Opinion
Court of Appeals No. A-12293 No. 6743
12-05-2018
NEWTON LINDOFF, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Mark Lewis Nunn Sr., Nunn Law Firm, Fairbanks, for the Appellant. Diane L. Wendlandt, 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. 1JU-10-515 CI
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Juneau, Philip M. Pallenberg, Judge. Appearances: Mark Lewis Nunn Sr., Nunn Law Firm, Fairbanks, for the Appellant. Diane L. Wendlandt, 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 WOLLENBERG.
Newton Lindoff appeals the superior court's dismissal of his application for post-conviction relief. Lindoff's application was based on the assertion that he received ineffective assistance of counsel in connection with the underlying criminal proceedings against him, in which he pleaded guilty to attempted second-degree sexual assault.
The superior court dismissed Lindoff's application for failing to state a prima facie case for relief. For the reasons explained in this opinion, we affirm the superior court's dismissal of Lindoff's post-conviction relief application.
Underlying facts and proceedings
In January 2008, Lindoff was indicted for attempted first-degree sexual assault, second-degree sexual assault, and two counts of first-degree burglary. The State's theory was that Lindoff entered the home of eighteen-year-old L.G. without permission and sexually assaulted her while she was passed out on a couch. When L.G. woke up to find Lindoff on top of her, she threw him off of her.
Lindoff fled, leaving behind his boots and coat. After the police responded, the police took possession of the abandoned coat and shoes, and they discovered mail with Lindoff's name on it in one of the coat pockets. When Lindoff appeared at his brother-in-law's home at 5:30 a.m., he was not wearing any coat or shoes.
L.G. identified Lindoff as her attacker. L.G. and Lindoff were long-time Hoonah residents; Lindoff was related to L.G.'s aunt, Josephine Lindoff, who lived across the street from L.G.
Josephine reported to police that someone had broken into her home in the early morning hours that same day (prior to the assault on L.G.). The intruder stole alcohol and let her dog out. Josephine believed that Lindoff was the intruder, and the second burglary count against Lindoff was based on this allegation. The stolen alcohol was later found in L.G.'s home.
The most serious charge against Lindoff was attempted first-degree sexual assault, a class A felony. Because Lindoff had a prior conviction for a sexual felony, he faced a presumptive sentencing range of 30 to 40 years' imprisonment if convicted of this charge.
AS 11.41.410(a)(1) & AS 11.31.100(a).
AS 12.55.125(i)(2)(D).
To resolve the charges against him, Lindoff reached a plea agreement with the State. Pursuant to this agreement, Lindoff pleaded guilty to one count of attempted second-degree sexual assault. The State dismissed the remaining charges, and the parties agreed to a sentence of 12 years to serve.
But prior to sentencing, Lindoff filed a pro se motion to withdraw his plea, arguing inter alia that his attorney had provided ineffective assistance by failing to provide him with "full discovery," failing to advise Lindoff that there was no DNA evidence against him, and pressuring Lindoff to accept the State's plea offer.
Lindoff's attorney also argued that Lindoff was entitled to withdraw his plea because, during the change-of-plea proceeding, the court had failed to advise Lindoff of the lifetime sex offender registration requirement to which he would be subject, given his prior conviction for a sex offense. Lindoff v. State, 224 P.3d 152, 154 (Alaska App. 2010).
Following an evidentiary hearing, the superior court denied Lindoff's motion. The court concluded that none of Lindoff's complaints regarding his attorney "approach[ed] a showing of ineffective assistance of counsel." As to Lindoff's claimthat he was never told about the absence of incriminatory DNA evidence, the court noted that Lindoff did not contend that he was misled into believing that there was DNA evidence. The court found that if Lindoff had mistakenly assumed that there was DNA evidence, "there [was] no reason to believe this assumption was the result of anything his attorney told him."
The court subsequently imposed sentence pursuant to the plea agreement.
Lindoff appealed the denial of his plea withdrawal motion. On appeal, Lindoff did not renew his claim of ineffective assistance of counsel. This Court affirmed the trial court's ruling.
Lindoff, 224 P.3d at 154.
Id. at 154-57.
Id. at 157.
