Opinion
Court of Appeals No. A-12678 No. 6758
01-23-2019
SEAN MICHAEL AUBREY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Elizabeth D. Friedman, Redding, California, under contract with the Office of Public Advocacy, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3PA-13-1704 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Appearances: Elizabeth D. Friedman, Redding, California, under contract with the Office of Public Advocacy, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge MANNHEIMER.
In 2011, Sean Michael Aubrey was indicted on one count of first-degree sexual abuse of a minor and two counts of second-degree sexual abuse of a minor, for conduct involving his stepdaughter. Just before Aubrey's trial was to begin, the charges against Aubrey were resolved in a plea agreement. Under the terms of this agreement, Aubrey pleaded guilty to a single count of second-degree sexual abuse of a minor, with open sentencing, and the two remaining charges were dismissed.
As a first felony offender convicted of second-degree sexual abuse of a minor, Aubrey faced a presumptive sentencing range of 5 to 15 years to serve. But because of the mandatory probation and suspended sentence requirements of former AS 12.55.125(o) (now repealed), Aubrey's actual minimum sentence was 8 years with 3 years suspended. The superior court ultimately sentenced Aubrey to 10 years' imprisonment with 4 years suspended (i.e., 6 years to serve).
AS 12.55.125(i)(3)(A).
Aubrey later filed a timely petition for post-conviction relief. In this petition (as ultimately amended), Aubrey asserted that his trial attorney had failed to represent him effectively in several respects. Aubrey contended that the trial attorney failed to advise him competently during the discussions that led to Aubrey's acceptance of the plea agreement. Aubrey separately contended that the trial attorney failed to represent him competently during the sentencing proceedings.
The superior court dismissed Aubrey's petition on the ground that Aubrey had failed to set forth a prima facie case for relief. Aubrey now appeals the superior court's decision.
For the reasons explained in this opinion, we affirm the superior court's decision for the most part, but we conclude that Aubrey did present a prima facie case that his trial attorney failed to competently attack certain assertions in Aubrey's pre-sentence report, including the allegations underlying the two dismissed charges. We therefore direct the superior court to let Aubrey proceed to the next stage of litigating these matters.
Aubrey's claim that his attorney failed to explain what an "open sentencing" was
On appeal, Aubrey claims that he never fully understood the sentencing consequences of pleading guilty to second-degree sexual abuse of a minor with "open sentencing".
In Aubrey's affidavit supporting his application for post-conviction relief, Aubrey declared that his trial attorney "did not explain open sentencing to [him]". But Aubrey did not accompany this conclusory assertion with any details — no description of what it was, exactly, that Aubrey failed to understand about open sentencing.
As we explained in LaBrake v. State and in David v. State, such a conclusory assertion, unaccompanied by explanatory details, is insufficient to support a prima facie case for relief.
LaBrake v. State, 152 P.3d 474, 480-81 (Alaska App. 2007).
David v. State, 372 P.3d 265, 269 (Alaska App. 2016).
In Aubrey's brief to this Court, his attorney tries to supplement Aubrey's position with a new argument.
Aubrey's appellate attorney points out that, in Aubrey's superior court affidavit, he criticized his trial attorney for failing to ask the court to impose the minimum sentence — which Aubrey mistakenly described as "5 years". In fact, Aubrey faced a minimum sentence of 5 years to serve plus 3 years suspended — which was the sentence that his attorney argued for. Moreover, in Aubrey's statement to the pre-sentence investigator, he stated that he wanted the superior court to impose an entirely suspended sentence — a sentence that was not possible under Alaska's presumptive sentencing laws at the time.
See AS 12.55.125(i)(3)(A) and former AS 12.55.125(o) (now repealed).
Based on Aubrey's mistaken statements regarding his potential sentence and the minimum allowed sentence, Aubrey's appellate attorney now argues that the record shows that Aubrey failed to understand at least this portion of the law that governed his sentencing — and that, therefore, Aubrey's affidavit sets forth a prima facie case that his trial attorney failed to adequately explain the applicable sentencing law to Aubrey. We reject this contention for three reasons.
First, this argument was never presented to the superior court.
