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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


         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

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                                                                    Court of Appeals No. A-12620  

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


                                                                               O P I N I O N 


                                    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                                                                                                                                                                                                                      


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  



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)  


            2           Id.   

                                                                                                                                                     - 2 -                                                                                                                                                 2652

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 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                                                                                                                                                                                            


 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  



 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

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


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  



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  



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

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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  



                                                                   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  



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  



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  


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  



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  



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  



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)  


     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                                                                                                                                                                


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.  


                                                                                                                            -  7 -                                                                                                                      2652

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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                                                                                                           


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.  



                                 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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