Post-conviction relief proceedings
Following the denial of his direct appeal, Lindoff filed an application for post-conviction relief claiming ineffective assistance of counsel. The court appointed an attorney to represent Lindoff, and Lindoff's attorney filed a motion requesting post-conviction DNA testing of an unused condom found at the scene. The trial court denied this motion, finding that there was no evidence connecting the unused condom with the sexual assault against L.G. and that, in any event, it was "highly likely" that the condom had been contaminated because L.G.'s friend (who had responded to the scene) had placed the condom in the pocket of the coat abandoned by the intruder, prior to turning the coat over to the police.
See AS 12.73.010.
Lindoff then filed an amended pro se post-conviction relief application, raising three claims — namely, that his trial attorney was ineffective for failing to: (1) object to the amendment of the indictment pursuant to the plea agreement, (2) independently investigate Lindoff's case before recommending that Lindoff accept the plea offer, and (3) challenge the constitutionality of the sentencing laws applicable to sex offenses. Lindoff filed an affidavit from his trial attorney as well as a personal affidavit. Lindoff's post-conviction relief attorney notified the court of his intent to proceed on the basis of Lindoff's amended pro se application, pursuant to Alaska Criminal Rule 35.1(e)(2)(A).
The State moved to dismiss the amended application. Although Lindoff's attorney opposed this motion, he conceded that Lindoff's claim against his trial attorney for failing to independently investigate the case failed to state a claim for relief. Specifically, the post-conviction relief attorney acknowledged that Lindoff had "not identified any exculpatory evidence" that would have been discovered through an independent investigation, other than evidence that might result from the DNA analysis of the unused condom. Lindoff's attorney acknowledged, however, that the court had already denied DNA testing of the condom and that the court's ruling was "the law of the case."
The trial court subsequently granted the State's motion to dismiss. Lindoff now appeals the dismissal of his post-conviction relief application, but Lindoff does not appeal the order denying his request for DNA testing.
Why we uphold the dismissal of Lindoff's application for post-conviction relief
With one possible exception that we address below, Lindoff does not renew any of the claims that he litigated in the superior court in his post-conviction relief action. Nor does Lindoff discuss the trial court's ruling dismissing his post-conviction relief application. Rather, without acknowledging that he is doing so, Lindoff raises a series of claims that were either not presented to the superior court as part of the post-conviction relief case or that rest on an unreasonable or unsupported interpretation of the record. These claims are not preserved for appeal.
See Burton v. State, 180 P.3d 964, 975 (Alaska App. 2008) (finding unpreserved, and therefore forfeited, a substantive contention raised for the first time on appeal in a post-conviction relief case).
Additionally, several of the claims Lindoff raises were previously litigated as part of Lindoff's underlying criminal case. Chief among these claims is Lindoff's argument that his guilty plea was "induced by his [trial] counsel's misleading assertion that the DNA in this case would certainly lead to Lindoff's conviction." To support this claim, Lindoff relies entirely on his pro se motion to withdraw his plea — a motion that he litigated prior to his sentencing. But any claim already litigated as part of Lindoff's motion to withdraw his plea is now res judicata.
See Larson v. State, 254 P.3d 1073, 1077 (Alaska 2011).
Even assuming Lindoff could now validly challenge his trial attorney's statements regarding the status of the DNA evidence, Lindoff's current factual assertion is directly at odds with the facts he asserted in his motion to withdraw his plea. As discussed earlier, Lindoff alleged in his plea withdrawal motion that his trial attorney failed to advise him about the absence of DNA evidence. Lindoff did not argue, as he now contends, that his attorney told him that the DNA evidence would "certainly result in a conviction." In fact, in the superior court's order denying Lindoff's motion to withdraw his plea, the court specifically noted that Lindoff had not argued "that he was in any way misled into believing that there was DNA." (Emphasis in original.) Lindoff fails to recognize or address this distinction.
To the extent Lindoff is renewing his claim that his trial attorney was ineffective for failing to conduct an independent investigation into Lindoff's case before recommending that Lindoff accept the plea offer, we agree with the superior court that Lindoff failed to present a prima facie case for relief on this claim. We note that Lindoff fails to discuss the trial court's decision, or explain why the trial court was in error. We also note that his post-conviction relief attorney conceded that Lindoff's claim against his trial attorney for failing to independently investigate his case failed to state a claim for relief because Lindoff had not identified any exculpatory evidence that would have been discovered through such an investigation.
See State v. Jones, 759 P.2d 558, 573-74 (Alaska App. 1988). --------
Conclusion
We AFFIRM the superior court's order dismissing Lindoff's application for post-conviction relief.