Opinion
Court of Appeals No. A-8881.
March 29, 2006.
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge, Trial Court Nos. 3PA-01-0080 CI, 3PA-95-2444 CR.
G. Blair McCune, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Màrquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Edward Y. Gardner was convicted of first-degree murder for killing his wife. This court affirmed his conviction.
Gardner v. State, Alaska App. Memorandum Opinion and Judgment No. 4235 at 3 (June 21, 2000), 2000 WL 799341 at *12.
In January 2001, Gardner filed an application for post-conviction relief. Superior Court Judge Beverly W. Cutler ultimately dismissed Gardner's application. Gardner appeals. We affirm.
Facts and proceedings
On January 8, 2001, Gardner filed an application for post-conviction relief with the superior court. Gardner requested appointment of counsel. The court appointed the Office of Public Advocacy (OPA) to assign an attorney to represent Gardner. Gardner's appointed attorney entered an appearance on March 8, 2001. On September 4, 2001, Gardner requested a representation hearing. He complained that he had not been able to speak to his attorney, but had only been able to speak with an assistant who had yet to pass the Alaska bar examination. Over the next three and a half months, Gardner filed three motions asking for a representation hearing and replacement counsel. Gardner explained that his counsel inadequately communicated with him and filed for many extensions of time. On December 26, 2001, his attorney filed a memorandum in support of Gardner's application for post-conviction relief.
On January 30, 2002, the attorney filed a motion to withdraw as counsel. He claimed that, despite his efforts, Gardner had been dissatisfied with his representation. He explained that Gardner had moved for a representation hearing, and when the hearing was denied, had petitioned the court of appeals to review the matter. The attorney stated that he believed that there had been an irreparable breakdown in communication in the attorney-client relationship.
In response, on February 28, 2002, Judge Cutler stated that the attorney and Gardner should first seek resolution of the representation problem with OPA. But she gave the parties the opportunity to "show authority within 30 days for the necessity and propriety of court intervention."
On April 25, 2002, Gardner moved to represent himself. In an affidavit in support of his request, Gardner claimed that he had contacted OPA but had not received any assistance. On August 9, 2002, Judge Cutler granted Gardner's motion to proceed pro se. But on September 20, 2002, the attorney filed a pleading with the court indicating that he and Gardner had resolved their differences, and he reentered his appearance for Gardner.
On February 23, 2003, the attorney filed an extensive affidavit from Gardner, in which Gardner set out his views of the case. In June 2003, the attorney moved for summary disposition.
On July 16, 2003, the State filed a motion to dismiss the application for post-conviction relief. Gardner then filed an opposition to the State's motion to dismiss. Judge Cutler gave notice of intent to dismiss Gardner's application. In the notice, Judge Cutler stated that she intended to grant the State's motion to dismiss because the issues Gardner raised had either been previously decided in his former appeal or raised issues that he had received ineffective assistance of counsel. Judge Cutler concluded that Gardner had not presented any evidence that his trial counsel had been ineffective.
Gardner responded, arguing that he had raised issues not decided in his prior appeal. These issues included: (1) whether the State had illegally searched Gardner's home without a search warrant, and (2) whether the State had improperly presented DNA evidence at Gardner's trial.
Judge Cutler again gave notice of intent to dismiss Gardner's application. In this notice, Judge Cutler concluded that Gardner's arguments concerning the search of items from his cabin and the DNA evidence were more properly characterized as a claim that his attorney was ineffective for failing to raise these two issues at trial. She pointed out that Gardner had not presented any evidence that his counsel was ineffective in failing to raise these claims. She also found that the two issues could have been brought on direct appeal, and therefore were barred under AS 12.72.020(a)(2). When Gardner failed to respond to this second notice of intent to dismiss, Judge Cutler granted the motion to dismiss.
Gardner's request for a representation hearing and for appointment of another attorney to represent him
First, Gardner argues that Judge Cutler erred in failing to conduct a representation hearing. Gardner contends that, because Judge Cutler gave him no alternative, he was forced to accept his appointed representation. He relies on Professor LaFave's explanation in his criminal procedure treatise:
When an indigent defendant makes a timely and good-faith motion requesting that appointed counsel be discharged and new counsel appointed, the trial court clearly has a responsibility to determine the reasons for defendant's dissatisfaction with his current counsel. The court may not summarily deny a defendant's request for substitution of counsel because the defendant has failed to state, or stated in a vague and conclusory manner, the grounds for such a change. It "generally has an obligation to engage the defendant in a colloquy concerning the cause of defendant's dissatisfaction with his representation." The failure to conduct an adequate inquiry may in itself constitute grounds for reversal of a conviction.
3 Wayne R. LaFave, Jarold H. Israel Nancy J. King, Criminal Procedure § 11.4(b) at 554 (2d ed. 1999) (footnotes and citations omitted).
