MEMORANDUM OPINION

MANNHEIMER, Judge.

In 1996, Daniel C. Nelson was convicted of two counts of first-degree sexual abuse of a minor (sexual penetration with a child under 13), two counts of second-degree sexual abuse of a minor (sexual contact with a child under 13), and one count of attempted second-degree sexual abuse of a minor (attempted sexual contact with a child under 13). In late 1999, we affirmed Nelson's convictions on direct appeal. See Nelson v. State, Alaska App. Memorandum Opinion No. 4147 (November 10, 1999); 1999 WL 33911988.

Less than six months later, Nelson filed a petition for post-conviction relief.

In pursuing this petition, Nelson initially faced a procedural difficulty. When a petitioner seeks post-conviction relief on the ground that their prior attorney represented them incompetently, the petitioner must normally present the court with an affidavit from the attorney whose actions (or inactions) are being challenged. But Nelson's trial attorney had retired from the practice of law and had moved to Missouri. As a consequence, Nelson was having trouble obtaining the attorney's affidavit.

After Nelson's post-conviction relief attorney explained these difficulties, Superior Court Judge Michael A. Thompson gave Nelson additional time to procure the trial attorney's affidavit. Later, Nelson's new attorney decided not to seek an affidavit, but rather to travel to Missouri and conduct a deposition of Nelson's trial attorney.

This deposition ended prematurely after Nelson's trial attorney, Ronald Hemby, chose to invoke his Fifth Amendment privilege against self-incrimination rather than answer any questions concerning his representation of Nelson.

Faced with Hemby's invocation of the Fifth Amendment, Nelson's postconviction relief attorney contacted Judge Thompson by telephone, apprised him of the situation, and asked the judge to make a ruling as to whether Hemby had a valid Fifth Amendment claim. At this point, Hemby requested the opportunity to make an ex parte presentation to Judge Thompson concerning the basis of his Fifth Amendment claim. To facilitate this, everyone else left the room while Hemby spoke to Judge Thompson (by telephone).

At the conclusion of Hemby's ex parte presentation, the other people returned to the room, and Judge Thompson announced that he was upholding Hemby's invocation of the privilege against self-incrimination. Judge Thompson then ruled that, as a consequence of Hemby's invocation of the Fifth Amendment, Nelson was relieved from the normal obligation to obtain Hemby's responses to Nelson's claims of incompetent representation.

In apparent violation of Alaska Administrative Rule 35(a), none of the foregoing events were recorded. The court reporter in Missouri turned off the recording equipment after Hemby began to invoke the Fifth Amendment and Nelson's postconviction relief attorney asked for a recess to contact Judge Thompson. For his part, Judge Thompson apparently made no effort either to ensure that the conversation was being recorded in Missouri or to ensure that a recording was being made in Alaska.

As a consequence, there is no audio recording of the parties' initial conversation with Judge Thompson, or Hemby's ex parte presentation to Judge Thompson, or Judge Thompson's rulings. Moreover, it appears that Judge Thompson never made an oral or written memorandum of these events, nor did he record his findings on the question of whether Hemby had validly invoked his Fifth Amendment privilege.

(The only record of these events is an affidavit filed by Nelson's postconviction relief attorney ¶ who apparently wanted to preserve a formal record of Judge Thompson's ruling that Nelson was now excused from the requirement of obtaining Hemby's response to Nelson's claims.)

As ultimately formulated, Nelson's petition presented thirty-five claims for relief. The State moved to dismiss all of these claims for failure to state a prima facie case for relief.

Judge Thompson concluded that all of Nelson's claims except one (Claim 29) failed to state a prima facie case for relief. The judge therefore dismissed all of Nelson's claims except Claim 29.

