Court of Appeals No. A-12686 No. 6726
Appearances: Benjamin I. Whipple, Attorney at Law, Palmer, for the Appellant. Nancy R. Simel, 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. Trial Court No. 3PA-14-1755 CI
Appeal from the Superior Court, Third Judicial District, Palmer, Gregory Heath, Judge. Appearances: Benjamin I. Whipple, Attorney at Law, Palmer, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge ALLARD.
In 2002, following a jury trial, Fred M. Esguerra was convicted of two counts of first-degree sexual abuse of a minor and one count of attempted first-degree sexual abuse of a minor. Esguerra appealed his convictions and his sentence. This Court affirmed his convictions and his sentence, and the Alaska Supreme Court denied Esguerra's petition for hearing in August 2005.
Esguerra v. State, 2005 WL 19220, at *1 (Alaska App. Jan. 5, 2005) (unpublished).
Esguerra v. State, File No. S-11815 (Order dated Aug. 19, 2005).
In 2009, Esguerra filed an application for post-conviction relief, raising several claims of ineffective assistance of counsel. The superior court dismissed this application on the pleadings, and this Court affirmed. The supreme court denied Esguerra's petition for hearing.
Esquerra v. State, File No. S-15012 (Order dated May 23, 2013).
A little over a year after the supreme court denied his petition for hearing, Esguerra filed a Grinols application for post-conviction relief, asserting ineffective assistance of counsel by the attorney who represented him in his prior application for post-conviction relief. The superior court dismissed this application as untimely under AS 12.72.025, which imposes a one-year statute of limitations on successive applications for post-conviction relief based on ineffective assistance of counsel under Grinols. Esguerra now appeals, arguing that his due process rights were violated by AS 12.72.025's one-year statute of limitations.
See Grinols v. State, 74 P.3d 889 (Alaska 2003). --------
We conclude that we cannot resolve Esguerra's appeal on the current record. In the trial court proceedings, the parties and the court all proceeded under the belief that Esguerra's deadline for filing his Grinols application was January 12, 2014. However, as the State recognizes on appeal, the actual deadline was May 24, 2014. Because Esguerra's application was received by the court on May 28, 2014, it appears to have been filed at most four days late. Indeed, Esguerra's signature on his application is dated the statutory deadline.
Although Esguerra was unable to account for a four-and-a-half month delay in filing his Grinols application (based on the incorrect deadline), it does not appear that he was ever given the opportunity to explain the much lesser delay based on the correct deadline.
Because of this, we conclude that relitigation of the timeliness question is required.
For these reasons, we REVERSE the superior court's dismissal of Esquerra's post-conviction relief application, and we remand his case to the superior court for further proceedings.