ARMEY v. STATE, A-8885 (Alaska App. 8-23-2006)

DONNA MATHIS ARMEY, Appellant v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-8885.Court of Appeals of Alaska.
August 23, 2006.

Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Charles R. Pengilly, Judge. Trial Court Nos. 4FA-03-1863 CI, 4FA-87-0642 CR.

Ronald A. Offret and James D. Gilmore, Anchorage, for the Appellant.

W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, Stewart, Judge, and Andrews, Senior Superior Court Judge.[fn*] [Mannheimer, Judge, not participating.]

[fn*] Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).

MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.

Donna Armey appeals the dismissal of her second post-conviction relief (PCR) application, which alleged, among other things, ineffective assistance by her first PCR counsel. On appeal, she argues that she can establish ineffective assistance by both her first PCR counsel and her trial counsel; she also argues that the trial judge committed several procedural errors in dismissing her application. From the record before us, it appears that Armey filed her first PCR application after the statute of limitations had expired. If this is true, it appears it would be impossible for Armey to show that she was prejudiced by the representation that she received on her first PCR application. But because we conclude that Armey and the superior court have not had an opportunity to adequately address this issue, we remand for further proceedings.

Factual and procedural background

A jury convicted Armey in 1987 of first-degree murder, kidnapping, first-degree robbery, second-degree murder, and two counts of third-degree controlled substance misconduct.[fn1]
She was sentenced to 99 years’ imprisonment. Her case was appealed by her trial attorney, Dick Madson, and in 1989 this court affirmed her murder conviction and sentence (but vacated the convictions for controlled substance misconduct).[fn2]
Eight years later, in March 1998, Armey filed a PCR application, and James Hackett was appointed to represent her. In this application, she alleged (according to a later filing) ineffective assistance by Madson as well as arguments relating to newly-discovered evidence, perjured trial testimony, constitutional violations, prosecutorial misconduct, and an illegal search and seizure. This application was dismissed in January 1999.

Four years later, in August 2003, Armey filed a second PCR application, alleging that Hackett had been ineffective in pursuing her previous PCR application; specifically, she alleged that Hackett failed to investigate Madson’s representation, particularly his conflict of interest at trial. Madson represented both Armey and her co-defendant ex-husband at trial. Armey describes their respective defenses as “mutually antagonistic.” Armey also alleged, as grounds for relief: a constitutional violation in the form of an illegal search and seizure; prosecutorial misconduct and perjured testimony, in that the prosecutor fabricated evidence and bribed her co-defendants to testify against her; and new evidence in the form of affidavits and interviews with her co-defendant and another witness to substantiate her claims. Armey stated that she possessed affidavits from Madson, the co-defendant and other witness, and “two experts in the criminal law concluding that both [Hackett] and [Madson] provided ineffective assistance of counsel.” However, despite the instructions on the PCR application, Armey did not attach these affidavits. The Office of Public Advocacy was appointed to represent her.

In December 2003, the State filed a motion to dismiss the PCR application. The State argued that, with the exception of the ineffective-assistance claim against Hackett, all of Armey’s claims were barred, as she had raised them in her previous PCR application. As for the claim against Hackett, the State argued that her application was insufficient, as she had failed to provide an affidavit from Hackett. The State also noted that her first PCR application was time-barred and raised claims that could have been raised in her direct appeal; and that her second PCR application was untimely and not pursued with diligence.

In response, Armey filed a pro se “Response to Motion to Dismiss.” She pointed out that Hackett’s failure to file an affidavit from Madson showed that Hackett was himself ineffective. She stated that although Hackett contacted Madson, Hackett did not pursue the claim or further investigate. She further stated that Hackett had moved to withdraw as her counsel without informing her; at the subsequent hearing, she informed Superior Court Judge Charles R. Pengilly of Hackett’s inaction, but Judge Pengilly refused to provide her with other counsel. As to the State’s current motion to dismiss, Armey stated that she did not have the records to respond; she also stated that she had written to Hackett asking for an affidavit concerning his own representation, but Hackett did not respond or send her the case file. She also stated that she had diligently pursued her PCR claims and could provide unnamed witnesses to that effect.