This sole remaining claim (Claim 29) involved only one of Nelson's five convictions: his conviction for the attempted sexual abuse of C.P.. In Claim 29, Nelson asserted that his trial attorney incompetently failed to ask the trial judge to instruct the jurors that, if they were to convict Nelson of the attempted sexual abuse of C.P., the jurors needed to unanimously agree on the particular act that constituted Nelson's "substantial step" toward the commission of this crime. See AS 11.31.100(a) and Covington v. State, 703 P.2d 436 (Alaska App. 1985), on rehearing, 711 P.2d 1183 (Alaska App. 1985).

Judge Thompson ultimately granted Nelson's motion for summary judgement on Claim 29. In other words, Judge Thompson concluded that the record clearly showed that Nelson's trial attorney acted incompetently by failing to seek an instruction on this requirement of juror unanimity.

Both Nelson and the State of Alaska appeal Judge Thompson's decision. Nelson concedes that most of his claims for post-conviction relief were properly dismissed on the pleadings, but Nelson argues that Judge Thompson was wrong to dismiss Claims 4, 5, 14, and 23. And the State argues that Judge Thompson was wrong to grant post-conviction relief to Nelson on Claim 29.

For the reasons explained here, we affirm Judge Thompson's dismissal of Claims 4, 5, 14, and 23, and we remand this case to the superior court so that Judge Thompson can explain why he granted relief on Claim 29. Underlying facts relating to Claims 4, 5, 14, and 23

The underlying facts of Nelson's case are summarized in our decision of Nelson's direct appeal.

Nelson befriended four single mothers living in Ketchikan, and he often babysat their young children. The police began to investigate Nelson on July 8, 1994, after one of these children ¶ C.P. ¶ told her older cousins that a photograph of a rat in a nature book resembled Nelson's penis, and that Nelson had touched her with his penis. During the ensuing weeks, Ketchikan Police Officer Andrea Jacobson interviewed several of the children. Two of the children (both of them girls) reported that Nelson had touched their genitals. A third child (also a girl) reported that Nelson had digitally penetrated her. And a fourth child (a boy) reported that Nelson had engaged in fellatio with him.

About ten days into her interviews with the children, Jacobson contacted Nelson and asked to speak with him concerning the allegations of sexual abuse. At this time, Nelson was already represented by Attorney Ronald Hemby. Hemby agreed to let Nelson be interviewed by Jacobson, and Hemby sat with Nelson during the interview. Although Hemby apparently would not let Jacobson pose hypothetical questions, Hemby otherwise allowed Nelson to answer Jacobson's questions.

Nelson generally denied that he had engaged in any sexual impropriety with the children. However, according to Nelson's petition for post-conviction relief, the State later used some of Nelson's answers at his trial.

On the same day as Nelson's interview with Jacobson, the police executed a search warrant at Nelson's residence. Soon after, Hemby filed a civil suit on Nelson's behalf, seeking return of some of the evidence seized from his residence (under the theory that the police had exceeded the scope of the warrant). As part of this civil litigation, Hemby allowed Nelson to be questioned in a deposition. Some of the deposition questions apparently involved Nelson's relationship with the children.

Toward the end of August 1994, the State filed its first criminal charge against Nelson. Additional charges were presented to the grand jury between September 1994 and January 1996. Eventually, as already explained, Nelson was convicted of five crimes: two counts of sexual penetration, two counts of sexual contact, and one count of attempted sexual contact (involving C.P.).

The superior court's ruling on Claim 4

In Claim 4 of his petition for post-conviction relief, Nelson contended that his attorney, Ronald Hemby, acted incompetently when he allowed Nelson to be interviewed by the Ketchikan police without any promise of immunity or other limitation on the State's ability to use Nelson's statements. Nelson argued that, because he "was offered nothing, and received nothing, in return for waiving his Fifth Amendment rights, there was no reasonable strategic reason for Attorney Hemby to advise or permit Nelson to speak to the police."

