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Gareth R. Demoski v State of Alaska (8/23/2019) ap-2652

Gareth R. Demoski v State of Alaska (8/23/2019) ap-2652

                                                     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
  

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                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



GARETH R. DEMOSKI,  

                                                                    Court of Appeals No. A-12620  

                                    Appellant,                    Trial Court No. 4FA-13-01862 CI  



                           v.  

                                                                               O P I N I O N 

STATE OF ALASKA,  



                                    Appellee.                        No. 2652 - August 23, 2019  



                  Appeal  from  the  Superior  Court,  Fourth  Judicial  District,  

                                      

                  Fairbanks, Bethany S. Harbison, Judge.  



                  Appearances:         Michael  Horowitz,  Law  Office  of  Michael  

                                                                                         

                  Horowitz, Kingsley, Michigan, under contract with the Office  

                  of Public Advocacy, Anchorage, for the Appellant.  RuthAnne  

                                                                                       

                  B.  Bergt,  Assistant  Attorney  General,  Office  of  Criminal  

                                                                                        

                  Appeals,  Anchorage,  and  Jahna  Lindemuth  and  Kevin  G.  

                                                                                

                  Clarkson, Attorneys General, Juneau, for the Appellee.  



                  Before:  Allard, Chief Judge, and Suddock and E. Smith, Senior  

                                                

                  Superior Court Judges.*  

                                                   



                  Judge SMITH.  



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  



Constitution and Administrative Rule 23(a).  


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

                                                 Gareth R. Demoski appeals the superior court's dismissal of his application                                                                                                                                                      



for post-conviction relief. On                                                                            appeal, Demoski concedes that the superior court correctly  



ruled that the petition for post-conviction relief filed by Demoski's attorney was barred                                                                                                                                                                                                          



on procedural grounds.                                                                But Demoski contends that because the petition appeared to be                                                                                                                                                               



frivolous on its face, and because his attorney failed to offer any substantive explanation                                                                                                                                                                                     



for why it was not frivolous, Demoski is entitled to a remand ordering the attorney to file                                                                                                                                                                                                                    



a certificate of no merit or otherwise to cure the defect in the petition. We agree, and we                                                                                                                                                                                                                     



remand the case for further proceedings.                                                            



                        Factual and procedural background                                                         



                                                 Demoski was charged with several felonies arising from his alleged sexual                                                                                                                                                                         



assaults of three women over the course of a year.                                                                                                                                   These charges were consolidated for                                                                                        



trial.   A jury convicted Demoski of the charges relating to two of the women, but was                                                                                                                                                                                                                      



                                                                                                                                                                                                                                                         1  

unable to reach a verdict on the charges relating to the third woman.                                                                                                                                                                                         



                                                                                                                                                                                                                                                                                              

                                                 Demoski appealed his conviction to this Court, arguing that the charges  



                                                                                                                                                                                                                                                                                                          

were improperly joined in a single indictment in violation of Alaska Criminal Rule 8(a),  



                                                                                                                                                                                                                                                                                                  

and that, even if the charges were properly joined in the indictment, the trial court should  



                                                                                                                                                                                                                                                                            

have granted Demoski's motion to sever under Alaska Criminal Rule 14.  We rejected  



                                                           2  

                                                                

both arguments. 



                                                                                                                                                                                                                                                                                          

                                                 Demoski then filed a pro se applicationfor post-conviction relief. Demoski  



                                                                                                                                                                                                                                                                                                      

wasappointed counsel, whoreviewed thetrial transcripts,court files, and appellatebriefs  



             1          Demoski  v.  State,  2012  WL  4480674,  at  *1  (Alaska  App.  Sept.  26,  2012)  



(unpublished).  



