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Wassillie v. State (8/1/2014) ap-2423

Wassillie v. State (8/1/2014) ap-2423

                                                    NOTICE
  

         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:   



                                  303 K Street, Anchorage, Alaska  99501
  

                                             Fax:  (907) 264-0878
  

                            E-mail:  corrections @ appellate.courts.state.ak.us
  



                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



NORMAN WASSILIE,  

                                                                   Court of Appeals No. A-11654  

                                   Appellant,                      Trial Court No. 4BE-11-229 CI  



                           v.  

                                                                            O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                   Appellee.                         No. 2423 - August 1, 2014  



                  Appeal from the Superior Court, Fourth Judicial District, Bethel,  

                  Charles W. Ray, Jr., Judge.  



                  Appearances:  Norman Wassilie, in propria persona, Kenai, for  

                  the  Appellant.    Nancy  R.  Simel,  Assistant  Attorney  General,  

                  Office  of  Special  Prosecutions  and  Appeals,  Anchorage,  and  

                  Michael C. Geraghty, Attorney General, Juneau, for the Appel- 

                  lee.  Tracey Wollenberg, Deputy Public Defender, and Quinlan  

                                                             

                  Steiner,  Public  Defender,  Anchorage,  appearing  as  amicus  

                                                                      

                  curiae.  Beth Goldstein, Deputy Public Advocate, and Richard  

                  Allen, Public Advocate, Anchorage, appearing as amicus curiae.  



                  Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                                                                 

                  District Court Judge. *  

                                                



                  Judge MANNHEIMER.  



         *   Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                   Norman  Wassilie  litigated  a  petition  for  post-conviction  relief  in  the  



superior court.  He was initially represented by an attorney from the Public Defender  

                                                                       



Agency.  But after the assistant public defender investigated Wassilie's case, he filed a  

                     



certificate  of  "no  arguable  merit"  under  Alaska  Criminal  Rule  35.1(e)(2).    In  other  



words, Wassilie's attorney told the superior court that, after investigating Wassilie's  



potential claims for post-conviction relief, the attorney concluded that Wassilie had no  

                              



colorable claims to raise, and that the court should dismiss Wassilie's petition.   



                   The superior court gave Wassilie an opportunity to respond to his attorney's  



certificate  of  no  arguable  merit,  but  Wassilie  did  not  file  a  response.    Pursuant  to  

                          



Criminal  Rule  35.1(f)(2),  the  superior  court  then  dismissed  Wassilie's  petition  and  



allowed  the  Public  Defender  Agency  to  withdraw  from  further  representation  of  



Wassilie.   



                   After the superior court dismissed his case, Wassilie sent a personal letter  



to the Alaska Supreme Court, questioning the validity of the superior court's action.  The  

                                                                                                                        



Appellate Court Clerk's Office brought Wassilie's letter to this Court's attention, since it  

                                                                                                      



pertained to post-conviction relief litigation, a matter within this Court's jurisdiction.  

                                                                                                 



See AS 22.07.020(a)(2).   



                   This Court concluded that Wassilie's letter amounted to a notice of appeal.  

                                                    



We then issued an order asking the State, the Public Defender Agency, and the Office  

                                                                                            



of Public Advocacy to file legal memoranda addressing the following questions:  



                     

                             1.      When   an   attorney   representing   an   indigent  

                   defendant  in  a  post-conviction  relief  action  is  allowed  to  

                   withdraw after filing a certificate of no arguable merit, does  

                   the  attorney  nevertheless  have  a  continuing  obligation  to  

                   ascertain whether the defendant wishes to appeal the court's  

                   dismissal of the petition - and an obligation to file the initial  

                                                           

                   appellate  documents  if  the  defendant  wishes  to  pursue  an  

                   appeal?  