Second, Aubrey's affidavit does not assert that his trial attorney gave him mistaken information about the minimum sentence. In fact, Aubrey's affidavit does not offer any explanation as to why Aubrey mistakenly believed that the minimum sentence was 5 years.
And third, Aubrey's post-conviction relief attorney apparently never confronted Aubrey's trial attorney with this allegation. The trial attorney's affidavit does not address this issue — although the attorney's affidavit does indicate, in another context, that he spoke to Aubrey at some length about the applicable sentencing ranges, and that "Mr. Aubrey argued with [him] about the sentence ranges".
See State v. Savo, 108 P.3d 903, 909 (Alaska App. 2005) ("In post-conviction relief litigation involving a claim of ineffective assistance of counsel, one of the petitioner's duties is to confront their trial attorney with the acts or omissions that purportedly demonstrate the attorney's incompetence, and ask the attorney to respond. Assuming the attorney is available, if the petitioner fails to confront the attorney with the allegations of error, these unexamined allegations cannot form the basis for post-conviction relief.").
Moreover, Aubrey's post-conviction relief attorney never complained to the superior court that Aubrey's trial attorney had been confronted with the allegation that he misdescribed the minimum sentence to Aubrey, and that the trial attorney refused to address this issue in his affidavit.
For these reasons, we conclude that Aubrey failed to offer a prima facie case that his trial attorney incompetently advised him regarding his sentencing exposure.
Aubrey's claim that his attorney failed to explain that the sentencing judge could consider the dismissed counts
Aubrey's next claim of ineffective assistance is that his trial attorney "did not inform [him] that the State could use the allegations from the [two] dismissed counts during sentencing".
Aubrey's pre-sentence report contained a description (drawn from the police reports) of the events underlying the two dismissed counts, so Aubrey was ostensibly on notice that the sentencing court might take these matters into consideration when evaluating his sentence. But in his petition for post-conviction relief, Aubrey suggested that he would have contested the pre-sentence report's description of the events underlying the two dismissed counts if he had known that the sentencing court could take these allegations into account when sentencing him.
There is no need for us to resolve this claim at present. As we explain later in this opinion, we conclude that Aubrey presented a prima facie case that his trial attorney incompetently failed to challenge various assertions in the pre-sentence report, and that Aubrey is entitled to continue litigating this claim. Aubrey's challenge to the pre-sentence report's description of the events underlying the two dismissed counts falls within the scope of this renewed litigation. Thus, Aubrey can raise this matter when his case returns to the superior court.
Aubrey's claim that his attorney was incompetent for failing to challenge Special Probation Condition 13
Next, Aubrey asserts that his trial attorney acted incompetently by failing to challenge Aubrey's Special Probation Condition 13, which prohibits Aubrey from having contact with minors unless he is in the company of another adult who (1) knows about Aubrey's criminal history and (2) has been approved by Aubrey's probation officer. Aubrey notes that this restriction on contacting minors encompasses Aubrey's interaction with his own children and with his own minor siblings — thus restricting his First Amendment right of family association. For this reason, Aubrey contends that his trial attorney should have challenged Special Condition 13, and that he was incompetent for failing to do so.
Aubrey is correct that any condition of probation that prohibits or restricts a defendant's right of family association must be subjected to special scrutiny. But in Aubrey's case, even though this was not done at sentencing, it was done later.
See Simants v. State, 329 P.3d 1033, 1038-39 (Alaska App. 2014); Hinson v. State, 199 P.3d 1166, 1174 (Alaska App. 2008); see also Dawson v. State, 894 P.2d 672, 680 (Alaska App. 1995) (recognizing that "[a] condition of probation restricting marital association plainly implicates the constitutional rights of privacy, liberty and freedom of association and ... must be subjected to special scrutiny").
A little less than a year after Aubrey was sentenced, his attorney filed a motion to modify Special Condition 13, asking the court to allow Aubrey to have contact with his minor children and his minor siblings. The superior court allowed Aubrey to litigate this challenge to Special Condition 13, but the court ultimately concluded — in a lengthy written decision — that the special condition was justified.
