Opinion
A-13254
12-08-2021
JASON RAK, Appellant, v. STATE OF ALASKA, Appellee.
Fleur L. Roberts, Law Offices of Fleur L. Roberts, Fairbanks, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Ed Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court No. 3AN-16-07022 CI, Third Judicial District, Anchorage, Michael D. Corey, Judge.
Fleur L. Roberts, Law Offices of Fleur L. Roberts, Fairbanks, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
HARBISON JUDGE.
Jason Rak appeals from the superior court's order dismissing his application for post-conviction relief as untimely. For the reasons explained here, we conclude that a remand for further proceedings is required. 1
Factual and procedural background
Rak was charged with two counts of attempted murder, one count of first-degree assault, and one count of second-degree weapons misconduct following a shooting at an Anchorage shopping mall in 2008. Against the advice of his attorney, on the morning of trial, Rak entered guilty pleas to the charged offenses without the benefit of a plea agreement. According to representations made by Rak's trial attorneys, Rak entered these pleas because he believed the "end times" were near, and that he would be safer living in custody than living on his own. After accepting Rak's guilty pleas, the trial court ordered a competency evaluation and indicated that Rak could withdraw his pleas if he was found to be incompetent. A forensic psychologist from the Alaska Psychiatric Institute conducted the competency evaluation and concluded that Rak was capable of understanding the nature of the charges against him. The court then found Rak to be competent, and the case proceeded to sentencing.
AS 11.41.100 & AS 11.31.100, AS 11.41.200(a)(1), and AS 11.61.195(a)(3)(A), respectively.
Shortly before sentencing, Rak moved to withdraw his pleas claiming that he had lacked competency to enter them. The trial court denied this motion, and then sentenced Rak to 39 years in prison with 10 years suspended.
Rak appealed his convictions, arguing that the trial court erred by denying his motion to withdraw his pleas. But before this Court could address the merits of the appeal, Rak abruptly withdrew it, apparently believing that friends and relatives of his victims were in prison with him and that they would harm him if they learned that he was appealing his convictions. This Court accepted the withdrawal of Rak's appeal on May 16, 2012, and the judgment of conviction became final the next day. 2
Almost four years later, on May 20, 2016, Rak filed a pro se application for post-conviction relief as well as a pro se motion to accept the untimely application. The superior court appointed an attorney to represent Rak.
Rak's attorney conceded that Rak's application was untimely because it was not brought within one year of the date the trial court's decision became final, as required by AS 12.72.020(a)(3)(A). But the attorney argued that the application should be accepted as timely based on the exceptions to the statute of limitations listed in AS 12.72.020(b)(1). Specifically, the attorney argued that Rak suffered from a mental disease or defect that precluded him from timely filing his application and also that the Department of Corrections physically prevented him from filing his application.
In his pleadings, Rak presented evidence that he suffered from attention deficit hyperactivity disorder and bipolar disorder since childhood. He also presented evidence that his confinement in prison, particularly his time in disciplinary segregation, exacerbated these underlying conditions, causing him to experience delusional thoughts which ultimately led him to withdraw his appeal. Additionally, according to the evidence Rak presented, he suffered from paranoid and delusional thinking throughout his incarceration and had difficulty using the law library. Rak's pleadings included portions of an order appointing a guardian for him but did not contain the entire order. The pleadings also included affidavits averring that when Rak's guardian realized that he had withdrawn his appeal, she convinced him to apply for post-conviction relief.
The superior court dismissed Rak's application, finding that Rak had failed to plead sufficient facts to show that he acted with due diligence in bringing his claim. The superior court found that Rak was appointed a guardian in 2010 and that the guardian could have filed a timely application for post-conviction relief on Rak's behalf. The superior court then concluded that Rak had "provide[d] no explanation as to how any barriers to the timely submission of his application have changed, have now been 3 overcome, nor why any such barriers could not have been overcome" prior to the deadline. The superior court did not address whether Rak had pled sufficient facts to establish a prima facie case that he suffered from a mental disease or defect that prevented the timely filing of his application.
See AS 12.72.020(b)(1)(A).
This appeal followed.
Why we remand this matter to the superior court to consider whether Rak's pleadings established a prima facie case that he suffered from a mental disease or defect precluding the timely assertion of his claim
A criminal defendant seeking post-conviction relief under AS 12.72.010 generally must bring a claim within one year after the judgment becomes final.However, under AS 12.72.020(b), a court may hear a post-conviction relief claim that is filed after the statutory deadline if the defendant (1) establishes "due diligence" in presenting the claim, and (2) "sets out facts supported by admissible evidence" establishing that the applicant:
AS 12.72.020(a)(3)(A).
(A) suffered from a physical disability or from a mental disease or defect that precluded the timely assertion of the claim; or
(B) was physically prevented by an agent of the state from filing a timely claim.
