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Lampley v. State (6/26/2015) ap-2459

Lampley v. State (6/26/2015) ap-2459

                                                 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 @ akcourts.us
  



             IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



JIMMY A. LAMPLEY,  

                                                              Court of Appeals No. A-11422  

                                 Appellant,                 Trial Court No. 3PA-06-1078 CI  



                         v.  

                                                                      O  P  I  N  I  O  N 

STATE OF ALASKA,  



                                 Appellee.                       No. 2459 - June 26, 2015  



                Appeal  from  the  Superior  Court,  Third  Judicial  District,  

                                        

                Palmer, Eric Smith, Judge.  



                Appearances:  Renee McFarland, Assistant Public Defender,  

                 and  Quinlan  Steiner,  Public  Defender,  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,  and  Hanley,  District  

                 Court Judge. *                                                

                                    [Allard, Judge, not participating.]  



                Judge MANNHEIMER.  



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



Constitution and Administrative Rule 24(d).  


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

                   Jimmy A. Lampley appeals the superior court's dismissal of his petition for  

                                                                                                           



post-conviction relief.   



                    The superior court dismissed Lampley's petition after his court-appointed  

                                                                                            



attorney  filed  a  certificate  of  "no  arguable  merit"  under  Alaska  Criminal  Rule  

                                                                                            



35.1(e)(2)(C).    The  superior  court  gave  Lampley  the  opportunity  to  respond  to  his  



attorney's "no arguable merit" certificate.  After considering Lampley's response (and  



the replies filed by the State and Lampley's attorney), the superior court concluded that  

                                                



Lampley's  petition  had  no  arguable  merit.    The  court  then  issued  a  written  order  



explaining its reasoning and dismissing Lampley's petition.   



                    On appeal, the State concedes that the procedure described in the preceding  

                                                                                          



paragraph violated Alaska Criminal Rule 35.1(f)(2), the rule that specifies a court's  



duties in cases where a defendant's attorney files a certificate of "no arguable merit".   



                   Rule 35.1(f)(2) declares that if the court examines the attorney's certificate  

                                                                                             



and concurs in the attorney's assessment that the petition has no arguable merit, the court  

                                                                  



is then required to "indicate to the parties its intention to ... dismiss the [defendant's]  

            



application and its reasons for so doing".  (Emphasis added)  After the court does that,  



the defendant and the prosecuting attorney "shall be given an opportunity to reply to the  



proposed ... dismissal."  



                    In other words, Rule 35.1(f)(2) contemplates a procedure that is different  

                                                                                          



from  what  happened  in  Lampley's  case.    If  (after  reviewing  the  defense  attorney's  



certificate  of  "no  arguable  merit")  the  court  tentatively  concludes  that  there  is  no  



arguable merit to the defendant's petition, the court must issue an order explaining its  



own reasons for reaching this conclusion, and then the court must give the defendant  

                                                                              



(and the government) an opportunity to respond to the court's analysis.  



                                                            - 2 -                                                      2459
  


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

                    The  reason  for  requiring  this  procedure  is  that  the  court's  reasons  for  



concluding that the petition has no merit may differ from the attorney's reasons.  The  

                                                                                        



defendant is entitled to notice of the court's reasons, and a chance to respond to them.  



                    Several  years  ago,  we  addressed  this  point  of  law  in  an  unpublished  

                                                                                             



decision:  Frank v. State , 2008 WL 3540508 (Alaska App. 2008) at *1 (lead opinion) and  



*3 (concurring opinion of Judge Mannheimer).  We now conclude that we should issue  

                                                                                     



a published opinion on this point.  



                    The judgement of the superior court is VACATED.  The superior court  



shall treat its already-issued written decision as a tentative decision, and the court shall  

                                                                                        



give  Lampley  and  the  prosecutor  an  opportunity  to  file  responses  to  that  tentative  

                                                                                  



decision.    If  either  party  files  a  response,  the  superior  court  shall  re-evaluate  its  

                                                                                        



conclusion as to whether Lampley's petition has any arguable merit, and the court shall  

                                                                                             



issue an appropriate order.  



                    We do not retain jurisdiction over this case.  



                                                            - 3 -                                                        2459
  

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