Appeal from the Superior Court, Fourth Judicial District, Bethel, Charles W. Ray, Jr., Judge. Trial Court No. 4BE-11-229 CI.
Norman Wassilie, in propria persona, Kenai, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Tracey Wollenberg, Deputy Public Defender, and Quinlan Steiner, Public Defender, Anchorage, appearing as amicus curiae. Beth Goldstein, Deputy Public Advocate, and Richard Allen, Public Advocate, Anchorage, appearing as amicus curiae.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.[*]
Norman Wassilie litigated a petition for post-conviction relief in the superior court. He was initially represented by an attorney from the Public Defender Agency. But after the assistant public defender investigated Wassilie's case, he filed a certificate of " no arguable merit" under Alaska Criminal Rule 35.1(e)(2). In other words, Wassilie's attorney told the superior court that, after investigating Wassilie's potential claims for post-conviction relief, the attorney concluded that Wassilie had no colorable claims to raise, and that the court should dismiss Wassilie's petition.
The superior court gave Wassilie an opportunity to respond to his attorney's certificate of no arguable merit, but Wassilie did not file a response. Pursuant to Criminal Rule 35.1(f)(2),
the superior court then dismissed Wassilie's petition and allowed the Public Defender Agency to withdraw from further representation of Wassilie.
After the superior court dismissed his case, Wassilie sent a personal letter to the Alaska Supreme Court, questioning the validity of the superior court's action. The Appellate Court Clerk's Office brought Wassilie's letter to this Court's attention, since it pertained to post-conviction relief litigation, a matter within this Court's jurisdiction. See AS 22.07.020(a)(2).
This Court concluded that Wassilie's letter amounted to a notice of appeal. We then issued an order asking the State, the Public Defender Agency, and the Office of Public Advocacy to file legal memoranda addressing the following questions:
1. When an attorney representing an indigent defendant in a post-conviction relief action is allowed to withdraw after filing a certificate of no arguable merit, does the attorney nevertheless have a continuing obligation to ascertain whether the defendant wishes to appeal the court's dismissal of the petition -- and an obligation to file the initial appellate documents if the defendant wishes to pursue an appeal?
2. When an indigent defendant's petition for post-conviction relief has been dismissed after their attorney filed a certificate of no arguable merit, and the defendant (or an attorney on the defendant's behalf) initiates an appeal, does the defendant have the right to counsel at public expense to assist them in pursuing the appeal?
3. If so, which agency should provide the attorney?
The three criminal justice agencies have filed their memoranda, so we now turn to the merits of these three questions.
Even after the superior court dismissed Wassilie's petition and allowed Wassilie's attorney to withdraw pursuant to Criminal Rule 35.1(f)(2), the attorney had a remaining obligation to ascertain whether Wassilie wished to appeal -- and, if so, to initiate an appeal on his behalf
Alaska Criminal Rule 35.1 specifies the procedures that govern post-conviction relief litigation. Subsection (e) of this rule contains special provisions that apply to attorneys who are appointed to represent indigent defendants.
Under Criminal Rule 35.1(e), a court-appointed attorney has 60 days to either (1) tell the trial court what specific claims the defendant will pursue, or (2) file a certificate stating that the attorney has fully investigated the defendant's case and has concluded that there is no arguable merit to any claims the defendant might raise.
The next subsection of Criminal Rule 35.1 -- subsection (f) -- specifies what a trial court must do if the defendant's court-appointed attorney files a " no arguable merit" certificate. Under subsection (f), the trial court must independently evaluate the attorney's assertion that there are no colorable claims to be raised. If the court believes that the attorney's assessment is correct, the court must notify the prosecutor and the defendant (personally) that the court intends to dismiss the defendant's petition unless either the State or the defendant shows some good reason not to do so.
The court must then give the State and the defendant an opportunity to respond to the proposed dismissal of the case. Rule 35.1(f)(2) specifies that if the defendant files no response, or if the defendant files a response that does not alter the court's assessment, " the court shall permit [the defendant's court-appointed] ...