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            IN THE COURT OF APPEALS OF THE STATE OF ALASKA


BYRON F. GEISINGER,
                                                      Court of Appeals No. A-11881
                           Petitioner,               Trial Court No. 4FA-11-2842 CI
                                                           t/w 4FA-06-3452 CR
                    v.

STATE OF ALASKA,                                               OPINION

                           Respondent.
                                                     No. 2430 — September 26, 2014


             Petition for Review from the Superior Court, Fourth Judicial
             District, Fairbanks, Bethany S. Harbison, Judge.

             Appearances: Brooke V. Berens, Assistant Public Advocate,
             Appeals & Statewide Defense Section, and Richard Allen,
             Public Advocate, Anchorage, for the Petitioner. Kenneth M.
             Rosenstein, Assistant Attorney General, Office of Special
             Prosecutions and Appeals, Anchorage, and Michael C.
             Geraghty, Attorney General, Juneau, for the Respondent.

             Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
             District Court Judge. *

             Judge HANLEY.




      *
          Sitting by assignment made pursuant to article IV, section 16 of the Alaska
Constitution and Administrative Rule 24(d).
                 This petition for review raises the question of what statute of limitation
applies to the filing of an application for post-conviction relief by a defendant who
pursued a direct appeal of his sentence but not his conviction.
                 Byron F. Geisinger was convicted of several crimes after a fatal motor
vehicle collision, and he was sentenced to 16½ years to serve.1 He appealed his
sentence, arguing that it was excessive and that the court erred by rejecting his proposed
statutory mitigating factor.2 We affirmed Geisinger’s sentence.3
                 Geisinger then filed an application for post-conviction relief, claiming that
the attorney who represented him at his trial was incompetent. The superior court
dismissed that claim as untimely. The court ruled that, under AS 12.72.020(a)(3)(A), the
normal statute of limitation for filing an application for post-conviction relief — eighteen
months from the date judgment was entered in the underlying criminal case — is not
tolled while a defendant appeals his sentence. Geisinger’s application was filed well
outside that eighteen-month deadline.
                 Geisinger petitions for review of the superior court’s decision and the State
concedes error. We now grant Geisinger’s petition for review and, for the reasons
explained below, hold that a defendant who appeals his sentence or his conviction, or
both, has one year from the date the decision on appeal is final to file an application for
post-conviction relief.4 Because Geisinger’s application was filed within that deadline,
the superior court erred in granting the State’s motion to dismiss.


       1
          Geisinger v. State, 2010 WL 5186081, at *1 (Alaska App. Dec. 22, 2010)
(unpublished).
       2
           Id.
       3
           Id. at *1-3.
       4
           See R. App. P. 507, 512.

                                               2                                        2430

       Facts and proceedings
               Geisinger was convicted of manslaughter,5 leaving the scene of an injury
accident,6 two counts of assault in the first degree,7 forgery,8 and driving under the
influence.9 He filed a timely notice in this Court of a “merit appeal” — an appeal
challenging the validity of his convictions. However, Geisinger’s appointed counsel
later determined that Geisinger had no non-frivolous challenges to his convictions; the
attorney therefore limited Geisinger’s opening brief to claims attacking his sentence. We
rejected those claims and affirmed Geisinger’s sentence,10 and the supreme court denied
Geisinger’s petition for hearing.11
               Geisinger’s attorney then advised him that he had one year from the date
the supreme court rejected his petition for hearing (that is, the date when our decision of
his sentence appeal became final12) to file an application for post-conviction relief.
Geisinger filed an application approximately seven months later challenging, inter alia,
the competence of his trial attorney. On the State’s motion, the superior court rejected




       5
            AS 11.41.120(a)(1).
       6
            AS 28.35.060(c).
       7
            AS 11.41.200(a)(1).
       8
            AS 11.46.505(a)(1).
       9
            AS 28.35.030(a)(2).
       10
            Geisinger, 2010 WL 5186081, at *1.
       11
            Supreme Court Case No. S-14139.
       12
            See R. App. P. 507, 512.

                                            3                                        2430

as untimely Geisinger’s claim that his trial attorney was ineffective.13 Geisinger then
filed this petition for review.


       Why we conclude that the deadline for filing a post-conviction relief application
following a sentence appeal is one year after the decision on appeal becomes final, and
that Geisinger’s application is therefore timely
              Under AS 12.72.010, any person who has been convicted of a crime in
Alaska may institute a proceeding for post-conviction relief challenging his conviction
or sentence, as long as the application raises claims permitted by the statute and the
application is filed within the time limits codified in AS 12.72.020. Subsection (a)(3)(A)
of that statute provides that a post-conviction relief action is untimely if:
                      (3) the later of the following dates has passed, except
              that if the applicant claims that the sentence was illegal there
              is no time limit on the claim:
                      (A) if the claim relates to a conviction, 18 months after
              the entry of the judgment of the conviction or, if the
              conviction was appealed, one year after the court’s decision
              is final under the Alaska Rules of Appellate Procedure[.]
              The superior court interpreted this subsection to mean that if a defendant
appeals his conviction — that is, argues on direct appeal that he is entitled to an acquittal
or a new trial — the period for filing an application for post-conviction relief is tolled
until one year after the appeal becomes final. But the court concluded that the statute of
limitation is not tolled for a defendant like Geisinger who appealed only his sentence.
In that circumstance, the court ruled, the application must be filed within eighteen




       13
          The State did not move to dismiss the claims attacking the competence of
Geisinger’s appellate counsel, and those claims are apparently still pending.


