HOWARTH v. STATE, A-8727 (Alaska App. 5-10-2006)
Court of Appeals No. A-8727.Court of Appeals of Alaska.
May 10, 2006.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Richard Erlich, Judge. Trial Court No. 2KB-02-115 CI 2KB-81-243 CR.
Dan S. Bair, Attorney at Law, Anchorage, for the Appellant. Nancy R. Simel, 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.
William Howarth Sr. pleaded no contest to sexual assault in the second degree in 1988. In 2002 he filed a pro se application for post-conviction relief. Normally, this application would be barred by the statute of limitations. But Howarth contended that he fell within an exception to the statute of limitations because he suffered from a mental disease or defect that precluded him from filing the application within the time period provided in the statute. Following a hearing, Superior Court Judge Richard Erlich dismissed the application, finding that Howarth had not established that his mental status had precluded him from filing the application. Howarth appeals from this ruling. We affirm.
Factual background
In September 1981, Howarth pleaded no contest to first-degree sexual assault. In March 1988, the superior court allowed Howarth to withdraw his no contest plea after finding that Howarth had received ineffective assistance of counsel. Howarth later entered a no contest plea to the reduced charge of second-degree sexual assault. He was sentenced to time served and released in June 1988.
Howarth’s involvement with the criminal justice system did not end with his release. He filed suit against his former counsel and the Public Defender Agency for negligence, but lost that case on a summary judgment motion.[fn1] He was also convicted of an unrelated murder.[fn2] In September 1997, he timely filed an application for post-conviction relief to vacate the murder conviction.[fn3] The superior court dismissed his application and we affirmed.[fn4]
In January 1999, Howarth wrote a letter to Superior Court Judge Ben Esch complaining that he had received ineffective assistance of counsel in 1988 when he was convicted of second-degree sexual assault. In October 2001, Howarth filed an original application for relief under Alaska Appellate Rule 404, claiming that he had been coerced into pleading guilty to second-degree sexual assault and that medical and forensic evidence established his innocence. We dismissed the application, concluding that Howarth’s claims were more properly raised in post-conviction relief proceedings.
In May 2002, Howarth filed a pro se application for post-conviction relief based on the same grounds alleged in his Rule 404 application. The State moved to dismiss the application as untimely because Howarth had not filed his application before the statute of limitations expired on July 1, 1996.[fn5] Judge Erlich appointed counsel for the limited purpose of arguing against dismissal. Howarth’s counsel filed several documents to show that Howarth had a mental defect that had prevented him from timely filing his application. This included a “Treatment Summary Report” from February 1995 stating that Howarth had a long-standing history of depression, as well as an October 1990 deposition of Dr. Leo Ingle, a psychiatrist who had examined Howarth in connection with the sexual assault charge.
At a July 2003 evidentiary hearing, Howarth testified that his prior counsel had told him that Dr. Ingle had diagnosed him with post-traumatic stress syndrome. At the hearing, Howarth’s current counsel asked him whether his depression had made it difficult for him to perform legal tasks from before July 1996 to 2001; Howarth stated that it had been “extremely difficult” to formulate the issues for the court during that period, and that his paperwork from that time was “scattered” compared to his current work. However, he conceded that he had not been on any medication for his depression since 1996, and that he had stopped seeing the prison psychologist about two years before the evidentiary hearing.
Under AS 12.72.020(b)(1)(A), a claim for post-conviction relief 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[.]” The applicant is required to prove all factual assertions by clear and convincing evidence.[fn6] However, the statute does not define “mental disease or defect.” Judge Erlich therefore utilized AS 12.47.100
(which defines competency to stand trial) to determine whether Howarth had presented sufficient evidence to prove that a mental disease prevented timely filing of his application.
Judge Erlich concluded that Howarth had not shown that he acted with due diligence in presenting his claim or that he suffered from a mental disease or defect that precluded him from asserting his claim in a timely manner. In his findings, Judge Erlich analyzed the evidence that Howarth had presented and his long history of involvement in the criminal justice system. Judge Erlich concluded that Howarth’s personal written documents demonstrated that he had “an ability to communicate his point and think.” Judge Erlich said that these writings did not show that any mental defect had affected Howarth’s ability to communicate or make arguments. He pointed out that Howarth had worked with various legal counsel and had successfully pursued pro se litigation. Judge Erlich’s findings are supported by the record and support his conclusion that Howarth did not show by clear and convincing evidence that he acted with due diligence in presenting his claims or that he suffered from a mental disease or defect that precluded him from timely asserting those claims.
Howarth contends that Judge Erlich erred in applying the test used to evaluate a defendant’s competency to stand trial in determining whether he presented sufficient evidence to show that a mental disease prevented him from timely filing his application. Howarth argues that Judge Erlich should have applied the test in AS 09.10.140, which allows tolling of civil actions due to incompetency caused by mental illness or disability. In those types of actions, the test is simply whether the person can know and understand their legal rights sufficiently well to manage their affairs.[fn7] But it seems clear to us that Judge Erlich would have rejected Howarth’s claim under either test. Howarth also contends that Judge Erlich erred in not granting his request to have the court order a current psychological evaluation. In denying the request, Judge Erlich stated that he did not see any benefit from a current mental examination. He reasoned that the psychological examination would not help establish Howarth’s mental state during the time periods that were relevant to deciding this case. We conclude that Judge Erlich’s reasoning was sound and that his ruling was not an abuse of discretion.
The judgment of the superior court is AFFIRMED.
[fn1] Howarth v. State Public Defender Agency, 925 P.2d 1330,1331 (Alaska 1996). [fn2] Howarth v. State, Alaska App. Memorandum Opinion and Judgment No. 3724 (Dec. 17, 1997), 1997 WL 775566. [fn3] Howarth v. State, 13 P.3d 754 (Alaska App. 2000);Howarth v. State, Alaska App. Memorandum Opinion and Judgment No. 4704 (May 7, 2003), 2003 WL 21019413. [fn4] Howarth v. State, Alaska App. Memorandum Opinion and Judgment No. 5043 (Feb. 22, 2006), 2006 WL 438675. [fn5] AS 12.72.020, enacted in 1995, requires post-conviction relief petitions to be filed within two years of entry of judgment; but because Howarth’s conviction predated the statute, a special provision allowed him until July 1, 1996 to file (ch.79, § 40, SLA 1995). [fn6] AS 12.72.040. [fn7] Adkins v. Nabors Drilling, Inc., 609 P.2d 15, 23 (Alaska 1980).