concurring.
I write separately because my analysis of this case differs somewhat from the analysis presented in the lead opinion.
The underlying legal issue in this case is how to interpret the wording of AS 12.72.020(2)(8), a statute of limitations that imposes deadlines for filing a petition for post-conviction relief.
With respect to petitions for post-conviction relief that relate to a defendant's underlying criminal conviction, the pertinent portion of AS 12.72.020(a)(8)(A) declares that "if the conviction was appealed, [the petition for post-conviction relief can be filed no later than] one year after the court's decision is final under the Alaska Rules of Appellate Procedure." 1 Our task in this appeal is to ascertain the meaning of the clause, "after the court's decision is final under the Alaska Rules of Appellate Procedure".
As explained in Judge Bolger's lead opinion, Cleveland filed a direct appeal of his criminal convictions. This Court affirmed those convictions on May 28, 2004; see Cleveland v. State, 91 P.3d 965 (Alaska App.2004). Cleveland then filed a petition for hearing, asking the Alaska Supreme Court to review our decision.
Under the Alaska Appellate Rules, the fact that Cleveland filed a timely petition for hearing meant that this Court's decision would not become final until the day after the supreme court resolved Cleveland's petition for hearing. See Appellate Rules 507(b) and 512(a)(2). The supreme court denied Cleveland's petition on August 26, 2004.2 Thus, under the Alaska Appellate Rules, this Court's decision (.e, our decision resolving Cleveland's direct appeal of his criminal convictions) became final on Friday, August 27, 2004.
Seemingly, then, AS 12.72.020(2)@B)(A) gave Cleveland one year-until the close of business on Monday, August 29, 2005-to seek post-conviction relief relating to his criminal convictions.3 Cleveland's petition for post-conviction relief was not filed until April 2007-substantially after this deadline.
But the conclusion that Cleveland's petition was filed too late rests on the premise that, when AS 12.72.020(a)(8)(A) speaks of "the court's decision [being] final under the Alaska Rules of Appellate Procedure", the statute is referring to the finality of the appellate court's decision. Cleveland argues that this statutory language means something different-that it refers to the finality of the trial court's decision.
If the statute were interpreted as Cleveland suggests, this might mean that Cleveland's petition for post-conviction relief was timely.
As explained in Judge Bolger's lead opinion, Cleveland re-opened the trial court proceedings in August 2004 by filing a motion to correct illegal sentence (a motion based on the United States Supreme Court's justis-sued decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 LEd.2d 403 (2004)). The superior court denied Cleveland's sentence-correction motion toward the end of January 2005, and this Court affirmed *509the superior court's decision on August 25, 2006. See Cleveland v. State, 143 P.3d 977 (Alaska App.2006). Cleveland did not petition the supreme court to review our decision-so, under the Alaska Appellate Rules, our decision in this sentence-correction litigation became final on Tuesday, September 12, 2006 (the day after the 15-day time limit for petitioning the supreme court expired). See Appellate Rules 308(a)(1); 502(a).
Cleveland argues that, because he pursued a motion to correct his allegedly illegal sentence, the superior court's judgement against him was effectively re-opened during the litigation of that motion. In other words, Cleveland contends that the superior court's judgement lost its previous finality, and that the judgement did not become final again until (1) the superior court resolved Cleveland's sentence-correction motion and (2) the superior court's ruling was affirmed on appeal. If this argument is correct, then Cleveland had one year from September 12, 2006 to file his petition for post-conviction relief-and he met this deadline by filing his petition in April 2007.
For two separate reasons, I conclude that Cleveland's proposed interpretation of AS 12.72.020(a)(8) is mistaken.
My first reason is that Cleveland's interpretation of the statute is contrary to the wording and legislative history of the statute.
AS 12.72.020(a)(8)(A) speaks of a court's decision being final "under the Alaska Rules of Appellate Procedure". The Appellate Rules-specifically, Rules 507(b) and 512-provide rules for determining when an appellate court's decision becomes final, but the Appellate Rules do not define when a tricl court's decision becomes final. Indeed, most appellate proceedings (all except the interlocutory petitions allowed under Appellate Rules 402 and 404) are premised on the fact that the trial court's decision is already final when the appeal commences.
This is because a litigant's right to pursue an appeal does not arise until the lower court issues its final judgement or order.4 Although the effect or enforcement of that final judgement or order may be stayed (in whole or in part) while the case is on appeal, the trial court's judgement or order is indeed "final" during the pendency of the appeal-because, if the trial court's decision were not final, the litigants would not be able to pursue the appeal.
Thus, when AS 12.72.020(a)(8)(A) speaks of "the court's decision [becoming] final under the Alaska Rules of Appellate Procedure", this clause appears to refer to the appellate court's decision.
This reading of the statute is supported by the legislative history of AS 12.72. Chapter 72 of Title 12 was enacted in 1995 as a thorough-going revision of the law governing petitions for post-conviction relief. See SLA 1995, ch. 79, § 9, which originated as House Bill 201 (19th Legislature). During the House Judiciary Committee's consideration of this bill, Deputy Attorney General Laurie Otto explained the intent of AS 12.72.020(2)(8). Ms. Otto told the Committee:
[Ilt is [appropriate] to say [to eriminal defendants] that, at some point, you should not be able to appeal over and over ... again, [and] that you have to put your issues together in one appeal. It is appropriate to say that if you are going to file a post-conviction relief action, which [effectively] is a second round of appeals ..., you have to do it within two years of the date of the conviction or within one year of the date that your appeal was decided.
Minutes of the House Judiciary Committee for April 10, 1995, Tape 95-48, Side A, log number 720 (emphasis added).
My second reason for rejecting Cleveland's interpretation of the statute is that his interpretation runs counter to a series of supreme court decisions construing the effect of a motion for relief from judgement under Alaska Civil Rule 60(b).