                                                           - 2 -                                                      2423
  


----------------------- Page 3-----------------------

                            2.    When  an  indigent  defendant's  petition  for  post- 

                                                                               

                   conviction relief has been dismissed after their attorney filed  

                   a certificate of no arguable merit, and the defendant (or an  

                   attorney on the defendant's behalf) initiates an appeal, does  

                                                                                

                   the defendant have the right to counsel at public expense to  

                   assist them in pursuing the appeal?  



                            3.  If so, which agency should provide the attorney?  



                                                                     

                   The three criminal justice agencies have filed their memoranda, so we now  



turn to the merits of these three questions.   



         Even after the superior court dismissed Wassilie's petition and allowed  

                                                                      

          Wassilie's attorney to withdraw pursuant to Criminal Rule 35.1(f)(2), the  

                                                              

         attorney had a remaining obligation to ascertain whether Wassilie wished  

          to appeal - and, if so, to initiate an appeal on his behalf  



                   Alaska  Criminal  Rule  35.1  specifies  the  procedures  that  govern  post- 



conviction relief litigation.  Subsection (e) of this rule contains special provisions that  



apply to attorneys who are appointed to represent indigent defendants.   



                   Under Criminal Rule 35.1(e), a court-appointed attorney has 60 days to  



either (1) tell the trial court what specific claims the defendant will pursue, or (2) file a  

                                        



certificate stating that the attorney has fully investigated the defendant's case and has  



concluded that there is no arguable merit to any claims the defendant might raise.  



                   The next subsection of Criminal Rule 35.1 - subsection (f) - specifies  

                                                 



what a trial court must do if the defendant's court-appointed attorney files a "no arguable  

                                                                                                        



merit" certificate.  Under subsection (f), the trial court must independently evaluate the  

                                                                                      



attorney's assertion that there are no colorable claims to be raised.  If the court believes  



that the attorney's assessment is correct, the court must notify the prosecutor and the  



                                                          - 3 -                                                     2423
  


----------------------- Page 4-----------------------

defendant (personally) that the court intends to dismiss the defendant's petition unless  



either the State or the defendant shows some good reason not to do so.   



                   The court must then give the State and the defendant an opportunity to  

                                                                            



respond  to  the  proposed  dismissal  of  the  case.    Rule  35.1(f)(2)  specifies  that  if  the  



defendant files no response, or if the defendant files a response that does not alter the  

                                                                                                              



court's assessment, "the court shall permit [the defendant's court-appointed] counsel to  

                                   



withdraw and [shall] order the [defendant's] application dismissed."  



                   This  is  what  happened  in  Wassilie's  case:    Wassilie's  court-appointed  



attorney filed a certificate of "no arguable merit" under Criminal Rule 35.1(e), and the  

                                          



judge assigned to the case announced to the parties that he tentatively concurred in the  

                                                                               



attorney's assessment.  The judge then gave Wassilie a chance to respond, but Wassilie  

                                                                                            



filed  no  response.    Accordingly,  pursuant  to  Criminal  Rule  35.1(f)(2),  the  judge  



dismissed Wassilie's petition for post-conviction relief and allowed Wassilie's assistant  

                                                                             



public defender to withdraw.  



                   As shown by Wassilie's subsequent letter to the supreme court, Wassilie  



wished to challenge the superior court's dismissal of his case.  The question, then, is  



whether  Wassilie's  assistant  public  defender  had  some  remaining  obligation  (even  



though the superior court had already allowed the attorney to withdraw) to ascertain  



Wassilie's  desires  regarding  a  potential  appeal,  and  to  take  the  steps  necessary  to  



preserve Wassilie's right of appeal if that is what Wassilie wished to do.  



                   We conclude that the answer to this question is "yes".  This answer was  



foreshadowed by our decision in Harvey v. State , 285 P.3d 295 (Alaska App. 2012).   