Judge Thompson dismissed this claim because Nelson had failed to "present evidence ruling out the possibility [that Hemby made] a tactical choice" to allow the interview. In the context of a criminal investigation where no charges have yet been filed, Judge Thompson concluded that "[i]t cannot . . . be said that it is negligence per se [for an attorney] to permit a suspect to meet with and attempt to satisfy the police."

Because Nelson relied solely on the assertion that it is always incompetent for a defense attorney to allow a client to be interviewed by the police, and because Nelson offered no specific evidence that Hemby's decision was incompetent under the particular circumstances of his case, Judge Thompson concluded Nelson had failed to offer sufficient evidence to rebut the presumption of attorney competence.

The superior court's ruling on Claim 5

In Claim 5 of his petition for post-conviction relief, Nelson contended that Hemby acted incompetently by filing a civil lawsuit to secure the return of certain items seized by the police during their search of Nelson's residence. (This lawsuit was premised on the assertion that the police had exceeded the scope of the search authorized by the warrant.)

Nelson asserted that the filing of this lawsuit put him at a disadvantage in his criminal case ¶ because the pending lawsuit "meant that the State was entitled to civil discovery against Mr. Nelson". Nelson noted that, in connection with this civil lawsuit, he was asked to attend a deposition before his second trial. Nelson contended that, at this deposition, "the State was permitted to ask Mr. Nelson detailed questions about his contact with the children."

Nelson argued that Hemby "had an alternative to filing a civil suit" ¶ that he "could and should have filed a motion to suppress or exclude [the disputed evidence] in the criminal case". Under these circumstances, Nelson argued, "[Hemby's] decision to file only the civil suit to redress this issue was ineffective assistance of counsel."

Again, Judge Thompson concluded that Nelson had failed to present a prima facie claim for relief. The judge pointed out that, when Hemby filed the civil lawsuit for the return of Nelson's property, "criminal charges had [not] yet [been] formally lodged against Nelson". Thus, it was not yet possible to file a motion in the criminal case for return and suppression of the evidence. Rather, "the only [procedural] avenue then available [to Nelson and Hemby] for redressing the perceived wrongs committed by the police against Nelson was [to file] a civil lawsuit."

Judge Thompson pointed out that an attorney's decision to file a lawsuit is obviously a conscious, strategic decision. And the judge further pointed out that Nelson failed to present evidence that no competent attorney would have filed such a lawsuit under the circumstances. Thus, again, Judge Thompson concluded Nelson had failed to offer sufficient evidence to rebut the presumption of attorney competence.

The superior court's ruling on Claim 14

One of Hemby's primary defense strategies at trial was to suggest that the children's accusations of sexual abuse were the product of over-zealous and incautious questioning by police officers, parents, and relatives ¶ questioning that corrupted the memories of the children by both overtly and subtly suggesting to the children that they had, indeed, been sexually abused, or that this is what the important adults in their lives believed.

In support of this defense, Hemby presented the testimony of Dr. David C. Raskin, an expert on interviewing techniques and their effect on the people being interviewed. Dr. Raskin offered a critique of the interviewing techniques that were used during the investigation of Nelson's case. He testified that the interviewers had potentially tainted the children's memories and altered their perceptions of their relationships with Nelson ¶ by asking questions and making comments in such a way as to affirmatively suggest that Nelson had sexually abused the children.

In Claim 14 of his petition for post-conviction relief, Nelson contended that Hemby acted incompetently by failing to properly prepare Dr. Raskin for his testimony. Specifically, Nelson claimed that Hemby was incompetent for failing to have Dr. Raskin view the videotapes of the police interviews with the children. Nelson contended that Dr. Raskin's failure to view the videotapes before he testified "was devastating to Raskin's credibility".

But as Nelson acknowledged on the very same page of his petition, when Dr. Raskin was asked (on cross-examination) why he had not reviewed the videotapes of the interviews, Raskin replied that "he typically does not [re]view the [video] tapes" of the interviews he is asked to evaluate, and that he "typically do[es] not place any weight on [such video tapes]".

