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Tazruk v. State (4/11/2003) ap-1865
Tazruk v. State (4/11/2003) ap-1865
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
HUGH R. TAZRUK, )
) Court of Appeals No.
A-8284
Appellant, )
Trial Court No. 4FA-01-1731 Civ
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1865 April 11, 2003]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Mary E. Greene,
Judge.
Appearances: David K. Allen, Assistant
Public Advocate, Fairbanks, and Brant G.
McGee, Public Advocate, Anchorage, for
Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, concurring.
Hugh R. Tazruk appeals the superior courts dismissal of
his petition for post-conviction relief. Based on the record,
the superior court was completely justified in dismissing Tazruks
petition because Tazruk failed to present a prima facie case that
he was entitled to relief.
The only real issue in this case is the possibility
that Tazruk received ineffective assistance of counsel in the
investigation and preparation of his petition for post-conviction
relief. Normally, an appellate court will not consider claims of
ineffective assistance for the first time on appeal because, in
most instances, the appellate record is inadequate to allow us to
meaningfully assess the competence of the attorneys efforts. But
Tazruks case is atypical. As we explain here, the record of the
proceedings in the superior court establishes a prima facie case
that Tazruk received ineffective assistance. We must therefore
remand Tazruks case to the superior court for further
investigation of this issue.
The proceedings in the superior court
In January 2000, Tazruk was convicted of
third-degree sexual assault. Eighteen months later, in
July 2001, Tazruk filed a pro se petition for post-
conviction relief. Because he was indigent, the Office
of Public Advocacy was appointed to represent him in
this post-conviction relief litigation.
As we explained in Griffin v. State, 18 P.3d
71 (Alaska App. 2001), when an attorney is appointed to
represent an indigent petitioner for post-conviction
relief, the attorney must do one of three things: (1)
elect to go forward on the petition in its current form
(i.e., as drafted by the client); or (2) draft and file
an amended petition; or (3) explain to the court in
detail why the petitioner has no colorable claims for
relief. Griffin, 18 P.3d at 77, construing Alaska
Criminal Rule 35.1(e)(2).
Assistant Public Advocate David K. Allen, the
attorney appointed to represent Tazruk, chose to follow
the first path: he gave notice that he intended to
proceed on the claims contained in Tazruks existing
petition.
Three months later, the State moved to
dismiss Tazruks petition in its entirety. The State
argued that Tazruk had failed to present a prima facie
case with respect to any of the claims contained in his
petition. In response, Mr. Allen filed a notice that
he [would] not be filing an opposition to the States
motion to dismiss. However, he reminded the superior
court that [t]he court must make an independent
determination of the merits of the States motion.
Superior Court Judge Mary E. Greene
subsequently issued a three-page order dismissing
Tazruks petition for post-conviction relief. In her
order, Judge Greene reviewed Tazruks five claims and,
with respect to each one, she concluded that Tazruk had
failed to present a prima facie case.
Tazruks first claim was that his pre-sentence
report falsely stated that Tazruk had previously been
convicted of sexual assault and that, as a result,
Tazruks sentence was enhanced based on this purported
prior conviction. But, as Judge Greene explained in
her decision, the pre-sentence report did not state
that Tazruk had previously been convicted of sexual
assault. Rather, the pre-sentence report contained
information about two prior assaults that had not been
prosecuted. As Judge Greene noted, the ... report was
clear that the two prior events had not resulted in
convictions. Judge Greene further noted that Tazruk
might have challenged the allegations of the two prior
sexual assaults1, but he failed to do so.
Moreover, Judge Greene explained, the two
prior sexual assaults were not used as prior
convictions; that is, they were not used as the basis
for subjecting Tazruk to a more severe presumptive
term. Instead, they were used to establish aggravating
factor AS 12.55.155(c)(21) i.e., to prove that Tazruk
had a history of criminal acts similar to the one for
which he was convicted. And, as Judge Greene noted,
convictions are not necessary to establish this
aggravating factor. See Turpin v. State, 890 P.2d
1128, 1132 (Alaska App. 1995).
Tazruks second claim was that there was newly
discovered evidence tending to show his innocence.
But, as Judge Greene noted, Tazruk based his claim on
information contained in the police report in his case.
Thus, as a matter of law, Tazruks evidence was not
newly discovered.2
Tazruks third claim was that his conviction
was subject to collateral attack. But Tazruk failed to
articulate a particular reason why this was so, and he
failed to present any evidentiary basis for this claim.