                   Harvey involved the situation where a criminal defendant hired a lawyer  



to represent him in the trial proceedings, but the lawyer and the defendant explicitly  

                                         

agreed that the lawyer's representation would not include any appeal. 1  

                                                                                                      Although the  



          1   Harvey , 285 P.3d at 298.  



                                                         - 4 -                                                    2423
  


----------------------- Page 5-----------------------

precise facts of the case were in dispute, the record showed that, after the defendant was     



sentenced,  the  attorney  either  refused  the  defendant's  request  to  file  an  appeal  or,  



alternatively, declined to discuss any potential appeal (other than perhaps telling the  

                                                                                                                



defendant  that,  if  he  wanted  to  appeal,  he  should  contact  the  Public  Defender  

Agency). 2  

                        



                                                        

                      We held that, under either scenario, the attorney breached his obligation to  



                                                                                                  

the defendant.  Specifically, we held that even though the attorney had only agreed to  



                                                                                                                                   

represent the defendant in the trial court, this obligation included (as a matter of law) the  



                                                                                               

further duty to protect the defendant's right of appeal - by filing a notice of appeal, or  



                                                                    

by filing a motion to extend the time for filing a notice of appeal - if (1) the defendant  



                                                                                             

indicated a desire to appeal or (2) the attorney knew or reasonably should have known  



that a reasonable person in the defendant's position would want to appeal:  



                        

                                 [T]he filing of an appeal - i.e., the filing of a notice  

                                         

                      of appeal, or the filing of a motion to extend the time for  

                                                  

                      filing an appeal, so that a client's right of appeal is preserved  

                                                                                                            

                      - is part of a trial attorney's duties if the attorney is aware  

                      that the client might want to appeal, and that the client will  

                      otherwise not be able to obtain and consult with substitute  

                      counsel before the filing deadline.  



                                          3  

Harvey , 285 P.3d at 302.    



                                                                                                          

                      We  reached  this  conclusion  primarily  because  we  recognized  that  a  



convicted defendant "needs effective representation and advice in the relatively short  



                                                                                      

period immediately following conviction, when the decision whether to appeal must be  



                                                                         

made" - and because it is often impossible or impracticable for the defendant to obtain  



           2    Id. at 300-01.  



           3     See also id. at 297 & 305-06.  



                                                                    - 5 -                                                              2423
  


----------------------- Page 6-----------------------

substitute counsel, and to meaningfully consult with the new attorney, within this short                     



                                    4  

time frame.  Id. at 304.    



                                                                        

                     It is true that Harvey dealt with a defendant in a criminal proceeding, while  



                                                                                                     

Wassilie's appeal arises from a post-conviction relief proceeding.  Moreover, in Harvey ,  



the  attorney's  obligation  toward  the  defendant  was  ending  because  of  a  contractual  



provision (a clause in the attorney's retainer agreement) - while in Wassilie's case, the  

                                                                                           



attorney's obligation toward Wassilie was ending because, pursuant to Criminal Rule  



35.1(f)(2), the superior court expressly allowed the attorney to withdraw.  



                     But these distinctions do not call for a different result.  We note that Alaska  

                            



Professional Conduct Rule 1.16 - the rule that governs all terminations of an attorney's  

                     



representation  of  a  client  -  repeatedly  enjoins  attorneys  to  end  the  attorney-client  



relationship in a manner that, to the extent reasonably possible, preserves the client's  

                                                                                      



rights.   



                     Specifically, paragraph (b) of Professional Conduct Rule 1.16 declares that  

                                                                                                    



"a  lawyer  may  withdraw  from  representing  a  client  if  ...  [the]  withdrawal  can  be  



accomplished  without  material  adverse  effect  on  the  interests  of  the  client[.]"    This  

                                                                                                              



concept  is  reiterated  in  paragraph  (d)  of  the  rule,  which  speaks  of  an  attorney's  



continuing duty when the attorney-client relationship has ended:  "Upon termination of  

                                                                                                     



[the  attorney's]  representation,  a  lawyer  shall  take  steps  to  the  extent  reasonably  

                                                       



practicable to protect a client's interests[.]"  