Again, Judge Thompson concluded that Nelson had failed to present a prima facie claim for relief. The judge noted that, based on Dr. Raskin's own testimony, Raskin "does not place much weight on the physical expressions of the alleged victims [during the interviews]", and that Raskin "normally works only from the transcripts of the interviews". Thus, Judge Thompson concluded, the evidence presented by Nelson tended to prove attorney competence rather than attorney incompetence. That is, the evidence "tend[ed] to show that it was [reasonable] for Hemby to call Dr. Raskin to the stand even though he had not seen the [videotapes of the] interviews, since that was Dr. Raskin's standard practice." The superior court's ruling on Claim 23

During Nelson's second trial, the prosecutor announced that the State had decided not to pursue the charges relating to Nelson's alleged sexual abuse of the boy C.S.. Apparently the prosecutor did not offer a full explanation of this decision, but the prosecutor did state that the decision was based on the prosecutor's recent interview(s) with one or more witnesses.

In Claim 23 of his petition for post-conviction relief, Nelson contended that Hemby acted incompetently by failing to seek discovery of any materials relating to the prosecutor's decision not to pursue the charges relating to the alleged abuse of C.S.. According to Nelson, "Hemby never sought discovery of [the] statements [that the prosecuting attorney was referring to]". Nelson further contended that Hemby had no excuse for failing to seek disclosure of these statements ¶ and that these statements "were clearly exculpatory and discoverable under Alaska [R]ule of [C]riminal [P]rocedure 16."

However, after criticizing Hemby for failing to seek this information, Nelson's petition for post-conviction relief offered no information about these witness statements or any other aspect of the prosecutor's decision-making process. Because of this, Judge Thompson concluded that Nelson had failed to present a prima facie case for relief.

Judge Thompson noted that Nelson's petition contained no information concerning the witnesses whose statements had caused the prosecutor to drop the charges relating to C.S. ¶ no information as to "who those persons were or what their testimony would likely have been". Judge Thompson then pointed out that, in the absence of any evidence concerning the identity of these witnesses or the nature of what they said to the prosecutor, it was impossible to know "[w]hether [Hemby's] omission [to seek this evidence] had any actual effect on Nelson's case" ¶ impossible to know whether the suggested request for disclosure "would have yielded exculpatory evidence or . . . [even] favorable testimony".

The judge concluded that, because of the lack of information in Nelson's petition, "any conclusion that Nelson was prejudiced by Hemby's alleged incompetence is wholly speculative." Thus, Judge Thompson ruled that Nelson had failed to offer sufficient evidence to establish his entitlement to post-conviction relief.

Nelson's argument on appeal concerning the superior court's rulings on Claims 4, 5, and 14

In this appeal, Nelson contends that Judge Thompson erred when he dismissed Claims 4, 5, and 14 for failure to state a prima facie claim for relief. However, Nelson does not argue that Judge Thompson misconstrued or overlooked any portion of Nelson's petition and supporting documentation. Rather, Nelson argues that Judge Thompson applied the wrong legal standard when he dismissed these three claims. Specifically, Nelson contends that Judge Thompson committed legal error when he relied on the presumption that Nelson's trial attorney acted competently.

When a petitioner for post-conviction relief contends that their trial attorney gave them incompetent representation, the law puts the burden of proving incompetence on the petitioner. That is, the law presumes that the trial attorney acted competently, and it is the petitioner's burden to prove otherwise.

But Nelson argues that this presumption of competence should not apply under the circumstances of his case ¶ that is, given the fact that Nelson's trial attorney, Ronald Hemby, invoked his Fifth Amendment privilege rather than answering any questions pertaining to his representation of Nelson.

Nelson likens his situation to the one that this Court addressed in State v. Echols, 793 P.2d 1066 (Alaska App. 1990), a case in which this Court upheld the superior court's dismissal of a criminal prosecution after the State refused to grant immunity to a crucial exculpatory witness. Nelson argues that the State could have given immunity to Hemby, and thus the State ultimately controlled whether Hemby would answer questions concerning his representation of Nelson.

