Opinion
Court of Appeals No. A-12942 No. 6919
01-27-2021
WILLIAM G. YATCHMENOFF, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Elizabeth D. Friedman, Law Office of Elizabeth D. Friedman, Redding, California, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Timothy W. Terrell, 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. 3AN-12-07733 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael D. Corey, Judge. Appearances: Elizabeth D. Friedman, Law Office of Elizabeth D. Friedman, Redding, California, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge. Judge HARBISON.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
William G. Yatchmenoff was convicted of six counts of first-degree sexual abuse of a minor. In 2003, this Court affirmed Yatchmenoff's convictions on appeal. Almost nine years later, in May 2012, Yatchmenoff filed an application for post-conviction relief in which he asserted: (1) that the trial court had allowed the State to introduce inadmissible evidence, (2) that the police detectives involved in his case had perjured themselves, and (3) that his trial attorney had incompetently failed to seek suppression of "any or all" of the evidence against him.
AS 11.41.434(a)(3)(A).
Yatchmenoff v. State (I), 2003 WL 21350242, at *8 (Alaska App. June 11, 2003) (unpublished).
When the State moved to dismiss Yatchmenoff's application as untimely, Yatchmenoff's attorney failed to file a timely opposition, and the court granted the State's motion to dismiss. The very next day, Yatchmenoff's attorney filed a response in which he acknowledged that the application appeared to be untimely, but the attorney indicated that he was actively investigating whether there were any applicable exceptions to the statutory deadline, and he asked the court for an extension of time to amend or supplement Yatchmenoff's application. The superior court declined to reconsider its dismissal of Yatchmenoff's application and never ruled on the attorney's request for an extension of time.
See AS 12.72.020(a)(3) (the statute of limitations for post-conviction relief applications).
Yatchmenoff v. State (II), 2016 WL 2945053, at *1 (Alaska App. May 18, 2016) (unpublished).
When Yatchmenoff appealed the dismissal of his application, the State conceded (and we agreed) that the superior court abused its discretion by declining to take action in response to the attorney's request for further time to investigate whether the application might be timely. We therefore remanded Yatchmenoff's case to the superior court.
Id.
On remand, Yatchmenoff's attorney argued that the application was timely based on two assertions. First, the attorney asserted that Yatchmenoff had, in fact, mailed an application for post-conviction relief to the court in late 2002 or 2003 (i.e., within the deadline set by AS 12.72.020(a)(3)), but that Yatchmenoff never received a response from the superior court. Second, the attorney asserted that even though the superior court had never taken action in response to Yatchmenoff's alleged earlier application, Yatchmenoff continued to seek relief from his conviction by pursuing other procedural vehicles, including a motion for correction of sentence under Alaska Criminal Rule 35(a) and later a petition for writ of habeas corpus. Yatchmenoff's attorney advanced various legal theories as to why, under these asserted facts, Yatchmenoff's application was timely.
See, e.g., Yatchmenoff v. State (III), 2017 WL 2889467 (Alaska App. July 5, 2017) (unpublished).
After holding an evidentiary hearing and taking testimony from Yatchmenoff, the superior court again dismissed Yatchmenoff's application for post-conviction relief as untimely. The superior court ruled that Yatchmenoff had failed to prove that he pursued his post-conviction relief claims with "due diligence."
Yatchmenoff now appeals the superior court's decision. He does not dispute that he was required to demonstrate that he acted with due diligence. Instead, he primarily contends that, even though the superior court declared that he failed to act with diligence in pursuing his claims for post-conviction relief, it never made a factual finding about whether he mailed an application for post-conviction relief to the court in 2002 or 2003. Based on this failure, Yatchmenoff argues that it is impossible to know whether the superior court was justified in concluding that he failed to act with diligence in raising his post-conviction relief claims. Consequently, he asks this Court to remand his case for a second evidentiary hearing and for additional factual findings.
We disagree with Yatchmenoff's assertion that the superior court never made a factual finding about whether he mailed an application for post-conviction relief to the court in 2002 or 2003. First, the superior court pointed out that Yatchmenoff pursued a variety of claims during the two years he purportedly waited for a response to the post-conviction relief application he claims to have mailed to the court, but none of those claims matched the claims that Yatchmenoff later raised in his 2012 application. Moreover, in its order, the court described Yatchmenoff as only "purport[ing] to have filed a PCR application in either 2002 or 2003." The superior court noted that:
the evidence presented [showed] that Mr. Yatchmenoff had been given specific instructions on how to file an application for post-conviction relief, [but] instead filed a motion to correct illegal sentence and a writ of habeas corpus[,] indicat[ing] to the [c]ourt that he was not diligently pursuing an application for post-conviction relief.
It is true that the superior court could have been more clear on this point. However, the court's meaning is clarified by its use of the word "purports" in describing Yatchmenoff's factual assertion that he filed an earlier application for post-conviction relief, and by the court's finding that, although Yatchmenoff had been given instructions on how to file such an application, he instead filed other pleadings.
We read the superior court's order as containing a factual finding that Yatchmenoff did not file an application for post-conviction relief in 2002 or 2003, and that he instead pursued other avenues for relief. After reviewing the record as a whole, we conclude that this factual finding was not clearly erroneous. We also conclude that, in light of this finding, the superior court did not err in concluding that Yatchmenoff failed to establish that he acted with due diligence and thus failed to show that his application was timely.
See Majaev v. State, 223 P.3d 629, 631 (Alaska 2010); see also Armey v. State, 2018 WL 388600, at *3 (Alaska App. Jan. 10, 2018) (unpublished) ("A trial court's historical factual findings are reviewed under the deferential 'clearly erroneous' standard of review."). --------
The judgment of the superior court is AFFIRMED.