Opinion
A-13801 0355
01-17-2024
NEWTON LINDOFF, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, for the Appellant. Diane L. Wendlandt, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, First Judicial District, Juneau, Trial Court No. 1JU-20-00561 CI, Philip M. Pallenberg, Judge.
Michael L. Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
SUMMARY DISPOSITION
In 2008, Newton Lindoff was charged with attempted first-degree sexual assault, second-degree sexual assault, and two counts of first-degree burglary. Pursuant to a plea agreement with the State, Lindoff pleaded guilty to one count of attempted second-degree sexual assault, and the remaining charges were dismissed. Lindoff unsuccessfully moved to withdraw his plea, and this Court affirmed the trial court's denial of that motion. Lindoff then filed an application for post-conviction relief, alleging ineffective assistance of trial counsel. We affirmed the trial court's dismissal of Lindoff's application.
Lindoff v. State, 224 P.3d 152, 157 (Alaska App. 2010).
Lindoff v. State, 2018 WL 6335414, at *3 (Alaska App. Dec. 5, 2018) (unpublished).
In 2020, Lindoff filed, pro se, a second application for post-conviction relief and requested that the court appoint an attorney to assist him. The superior court sua sponte issued a notice of its intent to dismiss Lindoff's application, explaining that the claims raised did not fall within "the exceptions to the no-second-application rule" - i.e., Lindoff's claims did not allege ineffective assistance of his first post-conviction relief counsel, or that he had newly discovered evidence.
Grinols v. State, 10 P.3d 600, 624 (Alaska App. 2000), aff'd, 74 P.3d 889 (Alaska 2003).
Hall v. State, 446 P.3d 373, 378 (Alaska App. 2019).
Lindoff then moved to amend his application, reframing his arguments around his first post-conviction relief attorney's alleged incompetence and attaching additional material purporting to support his claims. After reviewing these documents, the superior court denied Lindoff's motion and his request for counsel, and the court dismissed Lindoff's second application for post-conviction relief. The court concluded that allowing Lindoff to file an amended application for post-conviction relief "would be futile" and that his application failed to allege any facts that would establish ineffectiveness on the part of his post-conviction relief counsel. The court also stated that "[b]ased on those conclusions, Lindoff is not entitled to court-appointed counsel under Grinols v. State."
On appeal, Lindoff does not challenge the superior court's dismissal of his application for post-conviction relief for failing to state a prima facie case. Instead, he argues that the court did not apply the correct standard when it declined to appoint an attorney to assist him with his application.
This Court exercised its discretion to appoint counsel to Lindoff to present his claim on appeal.
While a defendant has no constitutional right to counsel at public expense to litigate a successive application for post-conviction relief, a court has the authority, under the due process clause of the Alaska Constitution, to appoint an attorney when "the circumstances of a defendant or the difficulties in presenting a particular matter are such that fair and meaningful hearing cannot be had without the aid of counsel." We have explained that "many [post-conviction relief] claims may be fairly decided based on the pleadings" and that "[c]ounsel will not be required absent a demonstrable need."
Grinols, 10 P.3d at 623 (quoting Nichols v. State, 425 P.2d 247, 257 (Alaska 1967) (Nesbett, C.J., concurring in part and dissenting in part)).
Id. (holding that, if the defendant was able to amend his second application for postconviction relief to allege a claim of ineffective assistance of first post-conviction relief counsel, and if the amended application presented "some good reason" to believe that the defendant's claim was viable, the superior court should consider appointing counsel to assist him).
Lindoff asserts that the superior court improperly denied his request for appointed counsel based on its conclusion that Lindoff had failed to establish a prima facie claim for relief, rather than deciding whether an attorney was necessary for a fair and meaningful litigation of Lindoff's claims.
But the court concluded that, given the lack of any factual support for Lindoff's allegations of attorney incompetence, allowing him to file an amended application for post-conviction relief "would be futile." In other words, even if an attorney was appointed to assist him, there was no possibility Lindoff could assert a colorable claim for relief. The court therefore implicitly determined that the appointment of counsel was not required for a fair resolution of his case.
We conclude that the superior court applied the appropriate standard to evaluate Lindoff's request, and that the court did not abuse its discretion in declining to appoint counsel to Lindoff under these circumstances.
The order of the superior court is AFFIRMED.