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concluding that relief under Tazruk was not warranted and the regular presumption of attorney competence should apply because record showed that counsel had actively investigated and litigated the defendant's ineffective assistance of counsel claims and had filed an amended application that was not obviously deficient
Summary of this case from Rogers v. StateOpinion
Court of Appeals No. A-10544 Trial Court No. 3HO-06-235 CI No. 5825
04-11-2012
DALE F. VAN DOREN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David K. Allen, Sechelt, British Columbia, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Homer, Charles T. Huguelet, Judge.
Appearances: David K. Allen, Sechelt, British Columbia, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
In this appeal of the superior court's dismissal of his application for post-conviction relief, Dale F. Van Doren claims that the attorney who represented him at the superior court level in his action for post-conviction relief, Dan Lowery, provided him with ineffective assistance of counsel. Van Doren relies solely on the existing record of his application for post-conviction relief, unsupported by either his own affidavit or an affidavit from Lowery addressing Van Doren's claims. We affirm the decision of the superior court that the application is insufficient to show that Lowery provided ineffective assistance of counsel.
Discussion
In July, 2005, Van Doren, represented by attorney Karen Weimer, pled no contest to a single consolidated count of theft in the second degree pursuant to a plea agreement. Superior Court Judge Charles T. Huguelet accepted the plea and later sentenced Van Doren to five years' imprisonment with three years suspended. Van Doren did not appeal.
In October 2006, Van Doren filed a pro se application for post-conviction relief, claiming that his trial attorney, Karen Weimer, had provided ineffective assistance of counsel. He claimed that Weimer had been ineffective because she failed to adequately investigate his case and had not adequately communicated with him.
In December 2006, the superior court appointed the public defender agency as counsel to represent Van Doren on his application for post-conviction relief. After several different attorneys represented Van Doren, Assistant Public Defender Dan Lowery filed an entry of appearance. Lowery filed an amended post-conviction relief application on behalf of Van Doren in December of 2007.
The amended application presented different grounds than Van Doren had presented in his pro se application. While Van Doren's application had focused on the trial attorney's failure to investigate his claims, the amended application instead argued that his trial attorney had been ineffective in three areas: "When she misinformed him about the terms of the plea bargain, threatened to stop representing [him] if he refused to accept the [plea bargain], and failed to facilitate [his] correction of inaccuracies in the presentence report." The State moved to dismiss the application for failure to set out a prima facie case.
Lowery made several attempts to contact Weimer to obtain an affidavit from her or take her deposition so that she could address Van Doren's claims of ineffective assistance of counsel. Judge Huguelet found that "[a]pparently [Weimer had] left the State and [was] not available for a deposition." Lowery ultimately asked the court to address the State's motion to dismiss and urged the court to deny the motion based upon the information which was currently available in the application. In his opposition to the motion to dismiss, Lowery argued that Van Doren had set out a prima facie case of ineffective assistance of counsel in his affidavit. Lowery pointed out that in the affidavit, Van Doren stated that Weimer had misinformed him about the terms of his plea bargain. Van Doren represented that when he discovered at sentencing that he had been misinformed about the terms of the plea bargain, Weimer had told him she would not represent him if he did not accept the plea bargain. Van Doren stated that he felt he had to go ahead with the change of plea because he was afraid to proceed to trial without an attorney. Van Doren also claimed that Weimer had failed to provide him with a copy of the presentence report prior to the sentencing hearing and then had failed to act on his requests to correct inaccuracies in the presentence report after sentencing.
See State v. Jones, 759 P.2d 558, 570 (Alaska App. 1988).
In May of 2009, Judge Huguelet issued an order granting the State's motion to dismiss. Van Doren appeals.
In his appeal, Van Doren agrees that Judge Huguelet's order granting the State's motion to dismiss "is correct on its face." Instead, relying on Tazruk v. State, Van Doren claims that the record "does not engender any confidence that [Lowery, who represented him in his application for post-conviction relief] was diligent in discharging his responsibilities ... ."
