Memorandum decisions of this court do not create legal precedent.
BOLGER, Judge.
MANNHEIMER, Judge, concurring.
COATS, Chief Judge, dissenting.
In his post-conviction application, Harold Sakar alleged that his trial counsel promised to file a direct appeal of his conviction and that his counsel inexcusably failed to file the appeal. The superior court dismissed the application because it was filed long after the two-year statutory deadline. On appeal, Sakar argues that this statute of limitations violated his right to due process of law. But we conclude that the superior court did not commit plain error when it failed to recognize this constitutional issue.
In 1999, Harold Sakar was convicted of kidnapping and two counts of sexual assault following a jury trial in Bethel. In 2000, Sakar was sentenced to twenty-seven years' imprisonment with eleven years suspended. Sakar's attorney did not file an appeal of his conviction.
In 2003, Sakar filed an application for post-conviction relief. Generously read, his amended application alleges that his appointed counsel committed ineffective assistance of counsel in two ways: by failing to make a motion for a change of the trial venue to Aniak and by withdrawing from his representation without filing a direct appeal. The application alleged that the date of his conviction was June 16, 2000.
In 2004, the State moved to dismiss the application on the basis that it was untimely. At that time, an application for post-conviction relief could not be brought more than two years after the entry of judgment.
In 2005, the superior court gave notice that Sakar's application would be dismissed unless Sakar could show that his case fit within one of the statutory exceptions to the statute of limitations. Sakar did not file any response, so the court dismissed the application.
In 2006, Sakar filed a motion for relief from judgment in his underlying criminal case, based on Alaska Civil Rule 60(b)(4). The motion repeated the allegations of ineffective assistance of counsel against his trial attorney and also alleged that his post-conviction relief attorney had been ineffective in her arguments regarding the statute of limitations. The superior court denied Sakar's motion for relief from judgment, and Sakar then appealed to this court.
In 2009, this court held that the superior court correctly ruled that Sakar was not entitled to relief under Civil Rule 60(b). But this court held that Sakar's post-conviction relief counsel rendered ineffective assistance of counsel when she failed to appeal the superior court's 2005 order dismissing Sakar's application for post-conviction relief. Based on this conclusion, this court allowed Sakar to file this appeal.
Sakar now argues that he has a due process right to pursue a direct appeal of his conviction despite his failure to file a timely application for post-conviction relief.
The Alaska appellate courts have not previously addressed whether the statute of limitations in the post-conviction relief statute might be unconstitutional when applied to particular circumstances. But in Cleveland v. State, we recently concluded that the failure of a trial court to apply due process principles to toll the statute of limitations during the pendency of an Alaska Criminal Rule 35(a) motion was not plain error.
Like the applicant in Cleveland, Sakar did not raise this issue in the superior court, so now he must show plain error. In order to establish plain error, Sakar must show that the superior court's decision was "so wrong that any competent judge or attorney should have recognized the error and corrected it."
The Pennsylvania Superior Court rejected a claim like Sakar's, noting, "Appellant had a full year to learn if a direct appeal had been filed on his behalf. A phone call to his attorney or the clerk of courts would have readily revealed that no appeal had been filed."
The Mississippi Supreme Court reached a similar result when addressing an untimely motion for post-conviction relief. The defendant argued that his attorney failed to advise him of his right to appeal and that his attorney was under investigation for a disciplinary matter at the time. The court ruled that the defendant's allegation of ineffective assistance of counsel at the time of his conviction was insufficient to explain his failure to comply with the three-year statute of limitations.
These cases from other states establish that the constitutionality of the statute of limitations applied to Sakar's case was reasonably debatable when the superior court dismissed his application.
Moreover, Sakar did not provide any evidence suggesting that he exercised any diligence to determine whether his counsel had filed an appeal. He thus failed to raise any obvious issue that his counsel's inaction erected an "insurmountable barrier," preventing him from filing a post-conviction relief action within two years after his judgment was entered. There was no obvious due process violation in this case.