On the other hand, we have indicated that it is reasonable for trial judges to be cautious about inserting themselves as a referee into an attorney-client relationship. The State notes that Gardner's main dispute with his attorney was the lack of communication, except through an intermediary. Additionally, Gardner also objected to his counsel's multiple continuances. The State argues that Judge Cutler properly instructed the parties to resolve their differences through OPA. This had the advantage of the judge not having to insert herself into the attorney-client relationship. Furthermore, the State argues that any error by Judge Cutler was harmless because the record reflects that Gardner and his attorney worked out their differences.
Mute v. State, 954 P.2d 1384, 1385-86 (Alaska App. 1998).
The record shows that Gardner ultimately agreed to be represented by his appointed post-conviction relief attorney. The record shows that he and his attorney worked out their differences and proceeded with the case. Therefore, he has not shown that he was prejudiced because Judge Cutler did not conduct a representation hearing.
In the event that Gardner received ineffective assistance of counsel from his post-conviction relief attorney, Gardner is not without a remedy. He can bring an action under Grinols v. State.
74 P.3d 889 (Alaska 2003).
Gardner's attorney filed an amended application for post-conviction relief
Gardner argues that his attorney never filed an amended application for Gardner as was required by Alaska Criminal Rule 35.1(e)(2). Rule 35.1(e)(2) requires an attorney to do one of the following in representing an indigent defendant seeking post-conviction relief:
(1) notify the court and the prosecuting attorney that the litigation will go forward based on the grounds alleged in the pro se application already filed by the petitioner; (2) file an amended petition containing the allegations that the attorney is prepared to pursue; or (3) file a certificate stating that there is no arguable merit to the litigation.
Griffin v. State, 18 P.3d 71, 72 (Alaska App. 2001).
But the attorney filed a document entitled "Supplemental Memorandum in Support of Application for Post-conviction Relief." The supplemental memorandum asserted that Gardner's trial attorney provided ineffective assistance of counsel because she failed to: (1) challenge the sufficiency of the DNA evidence; (2) move to suppress the evidence seized from Gardner's cabin or determine whether a search warrant was issued for that cabin; (3) move for dismissal of the indictment based on the claim that the State improperly suggested that a knife seized at Gardner's arrest could have inflicted the wounds on his former wife's body; and (4) move for Judge Cutler to recuse herself from Gardner's case because of demonstrated bias. In his original pro se application, Gardner only raised an ineffective assistance of counsel claim (for failure to challenge the DNA evidence). Not only did the post-conviction relief attorney continue to pursue that claim, but he raised three additional claims. The supplemental memorandum satisfied Rule 35.1.
Judge Cutler did not err in failing to address issues Gardner set out in his affidavit
Gardner contends that Judge Cutler erred in not addressing issues that he raised in his lengthy supplemental affidavit. Gardner filed a nearly 100-page affidavit in which he raised numerous complaints about his conviction. But Gardner never developed or presented the allegations that he set out in his affidavit. Furthermore, in responding to Judge Cutler's notice of intent to dismiss, Gardner never contended that these were additional issues that Judge Cutler needed to rule on.
Ultimately, in response to the motion to dismiss, Gardner raised two issues. The first issue was that his trial attorney was ineffective because she did not object to (1) the warrantless search of Gardner's residence, and (2) the admission of DNA evidence.
But, as Judge Cutler pointed out, in reviewing a claim of ineffective assistance of counsel we "must apply a strong presumption of competence." Where a counsel's actions were undertaken for tactical reasons, "the choice will be subject to challenge only if the tactic itself is shown to be unreasonable — that is, a tactic that no reasonably competent attorney would have adopted under the circumstances."
State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988) (citations omitted).
Id. at 569-70.
First, Gardner argues that at his arrest, the police did not show him a warrant either for his arrest or to search his residence. He complained that his trial attorney never made a motion to suppress evidence that the police seized during the search.
In an affidavit, the trial attorney stated that she did not file a motion to suppress, and did not recall the reason. We have consistently held that when counsel cannot recall why she took or did not take a certain action, the applicant has not established that the attorney's action was not tactical. Instead, "the presumption of competence remains unrebutted and operates to preclude a finding of ineffective assistance." It would not be surprising that an attorney would not recall why she had not filed a motion to suppress if there had been no grounds for such a motion. In any event, Gardner had the duty to show that any competent counsel would have filed such a motion, that the motion would have been successful, and that he was possibly harmed as a result of the failure to file the motion. Therefore, Judge Cutler did not err in concluding that Gardner had failed to establish a prima facie case of ineffective assistance of counsel.
Id. at 569; Parker v. State, 779 P.2d 1245, 1248 (Alaska App. 1989).
State v. Steffensen, 902 P.2d 340, 341-42 (Alaska App. 1995).
