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 HANLEY.

The Department of Corrections placed Harold James Harrington in a halfway house (the Cordova Center) while he awaited trial on various felony charges and a hearing on a petition to revoke his felony probation. Harrington left the Cordova Center without permission. After he was apprehended, the State charged him with second-degree escape.

Harrington ultimately reached a plea agreement with the State. Pursuant to this agreement, Harrington pleaded guilty to the charges pending against him, including a charge of second-degree escape under AS 11.56.310(a)(1)(B) — removing oneself from official detention for a felony.

A month after Harrington was sentenced, this Court issued its decision in Bridge v. State1 that addressed escapes from correctional facilities. In Bridge, we held that the term "correctional facility" in the escape statute applied only to facilities where the staff have a duty to physically prevent inmates from leaving without permission.2

Harrington filed an application for post-conviction relief attacking his escape conviction. Harrington asserted that, under our decision in Bridge, he could not properly be convicted of second-degree escape because the Cordova Center did not fit our definition of a "correctional facility." Harrington also claimed that his former attorney was ineffective for failing to raise this argument.

In addition, Harrington claimed that his former attorney was not interested in pursuing any defense to the escape charge — that, instead, his attorney intimidated and wrongfully coerced him into accepting the plea bargain.

The State's answer to Harrington's application for post-conviction relief pointed out that Harrington's trial attorney could not have raised Harrington's proposed defense (that the Cordova Center was not a "correctional facility") because the statute that Harrington was convicted of violating, AS 11.56.310(a)(1)(B), applies to all felony escapes, regardless of whether the escape was from a correctional facility. However, the State did not expressly ask the superior court to grant summary judgment against Harrington on this ground.

After receiving the State's answer, the superior court issued an order denying Harrington's post-conviction relief application.

In the present appeal, Harrington concedes that the State was right: his claim for post-conviction relief based on our decision in Bridge had no merit because, under the relevant subsection of the escape statute, the State was not required to prove that he escaped from a correctional facility.

However, Harrington claims that the superior court committed procedural error by entering judgment against him on this claim before the State had formally asked for summary judgment or dismissal. Harrington relies on our case law interpreting the former version of Alaska Criminal Rule 35.1(f)(3) as requiring the court to give a defendant advance notice before dismissing a petition for post-conviction relief sua sponte.3

In its current version, Criminal Rule 35.1(f)(3) no longer speaks of a court's authority to dismiss a petition for post-conviction relief sua sponte. Instead, the current rule speaks only of the right of the parties to seek summary judgment:

Given the amendment of the rule, it is unclear what remains of the requirement that courts give advance notice before dismissing a petition for post-conviction relief sua sponte. But even assuming that this requirement still applies and that the superior court violated this requirement in Harrington's case, Harrington cannot show that he was prejudiced because he concedes that the dismissed claim has no merit, and he does not assert that he could have amended his petition to state another colorable claim.

There is, however, another problem with the superior court's action. As we have described, Harrington actually presented two distinct claims. Harrington's first claim was that he was convicted of escape in violation of the interpretation of "correctional facility" that this Court adopted in Bridge — and Harrington now admits that there is no merit to this claim. But Harrington also claimed that his trial attorney refused to investigate any defenses to the escape charge and instead spent all of his energy "intimidating" and "coercing" Harrington into pleading guilty under the plea bargain.

This second claim has nothing to do with our decision in Bridge, and it appears that the superior court mistakenly included this second claim in its order dismissing Harrington's application for post-conviction relief. We therefore direct the superior court to re-open Harrington's post-conviction relief case so that this second claim can be properly addressed.

On appeal, Harrington also claims that his post-conviction relief attorney was ineffective because he did not adequately investigate or present all of Harrington's claims for relief. But Harrington is not entitled to raise this claim on appeal because it has never been litigated in the trial court. If Harrington wishes to pursue this claim, he must file a new application for post-conviction relief.4

Conclusion

The judgment of the superior court is REVERSED in PART. We AFFIRM the superior court's dismissal of Harrington's claim for relief based on Bridge, but we direct the superior court to re-open the litigation of Harrington's claim that he was intimidated or coerced into accepting the plea bargain. We do not address Harrington's claim that his post-conviction relief attorney was ineffective. We do not retain jurisdiction.