                     In Wassilie's case, even though the superior court had released the Public  

                                                                                                                       



Defender Agency from further representation of Wassilie, Wassilie's attorney had a  

                                                                                              



continuing duty to make sure that, if Wassilie wished to appeal the superior court's  



dismissal of his petition for post-conviction relief, Wassilie's right of appeal would be  

                                                                                                



          4    Citing  the  Commentary  to  the  American  Bar  Association's  Defense  Function  



Standard 4-8.2.  



                                                               - 6 -                                                          2423
  


----------------------- Page 7-----------------------

preserved.  Given the circumstances (i.e., Wassilie's desire to appeal), this meant that the  

                                                               



attorney had a duty to either file a notice of appeal or, at least, file a motion to extend the  

                                                                             



time for filing an appeal.   



                    (Conceivably, an attorney in this situation might fulfill this duty by having  

                                                                                                              



the court promptly appoint another attorney to file the appeal.  But given the relatively  

                                                                              



short time available to file the initial appeal documents, this approach might not be  



practicable.)  



                    In its memorandum to this Court, the Office of Public Advocacy suggests  

                                                                                        



that a trial judge who has decided to allow an attorney to withdraw under Criminal Rule  

                                                                                                               



35.1(f)(2) might condition the withdrawal on the attorney's fulfillment of the duties we  

                                                                      



have described here:  (1) to ascertain the defendant's wishes with respect to an appeal  

                                                                                                      



and, if the defendant wishes to appeal, (2) to file the appeal or at least a motion to extend  

                                                                                          



the time for filing an appeal.  Although the attorney is under these duties regardless of  

                                                                                                       



whether the trial judge mentions them, we agree that this would be a good practice.  



           Wassilie has the right to counsel at public expense to assist him in pursuing  

                                                                                      

          this appeal  



                    We now turn to the second question presented in this case.   



                    Wassilie is an indigent defendant whose first petition for post-conviction  

                                                                                   



relief was dismissed by the trial court, and whose post-conviction relief attorney was  

                                                                                                       



allowed to withdraw after the attorney filed a certificate of no arguable  merit under  



Criminal Rule 35.1(e)(2). When a defendant in Wassilie's situation wishes to appeal the  

                                                                                                                  



trial court's dismissal of their petition for post-conviction relief, does the defendant have  

                                                               



the right to counsel at public expense to assist them in pursuing the appeal?   



                    We begin by noting that, under the Alaska Constitution, defendants who  



litigate  a  first  petition  for  post-conviction  relief  have  the  right  to  the  assistance  of  



                                                              - 7 -                                                         2423
  


----------------------- Page 8-----------------------

competent counsel.  Grinols v. State, 74 P.3d 889, 894-95 (Alaska 2003).  And under  



AS  18.85.100(c)  (a  portion  of  the  statute  defining  the  Public  Defender  Agency's  



authority to represent indigent litigants), if the defendant is indigent, the defendant is  

                     



entitled to have counsel appointed at public expense.  



                     Normally, if an indigent defendant is entitled to court-appointed counsel  

                                                



when litigating a petition for post-conviction relief in the trial court, the defendant is also  

                                                                                                            



entitled to court-appointed counsel in any appeal from the trial court's decision (whether  

                                                                                                    



by the defendant or by the State).  AS 18.85.100(c) does contain a restriction on the right  

                                                                                          



to court-appointed counsel in appellate proceedings arising from post-conviction relief  



litigation, but this restriction applies only  to  certain forms of discretionary appellate  

                                                                           

review after an appellate court has decided the appeal. 5  

                                                                                            



                     But Wassilie's situation is arguably different, because the superior court  



allowed  his  court-appointed  attorney  to  withdraw  at  the  close  of  the  trial  court  



proceedings under the provisions of Criminal Rule 35.1(e)(2) and (f)(2).  



                     As we have explained, this means (1) that the attorney, after investigating  

                                                                                                               



Wassilie's  case,  filed  a  certificate  declaring  that  Wassilie  had  no  claims  for  post- 



conviction  relief  that  had  any  arguable  merit,  and  (2)  that  the  superior  court,  after  



reviewing the attorney's certificate and allowing Wassilie to respond, concurred in the  

                                                          



attorney's assessment that Wassilie's post-conviction relief litigation was frivolous.  