In the current case, Rak does not dispute that he filed his post-conviction relief application on May 20, 2016, approximately three years after the statutory deadline of May 17, 2013. Instead, Rak contends that his application set out sufficient facts to 4 establish that he was diligent in presenting his claims and also to establish the exception to the statute of limitations set out by AS 12.72.020(b)(1)(A).
Rak also contends that his application set out sufficient facts to establish the exception set out by AS 12.72.020(b)(1)(B). We have reviewed Rak's application, and we find no error in the superior court's finding that Rak's application contained insufficient facts to establish this exception.
In reviewing the dismissal of an application for post-conviction relief on the pleadings, we treat all well-pleaded assertions of fact in the application as true and then decide whether these assertions, if proven, would entitle the applicant to relief.
LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007).
Here, the superior court did not address whether Rak had pled sufficient facts to establish a prima facie case that he suffered from a mental disease or defect that prevented the timely filing of his application. Instead, the court dismissed the application because it found that Rak had failed to demonstrate due diligence. The superior court found that (1) even if Rak himself was unable to file a timely application, Rak's guardian could have filed a timely application on his behalf, and (2) Rak did not explain how he overcame the barriers to filing his application and why he did not overcome these barriers prior to the filing deadline.
See AS 12.72.020(b)(1); State v. Jones, 759 P.2d 558, 565 (Alaska App. 1988).
Under Alaska law, a guardianship for an incapacitated person "shall be used only as is necessary to promote and protect the well-being of the person, [and] shall be designed to encourage the development of maximum self-reliance and independence of the person[.]" Moreover, "[a]n incapacitated person for whom a guardian has been appointed is not presumed to be incompetent and retains all legal and civil rights except 5 those that have been expressly limited by court order or have been specifically granted to the guardian by the court." Therefore, in the absence of a clear grant of authority from the court, Rak's guardian would not have the right to file an application on his behalf.
AS 13.26.201.
Id.
In the present case, the record does not include a copy of the complete guardianship order, and the portions of the guardianship order that are included in the record do not specifically authorize Rak's guardian to file an application for postconviction relief on his behalf. We accordingly conclude that the superior court's finding that Rak's guardian possessed this authority was not supported by the record.
Moreover, even assuming that Rak's guardian had the authority to file an application for post-conviction relief, the superior court's order did not explain why the guardian's failure to timely file an application for post-conviction relief should be imputed as a lack of diligence to Rak. We note that, if Rak's guardian was authorized to file an application for Rak, she likely could not do so without being represented by an attorney. See Christiansen v. Melinda, 857 P.2d 345, 348-49 (Alaska 1993) (holding that an agent with power of attorney may not litigate on behalf of the principal unless the agent is a licensed attorney and a member of the state bar). Additionally, there is no information in the record to establish that the guardian had the authority to use Rak's funds for this purpose or that she would have been required to use her personal funds for this purpose.
As we have explained, the superior court also found that Rak had "provide[d] no explanation as to how any barriers to the timely submission of his application have changed, have now been overcome, nor why any such barriers could not have been overcome" prior to the deadline. In other words, the superior court considered the fact that Rak eventually did file a pro se application, and it apparently concluded that, if Rak suffered from a mental disease or defect that initially prevented 6 him from filing his application, something must have changed in order for him to have successfully filed the application on May 20, 2016.
But the superior court misunderstood the nature of Rak's claim. Rak did not claim that he overcame his mental illness at some point prior to May 20, 2016, and that this allowed him to complete and file his application. Instead, Rak claimed that, during the entire relevant time period, he suffered from attention deficit hyperactivity disorder and bipolar disorder, as well as paranoid and delusional thinking. Rak presented evidence that, in 2010, a probate court found by clear and convincing evidence that he is "incapacitated" - i.e., that his "ability to receive and evaluate information or to communicate decisions is impaired... to the extent that [he] lacks the ability to provide the essential requirements for [his] physical health or safety without court-ordered assistance," and the probate court therefore appointed a guardian for him. In other words, Rak's claim was that he worked as conscientiously as possible on his application but was unable to complete and file the application until May 20, 2016 because of his ongoing mental disease or defect.
See AS 13.26.251(c); AS 13.26.005(5).
In this case, the question of whether Rak was diligent in presenting his claim cannot be answered without considering the nature and extent of Rak's alleged mental disease or defect. As a result, we must remand this case to the superior court so that it can address the question it left unanswered: whether Rak has pled sufficient facts to establish a prima facie claim that he suffered from a mental disease or defect that precluded him from filing his application prior to May 20, 2016. Additionally, during the proceedings on remand, the superior court should consider how Rak's proven incapacity - as established in his guardianship case - may relate to his claim that he 7 suffers from a mental disease or defect that prevented the timely filing of his application under AS 12.72.020(b)(1).
Conclusion
The judgment of the superior court is REVERSED. This matter is REMANDED to the superior court to consider whether Rak's pleadings set out a prima facie claim that he suffered from a mental disease or defect that precluded the timely filing of his application for post-conviction relief. 8