Opinion
Court of Appeals No. A-9933.
February 11, 2009.
Appeal from the Superior Court, Third Judicial District, Kodiak, Craig F. Stowers, Judge, Trial Court No. 3KO-01-319 CI.
Dan Lowery, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Marilyn J. Kamm, Assistant Attorney General, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
Approximately 18 months after the Parole Board issued a decision denying Kevin Frank's request for discretionary parole release, Frank sought judicial review of the decision by applying for post-conviction relief. Although the application was time-barred by AS 12.72.020(a)(4) — it was six months late — Frank asserted that the superior court should accept it on the ground that his attorney had, by neglecting to file a timely application, provided ineffective assistance. Superior Court Judge Craig F. Stowers rejected Frank's contention and granted the State's request for summary disposition. For the reasons explained here, we reverse the decision of the superior court.
Facts and proceedings
Frank is serving a life sentence for first-degree murder. His conviction and sentence were imposed under Alaska's pre-1980 criminal code. In 2001, after serving more than 20 years of his sentence, Frank applied for discretionary parole. The Parole Board denied his application and ordered that he could not re-apply for parole until he had served another 10 years. Frank, through an application for post-conviction relief, challenged the Parole Board's decision in the superior court. The superior court affirmed the Board's decision, and Frank appealed to this court.
Frank v. State, 97 P.3d 86, 87 (Alaska App. 2004).
We ruled that the Board's written decision failed to comply with AS 33.16.130(c). That is, the written decision in Frank's case was not sufficiently specific to allow the court "to discern the reasons for the Board's decision, nor [was] it sufficiently specific to allow Frank to guide his future behavior or draft future parole applications that might satisfy the Board's concerns." Consequently, we directed the Board to issue a revised written decision that complied with the governing statute.
Id. at 89-91.
Id. at 91.
Id.
On November 28, 2004, three months after this Court's decision, the Board issued its revised written decision. The Board again articulated its denial of Frank's request and reiterated its order that he wait until 2011 before re-applying for discretionary parole. Approximately 18 months later, on May 1, 2006, Frank challenged the Board's decision by moving to re-open his post-conviction relief proceeding. Frank's application was untimely — under AS 12.72.020(a)(4), he had one year in which to challenge the Parole Board's decision.
Frank conceded that the challenge was untimely. But he alleged in his motion that even though he had timely alerted his attorney that he wished to appeal the Board's revised decision, the attorney neglected to file a new or amended application within the one-year deadline. Frank argued that the superior court should excuse the motion's untimeliness on the ground that his attorney was ineffective. The attorney filed an affidavit conceding that he had provided ineffective assistance because he was not aware of, and had not researched, the deadline for filing an action challenging the Board's decision.
The State moved to dismiss the application, arguing that the affidavit did not show that the attorney was incompetent, nor did it explain how Frank had been prejudiced. Judge Stowers denied the request to re-open the application. He specifically found that Frank had not shown that his attorney was ineffective because Frank had not asserted that he had been prejudiced by his counsel's incompetence.
Frank moved for reconsideration, contending that his allegation that he had lost his right to judicial review of the Board's decision was sufficient to establish prejudice. Judge Stowers disagreed and ruled that Frank had to allege "why he might have prevailed had his petition been considered." Frank appeals.
Why we reverse the superior court's decision
Generally, to prevail on a claim of ineffective assistance of counsel, a defendant has to satisfy a two-prong test. First, the defendant must show that his counsel's representation fell outside the range of reasonable actions which might have been taken by an attorney reasonably skilled in the criminal law. That is, the defendant must show that his attorney was incompetent. Second, the defendant must show some evidence that he was prejudiced by the attorney's incompetence.
Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974).
Id.
See id.
Here, the record shows that Judge Stowers focused primarily, if not exclusively, on the second prong, and he ultimately ruled that Frank's application was inadequate because Frank had neglected to allege "why he might have prevailed had his petition been considered." This ruling is contrary to our decision in Broeckel v. State.
900 P.2d 1205 (Alaska App. 1995).
In Broeckel, we found that the defendant was prejudiced when his attorney incompetently failed to file a notice of appeal. We explained that the prejudice occurs because the client is "deprive[d] . . . of the right to an appeal, not just the right to a successful appeal." We concluded that a defendant does not have to show that his appeal, had it been properly filed, would have been successful.
Id. at 1208.
Id.
Frank's situation is analogous to Broeckel's. Consequently, Frank did not have to allege that he would have prevailed had his petition been considered by the superior court. When a defendant has a right to judicial review of an administrative decision, and when the defendant alleges that his attorney inexcusably failed to file for review of that decision, the denial of review itself is the prejudice incurred.
It is true that Frank still had to sufficiently allege that his attorney had incompetently failed to file Frank's petition for post-conviction relief. Conceivably, Frank's attorney's affidavit does not explain this matter in sufficient detail. But Judge Stowers focused on the second prong of the Risher test when he dismissed Frank's petition. We are not convinced that Judge Stowers also found that Frank's pleadings did not sufficiently allege that his attorney was incompetent. Nor is it obvious that Frank was adequately placed on notice by the State's motion to dismiss that he needed to respond to this particular issue.
See Tall v. State, 25 P.3d 704, 707-08 (Alaska App. 2001).
Accordingly, we reverse Judge Stowers's decision and return this case to the superior court for further proceedings on Frank's petition. If the State still wishes to claim that Frank failed to present a prima facie case to support his allegation that his attorney was incompetent, that matter can be litigated. Conclusion
The judgment of the superior court is REVERSED, and the case returned to the superior court for further proceedings. We do not retain jurisdiction of this case.