67 P.3d 687 (Alaska App. 2003).
When a defendant claims that he received ineffective assistance of counsel, the defendant must overcome a presumption that counsel acted competently. "In the absence of evidence ruling out the possibility of a tactical reason to explain counsel's conduct, the presumption of competence remains unrebutted and operates to preclude a finding of ineffective assistance." In Barry v. State, we observed that "an appellate court is almost never able to find ineffective assistance of counsel in the absence of an explanation in the record for counsel's actions." In other words, an appellate court can rarely decide that an attorney provided ineffective assistance of counsel on the basis of the trial record alone. The defendant must file a new trial motion or an application for post-conviction relief to give trial counsel an opportunity to respond and to give the defendant the opportunity to present other information to show that his counsel made an error that no competent counsel would make and that the defendant was prejudiced by the error.
Jones, 759 P.2d at 569.
Id.
675 P.2d 1292 (Alaska App. 1984).
Id. at 1295.
Jones, 759 P.2d at 568-69.
In Tazruk, the defendant filed a pro se application for post-conviction relief. In spite of the fact that Tazruk's application was plainly insufficient as written, his attorney adopted the claims in the application without revision. When the State moved to dismiss these claims, Tazruk's attorney did not oppose the State's motion. The trial court granted the State's motion to dismiss.
Tazruk, 67 P.3d at 688.
Id. at 692.
Id.
Id.
Then, on appeal, Tazruk's attorney filed a brief in which he conceded that "no non-frivolous argument can be made against the trial judge's application of current Alaska law." In other words, the attorney apparently conceded that the original pro se application, which he had allowed to go forward without revisions, did not contain any claims that he could even argue. But, under Alaska Criminal Rule 35.1(e)(2)(C)(iv), if counsel concluded that the petitioner had no colorable claims, then the attorney was required to provide the court with a detailed explanation of why he had reached this conclusion.
Id. at 693 (Coats, C.J., concurring).
See also Griffin v. State, 18 P.3d 71, 77 (Alaska App. 2001).
It appeared that the attorney in Tazruk sought to evade this procedure. We remanded the case to the superior court requiring Tazruk's attorney to "provide the superior court with a detailed explanation of why he concluded that Tazruk's claims had no arguable merit." We went on to state that "[i]f it appears to the superior court that Tazruk's attorney reached this conclusion without competent investigation of the case, the superior court shall vacate its dismissal of Tazruk's petition and shall appoint a new attorney to represent Tazruk." In the event that the superior court determined that the attorney had conducted an adequate investigation and concluded that the attorney had reasonably concluded that Tazruk had no non-frivolous ground for post-conviction relief, the court should "allow Tazruk to respond and argue to the contrary."
Tazruk, 67 P.3d at 691.
Id.
Id. at 692 (citation omitted).
In Van Doren's case, the record shows that his post-conviction attorney took active steps to advance his client's interests. Lowery drafted and filed an amended petition, setting out claims which were not obviously deficient. Judge Huguelet found that Lowery made numerous attempts to contact Van Doren's trial attorney. Lowery obtained an affidavit from Van Doren in which Van Doren set out his claims. Lowery submitted his own affidavit in which he set out a telephone conversation he had with Weimer. In his affidavit, Lowery stated that Weimer admitted that she had told Van Doren that she would not represent him anymore if he decided not to accept the plea bargain. She also admitted that she did not provide Van Doren with a copy of the presentence report "until the last minute." Lowery also set out his efforts to obtain an affidavit from Weimer. Ultimately, Lowery chose to proceed on the application without an affidavit from Weimer.
As we have previously pointed out, in arguing against the motion to dismiss, Lowery argued that Van Doren's affidavit, as supported by the other information in the application, was sufficient to establish a prima facie case of ineffective assistance of counsel. Although Judge Huguelet ultimately ruled against him, the record, unlike the record in Tazruk, does not establish that Lowery did not adequately represent Van Doren. The facts of Van Doren's case are insufficient for us to depart from the normal appellate procedure which we set out in Barry and Jones. If Van Doren wishes to pursue his ineffective assistance of counsel claim, he must file an additional application for post-conviction relief.
See Grinols v. State, 10 P.3d 600, 617-21 (Alaska App. 2000), aff'd in part, 74 P.3d 889 (Alaska 2003).
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Conclusion
The judgment of the superior court is AFFIRMED.