            2           Id.   



                                                                                                                                                     - 2 -                                                                                                                                                 2652
  


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

 and then filed an amended application for post-conviction relief alleging ineffective                                                                                                                                                                   



 assistance of trial counsel.                                                             



                                            After this, Demoski's attorneyreviewedadditional trial files and                                                                                                                                              spokewith   



 trial counsel.  He then filed a second amended application for post-conviction relief in                                                                                                                                                                                              



 which   he   abandoned   his   ineffective-assistance-of-counsel   claim.     In   this   amended  



 application, he alleged that "Demoski's conviction was in violation of both federal and                                                                                                                                                                                         



 state constitutions, and the laws of Alaska, based on the unconstitutional joinder of the                                                                                                                                                                                         



 three separate offenses, resulting in a denial of his rights to due process of law and a fair                                                                                                                                                                                 



 trial."   The attorney's only explanation of this change was that he had "concluded, in                                                                                                                                                                                              



 good faith, that                                        the initial claims of ineffective assistance of counsel would not be                                                                                                                                                       



 successful" and that he was "doing [Demoski] no good by pursuing the ineffective                                                                                                                                                                        



 assistance of counsel angle."                                                                    



                                             The   State   moved   to   dismiss   Demoski's   second   amended   application,  



 arguing that Demoski's improper joinder claim was procedurally barred because it had                                                                                                                                                                                            



                                                                                                                                                                    3  

 been, or could have been, raised on direct appeal.                                                                                                                                                                                                              

                                                                                                                                                                          Demoski's attorney filed a skeletal  



                                                                                                                                                                                                                                                                       

 opposition that made no substantive response; instead, he simply asserted that the second  



                                                                                                                                                                                                                                             

 amended application complied with relevant state laws and court rules.  



                                                                                                                                                                                                                                                                                

                                             The superior court agreed with the State that Demoski's joinder claim was  



                                                                                                                                                                                                                                                  

 procedurally barred, and the court granted the State's motion to dismiss.  



                                                                                                                                                                                                                                                              

                                             Demoski now appeals.  On appeal, Demoski concedes that the improper  



                                                                                                                                                                                                                              

joinder argument made by his attorney was procedurally barred.   Instead, Demoski  



                                                                                                                                                                                                                                                       4 

                                                                                                                                                                                                                                                           

 argues that he is entitled to a remand under our opinion in Tazruk v. State.   We agree  



            3          See AS 12.72.020(a)(2). 
 



            4          Tazruk v. State, 67 P.3d 687 (Alaska App. 2003).
  



                                                                                                                                       -  3 -                                                                                                                                  2652
  


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

with Demoski. To explain why, we first need to discuss Alaska Criminal Rule 35.1(e)(2)                                                



                                                                                   5  

and our opinions in                Tazruk  and  Griffin v. State                  .   



                                                                                

            Criminal Rule 35.1(e)(2), Griffin, and Tazruk  



                                                                                                                                              

                       Alaska  Criminal  Rule  35.1  sets  forth  the  procedural  rules  for  post- 



                                                                                                                                         

conviction relief proceedings.  Subsection (e)(1) of Rule 35.1 provides that an indigent  



                                                                                                                                             

applicant  shall  be  appointed  counsel.                               Subsection  (e)(2)  explains  that  upon  being  



                                                                                                                                                

appointed to a post-conviction relief case, counsel has three options:  (1) counsel may  



                                                                                                                                                   

proceed  on  the  claims  alleged  in  the  original  application;  (2)  counsel  may  file  an  



                                                                                                                                                  

amended application; or (3) counsel may file a certificate of no merit stating that the  



                                                                                                                                        

claims presented in the original application have no arguable merit, and that the applicant  



                                                                                        

has no other colorable claims for post-conviction relief.  



                                                                                                                                         

                       In Griffin v. State, we held that a certificate of no merit filed under Criminal  



                                                                                                                                                  

Rule 35.1(e)(2) "must fully explain why the attorney believe[d] that the petitioner has  



                                                                                                                                                  

no colorable claim to post-conviction relief[,]" including a "full explanation of all the  



                                                                                                                                             

claims the attorney has considered and why the attorney has concluded that these claims  



                         6  

                                                                                                                                               

are frivolous."              We explained that this was necessary in order to assure that the court  



                                                                                                                                                  

could "meaningfully assess and independently evaluate the attorney's assertion that the  



                                                                              7  

                                                                                                                                                    

petitioner  has  no  arguable  claim  to  raise."                                  (This  requirement  is  now  codified  in  



                                                

Criminal Rule 35.1(e)(3).)  