Thus, Judge Greene concluded that Tazruk had failed to
present a prima facie case.
Tazruks fourth claim was that he should be
allowed to withdraw his plea. But again, Tazruk failed
to articulate a particular reason why this was so, and
he failed to present any evidentiary basis for this
claim. Again, Judge Greene concluded that Tazruk had
failed to present a prima facie case.
Finally, Tazruk claimed that he received
ineffective assistance of counsel from the Public
Defender Agency during the investigation and
negotiation of his case, leading up to Tazruks decision
to plead no contest to sexual assault. But Tazruk
never submitted an affidavit from his trial attorney,
nor did he offer an explanation of why his attorneys
affidavit could not be obtained. As Judge Greene
noted, this Court has repeatedly held that a defendant
claiming ineffective assistance of counsel must present
an affidavit from their former attorney (addressing the
allegations of attorney error) or explain why they can
not obtain their attorneys affidavit.3 Thus, Judge
Greene ruled that Tazruk had failed (as a matter of
law) to present a prima facie case of ineffective
assistance of counsel.
Having concluded that Tazruk had failed to
present a prima facie case with respect to any of his
claims, Judge Greene dismissed Tazruks petition for
post-conviction relief.
The proceedings in this appeal
After Judge Greene dismissed Tazruks
petition, Allen filed an appeal on Tazruks behalf. But
in his brief, Allen concedes that Judge Greenes
decision was correct. He declares that, given the
record in this case and given the established Alaska
law governing petitions for post-conviction relief, no
non-frivolous argument can be made against Judge
Greenes ruling.
We agree. It is obvious that Tazruk failed
to establish a prima facie case for any of his claims.
Thus, on the record before her, Judge Greene properly
dismissed Tazruks petition.
The possibility that Tazruk received ineffective
assistance of counsel in the litigation of his petition
for post-conviction relief
As explained above, Tazruk filed a pro se
petition for post-conviction relief and, because he was
indigent, the superior court appointed an attorney to
represent him. Under Alaska Criminal Rule 35.1(e), an
attorney appointed to represent an indigent petitioner
must do one of three things: (1) elect to go forward
on the petition as drafted by the client, (2) draft and
file an amended petition, or (3) certify to the
superior court that the petitioner has no colorable
claim for relief.
In Griffin, we concluded that this third
course of action was inadequate to protect an indigent
petitioners right to effective assistance of counsel.
We held that, instead of merely filing a certificate
that the petitioner had no colorable claims, the
attorney was obliged to provide the superior court with
a detailed explanation of why the petitioner had no
colorable claims.4
Our decision in Griffin was based in large
measure on the federal Constitution specifically, the
United States Supreme Courts ruling in Smith v.
Robbins5 regarding a courts duty to protect an indigent
defendants right to counsel. We concluded that if we
did not interpret Criminal Rule 35.1(e)(2) to require a
detailed explanation from the petitioners attorney, the
superior court would not be able to comply with its
duty under Smith v. Robbins to make sure that the
petitioner received zealous and competent
representation.6
Tazruks attorney did not pursue this third
course. Instead, he chose the first course declaring
that he would go forward on the claims drafted by
Tazruk. But, as explained above, all of the claims
listed in Tazruks petition were either (1) facially
meritless or, at best, (2) facially inadequate to
survive a motion to dismiss. When the State pointed
this out (in its motion to dismiss the petition),
Tazruks attorney did not seek leave to amend or
supplement these claims, nor did he ask for further
time to investigate the claims and (potentially) adduce
more evidence to support them. Instead, Tazruks
attorney announced that he had nothing to say in
opposition to the States motion.
The attorneys work on Tazruks behalf in this
litigation appears to be the post-conviction-relief
equivalent of a tactic in criminal prosecutions
colloquially known as a slow plea. In a slow plea, a
defendant charged with a crime persists in a plea of
not guilty but then does nothing to defend the charge
at trial allowing the States evidence to come in
unchallenged and unrebutted, and then simply waiting
for the inevitable adverse verdict.7
What happened in Tazruks case is seemingly
analogous. From the record of the proceedings in the
superior court, it appears possible that when Tazruks
attorney endorsed the claims contained in Tazruks pro
se petition, he knew that these claims were all subject
to dismissal, and he simply waited until the State got
around to asking for judgement on the pleadings a
motion that he did not oppose.
