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Larson v. State (11/9/2017) ap-2574

Larson v. State (11/9/2017) ap-2574

                                                                    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  



LOREN J. LARSON JR.,  

                                                                                       Court of Appeals No. A-12725  

                                              Petitioner,                              Trial Court No. 4FA-01-511 CI  



                                   v.  

                                                                                                  O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                              Respondent.                              No. 2574 - November 9, 2017  



                       Original Application for Relief from the Superior Court, Fourth  

                                                                                     

                       Judicial District, Fairbanks, Niesje J. Steinkruger, Judge.  



                       Appearances:  Loren J. Larson Jr., in propria persona, Wasilla,  

                                                 

                       for  the  Appellant.    Eric  A.  Ringsmuth,  Assistant  Attorney  

                       General,  Office  of  Criminal  Appeals,  Anchorage,  and  Jahna  

                                                         

                       Lindemuth, Attorney General, Juneau, for the Appellee.  



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

                                                                        

                       District Court Judge. *  

                                                             



                       Judge MANNHEIMER.  



                       This case arises from an original application for relief that was filed last                                             



year by Loren J. Larson Jr.                        In November 2016, this Court issued an order denying                                 



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



Constitution and Administrative Rule 24(d).  


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

Larson's original application, and Larson now seeks rehearing of our November 2016  



decision.  

                



                    When this Court denied Larson's original application for relief, we did so  

                                                                                                                                  



in an unpublished order. Nevertheless, we have decided to formally publish our reasons  

                                                                                                                          



for allowing Larson to file his petition for rehearing, because our decision involves an  

                                           



interpretation of Alaska Appellate Rule 404(f).  

                                                                          



                    Rule 404(f) declares that a litigant may not file "a petition for rehearing of  

                                                                                                                                  



the denial of an original application". As we explain in this opinion, despite the wording  

                                                                                                                        



of this rule, we conclude that Larson is entitled to seek rehearing of our decision denying  

                                                                                                                         



his original application for relief.  

                                                      



                    However, the remainder of our decision on rehearing - i.e., our analysis  

                                                                                                                         



of Larson's specific arguments on rehearing - will be of little interest to anyone other  

                                                                                                                             



than Larson  and  the State of Alaska,  so  we will answer  Larson's arguments in  an  

                                                                                                                                 



unpublished order.  

                                  



          The procedural background of this litigation  

                                                                  



                    Last year, Loren J. Larson filed the current appellate action - an original  

                                                                                                                         



application for relief under Alaska Appellate Rule 404.   In this original application,  

                                                                                                                   



Larson asked this Court to re-open the proceedings in one of his earlier appeals: Larson  

                                                                                                                           



                                                                                                                 1  

v. State, File No. A-11835 - an appeal that we decided in January 2016.     

                                                                                                        



                                                                                                                             

                    We denied Larson's original application for relief in a five-page order  



                                                                                                                              

issued on November 21, 2016.   Larson now seeks rehearing of that November 21st  



                

decision.  



     1    See Larson v. State         , unpublished, 2016 WL 191987 (Alaska App. 2016).  



                                                               - 2 -                                                          2574
  


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

                      Why   Larson   is   entitled   to   seek   rehearing   of  our  decision   denying   his  

                     original application for relief                                              



                                          Larson's right to seek rehearing of our decision is seemingly cast in doubt                                                                                                                                           



by Alaska Appellate Rule 404(f), which declares that "a petition for rehearing of the                                                                                                                                                                                   



denial of an original application may not be filed."                                                                                                                



                                          Although this rule appears to prohibit a party from seeking reconsideration                                                                                                            



of  any  order denying an original application, we conclude (for reasons we are about to                                                                                                                                                                                    



explain)   that   Appellate   Rule   404(f)  applies  only   to   orders   that   deny   an   original  



application without reaching the merits of the petitioner's claims - and that the rule                                                                                                                                                                               



does not apply in cases where the appellate court issues a decision on the merits of the                                                                                                                                                                                



petitioner's claim, but denies relief.                                                                              



                                           Original applications                                             for reliefarerequestsfor an                                                          appellatecourttoexercise                               



its power of discretionary review in cases where the party has no right of appeal and no                                                                                                                                                                                  



                                                                                                                                                                            2  

right to petition for review under Appellate Rule 402.                                                                                                                           



                                                                                                                                                                                                                                                                          

                                          Procedurally, original applications are handled very much like petitions for  



                                                                                                                                                                                                                                                                        

review under Appellate Rule 402 - because, in both instances, a party is asking the  



                                                                                                                                                                                                                                                                

appellate  court  to  exercise  its  power  of  discretionary  review.                                                                                                                                            The  appellate  court  



                                                                                                                                                                                                                                                          

considers the petition or application (and any opposition), and then the court decides  



                                                                                                                                                                                                                                                                        

whether it will (1) deny the petition or application without reaching the merits of the  



                                                                                                                                                                                                                                                                            

petitioner's claim or, instead, (2) grant the petition or application, in the limited sense of  



                                                                                                                                                                                                                                                                       

agreeing to resolve the merits of the petitioner's claim - but without any guarantee that  



                                                                                                                                                                                                                        3  

                                                                                                                                                                                      

the court's ultimate resolution of the claim will favor the petitioner.     