                                                                                                                                                   

                       We have recognized that the procedure described in  Griffin can be an  



                                                                                                                                              

onerous one, and that an attorney might attempt to avoid this procedure by instead filing  



      5     Griffin v. State, 18 P.3d 71 (Alaska App. 2001).  



      6     Id. at 77.  



      7     Id.  



                                                                       - 4 -                                                                   2652
  


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

frivolous claims or by allowing a pro se litigant's facially inadequate application to go                                                                         



                                                        8                                                                       9  

forward without amendment.                                                                                                                                      

                                                           We faced such a situation in Tazruk.                                     Tazruk filed a pro  



                                                                                                                                                                  

se application for post-conviction relief, and his court-appointed attorney elected to  



                                                               10  

                                                                                                                                                                

                                                                   The State moved to dismiss the petition, arguing that  

proceed on the pro se application. 



                                                                                                                                                                 

Tazruk had failed to present a prima facie case. Tazruk's attorney did not respond to the  



                                                                                                                                                               

State's argument, and the superior court dismissed the petition, essentially finding that  



                                                    11  

                                           

it was deficient on its face. 



                                                                                                                                                      

                          On  appeal,  Tazruk's  appellate  attorney  did  not  challenge  the  superior  



                                                                                                                                                             

court's dismissal of his application. Instead, the attorney filed an Anders brief - a brief  



                                                                                       12  

                                                                                            

stating that the appeal had no arguable merit. 



                                                                                                                                                         

                          Weagreed with thesuperior court's conclusion that thepetitionwasfacially  



                                                                                                                                                                

deficient, but this did not end our inquiry into Tazruk's case.  We reasoned that, on the  



                                                                                                                                                               

record before us, Tazruk's post-conviction relief attorney either did not realize that  



                                                                                                                                                      

Tazruk's claims were facially inadequate, in which case Tazruk did not receive effective  



                                                                                                                                                  

assistance of counsel, or the attorney knew that Tazruk's claims were facially inadequate  



                                                                                                                                                   

and so should have filed a no-merit certificate as required by Criminal Rule 35.1(e)(2)  



                                                                                                                                                       

and Griffin.  Because "[t]he record show[ed] only the attorney's inaction and ultimate  



                                                                                                                                                              

concession of defeat," that record was "insufficient to allow the courts to carry out their  



       8     Tazruk, 67 P.3d at 694 (Coats, J., concurring).  



       9     Id. at 688.  



       10    Id. at 688-89.  



       11    In particular, the trial court found that one of the claims was factually inaccurate, one                                     



was legally inaccurate, two were unsupported by any reasons or evidence, and one (alleging        

ineffective assistance of counsel) was not accompanied by the required affidavit from the                                                                        

trial attorney.  Id. at 689-90.  



       12    Id. at 692 (Coats, J., concurring); see Anders v. California, 386 U.S. 738 (1967).  



                                                                              -  5 -                                                                         2652
  


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

constitutional  duty   to   make   sure   that   an   indigent   petitioner   receives   zealous   and  



                                         13  

competent representation."                                                                                                         

                                             We accordingly remanded the case to the superior court so  



                                                                                                          

that the attorney could file a no-merit certificate that complied with Griffin.  