If this is indeed what happened, then either
(1) Tazruk did not receive effective assistance of
counsel or, alternatively, (2) Tazruks case presents
the same constitutional problem that we addressed in
Griffin.
Even if we assume that Tazruk did receive
effective assistance that is, even if we assume that a
zealous and competent attorney could have done nothing
more to advance Tazruks claims the fact remains that
the record contains no indication that Tazruks attorney
ever investigated these claims, sought to adduce
support for them through discovery, or sought to
reformulate them so that they might survive a motion to
dismiss. The record shows only the attorneys inaction
and ultimate concession of defeat. As was true in
Griffin, such a record is insufficient to allow the
courts to carry out their constitutional duty to make
sure that an indigent petitioner receives zealous and
competent representation.
We hasten to add that an attorneys decision
to adopt the claims stated in their clients existing
petition for post-conviction relief does not
necessarily bespeak attorney inattention or neglect.
One can easily imagine circumstances in which, even
though the attorney adopts their clients statement of
post-conviction relief claims, the attorney vigorously
pursues those claims through discovery and, in some
cases, trial. In such instances, it may turn out
after all the evidence is discovered and heard that
the attorney will be forced to concede that the
petitioners claims are no longer arguable. Or, even if
the evidence is arguable, the attorney may be forced to
concede on appeal that the superior courts resolution
of the pertinent factual disputes was not clearly
erroneous. In such cases, the fact that the attorney
adopted the petitioners statement of claims, and even
the fact that the attorney ultimately conceded that
there was no legal basis for attacking the superior
courts dismissal of the petition, would be perfectly
compatible with the attorneys competent representation
of the petitioners interests.
But in Tazruks case, there is no record that
the attorney did anything to pursue or develop Tazruks
claims. We do not know whether the attorney actually
investigated these claims or otherwise worked to
develop them; if he did, there is no record of it. And
because of this silent record, we are faced with a
Griffin problem. We do not know and have no way of
assessing whether the attorney zealously represented
Tazruks interests.
Accordingly, we must remand Tazruks case to
the superior court. Tazruks attorney must provide the
superior court with a detailed explanation of why he
concluded that Tazruks claims had no arguable merit.
If it appears to the superior court that Tazruks
attorney reached this conclusion without competent
investigation of the case, the superior court shall
vacate its dismissal of Tazruks petition and shall
appoint a new attorney to represent Tazruk. If it
appears to the superior court that Tazruks attorney did
engage in competent investigation of the case and
reasonably concluded that Tazruk had no colorable claim
for post-conviction relief, the superior court shall
nevertheless allow Tazruk to respond and argue the
contrary. See Criminal Rule 35.1(f).
We again emphasize that we do not view an
attorneys decision to adopt their clients pre-existing
claims for post-conviction relief as prima facie
evidence of attorney incompetence or lack of zeal on
their clients behalf. But in Tazruks case, his claims
were plainly insufficient as written, and yet his
attorney adopted those claims without revision.
Moreover, the record offers no indication that the
attorney did anything to investigate or otherwise
pursue those claims. And finally, Tazruks attorney
failed to oppose the States motion for judgement on the
pleadings. Given this combination of facts and events,
we must require the same explanation from Tazruks
attorney that we required of the attorney in Griffin.
This case is REMANDED to the superior court
for the additional proceedings described above. The
superior court shall notify us of its findings and
actions within 45 days of the issuance of this opinion.
We retain jurisdiction of this appeal.
COATS, Chief Judge, concurring.
A person who is convicted of a crime in
Alaska has the right to apply for post-conviction
relief.1 If indigent, the person is entitled to court-
appointed counsel to investigate and litigate the post-
conviction relief application.2 If the court dismisses
the application for post-conviction relief, the person
is entitled to the assistance of court-appointed
counsel to appeal that decision.3
In the present case, Tazruks counsel filed a
brief with this court in which he concedes that Tazruk
had no non-frivolous argument [that] can be made
against the trial judges application of current Alaska
law. He states that the brief is filed pursuant to the
procedure described by the United States Supreme Court
in Anders v. California . . .4
In Griffin v. State,5 we discussed the Anders
procedure and how it has been modified by the United
States Supreme Court. Although under federal law the
Anders procedure applies to an indigents first appeal
from his conviction, the principles also apply to an
indigents appeal of the denial of a post-conviction
relief application in Alaska because any indigent is
entitled to counsel for such an appeal. Under the
principles espoused by Anders and subsequent supreme
court decisions, we are not to allow an attorney to
withdraw from a case and dismiss the clients appeal
until we have independently assessed the case and
reached the conclusion that the appeal is
frivolous.6 Our independent review of Tazruks case has
led us to the conclusion that we cannot ascertain
whether Tazruk has received effective assistance of
counsel and whether Tazruk has no non-frivolous issues
that he could raise in a post-conviction relief
application.
