Opinion
Court of Appeals No. A-12771 No. 6857
02-05-2020
ALBERT ESCHOLT, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Carolyn Perkins, Law Offices of Carolyn Perkins, Salt Lake City, Utah, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Elizabeth T. Burke, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3PA-13-02871 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Appearances: Carolyn Perkins, Law Offices of Carolyn Perkins, Salt Lake City, Utah, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge HARBISON.
Albert Escholt appeals the dismissal of his application for post-conviction relief for failure to state a prima facie case for relief. For the reasons we explain in this opinion, we conclude that the superior court acted prematurely when it dismissed Escholt's post-conviction relief application.
Background facts
Following a jury trial, Escholt was convicted of attempted murder and third-degree assault against his girlfriend. The superior court imposed a sentence of 30 years with 12 years suspended (18 years to serve).
Escholt subsequently filed a pro se application for post-conviction relief. Later, through counsel, he filed an amended application, alleging two claims of ineffective assistance of counsel by his trial attorney. Only one of these claims is relevant here — that Escholt's trial attorney provided ineffective assistance of counsel prior to trial by failing to communicate to Escholt an offer from the State to plead guilty to a charge of attempted murder with a sentence of 10 years to serve.
In support of his amended application, Escholt submitted affidavits from himself and from his trial attorney, as well as a copy of the email exchanges between his trial attorney and two different prosecutors, documenting their plea negotiations.
In his affidavit, Escholt stated that his attorney did not inform him of an offer the State made prior to trial for him to serve 10 years if he pleaded guilty to attempted murder. He indicated that if he had known about the offer, he would have accepted the offer. Escholt also stated that, when he discussed the possibility of a post-conviction relief action with his trial attorney, his attorney "told [Escholt] that he agreed that [Escholt] was not informed of the 10[-]year offer from the State" and that he "would cooperate with a PCR."
Escholt's trial attorney provided a different view of the facts. In an affidavit, the attorney described two separate occasions in which a prosecutor rejected a proposed plea offer by Escholt and mentioned that Escholt would have to agree to serve at least 10 years before the State would be willing to resolve the case. The attorney stated that he met with Escholt after the first communication from the prosecutors, at which time Escholt said he would not accept 10 years to serve. The attorney also stated that Escholt continued to inform the attorney throughout the case that he would not accept 10 years to serve and thought he could do better at trial. Escholt's trial attorney further stated that the State never extended a formal plea offer to Escholt.
The State filed a motion for summary disposition. In its motion, the State argued that, on the undisputed facts, Escholt's claim failed because there was never a formal plea offer by the State and, thus, Escholt's trial attorney could not have been ineffective for failing to communicate such an offer to Escholt.
In response to the State's motion, Escholt argued that there were genuine issues of material fact that made summary disposition inappropriate because Escholt and his trial attorney gave conflicting accounts over whether a formal offer had been made and whether that offer was communicated to Escholt.
The superior court granted the State's motion to dismiss. The court ruled that, even if it accepted as true all of Escholt's factual allegations, Escholt had failed to set out sufficient details to establish a prima facie case that his attorney had failed to communicate a formal plea offer from the State.
This appeal followed.
Why we conclude that a remand is required
The superior court may not dismiss a post-conviction relief application on the pleadings if "genuine issues of material fact are in dispute." Escholt asserts that there was a dispute of facts that should have been resolved at an evidentiary hearing — specifically, whether the purported offer was conveyed to Escholt and whether it qualified as an "offer" for purposes of a defense attorney's duty to communicate such an offer under Missouri v. Frye.
State v. Jones, 759 P.2d 558, 566 (Alaska App. 1988).
Missouri v. Frye, 566 U.S. 134, 145 (2012).
We note that the second question turns on an issue of law that has not previously been addressed by the Alaska courts. It is well established that a defense attorney has a duty "to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." It is less clear, however, what constitutes a "formal offer."
Id.; see also Pocock v. State, 2017 WL 2209869, at *2 (Alaska App. May 17, 2017) (unpublished) (noting that the defense attorney "had a duty to convey all formal plea offers" but not otherwise opining on the meaning of a "formal plea offer").
In its brief, the State cites to multiple cases outside of Alaska that have addressed the question of whether an attorney has an obligation to communicate a plea offer that contains less than all the essential terms of a plea agreement. Based on this authority, the State argues that courts have generally imposed this duty on defense counsel only when the purported offer contains most, if not all, of the essential terms of a plea agreement.
The State cites the following cases: Merzbacher v. Shearin, 706 F.3d 356, 369-70 (4th Cir. 2013); Mavashev v. United States, 2015 WL 1508313, at *9-10 (E.D.N.Y. Mar. 31, 2015) (unpublished); United States v. McCall, 2014 WL 2581353, at *3 (N.D.Cal. June 9, 2014) (unpublished); United States v. Petters, 986 F. Supp. 2d 1077, 1082-83 (D. Minn. 2013); Fanaro v. Pineda, 2013 WL 6175620, at *5 (S.D.Ohio Nov. 22, 2013) (unpublished); United States v. Waters, 2013 WL 3949092, at *8 (E.D.Pa. July 31, 2013) (unpublished); Holden v. State, 2014 WL 3700831, at *1 (Nev. July 23, 2014) (unpublished).
Escholt's appellate attorney fails to adequately respond to this briefing and instead simply asserts, in a single conclusory sentence, that the "offer d[oes] not have to be 'formal,'" and that it is enough that the offer contain "just enough information to resolve the case." Notably, Escholt's appellate attorney does not cite any legal authority for this position, nor does she discuss any of the cases cited by the State.
However, notwithstanding the poor quality of Escholt's appellate briefing, we conclude that it was premature for the superior court to dismiss Escholt's application for failure to state a prima facie case when the exact nature of the State's purported 10-year offer remained in dispute.
In his affidavit, Escholt asserted that his attorney failed to convey a 10-year offer to him, that the attorney agreed he had failed to convey the offer, and that the attorney told Escholt that he would "cooperate" with any post-conviction relief claim. In contrast, Escholt's attorney asserted in his affidavit that Escholt was unwilling to serve 10 years and that, in any event, the State never extended a "formal plea offer" to Escholt.
Based on this, the superior court determined that "there was never a formal plea offer." But at the initial pleading stage of a post-conviction relief proceeding, the court is obliged to treat all well-pleaded assertions of fact in the petition as true. Whether the State extended an offer, and whether that offer was formal enough to trigger the defense attorney's duty to communicate it to Escholt, was placed squarely in dispute by the competing affidavits of Escholt and his attorney. For these reasons, the superior court should have denied the State's motion to dismiss, scheduled an evidentiary hearing, and allowed Escholt to conduct further discovery.
LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007). --------
On remand, there are two questions for the court to address. First, the court should address the underlying question of what constitutes a "formal offer" for purposes of Missouri v. Frye, and the court should allow Escholt the opportunity to prove that the 10-year offer qualified as such an offer. Second, assuming that Escholt is able to prove that a formal offer was made, there remains the question of whether that offer was communicated to Escholt.
We note that the answer to this second question may moot out the first question. That is, if the court finds that the trial attorney communicated the 10-year offer (as he claims he did in his affidavit) and that Escholt rejected this offer, then the question of what type of offer it was is no longer relevant. We therefore leave it to the sound discretion of the superior court on how to best proceed with this litigation.
The judgment of the superior court is REVERSED, and this case is REMANDED to the superior court for further proceedings on Escholt's application for post-conviction relief.