Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869 This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Geisinger v. State (9/26/2014) ap-2430

Geisinger v. State (9/26/2014) ap-2430

                                                 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  



BYRON F. GEISINGER,  

                                                                Court of Appeals No. A-11881  

                                  Petitioner,                 Trial Court No. 4FA-11-2842 CI 

                                                                       t/w 4FA-06-3452 CR  

                         v.  



STATE OF ALASKA,                                                          O P I N I O N  



                                  Respondent.  

                                                              No. 2430 - September 26, 2014  



                 Petition for Review from the Superior Court, Fourth Judicial  

                 District, Fairbanks, Bethany S. Harbison, Judge.  



                 Appearances:  Brooke  V.  Berens,  Assistant  Public  Advocate,  

                 Appeals  &  Statewide  Defense  Section,  and  Richard  Allen,  

                 Public Advocate, Anchorage, for the Petitioner.  Kenneth M.  

                 Rosenstein,  Assistant  Attorney  General,  Office  of  Special  

                 Prosecutions      and   Appeals,     Anchorage,       and   Michael      C.  

                                                                             

                 Geraghty, Attorney General, Juneau, for the Respondent.  



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

                 District Court Judge. *  

                                             



                 Judge HANLEY.  



        *    Sitting  by  assignment  made  pursuant  to  article  IV,  section  16   of  the  Alaska  



Constitution and Administrative Rule 24(d).  


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

                   This petition for review raises the question of what statute of limitation  



applies to the filing of an application for post-conviction relief by  a  defendant who  

                                                                                                    



pursued a direct appeal of his sentence but not his conviction.  



                   Byron F. Geisinger was convicted of several crimes after a fatal motor  

vehicle  collision,  and  he  was  sentenced  to  16-  years  to  serve.1  

                                                                                                     He  appealed  his  



                                                                                              

sentence, arguing that it was excessive and that the court erred by rejecting his proposed  

statutory mitigating factor.2                                                              3  

                                         We affirmed Geisinger's sentence.  



                                                                                                  

                   Geisinger then filed an application for post-conviction relief, claiming that  



      

the  attorney  who  represented  him  at  his  trial  was  incompetent.    The  superior  court  



                      

dismissed that claim as untimely.  The court ruled that, under AS 12.72.020(a)(3)(A), the  



                                                                                                     

normal statute of limitation for filing an application for post-conviction relief - eighteen  



months from the date judgment was entered in the underlying criminal case - is not  



tolled while a defendant appeals his sentence.  Geisinger's application was filed well  



outside that eighteen-month deadline.  



                   Geisinger petitions for review of the superior court's decision and the State  

                                                                                                                 



concedes  error.    We  now  grant  Geisinger's  petition  for  review  and,  for  the  reasons  



explained below, hold that a defendant who appeals his sentence or his conviction, or  



both, has one year from the date the decision on appeal is final to file an application for  

                                                                                           

post-conviction relief.4                                                                 

                                   Because Geisinger's application was filed within that deadline,  



the superior court erred in granting the State's motion to dismiss.  



          1    Geisinger  v.  State,  2010  WL  5186081,  at  *1  (Alaska  App.  Dec.  22,  2010)  



(unpublished).  



          2   Id.   



          3   Id. at *1-3.  



          4   See R. App. P. 507, 512.   



                                                             2                                                       2430
  


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

          Facts and proceedings  

                    Geisinger was convicted of manslaughter,5  

                                                                                      leaving the scene of an injury   



              6                                                                 7              8 

accident,   two  counts  of  assault  in  the  first  degree,   forgery,   and  driving  under  the  

influence.9  

                    He  filed  a  timely  notice  in  this  Court  of  a  "merit  appeal"  -  an  appeal  

                                  



challenging the validity of his convictions.  However, Geisinger's appointed counsel  



later determined that Geisinger had no non-frivolous challenges to his convictions; the  

                                                 



attorney therefore limited Geisinger's opening brief to claims attacking his sentence.  We  

                                                                                                                

rejected those claims and affirmed Geisinger's sentence,10 and the supreme court denied  



Geisinger's petition for hearing.11  



                                                                         

                    Geisinger's attorney then advised him that he had one year from the date  



                                               

the supreme court rejected his petition for hearing (that is, the date when our decision of  



                                                    12 

                                                                         

his  sentence  appeal  became  final   )  to  file  an  application  for  post-conviction  relief. 



