Opinion
Court of Appeals No. A-12885 No. 6867
04-29-2020
ABRAHAM HENRY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Owen Shortell, Law Office of Owen Shortell, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 4FA-10-04943 CR MEMORANDUM OPINION Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge. Appearances: Owen Shortell, Law Office of Owen Shortell, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge WOLLENBERG.
In 2011, a jury found Abraham Henry guilty of first-degree assault. Henry was sentenced for this offense the following year.
AS 11.41.200(a)(1).
In 2013, Henry filed a pro se motion to correct an illegal sentence under Alaska Criminal Rule 35(a). The superior court denied Henry's motion in a written order issued and distributed on May 7, 2013. The court concluded that Henry's sentence was not illegal and that Henry's arguments, which pertained to issues related to his underlying conviction, should instead be raised in his direct appeal or in an application for post-conviction relief.
More than three years later, Henry filed two more pro se motions to correct an illegal sentence under Criminal Rule 35(a). Unlike Henry's first motion, his second and third motions raised issues related to his sentence. The superior court denied both motions on the merits. Henry filed a motion for reconsideration of both orders, which the court denied on May 10, 2017.
Henry then filed a pro se notice of appeal in this Court. The notice of appeal identified the superior court's orders denying Henry's second and third motions, along with the court's May 2017 denial of his motion for reconsideration, as the final judgments being appealed.
In his brief on appeal, Henry, who is now represented by counsel, argues that the court's order dismissing Henry's first (i.e., 2013) Rule 35(a) motion is void. Henry notes that he was represented by counsel at his underlying trial, and that, although he subsequently elected to represent himself on direct appeal, his waiver of the right to counsel (and the trial court's ruling regarding that waiver) was limited to the appeal. Henry argues that the superior court improperly allowed him to proceed pro se on his first Rule 35(a) motion without determining whether he knowingly and voluntarily waived his right to counsel in the trial court, rendering the court's order on that motion void.
But Henry makes little attempt to connect his argument to the only judgments that are properly before us in this appeal: the superior court's orders denying his second and third Rule 35(a) motions.
The State, for its part, interprets Henry's argument as a direct appeal of the superior court's denial of Henry's first motion and contends that Henry's appeal is untimely under the Alaska Rules of Appellate Procedure. (Henry did not file a reply brief, so we assume that he does not contest the State's interpretation of his argument.)
The State is correct that a direct appeal of the superior court's denial of Henry's first Rule 35(a) motion would be untimely. Under Alaska Appellate Rule 204(a)(1), any notice of appeal from the denial of Henry's first motion was due thirty days after the date of distribution of the superior court's denial. The superior court denied Henry's motion on May 7, 2013, and the court's order was distributed that same day. Henry did not file his notice of appeal in this case until May 19, 2017, four years later. Thus, to the extent Henry intends, through the briefing in this case, to appeal the superior court's denial of his first Rule 35(a) motion, we agree with the State that his appeal is untimely.
Because the judgment was distributed by mail, an additional three calendar days were added by rule to the deadline for filing the notice of appeal. Alaska R. App. P. 502(c).
There is, however, another interpretation of Henry's argument on appeal: Henry might be arguing that the voidness of the superior court's order on his first Rule 35(a) motion somehow undermines the superior court's denials of Henry's second and third Rule 35(a) motions. Such an argument would make sense if, for example, the superior court had denied Henry's second and third motions as res judicata — i.e., on the ground that the issues raised in Henry's second and third motions were raised or could have been raised in Henry's first motion. Because res judicata does not apply when the original judgment is void, an argument that the original judgment is void could, at least theoretically, be a valid argument in a direct appeal of a subsequent order dismissing a claim as res judicata.
See Hurd v. State, 107 P.3d 314, 327-28 (Alaska App. 2005) (describing the doctrine of res judicata).
Merdes & Merdes, P.C. v. Leisnoi, Inc., 410 P.3d 398, 404-05 (Alaska 2017) (explaining that res judicata does not apply to void judgments). --------
But if this, or some similar claim, is indeed what Henry intended to argue, he has failed to explain why the voidness of the court's denial of his first Rule 35(a) motion would invalidate the court's denial of Henry's second and third Rule 35(a) motions. Nor can we see any reason why this would be the case. Unlike the hypothetical res judicata scenario noted above, the superior court rejected Henry's second and third motions on the merits, without reference to its prior denial of Henry's first motion.
Thus, even if we agreed with Henry that the superior court's denial of his first motion was void (an issue we need not decide), that ruling would not invalidate the superior court's denials of Henry's second and third motions. And as we noted earlier, Henry does not directly challenge the denial of his second and third motions on the merits.
We therefore conclude that to the extent Henry intended to appeal the superior court's denial of his first Rule 35(a) motion, that appeal is untimely. And to the extent Henry intended to appeal the superior court's denials of his second and third Rule 35(a) motions, the judgments of the superior court are AFFIRMED for the reasons stated here.