                     In the previous section of this opinion, we held that even when the trial  

                                                                                                     



court allows a defendant's attorney to withdraw pursuant to Rule 35.1(f)(2), the attorney  

                                                                                            



           5    AS 18.85.100(c)(2) provides that "[a]n indigent person is entitled to representation  



[at public expense] for purposes of bringing a timely application for post-conviction relief   

... [except] for purposes of bringing ... a petition for review or certiorari from an appellate           

court ruling on an application for post-conviction relief[.]"  



                                                                  - 8 -                                                            2423
  


----------------------- Page 9-----------------------

still owes certain final duties to the defendant:  the obligation to ascertain whether the  

                                                                        



defendant wishes to appeal and, if so, the obligation to initiate appellate proceedings.   



                    But these final obligations are components of the attorney's duty as the  

                                                                                                                  



defendant's representative in the trial court - analogous to the duty we recognized in  



Harvey v. State  for trial attorneys who represent defendants in criminal prosecutions.  

                                                                                                 



The question before us now is whether, once the defendant's trial attorney has been  

                                 



allowed to withdraw pursuant to Criminal Rule 35.1(f)(2) and has fulfilled these final  



duties, the defendant has any further  right to legal representation at public expense -  

                                                                              



in particular, the right to court-appointed counsel to assist the defendant in appealing the  

                                                                                                            



trial court's dismissal of their petition for post-conviction relief.  



                    To answer this question, we must examine the reason why a trial court is  

                                                                                                                 



authorized to let an attorney withdraw under Criminal Rule 35.1(f)(2) - i.e., after the  



attorney  has  filed  a  certificate  of  no  arguable  merit,  and  after  the  trial  court  has  



independently concurred in the attorney's assessment of the defendant's case.  



                    The  first  rationale  for  allowing   the   attorney  to  withdraw  in  these  

                                                                                 



circumstances is the fact that the attorney has taken a position directly adverse to their  

                                                                                                                        



client's interests and has succeeded in convincing the trial court to dismiss their client's  

                                                                                        



lawsuit against the client's wishes.  This is certainly an adequate ground for allowing the  

                                                             



attorney to withdraw from further representation of the client, but it has no relevance to  

                                                                                    



the issue of whether the client is entitled to representation by some other attorney if the  



client pursues an appeal.  



                    The  second  rationale  for  allowing  the  attorney  to  withdraw  in  these  



circumstances is the trial court's finding that the litigation is frivolous - i.e., that the  

                                                                      



defendant has no claims that have any arguable merit.  As this Court recognized in  



Griffin v. State, 18 P.3d 71 (Alaska App. 2001), the Alaska Legislature enacted Criminal  

                                                                        



                                                             - 9 -                                                         2423
  


----------------------- Page 10-----------------------

Rule 35.1(e)(2) to advance a valid public purpose - "to curb the litigation of frivolous  

post-conviction relief applications at public expense." 6  

                                                                                       



                    In Griffin, we construed Criminal Rules 35.1(e)(2) and (f)(2) as establishing  



a two-tier process that must be satisfied before a trial court can dismiss a petition for  

                                                                                                    



post-conviction relief on the ground that it is frivolous.  First, the defendant's attorney  

                                                                                               



must provide a detailed and complete explanation of why the attorney has concluded that  

                                                                                       



                                                                             7  

the  defendant  has  no  colorable  claim  for  relief;  

                                                                                                                  

                                                                               and  second,  the  trial  court  (after  



                                       

allowing  the  defendant  to  respond)  must  independently  review  and  concur  in  the  



                                   8  

attorney's assessment.     



