Sanderson v. State, 020520 AKCA, A-13332

Docket Nº:A-13332
Opinion Judge:WOLLENBERG Judge.
Party Name:JAMES H. SANDERSON, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Dan Bair, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Judge Panel:Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
Case Date:February 05, 2020
Court:Court of Appeals of Alaska
 
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JAMES H. SANDERSON, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-13332

Court of Appeals of Alaska

February 5, 2020

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Fourth Judicial District, Trial Court No. 4FA-16-02814 CI Fairbanks, Paul R. Lyle, Judge.

Dan Bair, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.

Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.

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

MEMORANDUM OPINION

WOLLENBERG Judge.

James H. Sanderson appeals the dismissal of his application for post-conviction relief. The superior court dismissed Sanderson's application after his post-conviction relief attorney filed a certificate of "no arguable merit" under Alaska Criminal Rule 35.1(e)(2)(C).

On appeal, Sanderson argues that the attorney's certificate was deficient and that the superior court erred in accepting it. The State concedes error. We have independently reviewed the record, and we conclude that the State's concession is well founded.1 We therefore vacate the dismissal of Sanderson's application for post-conviction relief and remand for further proceedings.

Underlying facts

In 2011, Sanderson was indicted on one count of first-degree sexual assault.2 In June 2012, Sanderson and the State entered into a plea agreement to resolve Sanderson's case. Pursuant to the agreement, Sanderson pleaded guilty to one count of attempted second-degree sexual assault, 3 and he received an agreed-upon sentence of 15 years with 7 years suspended (8 years to serve), with a 10-year term of probation.

In December 2016, Sanderson filed a pro se application for post-conviction relief, alleging that his trial attorney provided deficient representation and stating that he was "wrongfully convicted." At Sanderson's request, the court appointed an attorney to assist Sanderson in litigating his post-conviction relief application.

Sanderson's post-conviction attorney requested and received multiple extensions of time to investigate Sanderson's claims. In one of these motions, an associate in the attorney's law firm explained that "[w]hile we have obtained an affidavit from Mr. Sanderson and formulated an amended application, an additional avenue of investigation has come up that requires time to complete." On several occasions, the attorneys in the firm stated that they were still seeking an affidavit from Sanderson's prior attorney. And in the final request for a continuance, one of the attorneys advised the court that additional time was necessary to determine whether to file an amended application for post-conviction relief or a certificate of no arguable merit.

Ultimately, Sanderson's attorney filed a certificate asserting that the claims Sanderson presented in his application had "no arguable merit" and that "there are no other colorable claims for post-conviction relief."4 The attorney did not indicate whether he had communicated with Sanderson's trial attorney directly, nor did he provide more than a cursory explanation of the factual or legal issues presented by the case, the specific claims he had considered, or the investigation he had undertaken, as required by Alaska Criminal Rule 35.1(e)(3).

Sanderson's post-conviction attorney also asserted that, regardless of whether he could establish a prima facie case of ineffective assistance of counsel, Sanderson's application was time barred under AS 12.72.020(a)(3)(A) because it was filed more than eighteen months after the entry of his judgment of conviction. The attorney conclusorily stated that none of the statutory tolling provisions in AS 12.72.020(b) applied-there was no evidence suggesting that Sanderson's delay in filing was "due to a mental disease or defect" or "due to conduct on the part of an agent of the State," nor was there "newly discovered" evidence implicated in his claims. The certificate did not address the reasons why Sanderson did not file the application earlier, nor did it discuss any possible non-statutory exceptions to the limitation period.

After receiving the certificate of no arguable merit, the superior court issued a preliminary order...

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