We AFFIRM the superior court's order dismissing the application for post-conviction relief.
MANNHEIMER, Judge, concurring.
I agree with Judge Bolger that, given the way Sakar's post-conviction relief case has been litigated, this Court is obliged to uphold the superior court's decision. I write separately because I agree with Judge Coats on several points.
In particular, I believe that if the factual assertions in Sakar's petition for post-conviction relief are viewed in the light most favorable to Sakar, Sakar might be entitled to a limited form of post-conviction relief — specifically, the right to pursue a late-filed direct appeal of his criminal convictions.
The procedural history of this case is somewhat convoluted, but the essential facts are these:
Sakar was convicted of kidnapping and sexual assault in 2000. His attorney, Scott Sidell, did not file a direct appeal of these convictions, even though Sakar apparently asked him to.
Three years later, Sakar filed his initial petition for post-conviction relief. Sakar's claim (as ultimately articulated) was that, soon after the superior court entered judgement against him, he told Sidell that he wished to appeal, and Sidell promised Sakar that he would undertake the appeal. According to Sakar, he kept waiting to learn the outcome of his appeal — until the spring of 2003, when he discovered that Sidell had been suspended from the practice of law, and that his appeal had never been filed.
Sakar's petition for post-conviction relief was presumptively time-barred. The pertinent statute of limitations, the 2005 version of AS 12.72.020(a)(3), stated that if a defendant in Sakar's situation wished to seek post-conviction relief, the petition had to be filed within two years from the date the underlying criminal judgement was entered. Sakar's post-conviction relief attorney acknowledged this problem, but she argued that the superior court should relax this statutory deadline because Sidell failed to honor his promise to file an appeal on Sakar's behalf.
But there were two significant problems with Sakar's argument.
First, Sakar's new attorney relied on Appellate Rule 521 and the Alaska Supreme Court's decision in McCracken v. State, 482 P.2d 269 (Alaska 1971), as authority for the proposition that the superior court could (and should) relax the filing deadline.
McCracken is a case in which, under similar facts, the Alaska Supreme Court utilized Appellate Rule 521 (or, more accurately, its predecessor rule, Supreme Court Rule 52) as authority for relaxing a defendant's deadline for filing a direct appeal of a criminal conviction. Id. at 272. Sakar's new attorney noted that Sakar, like the defendant in McCracken, "suffered from a misunderstanding that his attorney was going to file an appeal", and that he "honestly, but mistakenly, believed that his appeal was being taken care of". The defense attorney therefore argued that the superior court should do what the supreme court did in McCracken: relax the filing deadline.
But the superior court noted — correctly — that the supreme court's ruling in McCracken explicitly rested on the fact that (1) the filing deadline for appeals was governed by court rule, and (2) the court rules themselves authorized the supreme court to relax any provision of the court rules in the interest of justice. See McCracken, 482 P.2d at 272. In other words, there was a governing provision of law that authorized the supreme court to relax the filing deadline in the interest of fairness.
In contrast (as the superior court also correctly noted), the filing deadlines and other limitations on post-conviction relief litigation are now set by statute rather than by court rule. See AS 12.72. And the pertinent statute, AS 12.72.020, does not include any provision that gives a court general authority to relax the filing deadlines in the interest of justice. Thus, the superior court correctly rejected Sakar's specific contention that Appellate Rule 521 and the supreme court's decision in McCracken gave the superior court the authority to relax the post-conviction relief filing deadline.
Although the superior court correctly discerned that Sakar's argument based on Appellate Rule 521 and McCracken had no merit, the superior court gave Sakar the opportunity to suggest any other legal means by which the court might relax the statute of limitations deadline. Sakar offered none. Accordingly, the superior court ruled that Sakar's petition for post-conviction relief was time-barred.
