STEWART, Judge.
The superior court dismissed Elizeo Cortez's second application for post-conviction relief. The State concedes that Cortez's application should not have been dismissed to the extent that it pleads ineffective assistance of counsel. We accept the State's concession because our review of the record establishes that it is well founded. Accordingly, we reverse the superior court in part.
In February 1999, postal inspectors intercepted a package addressed to Cortez in Kodiak. The inspectors asked the Alaska State Troopers to test the package with a drug-sniffing dog. According to the troopers, the dog reacted to the presence of drugs in the package. A postal inspector obtained a search warrant to inspect the package and discovered ten ounces of cocaine inside. After further investigation, the grand jury indicted Cortez for third-degree misconduct involving controlled substances.
AS 11.71.030 (a)(1) (possession of cocaine with intent to deliver).
Superior Court Judge Dan A. Hensley denied Cortez's motion to suppress the cocaine. Cortez reached an agreement with the State for a Cooksey plea to appeal the denial of his suppression motion. As part of the agreement, Cortez also reached a sentence bargain with the State in this case, as well as in an earlier Anchorage felony drug case, in which he faced a probation revocation based on his conduct in the Kodiak case. We affirmed Cortez's conviction on direct appeal.
See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
Cortez v. State, Alaska App. Memorandum Opinion and Judgment No. 4624 at 8 (Oct. 16, 2002), 2002 WL 31307848 at *4.
After the appeal, Cortez, who was still represented by his trial counsel, filed an application for post-conviction relief, contending that he was entitled to a sentence modification even though he had negotiated the composite sentence. Cortez claimed that he had made so much progress toward rehabilitation since the court had imposed sentence that his sentence should be reduced. Judge Hensley dismissed the application.
After Judge Hensley dismissed the first application for post-conviction relief, Cortez filed another application for post-conviction relief pro se. The State moved to dismiss the application. Superior Court Judge Joel H. Bolger granted the motion and dismissed the case. Cortez appeals.
Although Cortez's second application asserts several grounds for relief, one of the grounds he advances is that he received ineffective assistance from the attorney who represented him at trial, on direct appeal, and in his first application. Cortez argues that this attorney failed to pursue several meritorious claims.
In Grinols v. State, we ruled that, in spite of the statutory bar to successive applications for post-conviction relief, an applicant is entitled to pursue a second application on the grounds that the applicant received ineffective assistance of counsel in the first application. Admittedly, Cortez's pro se application is not a model of clarity. But when Cortez responded to the State's motion to dismiss, he asserted ineffective assistance of counsel in the prosecution of his first application as a potential ground for relief. While it appears that Cortez's application is time-barred with respect to any claims he asserts regarding his Anchorage felony drug case, that bar does not foreclose the second application as it relates to the Kodiak case.
10 P.3d 600 (Alaska App. 2000).
Id. at 619-20.
AS 12.72.020 (a)(3)(A).
We have examined the record in the case and conclude that the State's aforementioned concession is well founded. Accordingly, we reverse the superior court in part. Cortez should be allowed to pursue his claim that he received ineffective assistance of counsel in his Kodiak case.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess any concession of error by the State in a criminal case).
Cortez can renew his request for appointed counsel when his case returns to the superior court. As we noted in Grinols, "when litigation of the defendant's claim would be unfair unless the defendant is assisted by counsel, the Alaska Constitution's guarantee of due process of law mandates that a court have the authority to appoint counsel for an indigent defendant." On remand, if the superior court determines that it would be unfair to litigate Cortez's claim without counsel, the court should appoint counsel.
Grinols, 10 P.3d at 623.
Conclusion
The judgment of the superior court is REVERSED in part. The case is remanded to the superior court for further proceedings as discussed in this opinion.