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Demoski v. State

Court of Appeals of Alaska

August 23, 2019

GARETH R. DEMOSKI, Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal 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. [*]

          OPINION

          SMITH, JUDGE

         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.[1]

         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.[2]

         Demoski 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.

         After 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 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.[3] 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[4] 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. State.[5]

         Criminal Rule 35.1(e)(2), ...


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