                                                                                                                    

                    We  held  in  Griffin  that  this  two-tier  process  is  sufficient  to  satisfy  the  



defendant's  constitutional  right  to  the  zealous  and  competent  assistance  of  counsel,  



     

as defined by the United States Supreme Court in Smith v. Robbins, 528 U.S. 259, 120  

S.Ct. 746, 145 L.Ed.2d 756 (2000). 9  

                                                         And in Grinols v. State, 10 P.3d 600 (Alaska App.  



            

2000),  this  Court  acknowledged  the  government's  authority  to  place  limits  on  a  



defendant's right to legal representation at public expense.  Id. at 623.   



                    One  could  therefore  argue  that,  once  a  trial  court  determines  that  a  



defendant's  petition  for  post-conviction  relief  is  frivolous,  and  the  court  allows  the  



defendant's court-appointed attorney to withdraw under Criminal Rule 35.1(f)(2), the  



government need not provide the defendant with counsel at public expense to pursue an  

                                                                                           



appeal.  



          6    Griffin, 18 P.3d at 72.  



          7    Id. at 77.  



          8    Id. at 76.  



          9    Id. at 77.  



                                                             - 10 -                                                         2423
  


----------------------- Page 11-----------------------

                     But  this  argument  implicitly  rests  on  the  premise  that  the  trial  court's  



decision was correct - the assumption that the attorney's certificate of no arguable merit  

                                     



satisfied the Griffin requirement of a complete and detailed description of the defendant's  



potential claims, and the further assumption that the trial court correctly analyzed the  



situation when it ratified the attorney's assertion that all of the defendant's potential  



claims for post-conviction relief were indeed frivolous.   



                     The whole point of an appeal is to put these assumptions to the test.  As this  



Court observed in Grinols, 10 P.3d at 622, "The guarantee of equal protection of the law  

                                                       



requires that ... indigents have an adequate opportunity to present their claims fairly  

within the adversary system." 10  

                                                                 

                                                  Until the assumptions listed in the preceding paragraph  



are tested in the appellate arena, we can not say with certainty that the trial court was  



correct when it characterized the defendant's post-conviction relief litigation as wholly  

                      



frivolous.  



                     The truth of this principle is amply confirmed by the post-conviction relief  

                                         



litigation that has reached this Court since we issued our decision in Griffin.  We have  

                                                



repeatedly  reversed  trial  court  dismissals  of  post-conviction  relief  litigation  under  

                                                                                                   



Criminal Rule 35.1(f)(2) - either because the defendant's attorney failed to provide the  

                                                                                           



trial  court  with  a  complete  and  detailed  explanation  of  the  defendant's  potential  

claims, 11                                                                       

               or because the trial court failed to conduct an adequate independent review of  



           10   Quoting  Ross v. Moffitt , 417 U.S. 600, 612; 94 S.Ct. 2437, 2444-45; 41 L.Ed.2d                      



341 (1974).  



           11  See  Beshaw v. State , unpublished, 2012 WL 1368146, *6 (Alaska App. 2012);  



Duncan v. State , unpublished, 2008 WL 5025424, *3-4 (Alaska App. 2008);                                       Nelson v. State ,  

                                                        

unpublished, 2005 WL 2373454, *1 (Alaska App. 2008);  One v. State, 127 P.3d 853, 856  

                                                                                                                  

(Alaska  App.  2006); Black  v.  State , unpublished, 2004 WL  2914986, *2                                       (Alaska  App.  

2004); Goldsbury v. State, 93 P.3d 468, 470-71 (Alaska App. 2004); Tazruk v. State, 67 P.3d  

687, 692 (Alaska App. 2003).  



                                                              - 11 -                                                          2423
  


----------------------- Page 12-----------------------

the attorney's certificate, 12 or because the court mistakenly concluded that all of the   



                                                                              13  

claims described by the attorney were in fact frivolous.                          