           2         See Appellate Rule 404(a)(1).  



           3         See Appellate Rules 403(f) and 404(e).  



                                                                                                                                  -  3 -                                                                                                                            2574
  


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

                     If the appellate court decides to grant a petition for review or an original  

                                                                                                                          



application, the court will often call for fuller briefing of the petitioner's claim. But there  

                                                                                                                               



are instances where the court "grants" the petition or application (in the sense of agreeing  

                                                                                                                         



to reach the merits of the petitioner's claim) and then, without further briefing, issues an  

                                                                                                                                   



order resolving the merits of the case.  In those circumstances, even when the court's  

                                                                                                                           



order resolves the case by denying the relief that the petitioner has requested, the petition  

                                                                                                                           



or application has still technically been "granted", in the sense that the court has reached  

                                                                                                                          



the merits of the petitioner's claim.  

                                                        



                     Like Appellate Rule 404(f) (which deals with original applications), there  

                                                                                                                              



is a provision of Appellate Rule 403 - specifically, Rule 403(g) - which declares that  

                                                                                                                                 



when an appellate court denies a petition for review, "a petition for rehearing of the  

                                                                                                                                 



denial of [the] petition for review may not be filed".  But Appellate Rule 403(g) has not  

                                                                                                                                 



been construed to prohibit petitions for rehearing in cases where an appellate court grants  

                                                                                                                             



the petition, reaches the merits of the petitioner's case, and denies relief.  Rather, the  

                                                                                                                                 



Alaska Supreme Court has allowed rehearing in such cases - i.e., cases where a petition  

                                                                                                                          



for review was granted but later, upon consideration of the merits of the case, the court  

                                                                                                                              



denied the relief that the petitioner was requesting.  

                                                                                 



                     For example, in State v. Glass, 583 P.2d 872 (Alaska 1978), the supreme  

                                                                                           



court granted the State's petition for review of a suppression ruling issued by the trial  

                                                                                                                                



court, but when the supreme court reached the merits of the case, the supreme court  

                                                                                                                              



affirmed the trial court's ruling - i.e., the supreme court issued a decision denying the  

                                                                                                                                 



relief that the State had requested. The State then sought rehearing. Instead of declaring  

                                                                                                                        



that the State was barred from seeking rehearing, the supreme court considered the  

                                                                                                                                 



State's arguments and issued a formal opinion on rehearing: State v. Glass, 596 P.2d 10  

                                                                                                                                  



(Alaska 1979).  Thus, the supreme court granted the State's petition for rehearing even  

                                                                                                                               



though, in its first opinion, the court had denied the State's request for relief.  

                                                                                                                        



                                                               - 4 -                                                          2574
  


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

                    We conclude that Appellate Rule 404(f) should be construed the same way.  

                                                                                                                                      



Appellate Rule 404(f) declares that no party may seek rehearing "of the denial of an  

                                                                                                                                 



original application".  We interpret this rule to mean that when a party files an original  

                                                                                                                         



application  for  relief  and  the  appellate  court  votes  to  deny  the  application  without  

                                                                                                                         



reaching themerits ofthe party's claim, the parties are prohibited fromseekingrehearing  

                                                                                                                       



of the court's decision.  But when the appellate court takes the case and resolves the  

                                                                                                                                



merits of the petitioner's claim by denying relief, the petitioner (or the respondent, for  

                                                                                                   



that matter) can seek rehearing of the appellate court's decision on the merits.  

                                                                                                                          



                    We reach this conclusion for two reasons.  

                                                                                       



                    First, as just explained, the Alaska Supreme Court has allowed petitions for  

                                                                                                                                 



rehearing in analogouscircumstances in petition for reviewcases, even though Appellate  

                                                                                                                       



Rule 403(g) contains a corresponding prohibition on petitions for rehearing "of the  

                                                                                                                                



denial of a petition for review".  

                                                   



                     Second, when an appellate court resolves the merits of a legal controversy  

                                                                                                                   



in an opinion or other final order, there appears to be no good reason to insulate the  

                                                                                                                                



court's decision from rehearing simply because the case came to the court as a petition  

                                                                                                                          



for review or as an original application for relief, rather than as an appeal.   Having  

                                                                                                                         



declared the law and resolved the merits of the controversy, the appellate court has the  

                                                                                                                                



same interest in making sure that its decision is not based on a material misunderstanding  

                                                                                                          



of the facts or the law.  

                                    



                    Theremaining question inLarson'scase, then, is whether thisCourt's order  

                                                                                                                             



of November 21st - our "Order Denying Original Application" - was a decision on  

                                                                                                          



the merits of Larson's claim.  There is little doubt that it was.  Our order is five pages  

                                                                                                                            



long; it contains both a detailed description of the relevant procedural history of Larson's  

                                                                                                                        



case and an explanation of why this Court concluded that Larson was not entitled to the  

                                                                                                                                 



relief that he was seeking.  

                                          



                                                               -  5 -                                                         2574
  


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

                    For these reasons, we conclude that Larson is entitled to seek rehearing of  

                                                                                                                                



this Court's order of November 21, 2016, denying his original application for relief.  

                                                                                                                                 



          The merits of Larson's arguments on rehearing  

                                                                    



                    As we explained at the beginning of this opinion, Larson's arguments on  

                                                                                                               



rehearing, and our analysis of those arguments, will be of little interest to anyone other  

                                                                                                                           



than Larson and the State of Alaska.  We have therefore decided to answer Larson's  

                                                                                                                      



arguments in an unpublished order.  

                                                        



                                                              -  6 -                                                        2574
  

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