Under these circumstances, Nelson argues, if the State refuses to grant immunity to the trial attorney, the presumption of attorney competence should be reversed. In other words, there should be a presumption of attorney incompetence, and it should be the State's burden to rebut this presumption.

This argument is raised for the first time on appeal. In the superior court, when the parties were litigating the prima facie sufficiency of Claims 4, 5, and 14, Nelson's post-conviction relief attorney relied on Hemby's invocation of the Fifth Amendment as a justification for Nelson's failure to obtain Hemby's affidavit. But Nelson's post-conviction relief attorney never argued that Hemby's invocation of the Fifth Amendment negated the presumption of attorney competence with regard to the matters alleged in Claims 4, 5, and 14.

Because this claim is raised for the first time on appeal, Nelson must show plain error. That is, he must show that any competent judge in Judge Thompson's position would have recognized, unprompted, that the presumption of attorney competence no longer applied after Hemby invoked the Fifth Amendment.

We are not convinced that Judge Thompson committed any error at all, much less that the alleged error was "plain".

Nelson's argument rests on the implicit premise that, because Hemby invoked the privilege against self-incrimination, one can reasonably infer that Hemby must have done something that egregiously violated his legal duty to zealously represent Nelson's interests. In other words, according to Nelson, one can assume that Hemby invoked his Fifth Amendment privilege because he believed that he represented Nelson incompetently.

Even if we agreed with Nelson's premise ¶ that Hemby's invocation of the Fifth Amendment was a tacit admission by Hemby that he believed he gave ineffective representation to Nelson ¶ Hemby's admission would not negate the presumption of attorney competence, nor would it alter the legal test that governed the superior court's evaluation of Nelson's petition for post-conviction relief. Even when a defense attorney openly acknowledges making mistakes during the representation of a criminal defendant, the presumption of attorney competence continues to apply, and a defendant seeking post-conviction relief is still required to overcome this presumption. See Dolchok v. State, 639 P.2d 277, 294-95 (Alaska 1982); Simeon v. State, 90 P.3d 181, 185 (Alaska App. 2004).

More importantly, however, Nelson's argument ¶ his assertion that, based on Hemby's invocation of the Fifth Amendment, one should infer that Hemby represented Nelson incompetently ¶ runs directly counter to Alaska Evidence Rule 512(a). Evidence Rule 512(a) declares that no inference is to be drawn from the fact that a person has claimed the benefit of a privilege not to testify. See David v. State, 28 P.3d 309, 314 (Alaska App. 2001).

The rule of law codified in Evidence Rule 512(a) has been recognized in this country for at least one hundred fifty years:

The claim of privilege . . . is properly no part of the evidence submitted to the jury, and no inferences whatever can be legitimately drawn by them from the legal assertion by the witness of his constitutional right. The allowance of the privilege would be a mockery of justice, if either party [were] to be affected injuriously by it.

Johnson v. United States, 318 U.S. 189, 196-97; 63 S.Ct. 549, 553; 87 L.Ed. 704 (1943), quoting Phelin v. Kenderdine, 20 Pa. 354, 363 (1853).

Of course, one could conjure explanations for Hemby's assertion of privilege that would bespeak Hemby's disloyalty to Nelson, or even Hemby's purposeful corruption of the judicial process. On the other hand, Hemby might have invoked the privilege because he acquiesced in, or was arguably an accomplice to, Nelson's corruption of justice.

(See our decision in Arnett v. State, 938 P.2d 1079, 1082-83 (Alaska App. 1997). In Arnett, the defendant sought post-conviction relief by asserting that his defense attorney had advised him to abscond in the middle of trial. When questioned about this, the attorney invoked the Fifth Amendment. This Court held that, even if the defendant's claim was true, the defendant's complicity in this illegal act disqualified the defendant from obtaining post-conviction relief. Id. at 1083.)

But all of this would be speculation. We have no idea why Hemby invoked the privilege. And even if we did know the basis for Hemby's action, the fact remains that, under our law, no inference can be drawn from a witness's invocation of an evidentiary privilege.

The only pertinent consequence of Hemby's assertion of privilege is that Hemby became unavailable as a witness. As Judge Thompson recognized, this meant that Nelson was released from the normal requirement of providing an affidavit from his trial attorney. (Actually, the true requirement is that the defendant either provide an affidavit from the trial attorney or provide a sufficient explanation of why the affidavit can not be obtained.) However, Hemby's unavailability as a witness did not negate the presumption of attorney competence or relieve Nelson of the concomitant burden of affirmatively proving his attorney's incompetence.

This issue of attorney availability arises most often in cases where a defendant's trial attorney dies before the post-conviction relief action is litigated. In such cases, courts continue to apply the presumption of attorney competence; that is, they continue to hold defendants to the burden of proving incompetence.

For these reasons, we conclude that Judge Thompson did not commit plain error when he failed to sua sponte reverse the normal presumption of attorney competence and place the burden of proof on the State. Nelson's argument on appeal concerning the superior court's ruling on Claim 23

Claim 23 of Nelson's petition for post-conviction relief was based on the assertion that Hemby acted incompetently by failing to seek discovery of any materials relating to the prosecutor's late decision not to pursue the charges relating to the alleged abuse of C.S..

As explained above, Judge Thompson dismissed this claim because Nelson failed to offer any evidence that he had been prejudiced by Hemby's inaction. In particular, Judge Thompson noted that Nelson had failed to provide any information concerning (1) the identity of the persons whom the prosecutor spoke to before making this decision, and (2) what these persons had said that prompted the prosecutor to re-assess the advisability of pursuing the charges relating to C.S..

On appeal, Nelson concedes that he presented no information on these topics. However, Nelson argues that he should have been excused from the requirement of proving prejudice, at least at this pre-discovery stage of the litigation, because he had no way of obtaining access to the pertinent information.

Nelson asserts that he was unable to furnish any information about the witnesses, and what they had said to the prosecutor, because "the [S]tate . . . was withholding this information and Mr. Nelson had no mechanism to force the [S]tate . . . to provide him with the information". There are two problems with this argument.

First, Nelson's argument is made for the first time on appeal. In the superior court, when Nelson filed his lengthy response to the State's motion to dismiss, Nelson presented no argument as to why Claim 23 should not be dismissed.

Second, Nelson's appellate attorney offers no citation to the record for her assertions that the State withheld this information from Nelson's post-conviction relief attorney, or that the State would not have provided this information upon request. We are unable to find anything in the record to support these assertions, and Nelson's postconviction relief attorney never made any such assertions to Judge Thompson.

Accordingly, we hold that Judge Thompson committed no error when he required Nelson to present some evidence that Nelson had been prejudiced by Hemby's failure to inquire about the reasons for the prosecutor's decision not to go forward with the charges involving C.S.. We further hold that Judge Thompson committed no error when, in the absence of any evidence suggesting that Nelson had been prejudiced by his attorney's inaction, the judge dismissed Nelson's Claim 23.

The superior court's decision to grant Nelson post-conviction relief on Claim 29, and the State's argument on appeal

As explained toward the beginning of this opinion, Judge Thompson granted one of Nelson's claims for post-conviction relief: Claim 29. This claim related to Nelson's conviction for the attempted sexual abuse of C.P..

Nelson argued that Hemby was incompetent for failing to seek a " Covington " instruction ¶ i.e., a jury instruction telling the jurors that, before convicting Nelson of the attempted sexual abuse of C.P., the jurors had to reach unanimous agreement as to what act or conduct on Nelson's part constituted the "substantial step" necessary for an attempt. See AS 11.31.100(a) and Covington v. State, 703 P.2d 436, 440-41 (Alaska App. 1985), on rehearing, 711 P.2d 1183 (Alaska App. 1985).