At a March 2004 status hearing (at which Armey was telephonically present), Armey’s appointed OPA attorney, David Allen, stated that Armey was dissatisfied with OPA’s representation; Armey stated that Allen didn’t want to represent her. Judge Pengilly told Armey that her only options were to continue with Allen, hire private counsel, or represent herself. Judge Pengilly asked Allen when he would respond to the motion to dismiss; Allen stated that he wished to investigate Armey’s diligence in pursuing the claim before addressing the merits of the petition. Judge Pengilly granted Allen an additional ninety days to investigate the issue and scheduled another hearing for June.

The hearing took place June 2, 2004; Armey was not telephonically present. Allen stated that he would not be filing a response to the motion to dismiss. He stated that Armey had made it impossible to represent her, and he would be moving to withdraw. Allen went into detail on his attempts to advance Armey’s PCR petition.

Judge Pengilly granted Allen’s motion to withdraw, and, on June 15, 2004, granted the State’s motion to dismiss. In July 2004, Armey wrote a letter to Judge Pengilly stating that she assumed Allen had been dismissed as ineffective and asking who would be representing her; Judge Pengilly responded that Allen’s withdrawal was based on the difficulty in representing her and that she was not entitled to appointment of another attorney at public expense.

On appeal, Armey argues that Judge Pengilly erred in dismissing her application because he failed to make findings on whether she exercised due diligence in pursuing her second PCR; failed to hold an evidentiary hearing on the facts alleged; failed to notify Armey of her counsel’s withdrawal; failed to assist Armey in completing her application; and failed to notify her of the court’s intent to dismiss her application. She also argues that her claim is not time-barred and that she can establish ineffective assistance by both Madson and Hackett.

An initial PCR application must be filed within two years of the entry of judgment of conviction or within one year of the final judgment on appeal.[fn3] However, when the legislature passed the statute of limitations in 1995, it provided that “a person whose conviction was entered before July 1, 1994, has until July 1, 1996 to file a claim under AS 12.72.”[fn4]
Armey was convicted in 1987. This court affirmed her conviction in 1989.[fn5] Armey filed her first PCR application in March of 1998, well after the statute of limitations had expired.

Under AS 12.72.020(b)(1), a PCR claim may be heard, notwithstanding the statute of limitations, if the applicant “establishes due diligence in presenting the claim and sets out facts supported by admissible evidence establishing that the applicant suffered from . . . a mental disease or defect that precluded the timely assertion of the claim; or . . . was physically prevented by an agent of the state from filing a timely claim.” The applicant is required to prove all factual assertions by clear and convincing evidence.[fn6] Although Armey apparently claims that she acted with due diligence in filing her second application, she made no claim that would excuse her failure to file the first PCR application before the statute of limitations expired.

At this point in the litigation, Armey appears to have narrowed her claim to assert that she received ineffective assistance of counsel in presenting her first PCR application. But if Armey filed her first PCR application after the statute of limitations expired, she was not entitled to post-conviction relief. Under these circumstances, she could not have been prejudiced by her attorney’s actions.

The record before us establishes that Armey filed her first application for PCR after the statute of limitations expired. Armey has never advanced any claim that would excuse her from complying with the statute of limitations. But because Armey has not been given the opportunity to address this issue, we conclude that we must remand the case to allow Armey to address this issue. We retain jurisdiction.

REMANDED for further proceedings.

[fn1] See Mathis v. State, 778 P.2d 1161, 1163 (Alaska App. 1989). Armey was known as Donna Mathis during the appeal; however, she now goes by “Donna Armey.”

[fn2] See Mathis, 778 P.2d at 1169.

[fn3] AS 12.72.020(a)(3)(A).

[fn4] Ch. 79, § 40, SLA 1995.

[fn5] Mathis, 778 P.2d at 1161.

[fn6] AS 12.72.040.