Geisinger filed an application approximately seven months later challenging, inter alia,  



                                                         

the competence of his trial attorney.  On the State's motion, the superior court rejected  



          5    AS 11.41.120(a)(1).  



          6    AS 28.35.060(c).  



          7    AS 11.41.200(a)(1).  



          8    AS 11.46.505(a)(1).  



          9    AS 28.35.030(a)(2).  



          10   Geisinger, 2010 WL 5186081, at *1.  



          11   Supreme Court Case No. S-14139.  



          12   See R. App. P. 507, 512.  



                                                                 3                                                         2430
  


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

                                                                                                         13  

 as untimely Geisinger's claim that his trial attorney was ineffective.                                      Geisinger then  



 filed this petition for review.  



           Why we conclude that the deadline for filing a post-conviction relief application  

                                                                       

following a sentence appeal is one year after the decision on appeal becomes final, and  

                                                                                                         

 that Geisinger's application is therefore timely  



                     Under AS 12.72.010, any person who has been convicted of a crime in  



 Alaska may institute a proceeding for post-conviction relief challenging his conviction  

                                                                                             



 or sentence, as long as the application raises claims permitted by the statute and the  

                                                                                                                         



 application is filed within the time limits codified in AS 12.72.020.  Subsection (a)(3)(A)  

                                                                                                     



 of that statute provides that a post-conviction relief action is untimely if:  



                               (3) the later of the following dates has passed, except  

                                                                                           

                     that if the applicant claims that the sentence was illegal there  

                                                                     

                     is no time limit on the claim:  

                               (A) if the claim relates to a conviction, 18 months after  

                                                                  

                     the  entry  of  the  judgment  of  the  conviction  or,  if  the  

                     conviction was appealed, one year after the court's decision  

                                                                           

                     is final under the Alaska Rules of Appellate Procedure[.]  



                     The superior court interpreted this subsection to mean that if a defendant  

                                                   



 appeals his conviction - that is, argues on direct appeal that he is entitled to an acquittal  

                                                   



 or a new trial - the period for filing an application for post-conviction relief is tolled  

                



 until one year after the appeal becomes final.  But the court concluded that the statute of  

                                                                                                                       



 limitation is not tolled for a defendant like Geisinger who appealed only his sentence .  

                                                                                                         



 In  that  circumstance,  the  court  ruled,  the  application  must  be  filed  within  eighteen  



           13   The  State  did  not  move  to  dismiss  the  claims  attacking  the  competence  of  



 Geisinger's appellate counsel, and those claims are apparently still pending.    



                                                                 4                                                              2430  


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

months of the date judgment was entered in the criminal case.  That is the same deadline     



that applies to a defendant who filed no appeal at all.  



                   The superior court reasoned that the plain language of the statute mandated  



this result:  



                   The  statutory  language  is  not  ambiguous.    The  statute  

                   indicates that time is tolled if "the conviction was appealed."  

                   If the legislature had intended that the time would be tolled  

                   upon appeal of either the conviction or the sentence, it would  

                                                                                 

                   have said this in the statute.14  



                   The      main       problem        with     the     superior       court's      interpretation         of  



AS  12.72.020(a)(3)(A)  is  that  it  does  not  accord  with  the  well-settled  principle  of  



statutory construction that "the same words used twice in the same act have the same  

               

meaning."15  

                   As indicated in italics below, the statute uses the term "conviction" in  



different  contexts:  first,  to  characterize  the  nature  of  the  claim  raised  in  the  post- 



conviction relief action and, later, to characterize the nature of the claim raised on direct  

                                                  



appeal:  



                   (A)   if   the   claim   [raised   in   the   post-conviction   relief  

                               

                   application] relates to a conviction, [the application must be  

                                                                              

                   filed within] 18 months after the entry of the judgment ... or,  

                                                              

                   if the conviction was appealed, [the application must be filed  

                                                                                                

                   within] one year after the court's decision is final under the  

                   Alaska Rules of Appellate Procedure[.]16  



                                                                 

                   If we attempt to reconcile these two meanings of "conviction" in a way that  



                                                                                   

preserves the superior court's ruling - by assuming that in both instances "conviction"  



          14  Emphasis in original.  



          15  Benner v. Wichman, 874 P.2d 949, 957 (Alaska 1994) (quoting 2A Norman J.  

Singer, Sutherland's Statutes and Statutory Construction  46.06 (5th ed. 1992)).  



          16  Emphasis added.  



                                                              5                                                          2430  


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

means just "conviction," not "conviction or sentence" - then AS 12.72.020(a)(3)(A)  



would impose no deadline for an application that raises a claim related to the defendant's  

sentence.  The State acknowledges that this cannot be what the legislature intended. 17  



Moreover, this interpretation would render another part of the same statute superfluous.                                               18  



                                                                                    

As related above, the legislature expressly provided in AS 12.72.020(a)(3) that there is  



no time limit for filing an application for post-conviction relief challenging a sentence  

as illegal.19                                                                                           

                    There would be no reason for the legislature to create this limited exception  



if  its  intent  was  to  eliminate  the  statute  of  limitations  for  all  post-conviction  relief  



applications raising sentencing claims.  