                                                                                                                                   

                     Our rationale in Tazruk is not limited to cases where an attorney elects to  



                                                                                                                               

proceed on an applicant's deficient original pro se complaint.  For example, we have  



                                                                                                                                  

applied the same reasoning to a situation where counsel filed an amended application for  



                                                                                                                         

post-conviction  relief  that  was  deficient  on  its  face,  and  counsel  did  not  respond  



                                                           14  

                                                                                                                            

substantively to the State's opposition.                       We have also applied Tazruk to a case, similar  



                                                                                                                                

to  this one,  where the attorney  relied on  an  application  filed  by  the petitioner  that  



                                                                                                   15  

                                                                                                                               

appeared to be procedurally barred, without further explanation.                                       Our focus has been  



                                                                                                                                 

on whether the petition before the court was plainly deficient on its face, whether the  



                                                                                                                          

attorney sought to defend the petition, and whether the record revealed that the attorney  



                                                                                                              16  

                                                                                                                   

had investigated or analyzed the petitioner's claims or potential claims. 



     13    Tazruk, 67 P.3d at 691.  



     14    Vann v. State, 2016 WL 936765, at *1 (Alaska App. Mar. 9, 2016) (unpublished).  



     15   Duncan   v.   State,   2008   WL   5025424,   at   *3   (Alaska   App.   Nov.   26,   2008)  



(unpublished).  



     16   See id.; see also Beshaw v. State, 2012 WL 1368146, at *6 (Alaska App. Apr. 18,  



                                                                                                                     

2012) (unpublished) (counsel did nothing to remedy obvious deficiencies in a pro se PCR  

                                                                                           

application despite being provided opportunities to do so by the trial court, and the record  

                                                                                                                 

was silent as to the attorney's efforts to investigate or analyze the claims); cf. David v. State,  

                                                                                                                              

372 P.3d 265, 271 (Alaska App. 2016) (analyzing the same factors but finding relief under  

            

Tazruk not warranted);  Charley v. State, 2005 WL 2861694, at *3 (Alaska App. Nov. 2,  

2005) (unpublished) (same); Baker v. State, 2006 WL 438687, at *2-3 (Alaska App. Feb. 22,  

2006) (unpublished) (same);  Van Doren v. State, 2012 WL 1232610, at *2-3 (Alaska App.  

Apr. 11, 2012) (unpublished) (same); Alexia v. State , 2018 WL 921535, at *3-4 (Alaska App.  

Feb. 14, 2018) (unpublished) (same).  



                                                               -  6 -                                                         2652
  


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

                                         Our decision in  Tazruk  is equally applicable here. Demoski's                                                                                                                      attorney filed  



an   amended   application   that   any   competent   attorney   would   have   recognized   as  



procedurally barred.                                             When the State pointed this out, Demoski's attorney failed to                                                                                                                                 



provide any substantive response - that is, he failed to offer any argument for why the                                                                                                                                                                     



claim was not procedurally barred.                                                                               Necessarily, Demoski's attorney either failed to                                                                                              



realize that Demoski's claimwas procedurally barred, or else Demoski's attorney, aware                                                                                                                                                              



that the improper joinder argument was frivolous, should have filed a no-merit certificate                                                                                                                                              



as required by                              Griffin  and Criminal Rule 35.1(e).                                                                       As in              Tazruk, the record before us is                                                        



insufficient to assure that Demoski received zealous and competent representation. The                                                                                                                                                                    



same remand we ordered in                                                            Tazruk  is therefore necessary in this case.                                                                   



                                        We accordingly remand this case to the superior court to direct Demoski's                                                                                                                    



attorney to "provide the court with a full explanation of all of the claims the attorney has                                                                                                                                                                



                                                                                                                                                                                                                                                       17  

considered and why the attorney has concluded that these claims are frivolous."                                                                                                                                                                              If  



                                                                                                                                                                                                                                                                 

counsel provides this explanation,  the superior  court shall allow Demoski to  file a  



                                                                                                                                                                                                                                       

response and then consider the merits of the issue.  Alternatively, if counsel concludes  



                                                                                                                                                                                                                                   

there are non-frivolous claims that may be raised, he may file an amended application  



                                                                                                                            

for post-conviction relief asserting those claims.  