                   In other words, even when a trial court has dismissed a petition for post- 



conviction relief on the ground that it is wholly frivolous, this is not a guarantee that the  

                                  



petition  is  indeed  frivolous.    The  defendant  is  entitled  to  challenge  the  trial  court's  



decision  on  appeal  -  and,  if  the  defendant  pursues  an  appeal,  the  trial  court's  



characterization of the litigation as frivolous remains tentative until the appeal is decided.  

                                                                                                  



                   For this reason, the normal rule with respect to court-appointed counsel  



continues to apply:  the defendant is entitled to counsel at public expense to assist them  

                                                                                                       



in appealing the trial court's dismissal of their petition for post-conviction relief.  



                   We addressed this same issue (in a slightly different guise) in Alex v. State ,  

                                                                                                               



210 P.3d 1225 (Alaska App. 2009).   



                  Alex involved the clause of the Public Defender Agency's authorization  



statute, AS 18.85.100(c)(1), that prohibits the Agency from representing a defendant who  



is  pursuing  an  untimely  petition  for  post-conviction  relief.    In  Alex ,  the  trial  court  



dismissed the defendant's petition after concluding that the petition was untimely.  The  



question  was  whether  the  trial  court's  ruling  effectively  barred  the  Public  Defender  



Agency from continuing to represent the defendant on appeal.   



                   We  held  that  when  a  defendant  wishes  to  challenge  the  trial  court's  



conclusion that their petition for post-conviction relief was untimely, the defendant's  



petition      can    not     properly      be     characterized        as    "untimely"        for    purposes       of  



AS 18.85.100(c)(1) until that claim is resolved against the defendant on appeal.  Thus,  

                                                   



         12   See  Frank v. State , unpublished, 2008 WL 3540508, *1 (Alaska App. 2008).  



         13   See   Vizcarra-Medina v. State, 195 P.3d 1095, 1099-1100 (Alaska App. 2008).  



                                                        - 12 -                                                    2423
  


----------------------- Page 13-----------------------

a defendant remains entitled to counsel at public expense to assist them in litigating this  

                                                                                   



issue on appeal.  Alex , 210 P.3d at 1228-29.  



                   This same rule applies to Wassilie and other defendants in his situation.  



Wassilie is entitled to counsel at public expense to assist him in appealing the superior  

                                                          



court's ruling that his petition for post-conviction relief is frivolous.   



          Which agency should provide Wassilie's attorney?  



                   The remaining question is to identify the agency responsible for providing  



an attorney to assist Wassilie on appeal.  



                   As we have explained, Wassilie is an indigent defendant who is entitled to  



the  assistance  of  an  attorney  at  public  expense.    This  attorney  normally  would  be  



provided by the Public Defender Agency.   



                   But Wassilie was represented by the Public Defender Agency in the trial  

                                                                



court, and his assistant public defender filed a certificate of no arguable merit.  Based on  

                                                                                     



the contents of this certificate, the superior court dismissed Wassilie's petition for post- 

                             



conviction relief on the ground that it was frivolous - i.e., that Wassilie had no arguable  

                                                   



claims for relief.   



                   On appeal, Wassilie must challenge either the contents of his attorney's  

                                                                                                         



certificate, or the superior court's concurrence in his attorney's conclusions, or both.  



Given this situation, the Public Defender Agency can not represent him in this appeal.  



This means that the duty of providing an attorney for Wassilie falls to the Office of  

                                                                            



Public  Advocacy  under  AS  44.21.410(a)(5)  -  the  statute  that  directs  the  Office  of  



Public Advocacy to "provide legal representation ... in cases involving indigent persons  

                                                                                       



who are entitled to representation under AS 18.85.100 and who cannot be represented  



by the [P]ublic [D]efender [A]gency because of a conflict of interests".  



                                                          - 13 -                                                     2423
  


----------------------- Page 14-----------------------

          Conclusion  



                   The Office of Public Advocacy is directed to provide an attorney to assist  

                                        



Wassilie in this appeal within 15 days of the issuance of this opinion.  That attorney shall  

                                                                            



promptly file an entry of appearance in this Court.   



                                                          - 14 -                                                     2423
  

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