Tazruk, pro se, filed his application for
post-conviction relief setting out several claims. It
is obvious from reading Tazruks application that,
standing alone, it did not state any ground that would
be sufficient to state a claim for post-conviction
relief. Yet Tazruks counsel gave notice under Criminal
Rule 35.1(e)(2)(A) that he would proceed on the
original pro se application. When the State moved to
dismiss, Tazruks counsel did not oppose the States
motion. Although he was basically conceding the merits
of the States motion, Tazruks attorney pointed out that
the court had an independent duty to determine the
merit of the States motion.
Judge Greene dismissed Tazruks application,
stating that Tazruk had failed to make a prima facie
showing of entitlement to relief. On appeal, Tazruks
attorney filed an Anders brief in which he stated that
no non-frivolous argument can be made against the trial
judges application of current Alaska law. The State
filed a brief also arguing that the trial court had
properly determined that all of Tazruks claims were
frivolous.
It seems apparent to me on this record that
Tazruks counsel reviewed Tazruks application for post-
conviction relief and concluded that all of Tazruks
claims were frivolous. No competent attorney, looking
at Tazruks application for post-conviction relief,
could conclude that this application, without some
development of the issues, would survive a motion to
dismiss. Faced with this situation, a competent
attorney is required to review the facts and law
underlying the defendants application to determine if
there are any potential grounds for relief. In the
event that Tazruks counsel concluded that there were no
non-frivolous claims to raise on Tazruks behalf, he was
obligated to comply with Criminal Rule 35.1(e)(2)(B).
That procedure, which we discussed in Griffin,7 sets
out procedures designed to protect an indigents right
to the assistance of counsel in an application for post-
conviction relief. Rule 35.1(e)(2)(B) requires counsel
to file a certificate stating that the attorney:
(i) does not have a conflict of
interest;
(ii) has completed a review of the
facts and law in the underlying
proceedings or action challenged in
the application;
(iii) has consulted with the
applicant and, if appropriate, with
trial counsel; and
(iv) has determined that the
application does not allege a
colorable claim for relief.
In Griffin we concluded that the fourth
clause required an attorney to explain his
representation.8 We pointed out that Criminal Rule
35.1(f)(2) required the court, when an indigent
applicants attorney filed a no merit certificate, to
independently assess whether it appears . . . that the
applicant is not entitled to relief.9 In order to
allow the court to perform this duty, the attorney
seeking to withdraw must provide the court with an
explanation of the claims he considered and why he
considered the claims to be frivolous:
In order for the court to perform
its role under Rule 35.1(f)(2) and
thereby fulfill its duty to make
sure that indigent litigants do in
fact receive zealous investigation
and presentation of any colorable
claims for post-conviction relief
the attorney seeking to withdraw
from the case must provide the
court with a full explanation of
all the claims the attorney has
considered and why the attorney has
concluded that these claims are
frivolous. Only then can the court
meaningfully assess and
independently evaluate the
attorneys assertion that the
petitioner has no arguable claim to
raise.[10]
It is obvious that the Griffin procedure
requires a substantial effort on the part of an
attorney who determines that his clients claims are
frivolous. And, from the record in this case, it seems
obvious to me that Tazruks counsel wanted to avoid this
procedure. Among other things, in his brief, after
summarily conceding that Tazruk had no non-frivolous
arguments, counsel devotes the majority of his opening
brief to arguing that we should not extend Griffin to
situations where counsel chooses to proceed on the
grounds alleged in the pro se application already filed
by the petitioner. But where the grounds alleged in
the pro se application are patently frivolous and where
counsel makes no attempt to claim otherwise, it is
obvious that counsel is attempting to evade the
procedure set forth in Criminal Rule 35.1(e)(2)(B) as
described in Griffin. To allow this would be to
neglect our duty to ensure that an indigent has
received the right of effective assistance of counsel
in pursuing his post-conviction relief claim on appeal.