Like Criminal Rule 35(a), which allows either party to ask the trial court to re-examine an earlier judgement on the ground that the sentence is illegal, Civil Rule 60(b) allows the parties to ask the trial court to re-examine an earlier judgement on various factual *510and legal grounds. And just as there is no time limit for filing a motion to correct an illegal sentence, there is no fixed time limit for seeking relief under Civil Rule 60(b)(4), (b)(5), or (b)(6), other than the requirement that the motion be filed "within a reasonable time". A third similarity between Criminal Rule 35(a) and Civil Rule 60(b) is that, even though motions filed under these rules might be viewed as collateral attacks on the trial court's judgement, they are not treated as separate actions but rather are pursued as motions in the underlying court case.
One clause of Civil Rule 60(b) declares that a motion for relief from judgement under Rule 60(b) "does not affect the finality of [the] judgment or suspend its operation." In a series of cases beginning with Wellmix, Inc. v. Anchorage, 471 P.2d 408 (Alaska 1970), and Alaska Placer Co. v. Lee, 502 P.2d 128 (Alaska 1972), the Alaska Supreme Court-relying on this portion of Civil Rule 60(b)-has held that the filing of a Rule 60(b) motion does not restart the time for filing an appeal from the judgement. Alaska Placer, 502 P.2d at 131, Wellmix, 471 P.2d at 411.
Even though Civil Rule 60(b) motions are filed in the underlying case (rather than being treated as a separate case and assigned a new file number of their own), the litigation of a Civil Rule 60(b) motion is considered a separate litigation for purposes of appeal. If a party appeals the trial court's decision on the Rule 60(b) motion, the party can only seek review of issues arising from the litigation of the Rule 60(b) motion, and can not raise issues relating to the original litigation that led to the underlying judgement. Alaska Placer, 502 P.2d at 131, Welimix, 471 P.2d at 411. In the words of our supreme court, "an appeal from a denial of a Rule 60(b) motion does not bring up the underlying judgment for review." McCracken v. Davis, 560 P.2d 771, 776 (Alaska 1977); accord, Alaska Placer, 502 P.2d at 131; Wellmix, 471 P.2d at 411.
The supreme court explained that "[1]f the rule were otherwise"-that is, "[if] one could appeal from a final judgment after the [normal) time [limit] had expired by utilising a [Rule] 60(b) motion"-"this would cireumvent the rule limiting the time within which appeals may be taken and would frustrate the sound policy of having finality in litigation." Alaska Placer, 502 P.2d at 181; Wellmix, 471 P.2d at 411.
See also Lowe v. Severance, 564 P.2d 1222, 1224 (Alaska 1977), and Brown v. State, 563 P.2d 275, 278 (Alaska 1977) (applying the same limitation to appeals of a trial court's denial of a motion for reconsideration).
As I explained earlier, Criminal Rule 35(a) operates in many respects like a motion for relief from judgement under Civil Rule 60(b). Like Civil Rule 60(b), Criminal Rule 35(2) provides an open-ended procedural mechanism for asking the superior court to reexamine an earlier judgement (on one specific ground: that a criminal sentence is illegal). Because of this, I believe that the same rules described in Wellmix and Alaska Placer also govern the litigation of Criminal Rule 85(a) motions.
I acknowledge that Alaska Appellate Rule 204(a)(4) identifies motions for "correction [of] a sentence under Criminal Rule 35" as one type of motion that tolls the deadline for filing an appeal in a criminal case-but only if the motion "[is] made within the 30-day period following the date shown on the clerk's certificate of distribution [contained] on judgment". In other words, a motion under Criminal Rule 35(a) tolls the time for filing an appeal in a criminal case only if the Rule 85(a) motion is filed before the litigant's normal 30-day deadline for filing an appeal expires. Cleveland's Rule 35(a) motion was filed long after the 30-day appeal deadline specified in Appellate Rule 204(a)(4).
For these reasons, I conclude that, with the possible exception of Rule 85(a) motions that are filed within the 80-day deadline specified in Appellate Rule 204(a)(4), the filing of a Criminal Rule 35(a) motion does not affect the finality of the underlying criminal judgement, nor does it restart the time for filing an appeal from that judgement. Although Cleveland was certainly entitled to appeal the superior court's resolution of his Criminal Rule 35(a) motion, the points he could pursue in that appeal were restricted to the issues raised during the litigation of his sentence-correction motion. He was not entitled to use that appeal as a vehicle for *511raising challenges to the underlying criminal judgement.
Following this same reasoning, I conclude that the filing of a Criminal Rule 85(a) motion does not affect the finality of the underlying criminal judgement for purposes of AS 12.72.020(a)(8). That is, it does not affect the calculation of the time limit for filing a petition for post-conviction relief that attacks the underlying judgement.
For these two reasons, I interpret AS 12.72.020(a)(8) as referring to the finality of the appellate court's decision (as opposed to the trial court's decision), and why I join my colleagues in concluding that Cleveland's petition for post-conviction relief was time-barred. ‘
. The statute makes an exception for petitions that attack an allegedly illegal sentence. According to the statuie, "there is no time limit on [such] claim{s]."
. See "Order'" dated August 26, 2004, in Cleveland v. State, Supreme Court File No. S-11513.
. See AS 01.10.080, which provides that "[{Jhe time in which an act ... is required to be done is computed by excluding the first day and including the last". Under this rule, Cleveland's one-year period for seeking post-conviction relief would have expired on August 27, 2005, but for the fact that August 27, 2005 fell on a Saturday. Because of this, Cleveland had until the following Monday, August 29th.
. See State v. Walker, 887 P.2d 971, 973-74 (Alaska App.1994).