In his petition for post-conviction relief, Nelson asserted that, at his trial, the State proposed that the "substantial step" could be found in any of three different acts or behaviors: Nelson's "grooming [of C.P.] over [the] years", Nelson's act of changing C.P.'s underwear during a particular outing, and Nelson's act of placing his hand on C.P.'s bare bottom when she was a baby (and was not wearing pants) and Nelson picked her up.

The State's first response to Claim 29 was that Nelson was wrong about the law. In its first motion to dismiss on the pleadings, the State contended that, even under Covington, when a defendant is charged with an attempt, jurors are not required to reach unanimity regarding the act or conduct that constitutes a defendant's "substantial step" toward the commission of the ulterior crime.

Judge Thompson rejected this reading of the law and concluded that the jurors were required to unanimously agree on the substantial step. He therefore denied the State's motion to dismiss Claim 29 for failure to state a prima facie case.

The State then filed a second motion to dismiss on the pleadings. In this motion, the State conceded that Judge Thompson was obliged to accept Nelson's factual assertions as true ¶ in particular, Nelson's assertion that the prosecutor at Nelson's trial had relied on three different acts or behaviors as potential candidates for the "substantial step" needed to prove an attempt. Nevertheless, the State argued that Nelson had failed to establish prejudice. The State noted that, at trial, Nelson consistently took the position that he had never committed any act of abuse against any of the children. This being so, the State argued, any error in not giving a Covington instruction to the jury was harmless. See Covington (on rehearing), 711 P.2d at 1185.

Later, the State argued yet a third theory of why Nelson was not entitled to relief on Claim 29. This time, the State took issue with Nelson's assertion that the prosecutor had relied on three different acts or behaviors as potential "substantial steps".

The State pointed out that, during the pre-trial litigation of Nelson's case, Hemby requested the State to provide a bill of particulars explaining the attempt charge. And in its bill of particulars, the State declared that the attempt charge was based on a single act: Nelson's act of changing C.P.'s underwear during the outing.

(We note that this aspect of the litigation was described in our prior decision in Nelson's case:

On October 19, 1994, Nelson moved for a bill of particulars. The [superior] court granted the motion, ordering the prosecution to identify the conduct . . . that constituted the attempt. The prosecution identified the substantial step [as Nelson's act of] "removing C.P. from her mother's presence and removing C.P.'s underpants."

Nelson v. State, Alaska App. Memorandum Opinion No. 4147, slip opinion at 3; 1999 WL 33911988 at *2.

Based on the bill of particulars, the State argued that the jury at Nelson's trial was not presented with three candidates for the act or behavior that constituted the "substantial step". Rather, the State argued, the jury was offered only one proposed substantial step ¶ and, thus, there was no need for a jury unanimity instruction.

Judge Thompson denied the State's second motion to dismiss, issuing a single conclusory paragraph that did not explain his reasoning.

Nelson then requested summary judgement on Claim 29. In his motion, Nelson cited various portions of the trial transcript to show that, despite the ostensible narrowing of the State's theory of prosecution in the bill of particulars, the prosecutor had in fact spoken to the jury of three different acts or behaviors when he described the State's theory of how Nelson had attempted to sexually abuse C.P.. Nelson argued that, in the face of the prosecutor's argument, any competent defense attorney would have requested a Covington instruction ¶ i.e., an explicit jury instruction on the requirement of unanimity regarding Nelson's underlying conduct.

Here, in this motion for summary judgement on Claim 29, Nelson suggested for the first time that Hemby's invocation of the Fifth Amendment should be held against the State. Nelson argued that, "[e]ven though there is a strong presumption of [attorney] competence", that presumption was met and overcome in Nelson's case because Hemby invoked the Fifth Amendment and "actively refused to provide any explanation for [his] omission [to seek a Covington instruction]." Nelson declared that there could be no valid reason "for an attorney to commit a crime[,] or come close to committing a crime[, in the course of] representing a client." Thus, Nelson argued, the record showed that Hemby had acted incompetently.

