Opinion
A-13785 0307
02-08-2023
NATHAN B. OLSEN, Appellant, v. STATE OF ALASKA, Appellee.
Dan Bair, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Trial Court No. 1KE-16-00203 CI First Judicial District, Ketchikan, William B. Carey, Judge.
Dan Bair, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Nathan B. Olsen was convicted, following a jury trial, of online enticement of a minor by a registered sex offender. Olsen appealed his conviction, arguing, inter alia, that the prosecutor made two improper statements during closing argument. (The first statement involved the use of the word "pedophile"; the second statement involved the suggestion that the jury should convict Olsen to protect future victims.) Olsen's trial attorney did not object to these arguments at trial so Olsen was required to show plain error on appeal. This Court held that the prosecutor's arguments, although improper, did not constitute plain error.
AS 11.41.452(e).
Olsen v. State, 2015 WL 4503969, at *2-4 (Alaska App. July 22, 2015) (unpublished).
Olsen then filed an application for post-conviction relief, arguing that his trial attorney's failure to object to the prosecutor's arguments at trial constituted ineffective assistance of counsel. The superior court dismissed the application on the pleadings for failure to state a prima facie case of ineffective assistance of counsel. Olsen now appeals that dismissal.
Whether a defendant's application for post-conviction relief sets forth a prima facie case for relief is a question of law that we review de novo. To establish a prima facie case of ineffective assistance of counsel, Olsen was required to plead facts which, if true, would establish (1) that his attorney acted incompetently when he failed to object to the prosecutor's arguments; and (2) that there is a reasonable possibility that, but for the attorney's incompetence, the outcome of Olsen's case would have been different.
See David v. State, 372 P.3d 265, 269 (Alaska App. 2016).
See Risher v. State, 523 P.2d 421, 425 (Alaska 1974).
With regard to the incompetence prong, the superior court ruled that Olsen had not rebutted the presumption that his attorney's failure to object was motivated by sound tactical considerations - namely, to avoid drawing the jury's attention to the improper statements. Olsen challenges this ruling on appeal. However, we need not reach that question because we agree with the superior court's alternative ruling that Olsen's pleadings failed to state a prima facie case on the prejudice prong.
See State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
As we already pointed out in Olsen's direct appeal, the improper statements were made in the context of a closing argument that was otherwise proper. That is, the prosecutor's use of the word "pedophile," although improper, was made "only in passing" and was part of an otherwise proper response to the defense attorney's arguments about Olsen's mindset. Likewise, the second improper statement - the suggestion that the jury should convict Olsen out of fear for future victims - was made in the context of an otherwise proper argument regarding the fact that the victim in Olsen's case was an undercover police officer who was only pretending to be a minor.After making this statement, the prosecutor also immediately reminded the jury that the true question in front of them was whether the State had proved all the elements of the crime of online enticement. Given this larger context, we agree with the superior court that Olsen's pleadings failed to show that there was a reasonable possibility that the outcome of his case would have been different if his attorney had objected to the improper statements.
Olsen, 2015 WL 4503969, at *3.
Id. at *4.
Id.
Accordingly, the judgment of the superior court is AFFIRMED.