                                             4                                         2430
months of the date judgment was entered in the criminal case. That is the same deadline
that applies to a defendant who filed no appeal at all.
               The superior court reasoned that the plain language of the statute mandated
this result:
               The statutory language is not ambiguous. The statute
               indicates that time is tolled if “the conviction was appealed.”
               If the legislature had intended that the time would be tolled
               upon appeal of either the conviction or the sentence, it would
               have said this in the statute.14
               The main problem with the superior court’s interpretation of
AS 12.72.020(a)(3)(A) is that it does not accord with the well-settled principle of
statutory construction that “the same words used twice in the same act have the same
meaning.”15 As indicated in italics below, the statute uses the term “conviction” in
different contexts: first, to characterize the nature of the claim raised in the post-
conviction relief action and, later, to characterize the nature of the claim raised on direct
appeal:
               (A) if the claim [raised in the post-conviction relief
               application] relates to a conviction, [the application must be
               filed within] 18 months after the entry of the judgment ... or,
               if the conviction was appealed, [the application must be filed
               within] one year after the court’s decision is final under the
               Alaska Rules of Appellate Procedure[.]16
               If we attempt to reconcile these two meanings of “conviction” in a way that
preserves the superior court’s ruling — by assuming that in both instances “conviction”



       14
            Emphasis in original.
       15
          Benner v. Wichman, 874 P.2d 949, 957 (Alaska 1994) (quoting 2A Norman J.
Singer, Sutherland’s Statutes and Statutory Construction § 46.06 (5 th ed. 1992)).
       16
            Emphasis added.

                                             5                                         2430
means just “conviction,” not “conviction or sentence” — then AS 12.72.020(a)(3)(A)
would impose no deadline for an application that raises a claim related to the defendant’s
sentence. The State acknowledges that this cannot be what the legislature intended.17
Moreover, this interpretation would render another part of the same statute superfluous.18
As related above, the legislature expressly provided in AS 12.72.020(a)(3) that there is
no time limit for filing an application for post-conviction relief challenging a sentence
as illegal.19 There would be no reason for the legislature to create this limited exception
if its intent was to eliminate the statute of limitations for all post-conviction relief
applications raising sentencing claims.
              In addition, as Geisinger points out, the superior court’s reading of
AS 12.72.020(a)(3)(A) would, as a practical matter, defeat one of the primary goals of
the post-conviction relief statutes: reducing frivolous post-conviction relief litigation.20
Normally, given the current length of time it takes to litigate a criminal appeal, the
decision on appeal will not become final within eighteen months of the defendant’s
conviction.        Therefore,     under    the    superior    court’s    interpretation     of
AS 12.72.020(a)(3)(A), a prudent attorney litigating a sentence appeal would advise his


       17
            See Xavier v. State, 278 P.3d 902, 905 (Alaska App. 2012) (noting the legislature’s
interest in providing a time limit for the litigation of post-conviction claims).
       18
            See Libby v. City of Dillingham, 612 P.2d 33, 39 (Alaska 1980) (citing 2A C.
Sands, Sutherland Statutory Construction § 46.06 (4th ed. 1973)) (“It is a basic principle of
statutory interpretation that, when possible, effect should be given to all provisions of a
statute so that no part of the statute is superfluous.”).
       19
           See Bishop v. Anchorage, 685 P.2d 103, 105 (Alaska App. 1984) (noting that the
term “illegal sentence” has been narrowly construed to apply only to sentences that are not
authorized by the judgment of conviction).
       20
          Xavier, 278 P.3d at 904 (citing the Governor’s Transmittal Letter for House Bill
201, 1995 House Journal 488-89).

                                              6                                          2430

client to file an application for post-conviction relief while the appeal is still pending,
even though resolution of the appeal might later render that application moot.
Alternatively, an attorney who realizes, after the eighteen-month deadline for filing an
application for post-conviction relief has passed, that the defendant’s only potentially
meritorious claims are sentencing claims might choose to raise a non-meritorious
challenge to the defendant’s conviction rather than forfeit the defendant’s opportunity
to pursue an application for post-conviction relief. We think it clear that the legislature
did not intend to encourage this type of unnecessary litigation. We also can discern no
rational basis for allowing a defendant who challenges a sentence on direct appeal
unlimited time to file an application for post-conviction relief raising any challenge
authorized by the post-conviction relief statutes, while requiring a defendant who
appealed his conviction to file the application within a specific deadline.
               The more reasonable interpretation of AS 12.72.020(a)(3)(A) is that the
legislature used the term “conviction” not to distinguish a conviction from a sentence,
but to distinguish a conviction from a probation revocation or administrative decision.
The statute sets out different deadlines for filing an application for post-conviction relief
challenging a conviction,21 a revocation of probation,22 or an administrative decision of
the Board of Parole or Department of Corrections.23 We conclude that the legislature
intended the statute of limitations in each instance to encompass a post-conviction relief
challenge to both the conviction, revocation, or decision, and to any penalty imposed.
               Interpreting AS 12.72.020(a)(3)(A) in this manner, a defendant who
appeals his conviction or sentence, or both, has one year from the date the decision on


       21
            AS 12.72.020(a)(3)(A).
       22
            AS 12.72.020(a)(3)(B).
       23
            AS 12.72.020(a)(4).

                                             7                                         2430
appeal is final to file an application for post-conviction relief. Because Geisinger’s post-
conviction relief application was filed approximately seven months after our decision of
his sentence appeal became final, it was timely.


       Conclusion
              We REVERSE the superior court’s order dismissing Geisinger’s challenge
to the competence of his trial counsel, and we REMAND the case to the superior court
for further proceedings on his application. Because of our resolution of this issue, we
do not address Geisinger’s claim that the superior court’s dismissal of his claims violated
his right to due process. We do not retain jurisdiction.




                                             8                                        2430

