Opinion
Court of Appeals No. A-9092.
November 15, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-04-761 Civ.
Marcia E. Holland, Assistant Public Defender, Fairbanks, Quinlan Steiner, Public Defender, Anchorage, and Daniel A. Tierney, in propria persona, Florence, Arizona, for the Appellant.
Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
The appellant raises two issues of constitutional law: (1) whether, under the due process clause of the Alaska Constitution, a defendant should be exempted from the statute of limitations that governs petitions for post-conviction relief if the defendant's claim is based on a judicial decision that was not issued until after the normal time limitation had expired; and (2) whether, under such circumstances, the due process clause of the Alaska Constitution requires the superior court to appoint an attorney to assist an indigent defendant.
As we explain in this opinion, we conclude that we need not resolve either of these constitutional issues in the present case. We need not reach the first issue because the defendant's underlying legal claim has no arguable merit, and we need not reach the second issue because it is inadequately briefed.
The pertinent facts of the case
In 1998, Daniel A. Tierney was convicted of a single consolidated count of fourth-degree controlled substance misconduct that charged him with violating two subsections of AS 11.71.040(a): subsection (a)(3)(G) (possession of twenty-five or more marijuana plants) and subsection (a)(5) (maintaining a building for keeping or distributing controlled substances in violation of a felony provision of AS 11.71 or AS 17.30).
Six years later, in July 2004, Tierney filed a petition for post-conviction relief.
Tierney's claim for relief was premised on this Court's decision in Noy v. State, 83 P.3d 538 (Alaska App. 2003). In Noy, this Court held that AS 11.71.060(a)(1) — the statute penalizing all possession of marijuana not otherwise declared illegal by another provision of AS 11.71 — violated the privacy clause of the Alaska Constitution (Article I, Section 22) to the extent that the statute prohibited possession of less than four ounces of marijuana for personal use in one's home. Noy, 83 P.3d at 542-43. Tierney argued that the Noy decision demonstrated that the two statutes he was convicted of violating — AS 11.71.040(a)(3)(G) and AS 11.71.040(a)(5) — were likewise unconstitutional to the extent that these statutes prohibited the possession of less than four ounces of marijuana for personal use.
The State raised two defenses to Tierney's petition.
First, the State argued that the petition was time-barred. Tierney did not appeal his conviction. (Indeed, he pleaded no contest to the charge.) Thus, under AS 12.72.020(a)(3)(A), Tierney had two years from the date of his judgement in which to file a petition for post-conviction relief challenging his conviction. Tierney's judgement is dated March 10, 1998, and his petition for post-conviction relief is dated more than six years later: July 12, 2004. It was therefore apparently time-barred.
Second, the State argued that Tierney's underlying legal claim had no merit. The State contended that the Noy decision did not undermine or limit the constitutionality of either of the statutes that Tierney was convicted of violating.
Tierney responded by re-asserting that Noy did, in fact, undermine the constitutionality of the two statutes, and he further argued that he was entitled to an exemption from the normal statute of limitations because (1) Noy was not decided until late 2003, and because (2) Tierney diligently pursued his petition for post-conviction relief after he found out about the Noy decision.
The State's petition for rehearing in Noy was denied on November 14, 2003. See Noy v. State (opinion on rehearing), 83 P.3d 545 (Alaska App. 2003).
(Indeed, technically speaking, our decision in Noy did not take effect until after Tierney filed his petition for post-conviction relief. Under Appellate Rules 507(b) and 512(a)(2), if a party timely petitions the Alaska Supreme Court to review a decision of this Court, our decision does not take effect until the supreme court decides the petition for hearing. The State of Alaska petitioned the supreme court to review our decision in Noy, and the supreme court did not resolve that petition until September 7, 2004, when the court issued an order denying the State's petition. See State v. Noy, Supreme Court File No. 11297.)