                     In  addition,  as  Geisinger  points  out,  the  superior  court's  reading  of  



AS 12.72.020(a)(3)(A) would, as a practical matter, defeat one of the primary goals of  

                                                                                                                

the post-conviction relief statutes:  reducing frivolous post-conviction relief litigation.20  

                                                                                      



                                                                                                                        

Normally, given the current length of time it takes to litigate a criminal appeal,  the  



decision on appeal will not become final within eighteen months of the defendant's  



conviction.                 Therefore,           under         the      superior          court's         interpretation              of  

                                                                      



AS 12.72.020(a)(3)(A), a prudent attorney litigating a sentence appeal would advise his  

                                                                                                     



           17   See Xavier v. State, 278 P.3d 902, 905 (Alaska App. 2012) (noting the legislature's           



interest in providing a time limit for the litigation of post-conviction claims).  



           18   See Libby v. City of Dillingham , 612 P.2d 33, 39 (Alaska 1980) (citing 2A C.  



                                                                                                             

Sands, Sutherland Statutory Construction  46.06 (4th ed. 1973)) ("It is a basic principle of  

                                     

statutory interpretation  that, when possible, effect should be given to all provisions of a  

statute so that no part of the statute is superfluous.").  



           19  

                                                                              

                See Bishop v. Anchorage, 685 P.2d 103, 105 (Alaska App. 1984) (noting that the  

                                                                                                                         

term "illegal sentence" has been narrowly construed to apply only to sentences that are not  

authorized by the judgment of conviction).  



           20   Xavier , 278 P.3d at 904 (citing the Governor's Transmittal Letter for House Bill  



201, 1995 House Journal 488-89).  



                                                                    6                                                            2430
  


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

client to file an application for post-conviction relief while the appeal is still pending,  



even  though  resolution  of  the  appeal  might  later  render  that  application  moot.  



Alternatively, an attorney who realizes, after the eighteen-month deadline for filing an  

                                                



application for post-conviction relief has passed, that the defendant's only potentially  

                                                                                                          



meritorious  claims  are  sentencing  claims  might  choose  to  raise  a  non-meritorious  



challenge to the defendant's conviction rather than forfeit the defendant's opportunity  

                                                                                              



to pursue an application for post-conviction relief.  We think it clear that the legislature  



did not intend to encourage this type of unnecessary litigation.  We also can discern no  

                                                                                                      



rational  basis  for  allowing  a  defendant  who  challenges  a  sentence  on  direct  appeal  



unlimited time to file an application for post-conviction relief raising any challenge  

                                                                                                 



authorized  by  the  post-conviction  relief  statutes,  while  requiring  a  defendant  who  



appealed his conviction to file the application within a specific deadline.  



                    The more reasonable interpretation of AS 12.72.020(a)(3)(A) is that the  



legislature used the term "conviction" not to distinguish a conviction from a sentence,  

                                                                                                                  



but to distinguish a conviction from a probation revocation or administrative decision.  

                                                                                              



The statute sets out different deadlines for filing an application for post-conviction relief  

                              



                                      21                                       22 

                                             

challenging a conviction,                a revocation of probation,               or an administrative decision of  



                                                                            23  

the Board of Parole or Department of Corrections.     We conclude that the legislature  



                                                                           

intended the statute of limitations in each instance to encompass a post-conviction relief  



challenge to both the conviction, revocation, or decision, and to any penalty imposed.  



                                              

                    Interpreting  AS  12.72.020(a)(3)(A)  in  this  manner,  a  defendant  who  



                                                                   

appeals his conviction or sentence, or both, has one year from the date the decision on  



          21   AS 12.72.020(a)(3)(A).  



          22   AS 12.72.020(a)(3)(B).  



          23   AS 12.72.020(a)(4).  



                                                                7                                                            2430  


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

appeal is final to file an application for post-conviction relief.  Because Geisinger's post-      



conviction relief application was filed approximately seven months after our decision of   



his sentence appeal became final, it was timely.  



            Conclusion  



                        We REVERSE the superior court's order dismissing Geisinger's challenge  

                                                                                                  



to the competence of his trial counsel, and we REMAND the case to the superior court  



for further proceedings on his application.  Because of our resolution of this issue, we  

                                                        



do not address Geisinger's claim that the superior court's dismissal of his claims violated  



his right to due process.  We do not retain jurisdiction.  



                                                                             8                                                                     2430
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC