Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.

MEMORANDUM OPINION

Judge ALLARD.

Vernon S. Bavilla appeals the dismissal of his application for post-conviction relief. Bavilla's application was dismissed after his court-appointed attorney filed a certificate of no merit under Alaska Criminal Rule 35.1(e)(2)(C).

On appeal, the State concedes that the certificate of no merit was procedurally defective in several ways. We have independently reviewed the pleadings, and we conclude that the State's concessions are well-founded. Accordingly, we remand this case to the superior court for further proceedings.

Background facts and prior proceedings

Bavilla was convicted, following a jury trial, of second-degree sexual assault for engaging in sexual penetration of an incapacitated person. The sexual assault took place in September 2007 in the village of Goodnews Bay.

In May of 2013, Bavilla filed an application for post-conviction relief, alleging ineffective assistance of counsel by his trial and appellate attorneys. The court appointed the Office of Public Advocacy to represent Bavilla. One year later, Bavilla's court-appointed attorney filed a certificate of no merit pursuant to Alaska Criminal Rule 35.1(e)(2)(C).

In this certificate, Bavilla's attorney explained why she believed that Bavilla had no arguable claims for post-conviction relief. In the course of these explanations, the attorney described various conversations she had with some of Bavilla's prior attorneys. However, she did not provide affidavits from those attorneys. Nor does it appear that she spoke with all of Bavilla's prior attorneys.

Based on the no-merit certificate, the superior court notified the parties that it intended to dismiss Bavilla's application, and the court offered Bavilla a chance to respond. At that time, Bavilla was incarcerated at the Goose Creek Correctional Center. Bavilla filed a pro se response to the court's notice of intent to dismiss. In this response, Bavilla claimed (among other things) that he had never received a copy of his attorney's no-merit certificate, and he argued that his attorney had been ineffective. Bavilla also questioned whether his post-conviction relief attorney had actually spoken to his prior attorneys. He argued that, to the extent his attorney's no-merit certificate rested on conversations with his prior attorneys, the no-merit certificate should have been supported by affidavits from those attorneys (affidavits attesting to the information these attorneys allegedly told the post-conviction relief attorney).

After considering Bavilla's response, the superior court dismissed Bavilla's post-conviction relief application. This appeal followed.

Why we reverse the superior court's dismissal of Bavilla's application for post-conviction relief

Alaska Criminal Rule 35.1(e)(2)(C) provides that an attorney appointed to represent a defendant in a post-conviction relief proceeding may, after investigating the case, file a certificate stating that the defendant has no arguable claims for relief.

When an attorney files a certificate of "no arguable merit" under Criminal Rule 35.1(e)(2)(C), the court is required to examine the certificate and its supporting documentation, and to independently assess whether it is true that the defendant has no non-frivolous claims for relief.1 This duty is imposed by Criminal Rule 35.1(f), but it also arises under the Constitution — because it is the court's constitutional duty to ensure that a defendant receives zealous and competent representation in the post-conviction relief litigation.2

If the court tentatively concurs with the attorney's certificate of "no arguable merit," Criminal Rule 35.1(f)(2) requires the court to inform the defendant that the court intends to dismiss the defendant's post-conviction relief action, and to give the defendant an opportunity to respond.

In Bavilla's case, there were four procedural and substantive deficiencies in the attorney's no-merit certificate — deficiencies that precluded the court from accepting the certificate and dismissing Bavilla's petition.

First, as the State notes, it does not appear that Bavilla was ever given a copy of his attorney's no-merit certificate. Bavilla is not listed on the attorney's certificate of service, and Bavilla himself asserted (in his response) that he never received a copy. The superior court made no finding on this issue (nor did the court respond in any other way to Bavilla's assertion).

A defendant cannot be expected to respond to a no-merit certificate that he has never received. It is therefore incumbent on the trial court to ensure that the defendant receives a copy of the attorney's no-merit certificate, and that the defendant has adequate time to review and respond to the certificate.

Second, as the State also concedes, the attorney's no-merit certificate does not adequately explain why the attorney concluded that Bavilla had no colorable claims for post-conviction relief. When an attorney files a certificate of no merit, the attorney "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."3

Here, Bavilla's attorney provided a sufficiently clear explanation of why she concluded that the claims raised in Bavilla's pro se application were frivolous. But the attorney gave only a cursory description of the other potential post-conviction relief claims that she herself identified during her review of Bavilla's case.

Third, as Bavilla now points out, it is not clear that his attorney used the correct legal standard when rejecting Bavilla's post-conviction relief claims. An attorney should only file a certificate of no merit when the attorney has determined that all of the possible claims that could be brought would be frivolous. If a claim is colorable — i.e., if it has some arguable merit, even if it is unlikely to succeed — the attorney has a duty to argue that claim.4

Here, Bavilla's attorney repeatedly referred to Bavilla's claims as having "no merit." It is not clear whether the attorney meant that these claims were not even colorable, or whether she meant only that Bavilla was unlikely to succeed on these claims.

Fourth, the State also points out that Bavilla's attorney failed to provide affidavits from Bavilla's prior attorneys. Many of Bavilla's claims for post-conviction relief hinged on allegations that he received ineffective assistance from his former attorneys. Bavilla's post-conviction relief attorney concluded that these ineffective assistance claims were frivolous based, in large part, on conversations that she had with Bavilla's prior attorneys — more specifically, on the tactical reasons that those attorneys allegedly offered to explain and justify their actions. In his response, Bavilla disputed that these conversations had ever occurred, or that his post-conviction relief attorney was accurately reporting those conversations in her no-merit certificate.

Given these circumstances, we agree with the State that Bavilla's attorney should have been required to support her no-merit certificate with affidavits from Bavilla's former attorneys — or, at the very least, to explain why these affidavits could not be procured.5

Conclusion

For these reasons, we REVERSE the superior court's dismissal of Bavilla's post-conviction relief application, and we remand his case to the superior court for further proceedings.