Opinion
A-13117sw
09-22-2021
CURTIS POWELL, Appellant, v. STATE OF ALASKA, Appellee.
Margot O. Knuth and Marilyn J. Kamm, Attorneys at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court Trial Court No. 3AN-15-07191 CI, Third Judicial District, Anchorage, William F. Morse, Judge.
Margot O. Knuth and Marilyn J. Kamm, Attorneys at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Curtis Powell pleaded guilty to fourth-degree misconduct involving a controlled substance. The judgment was entered on November 20, 2012.
Former AS 11.71.040(a)(3)(A) (2011).
Almost three years later, in May 2015, Powell filed an application for post-conviction relief, seeking to withdraw his plea. In the application, Powell claimed that both his trial attorney and a private attorney that he hired shortly after the judgment entered were incompetent. According to Powell, neither of these attorneys filed a timely application for post-conviction relief on his behalf or told him that he had the right to file such an application, even though he told them that he wanted to challenge his conviction. In a written order, the superior court dismissed Powell's application as untimely, and this appeal followed.
Powell filed his own affidavit in support of this claim, but he did not file affidavits from his attorneys. The superior court nevertheless conducted an evidentiary hearing, and his attorneys were not called as witnesses at that hearing.
Under Alaska law, an application for post-conviction relief generally must be filed within eighteen months of the date of entry of a final judgment if the defendant does not file an appeal. Because Powell did not file an appeal in this case, the deadline for him to file his petition was May 20, 2014.
AS 12.72.020(a)(3)(A). If a defendant files an appeal, the deadline for an application for post-conviction relief is one year after the court's decision is final under the Alaska Rules of Appellate Procedure.
On appeal, Powell asserts that his application should be deemed timely because the court has the authority to toll or extend the filing deadline based on the "discovery rule" - the equitable principle 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. When the superior court addressed this assertion, it found that, even if such an equitable principle applies to Powell's case, his application was not timely. We agree with this conclusion.
See Greater Area Inc. v. Bookman, 657 P.2d 828, 829 (Alaska 1982) ("According to the best formulation of [the discovery rule], the statute of limitations for legal malpractice does not begin to run until the client discovers, or reasonably should discover, the existence of all the elements of his cause of action.").
The superior court found that Powell was already on notice of his trial attorney's alleged incompetence by the time of the entry of the judgment in his underlying criminal case. The record supports this finding. The superior court also found that Powell was aware of the injury allegedly caused by his private attorney but he was not diligent in taking any action. This finding is also supported by the record. According to Powell, he hired the private attorney to represent him in a different driving while under the influence case but he also wanted her to "have [his] MICS 4 conviction set aside." There is nothing in the record to suggest that the private attorney ever agreed to do so or that she assumed any duty of representation in regard to the earlier conviction. And at the evidentiary hearing on the timeliness of his post-conviction relief application, Powell testified that instead she "blew [him] off." The superior court found that, under those circumstances, Powell was on notice that his private attorney was not helping him with the other case and it was his own lack of diligence that led to the late-filing of the post-conviction relief application.
Having reviewed the record, we agree with the superior court that, even assuming the "discovery rule" applied to Powell's case, he failed to show that he was entitled to any remedy under that rule.
See Preblich v. Zorea, 996 P.2d 730, 735 (Alaska 2000) (affirming grant of summary judgment because a claim was time-barred, holding that the statute of limitations was triggered when plaintiff had sufficient information to alert her that her attorney might have engaged in malpractice).
We note that Powell also argued that principles of due process required the court to toll the filing deadline and to accept his application as timely. On appeal, Powell claims that he never received a ruling on his due process claim. However, we read the trial court's order as rejecting Powell's due process claim, and we find no error in the rejection of the due process claim given the circumstances presented here. In any case, to the extent that Powell believes that his due process claim was not directly ruled on, he has waived that claim by failing to secure a ruling from the superior court.
Cf. Cleveland v. State, 241 P.3d 504, 506-07 (Alaska App. 2010) (holding that extending the deadline for filing an application for post-conviction relief indefinitely would be contrary to the statutory purposes of promoting the finality of convictions and minimizing the litigation of stale claims).
See Bryant v. State, 115 P.3d 1249, 1258 (Alaska App. 2005).
Lastly, Powell contends that he suffers from a mental disease or defect, specifically, attention deficit disorder and communication difficulties, that prevented him from timely filing his application. But Powell did not raise this ground for relief in his original pleadings to the superior court; instead he raised it for the first time in his motion for reconsideration. Accordingly, this claim is waived. In any case, the current record fails to establish that Powell suffered from a mental disease or defect that precluded the timely filing of his claim. Instead, the record suggests the opposite - that despite his purported mental disease or defect that may have affected his communications with his attorneys, Powell was able to understand legal proceedings and manage his legal affairs prior to the post-conviction relief filing deadline.
See AS 12.72.020(b)(1)(A) (permitting a late-filed post-conviction relief application if the defendant "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").
See Katz v. Murphy, 165 P.3d 649, 661 (Alaska 2007) ("Alaska Civil Rule 77(k), which governs motions for reconsideration, does not allow the moving party to raise new grounds as a basis for reconsideration; instead the rule only allows reconsideration of points that were overlooked or misconceived despite having been properly raised.").
The judgment of the superior court is AFFIRMED.