In its response, the State again maintained that the bill of particulars had narrowed the State's theory of the attempt to one particular act (the act of changing C.P.'s underwear during the outing), and the prosecutor had not argued three theories of the attempt, but only this one. In the alternative, the State again maintained that Nelson had not been prejudiced by the lack of a Covington instruction, since his theory of defense was that none of the alleged acts of sexual abuse had occurred.

After considering these pleadings, Judge Thompson issued a two-paragraph order granting post-conviction relief to Nelson on Claim 29. In his order, Judge Thompson declared, without explanation, that Nelson "received ineffective assistance of counsel" and that "[t]he judgment and conviction [for the attempted second-degree sexual abuse of C.P.] is vacated."

The State now appeals Judge Thompson's order, arguing on several theories that the judge should not have granted post-conviction relief to Nelson on this attempt conviction. The problem we face, as an appellate court, is that Judge Thompson's order does not describe his reasoning, nor does it explain his factual and legal basis for granting Nelson's request for post-conviction relief.

The resolution of Nelson's Claim 29 involves at least five issues of fact and law.

First, did the prosecutor at Nelson's trial in fact propose three different theories to the jury as to what conduct constituted the "substantial step" needed for an attempt? Or did the prosecutor confine himself to one theory (the changing of C.P.'s underwear during the outing)? Assuming that the prosecutor's argument to the jury was susceptible of two interpretations, would any competent defense attorney have recognized that the prosecutor was inviting the jury to decide the case beyond the confines of the State's bill of particulars?

Second, if any competent defense attorney would have understood that the prosecutor was in fact arguing to the jury that there were three candidates for the "substantial step", would all competent defense attorneys have concluded that the prosecutor's argument would make a significant difference to the jury's assessment of Nelson's case ¶ given the fact that Nelson's strategy at trial was to deny all of the State's allegations of sexual abuse, without distinction?

Third, even if, in hindsight, it would have been better for Hemby to seek a Covington instruction after the prosecutor delivered his argument to the jury, did Hemby's failure to seek a new jury instruction on this issue at this juncture ( i.e., in the middle of, or at the end of, the parties' summations to the jury) fall below the minimum level of competence to be expected of criminal defense attorneys?

Fourth, when Judge Thompson ruled that Hemby had been ineffective, did Judge Thompson follow Nelson's suggestion and draw an inference of incompetence from the fact that Hemby invoked his privilege against self-incrimination? (As explained above, it appears that such an inference would be improper under Alaska law.)

And fifth, assuming that any competent attorney in Hemby's situation would have asked the trial judge to supplement the jury instructions with a Covington instruction relating to the attempt count, is there a reasonable possibility that the jury's verdict on this count would have been different if the jurors had received such an instruction?

Because Judge Thompson's written decision does not provide us with his answers to these questions, we must remand Nelson's case to the superior court so that the judge can further explain his ruling. Conclusion

For the reasons explained here, we affirm Judge Thompson's dismissal of Nelson's Claims 4, 5, 14, and 23.

With respect to Claim 29 (the claim on which Judge Thompson granted post-conviction relief to Nelson), we remand Nelson's case to the superior court. We direct Judge Thompson to re-examine and explain his decision to grant summary judgement to Nelson on this claim, and we direct the judge to specifically address the issues of fact and law that we described in the preceding section of this opinion.

Judge Thompson shall issue his decision on remand within 60 days of the issuance of this opinion, and he shall serve his decision on the parties and on this Court.

The parties shall then have 30 days to file supplemental memoranda addressing Judge Thompson's decision. After we have received the parties' supplemental memoranda (or the time for filing those memoranda has expired), we shall renew our consideration of Nelson's Claim 29.