Superior Court Judge Mark I. Wood was apparently willing to entertain the argument that the statute of limitations should be relaxed if a defendant's claim was based on a constitutional ruling that was not issued until after the normal limitations period had expired. However, Judge Wood concluded that there was no arguable merit to Tierney's underlying claim for relief — i.e., Tierney's claim that the Noy decision had undermined the constitutionality of AS 11.71.040(a)(3)(G) and (a)(5). Judge Wood therefore concluded that even if there should be an exception to the statute of limitations when a defendant raises a potentially meritorious claim based on a new constitutional ruling, that exception would not apply to Tierney's case. Accordingly, Judge Wood ruled that Tierney's petition was time-barred.
Tierney now appeals the superior court's dismissal of his petition for post-conviction relief. Although Tierney appeared pro se in the superior court, he is represented on appeal by the Public Defender Agency — although Tierney and the Public Defender Agency have filed separate briefs.
Tierney's brief raises the same issues that Tierney litigated in the superior court. The Public Defender Agency, however, devotes its brief to an issue that was not raised in the superior court: the question of whether Tierney should have received appointed counsel to help him litigate his case in the superior court.
Tierney did not ask for the assistance of counsel in the superior court. Indeed, in his petition, he declared that he "intend[ed] to proceed Pro se". However, the superior court apparently never asked Tierney to explicitly waive the assistance of counsel, nor did the court advise Tierney of the benefits of counsel and warn him of the dangers of self-representation.
The Public Defender Agency argues that Tierney was, in fact, entitled to the assistance of counsel as a matter of law — and that, therefore, the superior court was required to obtain Tierney's explicit waiver of the right to counsel before allowing Tierney to represent himself. The Public Defender relies on Grinols v. State, 74 P.3d 889 (Alaska 2003), where our supreme court declared that an indigent defendant is entitled to court-appointed counsel when pursuing a first petition for post-conviction relief. Id. at 894.
Why we uphold the superior court's decision
As explained in the preceding section, Judge Wood was asked to decide whether the post-conviction relief statute of limitations should be relaxed when a petitioner relies on a newly-announced change in the law (that is, a change that did not occur until after the statute of limitations had run). As Judge Wood recognized, this question is moot unless the petitioner presents an underlying claim for relief that has at least arguable merit. That is, unless the petitioner presents a claim that is at least reasonably debatable, there is no need to decide whether to relax the statute of limitations to allow the petitioner to litigate this claim.
Tierney's underlying claim is that this Court's decision in Noy undermined the constitutionality of one of the two statutes that Tierney was convicted of violating — AS 11.71.040(a)(3)(G) (possession of twenty-five or more marijuana plants) — to the extent that this statute encompasses the possession of less than four ounces of marijuana in one's home for personal use.
Tierney further argues that, because AS 11.71.040(a)(3)(G) is unconstitutional when applied to possession of marijuana for personal use, he could not lawfully be convicted of violating AS 11.71.040(a)(5) (maintaining a building for keeping or distributing controlled substances in violation of a felony provision of AS 11.71 or AS 17.30) — because, in Tierney's case, the predicate drug felony was his violation of AS 11.71.040(a)(3)(G).
But in Hotrum v. State, 130 P.3d 965 (Alaska App. 2006), we rejected Tierney's underlying premise — his contention that the Noy decision undermined or limited the constitutionality of AS 11.71.040(a)(3)(G). In Hotrum, we noted that the legislative history of this statute
showed [that] the legislature considered the possibility that a person might possess twenty-five or more marijuana plants but that these plants might constitute a small amount of marijuana. The legislature concluded that the small marijuana plants could grow to become a substantial amount of marijuana. The legislature decided that [a] defendant should not benefit from the fact that he was prosecuted before the plants could grow to that level. We conclude that this is a judgment that the legislature was entitled to make. In drafting AS 11.71.040(a)(3)(G), the legislature adopted a clear and objective line which appears to be consistent with the Alaska Supreme Court's . . . decision [in Ravin v. State, 537 P.2d 494 (Alaska 1975)].
Hotrum, 130 P.3d at 970.
In light of our decision in Hotrum, Tierney's constitutional attack on AS 11.71.040(a)(3)(G) has no arguable merit. And, because Tierney could properly be convicted of violating AS 11.71.040(a)(3)(G), his constitutional attack on AS 11.71.040(a)(5) also fails.