The second significant problem with Sakar's argument to the superior court is that Sakar never directly suggested that he might be entitled to post-conviction relief in the form of being allowed to pursue a late-filed appeal. Although Sakar's post-conviction relief attorney openly referred to, and relied upon, Sakar's former attorney's failure to file a direct appeal, the post-conviction relief attorney did not suggest that the remedy was to allow Sakar to now file a direct appeal. Rather, Sakar's attorney argued that the former attorney's failure to file a direct appeal meant that Sakar should now be allowed to pursue post-conviction relief litigation in which he could pursue the claims that he would have raised on direct appeal — claims relating to venue and jury selection.
Even if we assume that Sakar should have been allowed to pursue a late-filed petition for post-conviction relief, the form of relief that he was seeking — i.e., the ability to pursue a petition for post-conviction relief raising challenges to venue and jury selection — is foreclosed by AS 12.72.020(a)(2). This statute declares that a claim for post-conviction relief can not be based on a claim that could have been raised on direct appeal.
On the other hand, in McCracken, our supreme court declared that a defendant whose attorney inexcusably fails to file an appeal could seek post-conviction relief under former Criminal Rule 35(b)(6) — relief in the form of being allowed to pursue the appeal that was lost through the attorney's incompetence. The language of former Criminal Rule 35(b)(6) is now codified in AS 12.72.010(6), so assumedly the supreme court's ruling in McCracken defines the relief available under this statute.
There is, moreover, an argument to be made that, in Sakar's situation, the superior court has the equitable authority to toll or extend the post-conviction relief filing deadline. This argument is based on the idea that a statute of limitations should not bar a person from seeking relief from an injury that they could not reasonably have discovered before the normal limitation period expired.
If we view Sakar's assertions of fact in the light most favorable to him, Sakar offered a prima facie case that: (1) he asked his former attorney to appeal his conviction, (2) the attorney promised to file the appeal but then inexcusably failed to do so, (3) Sakar acted reasonably when he relied on his attorney's false assurance, and (4) Sakar acted diligently to assert his rights as soon as he discovered that the appeal had never been filed.
It is true that AS 12.72.020(a)(3) declares that Sakar's time for filing a petition for post-conviction relief began to run on the day that the superior court entered judgement against him in his underlying criminal case. But one might reasonably argue that this limitation period is premised on the assumption that all of a defendant's claims for relief would be ripe on the day that the judgement was entered.
The common-law rule relating to statutes of limitation was that "[a] statute of limitations ordinarily begins to run on the date the plaintiff is injured." Sengupta v. Wickwire, 124 P.3d 748, 753 (Alaska 2005). Or, phrased another way, "statutes of limitation do not begin to run until a cause of action accrues." Fox v. Ethicon Endo-Surgery, Inc., 110 P.3d 914, 920; 27 Cal.Rptr.3d 661, 667 (Cal. 2005).
See also Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co., 11 Cal.Rptr.3d 412, 422 (Cal. App. 2004) ("As a general rule, a cause of action accrues and a statute of limitations begins to run when a controversy is ripe — that is, when all of the elements of a cause of action have occurred and a suit may be maintained."); Lexington-Fayette Urban County Gov't v. Abney, 748 S.W.2d 376, 378 (Ky. App. 1988) ("[S]tatutes of limitations begin to run when the relevant cause of action accrues.").
In criminal cases, the "injury" to the defendant ordinarily occurs when the trial court enters judgement against the defendant. At that point, if the procedures leading to the defendant's conviction and sentence have been unlawful or irregular in some way, the defendant's cause of action is complete: there has been wrongful conduct, and there has been a resulting injury. Accordingly, the statute of limitations would begin to run on the date of the judgement.
But in Sakar's case, the wrong that he allegedly suffered — Scott Sidell's failure to pursue an appeal on Sakar's behalf — had not yet occurred when the superior court entered judgement against Sakar. Sakar's claim is essentially a claim of legal malpractice based on his attorney's failure to pursue an appeal. And as to that claim, Sakar did not yet have a cause of action on the day that the superior court entered judgement in his underlying criminal case.