In particular, the court noted that Aubrey stood convicted of a sexual crime against a family member whom he had known — and raised — from the time she was a young girl. The court also noted that Aubrey engaged in sexual activity with his victim "on more than one occasion". And rather than accepting responsibility for his conduct, Aubrey "made excuses to account for his actions". Based on these factors, the court concluded that Special Condition 13 was a "constitutionally acceptable restriction on [Aubrey's] family relationships".
Thus, the superior court subjected the probation condition to special scrutiny and found that it was justified. Aubrey did not appeal the court's decision.
Given these circumstances, any claim that Aubrey's trial attorney was incompetent for failing to attack Special Condition 13 when it was first proposed is now moot, because Aubrey was able to attack the probation condition later.
The only potential claim relating to this probation condition would be a claim that Aubrey's trial attorney was either incompetent in his litigation of that later motion to modify Special Condition 13, or that the trial attorney was incompetent for failing to appeal the superior court's denial of that motion to modify. But Aubrey's petition for post-conviction relief did not even mention the motion to modify, much less criticize his trial attorney's litigation of that motion. (Indeed, Aubrey's opening brief to this Court does not mention the motion to modify Special Condition 13 either.)
For these reasons, Aubrey's petition for post-conviction relief failed to set forth a prima facie case that his trial attorney was incompetent in his handling of this matter.
Aubrey's claims that his attorney was incompetent for failing to challenge other conditions of Aubrey's probation
In his briefs to this Court, Aubrey also criticizes his trial attorney for failing to attack various other probation conditions imposed by the superior court. Aubrey asserts that these various probation conditions were not sufficiently related to his rehabilitation, or to the prevention of future criminal acts, to pass muster under the test announced by the Alaska Supreme Court in Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977). Thus, Aubrey contends, his trial attorney acted incompetently when he failed to challenge these probation conditions.
But these claims were not raised in the superior court during the litigation of Aubrey's petition for post-conviction relief, so they cannot be raised in this appeal.
If Aubrey believes that his post-conviction relief attorney was ineffective for failing to raise these claims, Aubrey can challenge his post-conviction relief attorney's performance by filing another post-conviction relief application.
See Grinols v. State, 10 P.3d 600, 618 (Alaska App. 2000), affirmed in part, 74 P.3d 889 (Alaska 2003) (holding that a defendant may litigate a second application for post-conviction relief if the defendant's first post-conviction relief attorney provided incompetent representation in the first application).
Aubrey's claim that his attorney was incompetent for failing to challenge various assertions in the pre-sentence report
Finally, Aubrey contends that his trial attorney was incompetent for failing to challenge various assertions in the pre-sentence report. In his superior court affidavit, Aubrey asserted that he told his trial attorney that "the report had numerous errors", and that he and the trial attorney "discussed these errors at length". But following this discussion, the trial attorney told Aubrey that he had spoken to the probation officer who wrote the pre-sentence report, and that this probation officer "refused to amend or correct the report, and [that] there was nothing [the trial attorney] could do about it."
The trial attorney's affidavit also addressed this issue. In his affidavit, the trial attorney asserted that he reviewed the pre-sentence report, and that he told Aubrey that the statement of facts contained in the pre-sentence report "[was] taken from the police report and [was] not erroneous".
Here, we conclude that Aubrey's petition for post-conviction relief set forth a prima facie case that the trial attorney handled this matter incompetently. Alaska Criminal Rule 32.1(f) sets out a procedure for challenging the factual assertions in a pre-sentence report, even if those assertions track the contents of the police reports in the case. Assuming that Aubrey (or some other witness on his behalf) was willing to give testimony that contradicted the assertions in the pre-sentence report, and was willing to submit to cross-examination, then Aubrey's trial attorney was at least arguably incompetent for failing to invoke the procedures of Rule 32.1(f) and present this evidence.
Thus, regarding this last claim, we conclude that the superior court committed error when the court dismissed the claim for failure to state a prima facie case.
Conclusion
With respect to Aubrey's claim that his trial attorney failed to attack various factual assertions in the pre-sentence report (and that, as a consequence, the sentencing judge relied on false assertions of fact when he sentenced Aubrey), we reverse the decision of the superior court and we direct the court to give Aubrey the opportunity to litigate these matters further.
In all other respects, the judgement of the superior court is AFFIRMED.