In general, when an attorney is appointed to
represent a client who has filed an application for
post-conviction relief, the attorney has a duty to
investigate whether there are any non-frivolous grounds
to obtain post-conviction relief.11 From my experience
as a defense counsel, in most cases an attorney can
find a non-frivolous issue to advance. If the attorney
cannot, in many cases the client can be persuaded that
there are no grounds for relief and can decide to not
pursue the matter. But if the attorney concludes that
there are no non-frivolous issues and the client
insists on proceeding, the attorney can only withdraw
by complying with Criminal Rule 35.1(e)(2)(B) as set
out in Griffin.
We have recognized that the Griffin procedure
is onerous. That is one reason why, in Hertz v.
State,12 we rejected the Anders approach and adopted a
rule requiring the applicants attorney to pursue the
litigation even if the attorney believed that the
litigation was frivolous.13 We concluded that this was
a better way to protect an indigents right to the
effective assistance of counsel than the Anders
procedure.14 But in Griffin, we concluded that the
legislature could properly and constitutionally require
another procedure.15 We concluded that Criminal Rule
35.1(e)(2)(B), as we interpreted that rule in Griffin,
was an appropriate way for counsel to deal with
applications for post-conviction relief when counsel
could not find any non-frivolous issues to advance.16
From the record of the current case, it seems clear to
me that Tazruks counsel concluded that all of Tazruks
claims were frivolous. Rather than comply with the
Griffin procedure, he attempted to evade it. Given our
independent duty to protect Tazruks right to the
effective assistance of counsel in pursuing his
application for post-conviction relief, we cannot allow
this evasion.
_______________________________
1 See Alaska Criminal Rule 32.1(d)(5).
2 See Lewis v. State, 901 P.2d 448 (Alaska App. 1995). In
Lewis, this Court held that when a defendant seeks post-
conviction relief based on newly discovered evidence, the
defendant must meet the same test that governs motions for a
new trial based on newly discovered evidence. Id. at 450.
That is, the defendant must show that the evidence was not
known at the time of the defendants trial or plea despite
the defense teams diligent efforts, and that this new
evidence (if presented) probably would have led to the
defendants acquittal. Gonzales v. State, 691 P.2d 285, 286-
87 (Alaska App. 1984).
3 See Peterson v. State, 988 P.2d 109, 113-14 (Alaska App.
1999); Steffensen v. State, 837 P.2d 1123, 1126-27 (Alaska
App. 1992); State v. Jones, 759 P.2d 558, 570 (Alaska App.
1988).
4 Griffin, 18 P.3d at 77.
5 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
6 Griffin, 18 P.3d at 77.
7 See People v. Wright, 729 P.2d 260, 265 (Cal. 1987), in
which the California Supreme Court recognized that a slow
plea was any one of a number of contrived procedures which
[do] not require the defendant to admit guilt but [which
result] in a finding of guilt on an anticipated charge. The
court stated:
Perhaps the clearest example of a slow plea is a
bargained-for submission [of the case] on the
transcript of a preliminary hearing in which the only
evidence is the victims credible testimony, and the
defendant does not testify and counsel presents no
evidence or argument on defendants behalf. Such a
submission is tantamount to a plea of guilty because
the guilt of the defendant is apparent on the basis of
the evidence presented at the preliminary hearing and
... conviction is a foregone conclusion if no defense
is offered.
Id. (internal quotation omitted).
1 See generally AS 12.72.010-040; Alaska R. Crim. P. 35.1.
2 AS 18.85.100(c).
3 Grinols v. State, 10 P.3d 600, 621, 623 (Alaska App.
2000).
4 See generally Anders v. California, 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493 (1967) limited by Smith v. Robbins, 528
U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
5 18 P.3d 71 (Alaska App. 2001).
6 Id. at 73 (citing Robbins, 528 U.S. at 279, 120 S.Ct. at
761).
7 Id. at 75-77.
8 See id. at 75, 77.
9 Id. at 76 (citing Alaska R. Crim. P. 35.1(f)(2)).
10 Id. at 77.
11 See Alaska R. Crim. P. 35.1(e)(2).
12 755 P.2d 406 (Alaska App. 1988).
13 Id. at 409.
14 Id.
15 Griffin, 18 P.3d at 75.
16 Id. at 76-77.
