Summary
holding that a remand was necessary where the post-conviction attorney's amended application was facially inadequate - in part because it lacked an affidavit from the defendant's trial attorney- and the attorney's opposition to the State's motion to dismiss was unresponsive
Summary of this case from Bienek v. StateOpinion
Court of Appeals No. A-12208 No. 6302
03-09-2016
JOHN LEE VANN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Nancy Driscoll Stroup, Attorney at Law, Palmer, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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. Trial Court No. 3SW-11-57 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge. Appearances: Nancy Driscoll Stroup, Attorney at Law, Palmer, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
John Lee Vann has appealed the dismissal of his application for post-conviction relief. The State concedes that the case should be returned to the superior court because Vann's post-conviction relief attorney failed to comply with his basic obligations under Alaska Criminal Rule 35.1. The State's concession of error is well-founded. We therefore remand the case to the superior court for further proceedings consistent with this decision.
Background
Vann was convicted in a jury trial of kidnapping and sexual assault. His convictions were based, in part, on DNA evidence linking him to the victim.
Vann v. State, 229 P.3d 197 (Alaska App. 2010).
Id. at 200-01.
At Vann's trial, during the opening statement, the prosecutor told the jury that Vann refused to submit to a physical examination to provide samples of his DNA until after he was served with a warrant. Vann's trial attorney did not object to this statement. Later, when Vann appealed his convictions to this Court, he argued that this statement amounted to plain error and that he was entitled to reversal of his convictions based on the prosecutor's improper argument.
Id. at 211.
Id. at 211-13.
Although we concluded that the prosecutor's statement was clearly improper, we found no plain error. To prevail on a claim of plain error, a defendant must show that the error did not result from an intelligent waiver or tactical decision, and that the error was prejudicial. We concluded that Vann had not met either of these burdens.
Id. at 213.
Adams v. State, 261 P.3d 758, 773 (Alaska 2011).
Vann, 229 P.3d at 211-13.
Vann then filed a pro se application for post-conviction relief and a post-conviction relief attorney was appointed to represent him. The attorney filed an amended application. The amended application asserted, in conclusory terms, that Vann's trial attorney provided ineffective assistance of counsel by failing to object to the prosecutor's improper statement and by failing to ask the court to take curative action. The amended application did not address the question of whether the attorney's decision was a tactical decision or explain how Vann had been substantively prejudiced by the improper argument. The application also did not include an affidavit from Vann's trial attorney (as required by Alaska law); nor did it explain the absence of the affidavit other than to state that the trial attorney (who still worked as an assistant public defender) had not responded to the post-conviction relief attorney's phone calls.
See Alaska R. Crim. P. 35.1(d); State v. Jones, 759 P.2d 558, 570 (Alaska App. 1988) (describing trial attorney affidavit requirement).
The State moved to dismiss Vann's application for failure to state a prima facie case for relief, pointing out that the amended application did not include an affidavit from the trial attorney and made only conclusory allegations that the attorney was ineffective.
Vann's post-conviction relief attorney filed a one-paragraph opposition to the State's motion to dismiss. The opposition did not address the absence of the trial attorney's affidavit or the issue of prejudice; instead it included only a conclusory assertion that the trial attorney's failure to object to the prosecutor's statement amounted to ineffective assistance of counsel.
The superior court issued a notice of its intent to dismiss the application in thirty days if Vann did not supplement or amend the application to address the deficiencies identified in the State's motion. The post-conviction relief attorney did not respond to this notice and the court later dismissed Vann's application for failure to establish a prima facie case.
Why we remand the case for further proceedings
Vann now appeals, arguing that the superior court erred in dismissing the amended application without a full inquiry into why the post-conviction relief attorney failed to include an affidavit from his trial attorney. Vann also argues that the superior court erred in dismissing the application because it was clear on the face of the amended application that his post-conviction relief attorney was not providing adequate representation. The State concedes error under Alaska Criminal Rule 35.1(e) and our decision in Tazruk v. State, and agrees that Vann is entitled to a remand with a different post-conviction relief attorney. We have independently reviewed the record and conclude that the State's concession of error is well-founded.
67 P.3d 687, 690-92 (Alaska App. 2003).
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
Alaska Criminal Rule 35.1(e) provides that an attorney appointed to represent an indigent petitioner in an application for post-conviction relief must do one of three things: (1) elect to go forward on the application as drafted by the client; (2) draft and file an amended application; or (3) certify to the superior court that the applicant has no colorable claim for relief. An attorney who pursues the third option must provide a full description of the claims considered, the materials reviewed, the investigation conducted, and the reasons why the attorney concluded that all the applicant's potential claims had no arguable merit.
Id. at 690; Alaska R. Crim. P. 35.1(e)(2); see also Griffin v. State, 18 P.3d 71, 77 (Alaska App. 2001).
In Tazruk, the appointed attorney pursued the first option, proceeding on the claims raised in the petitioner's pro se application. But all of those claims were either facially meritless or facially inadequate to survive the State's motion to dismiss. Moreover, after the State identified these deficiencies in its motion, Tazruk's attorney did not seek to amend or supplement Tazruk's claims or ask for additional time to investigate them. Instead, the attorney announced that he had nothing to say in opposition to the State's motion. We concluded that, on this record, it was impossible to determine whether Tazruk had received constitutionally adequate representation — because the record did not show whether the attorney had thoroughly investigated Tazruk's case and concluded that he had no colorable claims, or if the attorney instead did nothing to pursue or develop Tazruk's claims. Accordingly, we remanded the case to the superior court and directed Tazruk's attorney to provide the court with a detailed explanation of why the attorney concluded that Tazruk's claims had no arguable merit.
Tazruk, 67 P.3d at 690.
Id.
Id.
Id.
Id. at 691.
Id.
Here, Vann's attorney did not simply rely on the allegations in Vann's pro se application; instead he actually filed an amended application and later an opposition to the State's motion to dismiss. But the attorney's amended application was itself facially inadequate and his opposition was unresponsive to the State's arguments. Thus, like in Tazruk, we cannot tell whether the obvious deficiencies in the pleadings were intentional (that is, the equivalent of a no-merit certificate without actually complying with the requirements for filing a no-merit certificate) or the result of attorney incompetence and lack of diligence. We therefore agree with the parties that a remand for further proceedings is required in this case.
On remand, Vann's new post-conviction relief attorney must file either (1) an amended application addressing the deficiencies noted in the State's motion to dismiss, or (2) a no-merit certificate providing a full explanation as to why no colorable claims can be raised. If the attorney elects to file a no-merit certificate, the superior court shall follow the procedures under Criminal Rule 32.1(f)(2), which include giving Vann an opportunity to respond to the no-merit certification and to explain why he believes he has colorable claims.
See Alaska R. Crim. P. 35.1(f)(2). --------
Conclusion
We VACATE the superior court's order dismissing Vann's application for post-conviction relief and REMAND this case to the superior court for further proceedings consistent with this decision. We do not retain jurisdiction of this case.