we went on to examine whether Tazruk had received ineffective assistance of counsel because, after the State pointed out in its motion to dismiss that Tazruk's claims were either facially meritless or facially inadequate to survive the motion to dismiss, Tazruk's attorney made no effort to amend or supplement Tazruk's claims or to adduce more evidence to support them. We concluded that Tazruk's attorney, by this conduct, appeared to have entered the post-conviction relief equivalent of a "slow plea":
Id.
Id.
In a "slow plea", a defendant charged with a crime persists in a plea of not guilty but then does nothing to defend the charge at trial — allowing the State's evidence to come in unchallenged and unrebutted, and then simply waiting for the inevitable adverse verdict.
What happened in Tazruk's case is seemingly analogous. From the record of the proceedings in the superior court, it appears possible that when Tazruk's attorney endorsed the claims contained in Tazruk's pro se petition, he knew that these claims were all subject to dismissal, and he simply waited until the State got around to asking for judgement on the pleadings — a motion that he did not oppose.
Id. at 690-91 (citation omitted).
This circumstance presented the constitutional problem we addressed in Griffin. At issue in Griffin was the constitutionality of Criminal Rule 35.1(e)(2), the legislatively enacted rule that permits an attorney appointed to represent an indigent petitioner for post-conviction relief to file a certificate stating that the attorney has determined that there are no colorable claims for relief that can be raised on behalf of the petitioner. When an attorney files such a "no-merit" certificate, the court is obliged to independently review the record to assess whether the applicant is entitled to relief. In Griffin, we ruled that this procedure was sufficient to protect the petitioner's right to effective assistance of counsel — as long as the attorney filing the certificate and seeking to withdraw provided the court with a full explanation of all the claims the attorney considered and why the attorney concluded the claims were frivolous. Without such an explanation, the reviewing court cannot "meaningfully assess and independently evaluate the attorney's assertion that the petitioner has no arguable claim to raise."
18 P.3d at 75. At the time Griffin was decided, the relevant rule was Criminal Rule 35.1(e)(2)(B)(I)-(iv). Those provisions have since been amended and re-labeled as Rule 35.1(e)(2)(C)(I)-(iv), but in pertinent respects their meaning is the same.
Griffin, 18 P.3d at 76; see also Alaska R. Crim P. 35.1(f)(2).
18 P.3d at 77; see also Alaska R. Crim. P. 35.1(e)(3)(A)-(D).
Griffin, 18 P.3d at 77.
In Tazruk, the record contained no indication that the attorney had investigated Tazruk's claims or that he had sought either to support them through discovery or to reformulate them so that they might survive a motion to dismiss. Because we could not determine whether Tazruk's attorney had zealously represented his client's interests, we remanded the case and directed the attorney to provide the superior court with a detailed explanation of why he concluded Tazruk's claims had no arguable merit.
Id.
In this appeal, Trimmer argues that no remand is required because Bair reviewed the trial transcript and filed an opposition to the State's motion to dismiss. But the claims raised in Duncan's pro se application for post-conviction relief were clearly barred under AS 12.72.020(2) and Bair did not contest this in his opposition to the State's motion. His opposition was therefore the equivalent of a "no merit" certificate — only without the explanations required by Griffin and Criminal Rule 35.1(e)(2). Furthermore, Bair did not create an adequate record in the superior court to show that he reviewed the materials from Duncan's criminal trial before he elected to proceed on the claims raised in Duncan's pro se petition; none of the affidavits he filed in superior court expressly asserted that he read the transcript of Duncan's trial or reviewed other trial evidence. Because we do not have an adequate record of the materials Bair reviewed, the investigation he conducted, the discovery he sought, the other potential claims he considered, or his reasons for concluding that those claims were frivolous, we have no basis for meaningfully assessing whether Duncan has any arguable claims for post-conviction relief.
See Griffin, 18 P.3d at 77.
Under Griffin, we have a constitutional duty to independently assess the merits of Duncan's case to ensure that he received zealous investigation and presentation of any colorable claims for post-conviction relief. We therefore remand the case to the superior court and direct Bair to "provide the court with a full explanation of all the claims [he] considered and why [he] has concluded that these claims are frivolous." After Bair provides this explanation, the superior court shall allow Duncan to file a response, and then consider the merits of the issue. Alternatively, if Bair concludes there are non-frivolous claims that may be raised, he may file an amended application for post-conviction relief asserting those claims.
See id. at 76-77.
See id. at 77; see also Alaska R. Crim. P. 35.1(e)(3)(A)-(D).
Conclusion
This case is REMANDED to the superior court for proceedings consistent with this decision. The superior court shall notify us of its findings and actions within one hundred days of the issuance of this memorandum opinion. We retain jurisdiction.