Gardner contends that his attorney was ineffective in failing to further test the DNA of the semen found on the victim, his former wife. The original DNA test indicated that the discovered semen was consistent with Gardner's semen. In her affidavit, the trial attorney said that she had the semen tested by her own expert. The expert stated that Gardner could not be excluded as the source of the semen. The trial attorney explained that she could show that Gardner continued to have a relationship with his ex-wife after they separated. And she was able to argue, based on the expert's analysis, that the semen was consistent with Gardner having sex with his former wife "a day or days before the murder instead of the time of her death." The affidavit establishes that the trial attorney had a tactical reason for handling the DNA evidence as she did. Gardner did not present any evidence that this tactic was unreasonable. He also did not present any evidence that he was prejudiced. Accordingly, Judge Cutler did not err in concluding that Gardner had not stated a prima facie case of ineffective assistance of counsel.
Since these are the only two issues which Gardner addressed in his response to the trial court's notices of its intent to dismiss his application, these are the only ones Judge Cutler was required to address. Additionally, as Judge Cutler observed, all of Gardner's claims have similar defects.
We accordingly conclude that Judge Cutler did not err in dismissing Gardner's application for post-conviction relief. The judgment of the superior court is AFFIRMED.
Under AS 12.72.020(a)(1) and (a)(2), a petition for post-conviction relief can not be based on claims that evidence was improperly admitted or excluded at the defendant's trial, nor can the petition be based on claims that either were raised or could have been raised on direct appeal. Because of these statutory limitations, Gardner's numerous claims for post-conviction relief could go forward only if they were framed in terms of attorney incompetence.
Judge Cutler recognized this problem, and she alerted Gardner and his post-conviction relief attorney (both of whom were filing pleadings) that the real issue appeared to be whether Gardner's trial attorney was ineffective. She then gave Gardner and his attorney an opportunity to supplement the petition for post-conviction relief so that it presented a prima facie case of attorney incompetence in one or more matters.
Despite this opportunity, the final version of Gardner's petition still failed to present a prima facie case of ineffective assistance of counsel. In the lengthy affidavit that Gardner filed personally, he complained of dozens of things that his trial attorney either did or failed to do, but he failed to present a prima facie case that no competent attorney would have performed likewise. More important, the final version of Gardner's petition named only two purported instances of attorney incompetence, and (again) the petition failed to present a prima facie case that no competent attorney would have performed that way. For this reason, Judge Cutler properly dismissed the petition.
The other substantive issue in this case is the manner in which Judge Cutler handled Gardner's complaints about the attorney who was appointed to represent him in the post-conviction relief proceedings. When Gardner asserted that this attorney was not working on his case, and would not deal with Gardner personally, Judge Cutler told Gardner that this was not the superior court's business — that the Office of Public Advocacy was the proper agency to resolve any problems that Gardner was having with his attorney.
Judge Cutler was understandably reluctant to become embroiled in any dispute between Gardner and his attorney concerning the proper handling of the post-conviction relief case. And, as Judge Coats's majority opinion correctly points out, we have urged trial judges to be very cautious about injecting themselves as referees in an attorney-client relationship. Nevertheless, a defendant (or a petitioner for post-conviction relief) is entitled to relief if relations between attorney and client have deteriorated to the point where the attorney is incapable of effective communication with the client, or incapable of objective decision-making about the case.
See Mute v. State, 954 P.2d 1384, 1385-86 (Alaska App. 1998).
Mute, 954 P.2d at 1385.
If the facts of Gardner's case indicated that relations between him and his attorney had deteriorated to that point, then regardless of the role of the Office of Public Advocacy in policing its contract attorneys, the superior court would have had an independent duty to look into the problem. As explained in Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal Procedure (2nd ed. 1999),
When an indigent defendant makes a timely and good faith motion requesting that appointed counsel be discharged and new counsel appointed, the trial court clearly has a responsibility to determine the reasons for [the] defendant's dissatisfaction with [their] current counsel. . . . [The court] generally has an obligation to engage the defendant in a colloquy concerning the cause of [the] defendant's dissatisfaction with [the] representation.
Id., § 11.4(b), Vol. 3, p. 554 (citations omitted).
This duty of inquiry arises from the fact that indigent defendants have no choice in the matter of who will represent them. Because of this, a court must listen when an indigent defendant asserts that their attorney has essentially stopped working on their case.
Coleman v. State, 621 P.2d 869, 878 (Alaska 1980); Mute v. State, 954 P.2d 1384, 1385 (Alaska App. 1998).
It may well be that the conflict between the attorney and the defendant can be resolved by further discussion between the two, or resolved through the efforts of the agency that employs the attorney. But if relations between the attorney and the defendant have indeed deteriorated to the point where the attorney is incapable of effective communication with the defendant, or incapable of objective decision-making about the case, then the court can not simply wash its hands and refer the problem to the agency that employs the attorney. If, under these circumstances, the agency will not take appropriate action, then the court must.
This being said, I agree with my colleagues that the record does not show that relations between Gardner and his post-conviction relief attorney had deteriorated to the point where the superior court might have been obliged to take action.