This Court is under a duty to interpret statutes in a way that avoids absurd or illogical results. State Division of Insurance v. Schnell, 8 P.3d 351, 357 (Alaska 2000); Sherman v. Holiday Construction Co., 435 P.2d 16, 19 (Alaska 1967); Boyd v. State, 210 P.3d 1229, 1232 & n. 19 (Alaska App. 2009); Pruett v. State, 742 P.2d 257, 263 (Alaska App. 1987). Even when the language of a statute appears to be plain and straightforward, a court must "ignore the plain meaning of [the] enactment where that meaning leads to absurd results or defeats the usefulness of the enactment." Martinez v. Cape Fox Corp., 113 P.3d 1226, 1230 (Alaska 2005), quoting Davenport v. McGinnis, 522 P.2d 1140, 1144 n. 15 (Alaska 1974).
The wording of AS 12.72.020(a)(3) plainly specifies that the entry of judge-ment against the defendant is the event that begins the running of the limitation period. But in situations where the complained-of wrong to the defendant has not yet occurred when judgement is entered, the limitation period codified in AS 12.72.020(a)(3) leads to the seemingly absurd result that the statute of limitations might expire before the defendant's cause of action ever accrues. Because of this, one might reasonably question whether the legislature intended the statute to operate in this fashion.
See Blomdahl v. Blomdahl, 796 N.W.2d 649 (N.D. 2011), where the North Dakota Supreme Court held that when a divorce decree provides for payments of child or spousal support in installments, "the right to enforcement accrues upon each installment as it matures, and the statute of limitations begins to run against each installment from the time fixed for its payment." Id. at 655. The court noted that if the limitation period began running when the divorce decree was entered, this would lead to the "absurd situation of a right of action [being] barred before the cause of action has accrued." Ibid. (quoting Simmons v. Simmons, 290 N.W. 319, 320 (S.D. 1940)). See also In re Weber, 95 P.3d 694, 698 (Mont. 2004); Duhamel v. Duhamel, 729 N.Y.S.2d 601 (N.Y. Sup. Ct. 2001); Jordan v. Jordan, 147 S.W.3d 255, 262 (Tenn. App. 2004).
In the related area of civil lawsuits against attorneys for malpractice, the Alaska Supreme Court has squarely held that the limitation period does not begin to run until the injured party reasonably could have determined that they had been wronged.
Sengupta, 124 P.3d at 753.
If we were to apply this "discovery" rule to Sakar's case, the limitation period for seeking post-conviction relief (in the form of being able to pursue a late-filed direct appeal of his conviction) would not expire until (1) Sakar had information "sufficient to alert a reasonable person to the fact that he [had] a potential [claim for post-conviction relief]" based on Scott Sidell's failure to file the direct appeal of his conviction, and (2) Sakar had a reasonable time to prepare and file his petition.
Although I believe that these are reasonable arguments that Sakar might make, the fact is that Sakar has not made these arguments. They were not presented to the superior court, and the superior court obviously did not commit plain error by failing to raise these arguments sua sponte.
Moreover, although the arguments described here might be reasonable, this does not mean that they are ultimately meritorious. I have not researched the legislative history of the limitations periods codified in AS 12.72.020(a)(3). It may be that, when the legislature enacted this statute, they considered situations like Sakar's — i.e., situations where the injury to the defendant occurs after judgement is entered in the underlying criminal case — and affirmatively decided not to allow defendants to seek post-conviction relief under such circumstances. And, of course, the arguments I have described here have not been subjected to the process of adversarial litigation.
In addition, even if the "discovery" rule did apply to defendants in Sakar's position, the expiration of the limitation period in any individual case would obviously hinge on questions of fact — and the pertinent questions of fact have not been litigated in Sakar's case. I believe that, given the assertions of fact in Sakar's superior court pleadings, Sakar presented at least a prima facie case that his petition for post-conviction relief would be timely if we applied the discovery rule. But that is the most that might be said.