We note that even though Tierney is now assisted by the Public Defender Agency, the Agency's brief omits all discussion of the Noy issue and focuses solely on Tierney's purported right to counsel during the superior court proceedings. That is, the Agency does not contest Judge Wood's ruling that there is no arguable merit to Tierney's underlying claim for relief.
We accordingly agree with Judge Wood that Tierney's request for a relaxation of the statute of limitations is moot. Even if the limitations period should be relaxed for potentially meritorious, newly-arisen legal claims, Tierney's underlying claim for post-conviction relief has no arguable merit.
We now turn to the Public Defender Agency's argument that Tierney was entitled to the assistance of counsel at public expense when he litigated his petition in the superior court.
The Public Defender Agency's argument of this point consists of a single sentence on page 4 of its brief: "Mr. Tierney has a right under the Alaska Constitution to court-appointed counsel when pursuing a postconviction [relief] application as . . . established in Grinols v. State [, 74 P.3d 889, 894 (Alaska 2003)]."
This type of one-sentence argument might be sufficient if the Grinols decision clearly established Tierney's right to court-appointed counsel during the litigation of his petition for post-conviction relief. But that is not the case.
It is true that, in Grinols, our supreme court declared that "the right to counsel in a first application for post-conviction relief is . . . required under the due process clause of the Alaska Constitution." Id. at 894. However, Grinols did not involve a late-filed petition for post-conviction relief. Rather, the defendant in Grinols had filed a timely petition for post-conviction relief, and no one disputed that he was entitled to the assistance of counsel when pursuing that petition.
Instead, the issue litigated to the supreme court was whether Grinols's right to counsel derived solely from the governing statute, AS 18.85.100(c), or whether his right to counsel was also constitutionally based. This issue was important, not to decide whether Grinols was entitled to legal representation during the post-conviction relief litigation, but rather to decide whether Grinols could later attack the competence of the legal representation he received.
As the supreme court explained, the State's argument in Grinols was "that the right to counsel in a post-conviction relief proceeding is [solely] statutory and therefore not subject to the guarantee of effective assistance of counsel." 74 P.3d at 892 (emphasis added). The supreme court rejected that argument and held that the Alaska Constitution also guaranteed the right to counsel in post-conviction relief litigation. Id. at 894.
Tierney's case is different. As explained above, Tierney's petition for post-conviction relief was filed four years too late. Because of this, there is a significant question as to whether Tierney was entitled to the assistance of counsel in the superior court. The governing statute, AS 18.85.100(c), states that "[a]n indigent person is entitled to representation [at public expense] for purposes of bringing a timely application for post-conviction relief", but that "[a]n indigent person is not entitled to representation [at public expense] for purposes of bringing . . . an untimely or successive application for post-conviction relief". (Emphasis added)
Thus, Tierney's case presents an issue that was not decided in Grinols: whether, even though petitioners for post-conviction relief are normally entitled to an attorney at public expense when pursuing their first petition, the legislature may nevertheless decline to provide lawyers to petitioners who fail to seek relief within the time limits specified in AS 12.72.020(a)(3) — (4).
The supreme court's decision in Grinols does not provide a ready answer to this question. It is, of course, possible to argue that Grinols should be interpreted broadly and that AS 18.85.100(c) should be deemed unconstitutional to the extent that it seeks to limit a defendant's constitutional right to counsel in a first petition for post-conviction relief, even if that petition is time-barred. But as we explained above, the Public Defender Agency's argument of this point consists of a single conclusory sentence. The Agency does not mention AS 18.85.100(c), much less present any argument as to why the statute's timeliness requirement might not have survived the Grinols decision.
We accordingly conclude that, to the extent it might be argued that the legislature must provide lawyers at public expense to defendants who, like Tierney, file an untimely first petition for post-conviction relief, that contention has been waived by inadequate briefing. Conclusion
See Ned v. State, 119 P.3d 438, 442 (Alaska App. 2005) ("Ned's arguments are contained in a single conclusory (albeit lengthy) sentence. This Court and the Alaska Supreme Court have repeatedly held that arguments presented in this sort of conclusory manner are inadequately briefed, and are therefore waived.").
The judgement of the superior court is AFFIRMED.