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addressing but not resolving the meaning of "innocent" under AS 12.72.020(b)
Summary of this case from Clayton v. StateOpinion
Court of Appeals No. A-10002.
October 29, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael R. Spaan, Judge, Trial Court No. 3AN-04-6479 Civ.
Dan S. Bair, Assistant Public Advocate, Appeals Statewide Defense Section, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
In 1992, Leslie L. Simpson Jr. was convicted by a jury of first-degree murder for killing his wife. In the summer of 1994, this Court affirmed Simpson's conviction on appeal: Simpson v. State, 877 P.2d 1319 (Alaska App. 1994).
Almost ten years later (in April 2004), Simpson filed a pro se petition for post-conviction relief. Simpson then obtained an attorney and, several months later, the attorney filed an amended petition. In this amended petition, and in Simpson's supporting affidavit, Simpson alleged that he had recently discovered that, before he went to trial, the State offered to resolve his case by having Simpson plead guilty to the lesser offense of second-degree murder. Simpson alleged that his trial attorneys failed to inform him of the State's offer, and Simpson further alleged that he would have accepted the State's offer if he had known of it.
Simpson's petition also included affidavits from the two attorneys who represented him in the murder prosecution: Public Defender Barbara Brink and Assistant Public Advocate Gordon G. Goodman. In their affidavits, both Brink and Goodman asserted that they had communicated the State's offer to Simpson, and that Simpson rejected the offer and chose to go to trial instead.
Superior Court Judge Michael R. Spaan dismissed Simpson's petition based solely on the contents of the pleadings — in particular, the contents of the affidavits submitted by Simpson's two former attorneys:
Petitioner's prior trial attorneys have submitted affidavits which do not support Simpson's theory [of newly discovered evidence warranting post-conviction relief]. Each attorney swore they did communicate the plea offer to . . . Mr. Simpson. This Court does not find by clear and convincing evidence that the plea offer was not communicated [to Simpson,] and therefore finds that [Simpson's] motion for post-conviction relief is time[-]barred . . . and [that] the petitioner's motion for post-conviction relief is DISMISSED.
On appeal, the State concedes that Judge Spaan committed error when he resolved an issue of fact — specifically, the issue of whether the State's plea offer was communicated to Simpson before trial — based solely on the contents of competing affidavits.
As this Court explained in Boggess v. State, "conflicting affidavits provide no basis for evaluating the relative credibility of their makers. For this reason, . . . when conflicting facts are set forth in competing affidavits, an evidentiary hearing will ordinarily be required." 783 P.2d 1173, 1180 (Alaska App. 1989). See also Abyo v. State, 166 P.3d 55, 58 (Alaska App. 2007), another case affirming this same principle.
In its brief to this Court, the State suggests that the superior court might properly have dismissed Simpson's petition because Simpson failed to demonstrate that he exercised due diligence in pursuing his claim for post-conviction relief after discovering the State's earlier plea offer. But Judge Spaan did not rely on Simpson's purported lack of diligence. Moreover, the State's allegation of lack of diligence rests on underlying issues of fact that have neither been litigated nor resolved in the superior court.
The State also argues that, even if everything that Simpson says is true, Simpson is still not entitled to post-conviction relief as a matter of law.
The State notes that Simpson's petition would normally be time-barred. See SLA 1995, ch. 79, § 40, the transitional statute which set a filing deadline of July 1, 1996, for defendants convicted before July 1, 1994. The State further notes that AS 12.72.020(b)(2) — the provision which creates an exception to the statute of limitations for claims based on newly discovered evidence — requires a petitioner to show "by clear and convincing evidence that the [petitioner] is innocent".
AS 12.72.020(b)(2)(D).
The State argues that, even if everything Simpson alleges is true, he has still failed to offer proof that he is innocent — and, thus, he can not avoid the statute of limitations.
In particular, the State contends that even if Simpson's attorneys wrongfully or incompetently failed to communicate the State's offer to settle the case for a plea to second-degree murder, and even if Simpson would have accepted this plea bargain if he had known about it, none of this establishes Simpson's factual innocence of first-degree murder. The State asserts that, even if the State was willing to settle the case for a plea to second-degree murder, this does not undermine the trial jury's finding that Simpson was guilty of first-degree murder.
The implicit premise of the State's argument is that AS 12.72.020(b)(2) requires a petitioner to show that they are factually innocent. We are not sure that the State's interpretation of the statute is correct.
Concededly, the wording of AS 12.72.020(b)(2)(D) states that a petitioner must show that they are "innocent". But it is not clear whether the statute is speaking of factual innocence of any and all crime, or (instead) proof that, given the new evidence, the defendant would not have been convicted of the same degree of crime.
An analogous situation is presented by motions for a new trial based on newly discovered evidence. Although appellate courts often speak of the requirement that the newly discovered evidence would probably lead to an "acquittal", the true test is whether the newly discovered evidence would probably lead to an acquittal or to a conviction on a lesser charge. See the discussion of this point in Smart v. State, 146 P.3d 15, 56 (Alaska App. 2006).
For this reason, we can not say that the State's proposed construction of AS 12.72.020(b)(2)(D) is obviously correct. If the State wishes to pursue this theory when Simpson's case returns to the superior court, the State is free to do so.
The judgement of the superior court is VACATED, and this case is remanded to the superior court for further proceedings on Simpson's petition for post-conviction relief.