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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
                      Fax:  (907) 264-0878
       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.