GARETH R. DEMOSKI, Appellant,
STATE OF ALASKA, Appellee.
from the Superior Court, Fourth Judicial District, Fairbanks,
Trial Court No. 4FA-13-01862 CI Bethany S. Harbison, Judge.
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. [*]
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
and procedural background
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
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
then filed a pro se application for post-conviction relief.
Demoski was appointed counsel, who reviewed the trial
transcripts, court files, and appellate briefs and then filed
an amended application for post-conviction relief alleging
ineffective assistance of trial counsel.
this, Demoski's attorney reviewed additional trial files
and spoke with 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
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
superior court agreed with the State that Demoski's
joinder claim was procedurally barred, and the court granted
the State's motion to dismiss.
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 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.
Rule 35.1(e)(2), ...