Powell v. State, 012420 AKCA, A-12595

Docket Nº:A-12595
Opinion Judge:ALLARD JUDGE.
Party Name:STEVEN BRADLEY POWELL, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Gavin Kentch, Law Office of Gavin Kentch, LLC, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Judge Panel:Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
Case Date:January 24, 2020
Court:Court of Appeals of Alaska




No. A-12595

Court of Appeals of Alaska

January 24, 2020

Appeal from the Superior Court No. 3AN-04-08034 CI, Third Judicial District, Anchorage, Mark Rindner, Judge.

Gavin Kentch, Law Office of Gavin Kentch, LLC, Anchorage, for the Appellant.

Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.



Nearly ten years after the superior court dismissed his application for post-conviction relief as time-barred, Steven Bradley Powell filed a motion under Alaska Civil Rule 60(b) seeking to reopen his post-conviction relief case on the ground that recent case law had shown the dismissal to be erroneous. Powell sought relief under Rules 60(b)(4), (b)(5), and (b)(6). The superior court denied him relief. Powell now appeals. For the reasons explained here, we affirm the superior court's judgment.

Background facts and prior proceedings

In 2000, Powell was convicted, following a jury trial, of two counts of first degree assault, one count of reckless endangerment, and one count of driving while intoxicated for causing a serious multi-vehicle collision while driving drunk.1 At sentencing, Powell received a composite sentence of 26 years to serve.2 Powell appealed his sentence as excessive to this Court, and we affirmed the sentence.3 Powell did not appeal his convictions.

In 2004, two months after his sentence appeal became final, Powell filed an application for post-conviction relief, alleging ineffective assistance of trial counsel. Specifically, Powell alleged that his trial counsel had incompetently failed to timely inform him of a favorable plea offer extended by the State.

The State moved to dismiss the application as procedurally deficient because Powell had failed to provide a signed affidavit from his trial counsel. The State also moved to dismiss the application as time-barred. The dispute over timeliness centered on the legal question of whether Powell's sentence appeal qualified as an "appeal" for purposes of AS 12.72.020(a)(3)(A), which sets out the time limits for post-conviction relief applications under Alaska law.

Under the version of AS 12.72.020(a)(3)(A) applicable to Powell, a defendant could not bring a post-conviction relief claim "if the later of the following dates ha[d] passed": if the claim relates to a conviction, two years after the entry of the judgment of the conviction, or if the conviction was appealed, one year after the court's decision is final under the Alaska Rules of Appellate Procedure.4

Relying on dicta in an unpublished case, 5 the State argued that Powell was subject to the two-year deadline because Powell had appealed his sentence but not his conviction.

The superior court agreed with this reasoning and dismissed Powell's post-conviction relief application as untimely. Powell initially appealed the dismissal to this Court. However, Powell failed to pursue the appeal, and it was ultimately dismissed by the clerk's office.

In November 2006, approximately five months after his appeal was dismissed for failure to prosecute, Powell filed a second application for post-conviction relief. In his second application for post-conviction relief (which was filed pro se), Powell alleged that his first post-conviction relief attorney was ineffective for, inter alia, failing to follow through on the appeal of the dismissed post-conviction relief action. Powell requested that an attorney be appointed to assist him with his second application for post-conviction relief under Grinols v. State.6 The superior court denied this request and dismissed Powell's second post-conviction relief application as barred by res judicata.[7] Powell did not appeal the dismissal of his second post-conviction relief application.

Our decision in Geisinger v. State

Seven years later, in 2014, this Court issued a decision in Geisinger v. State.8 Like Powell, Geisinger had appealed his sentence but not his conviction, and had applied for post-conviction relief several months after his sentence appeal became final.9Also like Powell, Geisinger's application was dismissed as untimely on the ground that his sentence appeal did not qualify as an "appeal" for purposes of AS 12.72.-020(a)(3)(A).10 However, unlike Powell, Geisinger diligently pursued an appeal of this ruling to this Court.

On appeal, the State conceded error, acknowledging that the phrase "the conviction was appealed" under AS 12.72.020(a)(3)(A) applied to appeals raising both sentence and merit claims.11 We found this concession well-taken, and we held that, pursuant to AS 12.72.020(a)(3)(A), "a defendant who appeals his sentence or his conviction, or both, has one year from the date the decision on appeal is final to file an application for post-conviction relief."12 Thus, Geisinger's post-conviction relief application was timely filed and should not have been dismissed.

Approximately eighteen months after Geisinger was decided, Powell filed a motion under Civil Rule 60(b) in his original 2004 post-conviction relief case, seeking relief based on the recent change in decisional law.

Alaska Civil Rule 60(b) authorizes a court to relieve a party from "a final judgment, order, or proceeding" for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect;

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(6) any other reason justifying relief from the operation of the judgment.

A motion under Rule 60(b) must be made "within a reasonable time" and "for reasons (1), (2) and (3) not more than one year after the date of notice of the judgment or orders as defined in Civil Rule 58.1(c)."13

In the current case, Powell sought relief under Rules 60(b)(4) ("the judgment is void"); (b)(5) ("it is no longer equitable that the judgment should have prospective application"); and (b)(6) (the catchall provision). Powell did not seek relief under Rule 60(b)(1), (b)(2), or (b)(3), and he expressly acknowledged that any claims under those subsections would fall outside the one-year deadline and would not be timely.

The superior court denied Powell's Rule 60(b) motion, primarily on the ground that Powell was misusing Rule 60(b) as a "substitute for the appeal he never perfected." The court also addressed and rejected each of the three subsections Powell had relied on, ruling that the original judgment was not void, that the original judgment did not have prospective application, and that the equities did not weigh in favor of granting Powell relief under the catchall provision.

This appeal followed.

Alaska Civil Rule 60(b) and post-conviction relief litigation

In McLaughlin v. State, this Court held that a defendant could not use a Civil Rule 60(b) motion to circumvent the applicable statute of limitations on post-conviction relief applications (as laid out in AS 12.72.020).14 Our decision in McLaughlin is sometimes misread as standing for the proposition that a defendant can never file a Rule 60(b) motion in a post-conviction relief case. But this is too expansive a reading of McLaughlin.

Alaska Statute 12.72.010 and Alaska Criminal Rule 35.1 govern post-conviction relief litigation under Alaska law. CriminalRule35.1(g) provides, in relevant part, that "[a]ll rules and statutes applicable in civil proceedings . . . are available to the parties except that Alaska Rule of Civil Procedure Rule 26(a)(1)-(4) [defining procedures for mandatory disclosures] does not apply to post-conviction relief proceedings." Thus, as a general matter, Civil Rule 60(b) motions can be filed in post-conviction relief proceedings.

However, their role is limited. In McLaughlin, the defendant tried to use a Rule 60(b) motion to initiate litigation of post-conviction relief claims that would otherwise have been time-barred.15 We held that this use was foreclosed by AS 12.72 and Criminal Rule 35.1, which were intended to be the sole means of collaterally attacking a criminal conviction.16

As Judge Mannheimer noted in his concurrence in McLaughlin, other...

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