Opinion
Court of Appeals No. A-11776 No. 6192
06-10-2015
SIDNEY R. HERTZ, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Sidney R. Hertz, pro se, Salem, Oregon, for the Appellant. Nancy Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig Richards, 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. Trial Court No. 3AN-83-6873 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael R. Spaan, Judge. Appearances: Sidney R. Hertz, pro se, Salem, Oregon, for the Appellant. Nancy Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig Richards, Attorney General, Juneau, for the Appellee. Before: Allard, Judge, Coats, Senior Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
In 1984, Sidney R. Hertz was convicted of second-degree murder and sentenced to a 40-year prison term. His conviction and sentence were affirmed by this Court on direct appeal. Over the next twenty years, Hertz filed multiple applications for post-conviction relief. In 2004, this Court affirmed a superior court decision dismissing Hertz's motion seeking DNA and fingerprint testing of a knife and bloody paper tissues, primarily on the ground that Hertz had failed to articulate how testing this evidence would lead to material evidence of innocence. The superior court denied another motion to require the State to turn over evidence for DNA and fingerprint testing in 2006.
Hertz v. State, 1986 WL 1161056, at *1 (Alaska App. Sept. 10, 1986) (unpublished).
Hertz v. State, 2004 WL 902158 (Alaska App. Apr. 28, 2004) (unpublished).
In 2013, Hertz filed essentially the same request for DNA and fingerprint testing, asserting that he was now entitled to this testing under AS 12.73.010, a recently enacted statute that allows for post-conviction DNA testing under certain circumstances.
Superior Court Judge Michael R. Spaan denied the motion, ruling that Hertz had failed to meet the requirements of AS 12.73.010 and that he had already fully and unsuccessfully litigated this same claim in the earlier proceedings.
We agree with the superior court that Hertz's request for DNA and fingerprint testing did not comply with the requirements of the statute. In order to obtain DNA testing, Alaska Statute 12.73.020 requires the court to find that the defendant has "identifie[d] a theory of defense that would establish the applicant's innocence" using the requested DNA evidence. Here, as in his prior requests for post-conviction DNA and fingerprint testing, Hertz has failed to articulate how the requested testing would establish his innocence. He has also failed to explain how his request for fingerprint testing falls within AS 12.73, which mentions only DNA testing.
We also agree with the superior court that the doctrine of res judicata bars Hertz from relitigating the same request for post-conviction testing. Res judicata precludes relitigation by the same parties of claims decided in a prior proceeding. It also precludes litigation by the same parties of claims that could have been raised in a prior proceeding.
DeNardo v. State, 740 P.2d 453, 456 (Alaska 1987) (citing Calhoun v. Greening, 636 P.2d 69, 72 (Alaska 1981)).
Angleton v. Cox, 238 P.3d 610, 614 (Alaska 2010) (citing Smith v. C.S.K. Auto, Inc., 132 P.3d 818, 820-21 (Alaska 2006)).
The purpose of AS 12.73 was to provide criminal defendants with an avenue to seek post-conviction DNA testing that could establish their innocence. There is nothing in the legislative history to suggest that the statute was intended to allow re-litigation of claims that had already been fully litigated and that had already been resolved by the courts.
See Sen. Hollis French, Sponsor Statement, S.B. 110, 26th Leg., 2nd Sess. (as introduced March 12, 2010).
On appeal, Hertz argues that the superior court should have appointed a public lawyer to assist him in obtaining his requested testing. But the record shows that although Hertz requested a lawyer under AS 18.85.100(g), he subsequently demanded a ruling on his underlying motion for testing before the court ruled on the request for counsel. Hertz therefore waived any statutory claim for appointed counsel by failing to obtain a ruling on his request.
Cf. Milette v. Milette, 177 P.3d 258, 268 (Alaska 2008) (pro se litigants can waive appeals of motions if they fail to take action to obtain a ruling from the trial court) (cited previously in Hertz v. State, Dept. of Corrections, 230 P.3d 663 (Alaska 2010)).
Hertz also argues that the superior court erred in finding his motion untimely. We agree with Hertz that this was error. Under AS 12.73.040, a criminal defendant has three years following his conviction in which to apply for post-conviction DNA testing under AS 12.73. But the rule is different for defendants like Hertz who were convicted prior to July 1, 2010, the effective date of AS 12.73. Such defendants have until July 1, 2020, to apply for DNA testing under the statute.
See ch. 20, § 16(c), SLA 2010 ("Notwithstanding any other provision of law, a person whose conviction was entered before July 1, 2010, has until July 1, 2020, to file a claim under AS 12.73, enacted by § 6 of this Act, or a later date if the court finds good cause for a later filing.").
In addition, as the State concedes, a defendant's failure to comply with the statutory deadline under AS 12.73 creates only a presumption of untimeliness. That presumption can be rebutted if the trial court finds good cause for filing after the statutory deadline. Thus, a defendant's failure to comply with the statutory deadline should not result in a summary dismissal of his request for DNA testing under AS 12.73. Instead, the court should give the defendant adequate opportunity to litigate the question of whether there is good cause for the delay.
AS 12.73.040(2).
Id.
See ch. 20, § 16(c), SLA 2010.
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Here, however, the court's failure to properly litigate the issue of timeliness is harmless given that Hertz was not otherwise entitled to relitigate a claim for post-conviction DNA testing that he had already fully litigated in his prior post-conviction proceedings.
The judgment of the superior court is AFFIRMED.