Opinion
Court of Appeals No. A-13306 No. 6887
07-15-2020
ROBERT LEE BELLUOMINI, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3AN-16-05023 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge. Appearances: Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge and Harbison, Judge. Judge ALLARD.
Robert Lee Belluomini appeals the dismissal of his application for post-conviction relief. The superior court dismissed Belluomini's application after his post- conviction relief attorney filed a certificate of no arguable merit under Alaska Criminal Rule 35.1.(e)(2)(C).
See Belluomini v. State, 2015 WL 4064670 (Alaska App. July 1, 2015) (unpublished) (affirming Belluomini's conviction on direct appeal).
On appeal, Belluomini argues that his post-conviction attorney's no-merit certificate was deficient because his attorney: (1) failed to consider whether the attorney who represented Belluomini on direct appeal was ineffective; (2) failed to adequately address the claims that Belluomini presented in his pro se application; (3) applied the wrong standard to a potential claim that Belluomini's trial counsel was ineffective for failing to request a mistrial; (4) failed to identify, analyze, and explain other potential claims that could have been included; and (5) failed to obtain affidavits from Belluomini's trial and appellate attorneys. Belluomini also argues that the superior court's independent assessment of whether Belluomini was entitled to relief was insufficient and that the superior court failed to mail its notice of intent to dismiss to Belluomini, as required by Criminal Rule 35.1(f)(2).
The State concedes that the no-merit certificate filed by Belluomini's post-conviction attorney was deficient for all the reasons stated by Belluomini. The State also concedes that the superior court's analysis was deficient and that, based on the current record, it appears that the superior court failed to notify Belluomini of its intent to dismiss.
We have reviewed the State's concessions and conclude that they are well founded.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (holding that an appellate court must independently review the proceedings below to ensure that the State's concession is supported by the record on appeal and has legal foundation).
We therefore REVERSE the superior court's dismissal of Belluomini's application for post-conviction relief, and we remand his case to the superior court for further proceedings.
We note that Belluomini's post-conviction relief attorney in this case also filed a certificate of no merit in Belluomini's separate but factually related case. We found that certificate similarly deficient. See Belluomini v. State, 2020 WL 2551859, at *1 (Alaska App. May 20, 2020) (unpublished). --------