For these reasons, I concur in the decision to affirm the superior court's denial of Sakar's petition for post-conviction relief.
COATS, Chief Judge, dissenting.
The record in this case, read in the light most favorable to the defendant, Harold Sakar, shows that he has repeatedly attempted to appeal his conviction, but has been consistently thwarted in those attempts by the errors of various attorneys. I would remand this case to the trial court to give Sakar the opportunity to establish that he acted diligently in pursuing an appeal of his conviction but that he was deprived of his right to appeal because he received ineffective assistance of counsel.
On June 16, 2000, following a jury trial, Sakar was convicted of kidnapping and two counts of sexual assault in the first degree. Sakar was represented by attorney Scott Sidell. Sakar asserts that at sentencing on June 30, 2000, he informed both the trial judge and Sidell that he wished to appeal. A few days later, on July 5, 2000, Sakar wrote to David Henderson, a colleague of Sidell's, to check on the status of his appeal. Sakar asserts that Henderson assured him that Sidell was working on the appeal. But Sidell never filed a notice of appeal.
On March 14, 2003, the supreme court entered an order assigning Sidell to disability status. According to psychiatric evaluations, Sidell was suffering from chronic depression that made him incapable of meeting his responsibilities as a lawyer. The supreme court's order transferring Sidell to inactive status based upon his disability was retroactive to January 1, 1998, a period of time that encompassed his representation of Sakar.
According to Sakar, he learned of the supreme court order transferring Sidell to inactive status by reading a notice published in the newspaper a few weeks after the order was issued. Sakar contacted the Alaska Bar Association to inquire about filing an application for post-conviction relief to address Sidell's deficient representation in his case. The Bar Association referred him to the attorney who represented Sidell in the disability case.
Sakar wrote to Sidell through Sidell's attorney. In that letter, Sakar asked why his appeal had not been filed. He asserted that Sidell had promised to visit him at the jail to work on his appeal, but that Sidell had not done so. Sakar indicated that he had contacted two attorneys who worked with Sidell and that they both had assured him that Sidell was working on his appeal.
On November 18, 2003, Sakar filed an application for post-conviction relief and requested the appointment of counsel to litigate the application. On April 12, 2004, an attorney with the Public Defender Agency filed Sakar's pro se application for post-conviction relief on behalf of Sakar. In that application, Sakar raised several issues, including his claim that he had been denied effective representation on appeal.
Sakar's application faces a number of serious obstacles, including the fact that it was not timely. But Sakar has presented compelling evidence that he was deprived of an important constitutional right — his right to appeal his conviction — because he received ineffective assistance of counsel. He is therefore entitled to the opportunity to establish that he acted diligently to pursue his appeal but, through no fault of his own, was deprived of that right because of ineffective assistance of counsel.
It seems fairly certain that Sakar intended to appeal his convictions. He was convicted after a jury trial of kidnapping and sexual assault, and he received a substantial sentence of twenty-seven years of imprisonment with eleven years suspended. It would be unusual for a defendant in this situation not to appeal, particularly one represented by court-appointed counsel. Furthermore, the record contains a letter that Sakar sent to Sidell's colleague, David Henderson, inquiring about the status of his appeal a few days after his conviction, well within the deadline for filing his appeal.
The record also establishes that Sidell was severely depressed around the time he represented Sakar. This fact, along with the other evidence, suggests that Sidell did not follow through on Sakar's request to file an appeal. The record also suggests that Sakar received assurances from Sidell's colleagues that the appeal was being taken care of. In light of this record, it seems to me that justice requires us to remand this case to the trial court to give Sakar the opportunity to present evidence that he acted diligently to pursue an appeal of his conviction but was deprived of his right to appeal because he received ineffective assistance of counsel.
This court and the supreme court have held that there are circumstances in which enforcing a defendant's constitutional rights is sufficiently important to circumvent procedural rules and the application of statutes of limitations.
Therefore, I respectfully dissent from the decision affirming the superior court order dismissing Sakar's application for post-conviction relief.
