Opinion
Court of Appeals No. A-11110 Trial Court No. 3AN-11-10522 CI No. 5926
03-13-2013
COSTIA INGA, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Costia Inga, pro se, Palmer, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge.
Appearances: Costia Inga, pro se, Palmer, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Allard, Judge.
ALLARD, Judge.
In August 2011, Costia Inga filed a second application for post-conviction relief, alleging that he had received ineffective assistance of counsel in his first application for post-conviction relief. The trial court dismissed Inga's second application as untimely, even though it was filed within the time specified by AS 12.72.025 - within one year of the final decision on Inga's first application for post-conviction relief. On appeal, the State concedes that the trial court erred in summarily dismissing Inga's second application as untimely. This Court has an independent duty to ensure that any concession of error by the State is supported by the record and has legal foundation. The State's concession of error is well-founded.
See Schlagel v. State, 13 P.3d 275, 276 (Alaska App. 2000); Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
In Grinols v. State, this Court held that a defendant may file a second application for post-conviction relief to challenge the effectiveness of the attorney who represented him during his first post-conviction proceeding. Alaska Statute 12.72.025 declares that such applications must be filed "within one year after the court's decision on the prior application is final under the Alaska Rules of Appellate Procedure." Here, the superior court dismissed Inga's first application for post-conviction relief on February 14, 2011. Because no appeal was taken from that decision, Inga had until February 14, 2012 to file a claim that his post-conviction counsel was ineffective. Inga filed his second post-conviction application alleging ineffectiveness of post-conviction counsel on August 26, 2011, well within the one-year period. Accordingly, the record supports the State's concession of error, and the superior court's summary dismissal must be reversed.
10 P.3d 600 (Alaska App. 2000), aff'd in part, 74 P.3d 889 (Alaska 2003).
Id. at 617-21.
In his briefing, Inga argues that this Court should do more than simply reverse the dismissal in his case: he asks us to strike down the procedures through which his case was summarily dismissed, arguing that these court procedures denied him due process of law. We agree with the State that we do not need to reach any constitutional issues in this case. We note, however, that the court form used in Inga's case - the "Routing Form & Order" generated by the Anchorage trial court clerk's office for use in post-conviction relief cases - carries a significant danger that the superior court will summarily dismiss applications for post-conviction relief as untimely without giving the defendants their lawful opportunity to be heard on this issue.
In Inga's case, for example, the "Routing Form & Order" began with a notice to the judge that there was "a question as to the timeliness" of Inga's application for post-conviction relief. The Routing Form then listed (1) the date on which Inga's underlying criminal judgment was distributed (October 14, 2002); (2) the date on which this Court affirmed Inga's convictions on direct appeal (March 31, 2004); and (3) the date on which Inga filed his current application for post-conviction relief (August 26, 2011). But there was no indication that the current application was actually Inga's second application, or any record of the date on which the first application was dismissed. Without these pieces of information, the Routing Form made it appear that Inga's current application was his first application for post-conviction relief, and that he had waited far too long - seven years - to file.
We note that to the extent this date is intended to represent the date of the "final decision" on appeal, it is incorrect. Inga filed a petition for hearing with the Alaska Supreme Court and that petition was denied on June 30, 2004.
The Routing Form then presented the judge with only two choices: either declare the application "[t]imely and accepted for filing," or declare the application "not timely" and summarily dismiss the case. But in Holden v. State, this Court recognized that "[r]esolution of the timeliness issue can involve considerably more than a simple comparison of calendar dates," and that legal expertise is often needed to determine whether an exception or tolling period might apply. This Court therefore held that when an indigent defendant's first application for post-conviction relief is challenged as untimely, the defendant is constitutionally entitled to the appointment of counsel for the limited purpose of assessing and, if necessary, litigating whether the application is time-barred. The Routing Form used in this case, however, implicitly encourages a judge to rule on the timeliness of an application for post-conviction relief without giving the defendant the rights guaranteed by Holden: the assistance of counsel and a meaningful opportunity to respond to the clerk's office's suggestion that the application is time-barred. We encourage the superior court to reconsider its use of this form.
172 P.3d 815 (Alaska App. 2007).
Id. at 818.
Id.
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Conclusion
The superior court's order dismissing Inga's second application as time-barred is REVERSED. The case is remanded to the superior court for further proceedings.
We do not retain jurisdiction of this case.