dissenting.
Zeciri's claim, stripped to its essence, was that he did not have a sufficient grasp of the English language to meaningfully participate in his trial and to exercise his decision whether or not to testify. He claimed that his counsel was ineffective for proceeding to trial without an interpreter.
The evidence on Zeeciri's ability to function in English and how this affected his ability to understand the proceedings and to exercise his decision to testify was sharply conflicting. Following the hearing, Superior Court Judge Karen L. Hunt concluded that Zeciri had met his burden to show that his counsel had been ineffective in failing to provide an interpreter for Zeciri. She concluded that Zeeciri had not been able to adequately understand the proceedings at his trial, to participate in his defense, and to exercise his right to testify. Although the evidence was conflicting, on appeal we examined the evidence before the trial court in the light most favorable to the prevailing party. Applying this standard, Judge Hunt's findings are supported by the record.
Alaska Statute 12.72.040 and Alaska Criminal Rule 85.1(g) explicitly require an applicant for post-conviction relief to prove all factual assertions by clear and convincing evidence. Judge Hunt's findings are silent on what standard she applied in granting Zeciri's application.
Normally the outcome of this appeal at this stage would be clear-we would remand to Judge Hunt to insure that she applied the correct standard. But in this case, that is not possible. It is at this point where I part company with my colleagues. Judge Hunt has retired. The presiding judge of the superior court has informed us that Judge Hunt is not available to reconsider cases. This case involved several days of testimony and, if remanded, would have to be completely redone by another judge. From my review of the record, it appears that another judge could easily reach a different decision given the evidence presented at the eviden-tiary hearing. This causes me to reconsider whether we should remand the case.
The statute and criminal rule clearly establish that Zeciri had the burden of proving his factual allegations by clear and convincing evidence. Judge Hunt is an experienced judge and it seems very likely that she was aware of the burden of proof required. Furthermore, the record shows that the state constantly pointed this out to Judge Hunt. Particularly in its final argument, the state pointed out again and again that Zeciri was required to prove his case by clear and convincing evidence. Zeciri never challenged this in his argument. In fact, it does not appear Zeciri argued in the trial court for a lesser standard of proof. And in her findings, although she does not set out the burden of proof she is applying, Judge Hunt clearly concludes that Zeciri simply did not have an adequate command of the English language to go to trial without an interpreter and that this had a substantial impact on his right to testify. I conclude that, if the case could be remanded back to her, Judge Hunt would still grant Zeciri's application. It seems highly unlikely that, given the clarity of the law and the state's constant and un-contradicted emphasis on the clear and convincing standard of proof, she applied a different standard of proof, In all probability, she did not mention the burden of proof because the case did not turn on it.
Because we do not have the option of remanding this case back to Judge Hunt to clarify her findings and because I have a high degree of certainty that either Judge Hunt applied the correct burden of proof or her decision did not turn on the burden of *173proof, I would affirm her decision granting Zeciri's application for post-conviction relief.