                                                                                                                                                                                                                                 

                    Some additional guidance to trial courts about facially frivolous post- 

                                                                       

                    conviction relief petitions  



                                                                                                                                                                                                        

                                        In  Tazruk we held that the superior court properly dismissed Tazruk's  



                                                                                                                                                                                                                                                           

petition, but we nonetheless remanded his case for further proceedings because the  



                                                                                                                                                                                                                                                         

record  was  insufficient  for  us  to  fulfill  our  constitutional  obligation  to  ensure  that  



                                                                                                                                                                                                                                                                        

indigent post-conviction relief litigants receive zealous and competent representation.  



           17        Griffin v. State, 18 P.3d 71, 77 (Alaska App. 2001);                                                                                                         see also   Alaska R. Crim. P.  



35.1(e)(3).  



                                                                                                                            -  7 -                                                                                                                      2652
  


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

We   now emphasize                                   that   this   constitutional   obligation   to   ensure   that   indigent   post- 



conviction relief litigants receive zealous and competent representation applies equally                                                                                                            



to trial courts.                       When an attorney files an application for post-conviction relief that                                                                                                 



appears to be facially defective, and when that attorney fails to offer any substantive                                                                                                   



explanation for why it is not defective, the trial court's dismissal of the application                                                                                                   



without further action leaves open the possibility that the applicant has not received                                                                                                           



                                                                             18  

effective assistance of counsel.                                                  



                                                                                                                                                                                                                  

                                 Leaving this issue unresolved can, and often does, lead to an appeal, as in  



                                                                                                                                                                                          

this case.  Such an appeal may protract resolution of the application for a substantial  



                                                                                                                                                                                                                 

time, for no good purpose - the end result may be a remand to the superior court to  



                                                                                                                                                                                                 

resolve the effective assistance of counsel issue that the trial court could have resolved  



         

far earlier.  



                                                                                                                                                                                                          

                                 Accordingly, when confronted by an application for post-conviction relief  



                                                                                                                                                                                                            

that appears to  be facially  deficient,  and  when  the attorney  has failed  to  offer  any  



                                                                                                                                                                                             

substantive explanation for why the application is not facially deficient, we encourage  



                                                                                                                                                                                                                  

trial judges to hold a hearing to determine whether the applicant's attorney will elect to  



                                                                                                                               

cure the defect, or instead to file a certificate of no merit.  



                 Conclusion  



                                                                                                                                                       

                                 The decision of the trial court is REMANDED to the superior court.  On  



                                                                                                                                                                                          

remand, Demoski's attorney shall provide the superior court with a detailed explanation  



         18     A petition that is "plainly deficient on its face" generally will fall into one or more of                                            



the following narrow categories:  1) the claims clearly are procedurally barred; 2) the claims                                                                         

clearly are factually inaccurate (as in                                               Tazruk); 3) the claims are unsupported by any evidence                                                      

or argument; or 4) the petition alleges ineffective assistance of counsel, but does not contain   

either the required affidavit from trial counsel or an explanation as to why the affidavit could                                                                            

not be obtained.  



                                                                                                     -  8 -                                                                                                2652
  


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

of why he concluded that Demoski's claims had no arguable merit.  If it appears to the  

                                                                                                                                



superior court that Demoski's attorney reached this conclusion without a competent  

                                                                                                                     



investigation of the case, the superior court shall vacate its dismissal of Demoski's  

                                                                                                                    



petition and shall appoint a new attorney to represent Demoski.   If it appears to the  

                                                                                                                                



superior court that Demoski's attorney did engage in a competent investigation of the  

                                                                                                                                



case and reasonably concluded that Demoski had no colorable claim for post-conviction  

                                                                                                             



relief, the superior court shall allow Demoski to respond and argue to the contrary.  The  

                                                                                                                                



superior court shall notify us of its findings and actions within 120 days of the issuance  

                                                                                                                        



of this opinion.  This deadline can be extended for good cause.  We retain jurisdiction  

                                                                                                                    



of this appeal.  

            



                                                               -  9 -                                                         2652
  

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