Notice: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBERT O. MILLER, )
) Court of Appeals No. A-4952
Appellant, ) Trial Court No. 3AN-S93-3520CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1311 - August 27, 1993]
)
Petition for Review from the Superior Court,
Third Judicial District, Anchorage, Rene J.
Gonzalez, Judge.
Appearances: Robert O. Miller, pro se,
Seward. Richard W. Maki, Assistant District
Attorney, Edward E. McNally, District
Attorney, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Robert O. Miller was convicted of burglary and assault
in 1988 upon his plea of no contest. On April 20, 1993, Miller
filed a pro se application for post-conviction relief. In his
application, Miller alleged that the state obtained his
conviction because he had received ineffective assistance of
counsel. Miller filed an affidavit of indigency, requested the
court to waive filing fees and costs, and asked the court to
appoint counsel for him to represent him on his application for
post-conviction relief.
On May 10, 1993, Superior Court Judge Rene J. Gonzalez
gave notice to Miller that the court intended to dismiss Miller's
application unless Miller filed an application which complied
with the procedural requirements of Alaska Criminal Rule 35.1 and
which made out a prima facie case of ineffective assistance of
counsel under the requirements of State v. Jones, 759 P.2d 558,
570 (Alaska App. 1988). Judge Gonzalez stated that he would not
appoint counsel for Miller until Miller's application met those
procedural requirements. Miller filed a petition for review from
Judge Gonzalez's order in this court. The state has opposed the
petition. We grant the petition and reverse the decision of the
superior court.
In its opposition to Miller's petition for review, the
state cites Criminal Rule 35.1(e), which provides in relevant
part:
Where the court determines that the
application shall not be summarily disposed
of on the pleadings and record pursuant to
subdivision (f) of this rule, but that the
issues raised by the application require an
evidentiary hearing, counsel shall be
appointed to assist indigent applicants.
Judge Gonzalez's decision refusing to appoint counsel
for Miller conforms to the literal provisions of Criminal Rule
35.1(e). Despite the provisions of this rule, however, the
Alaska Supreme Court has determined that an indigent applicant
for post-conviction relief is entitled to court-appointed counsel
"at the time the initial application is filed." Donnelly v.
State, 516 P.2d 396, 399 (Alaska 1973) (footnote omitted).
Accord Roberts v. State, 751 P.2d 507, 507-08 (Alaska App. 1988);
Hampton v. Huston, 653 P.2d 1058, 1059 (Alaska App. 1982). It
does not appear to be disputed that Miller was financially
eligible for court-appointed counsel. Miller's application
appears to be a substantial effort to comply with Criminal Rule
35.1.1 It appears that he has reached the position where "[o]nly
the presence of counsel will assure that meritorious claims will
be fairly presented and full advantage taken of the procedures
and investigation contemplated by the rule." Donnelly, 516 P.2d
at 399. We therefore conclude that Miller was entitled to the
appointment of counsel.
The order of the superior court giving notice of its
intent to dismiss is VACATED. This case is REMANDED with
directions that the superior court appoint counsel to represent
Miller in pursuing his application for post-conviction relief.
_______________________________
1. Apart from the provisions of Criminal Rule
35.1(e), Criminal Rule 35.1(d) authorizes the court to return
"applications which are incomplete. . . ." This provision
appears to be aimed at the type of technical incompleteness that
could be readily corrected by pro se applicants. We do not
construe Donnelly to require appointment of counsel prior to the
return of an application that is incomplete in this sense.
