Opinion
Court of Appeals No. A-8800.
February 22, 2006.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles Huguelet and Jonathan Link, Judges. Trial Court No. 3KN-02-659 CI.
David K. Allen, Assistant Public Advocate, Fairbanks, and Joshua Fink, Public Advocate, Anchorage, for the Appellant.
Douglas H. Kossler, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Fred Albert Baker Jr. filed a post-conviction relief application arguing that his former appellate attorney provided ineffective assistance of counsel. The superior court dismissed Baker's application for failing to state a prima facie case of ineffective assistance of counsel. On appeal from this decision, Baker concedes that the superior court correctly dismissed the application. But Baker claims that the attorney who represented him in the post-conviction relief application was ineffective and that the superior court erred in failing to investigate whether he received effective assistance of counsel before dismissing his application. We reject Baker's contention.
Factual and procedural background
A jury convicted Baker, after his second trial, of felony driving while intoxicated and felony refusal to submit to a breath test. Baker appealed the conviction and was represented by Assistant Public Defender Douglas Moody. In preparation for the appeal, Moody reviewed Baker's file, including the points on appeal prepared by Baker's trial attorney, Darin Goff; reviewed the trial record and transcripts; and researched the issues listed by Goff. Moody determined that the sentencing issue identified by Goff presented the only meritorious issue in Baker's case. Moody successfully challenged the sentence. On remand, Baker received a more favorable sentence.
AS 28.35.030.
AS 28.35.032.
See Baker v. State, 30 P.3d 118 (Alaska App. 2001).
See id. at 118-20 (concluding that the sentencing judge misinterpreted the statute governing Baker's sentence for felony refusal and remanding for re-sentencing).
Baker v. State, Alaska App. Memorandum Opinion and Judgment No. 4702 (May 7, 2003), 2003 WL 21019346 (upholding revised sentence).
In August 2002, Baker filed a pro se application for post-conviction relief alleging ineffective assistance of his appellate counsel, Moody. Specifically, Baker alleged that Moody was ineffective because he failed to pursue a merit appeal in addition to the sentencing issue. Eric Derleth was appointed to represent Baker on his post-conviction relief application. Derleth filed an amended post-conviction relief application. He focused on Baker's allegation that Moody failed to attack Baker's refusal conviction for lack of sufficient evidence. The amended application supplied affidavits from both Baker and Moody.
In his affidavit, Baker contended that he wanted to pursue a merit appeal. He claimed that Moody told him that he could pursue the merit appeal later, after the sentencing issue had been decided. In his affidavit, Moody claimed that he had reviewed the record and the points on appeal suggested by Baker's trial attorney, Darin Goff. He stated that, after researching the possible issues, he "concluded that none of them had any merit except the sentencing issue." He stated that he recalled talking with Baker about the lack of merit of other possible issues. But he conceded that he did not recall the specifics of the conversation. He stated that he had a standard explanation that he routinely gave clients: "[t]hat it is better not to dilute the strength of the brief with weak arguments." Moody stated that he would "not have told [Baker] that we would deal with the merit issues after the sentence appeal."
In the application for post-conviction relief, Derleth alleged that Baker had a colorable claim for appeal, and that Moody failed to competently represent Baker because Baker never consented to abandon his right to a merit appeal. Derleth asked to brief the issue of whether there was sufficient evidence to support the guilty verdict on the refusal conviction.
The State moved to dismiss Baker's application for failure to state a prima facie case for relief. Baker, through Derleth, filed an opposition to the State's motion. In an order dated November 5, 2003, Superior Court Judge Charles T. Huguelet granted the State's motion to dismiss Baker's application, finding that Baker's application failed to allege a prima facie case for ineffective assistance of counsel. Specifically, Judge Huguelet found that, based on the facts presented in his application, Baker failed to adequately allege either the competence prong or the prejudice prong of the standard set forth in Risher v. State.
523 P.2d 421 (Alaska 1974).
In his decision, Judge Huguelet concluded that Moody's affidavit showed that Moody had made a tactical decision concerning what issues to appeal. He relied on authority that, where an attorney makes a tactical choice, "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." Judge Huguelet found that Baker had not shown that Moody's choice of what issues to appeal constituted ineffective assistance of counsel under this standard. Judge Huguelet also concluded that Baker had not shown any possible prejudice from Moody's tactical decision — that, had Moody raised the merit issue, Baker might have prevailed.
State v. Jones, 759 P.2d 558, 569-70 (Alaska App. 1988) (citations omitted).
Baker appeals from this decision. But on appeal, Baker concedes that
[t]he Superior Court was plainly correct to dismiss the action, in the sense that the First Amended Petition made a claim of ineffective assistance by appellate counsel, but failed to offer any meaningful support for it. Dismissal was therefore proper, on the basis of the pleadings as they were filed.
But Baker argues that Judge Huguelet erred in failing to determine whether there was "an adequate basis for believing that Mr. Baker had received the effective assistance of counsel in prosecuting [the application for post-conviction relief]." Baker relies on Tazruk v. State. But there is a fundamental difference between Baker's case and Tazruk. In Tazruk, the attorney did not amend Tazruk's pro se application for post-conviction relief and, when the State moved to dismiss, the attorney did not oppose the State's motion. Then, on appeal, the attorney conceded that the trial court's decision was correct. Against this background, we concluded that we did not know, and had no way of knowing, whether Tazruk's attorney zealously represented his interest. We accordingly remanded the case to the trial court to determine whether Tazruk had received zealous representation.
67 P.3d 687 (Alaska App. 2003).
Id. at 690.
Id. at 692 (Coats, C.J., concurring).
Id. at 691.
When an attorney concedes that his client's application for post-conviction relief has no merit, the attorney must establish that he provided zealous representation. Therefore, an attorney may concede that his client's application for post-conviction relief is frivolous. But in that event, he must establish that he provided zealous representation in reaching that conclusion.
Criminal Rule 35.1(e)(2); Tazruk, 67 P.3d at 691-92; Griffin v. State, 18 P.3d 71, 77 (Alaska App. 2001).
But when an attorney argues issues on behalf of a client in an application for post-conviction relief, even if we determine that those issues are frivolous, the general presumption that the attorney has acted competently prevails. This is what was done in Baker's case. Derleth did not concede that Baker did not have any meritorious issues. He argued that Baker did. And Judge Huguelet and this court are to assume that Derleth acted competently.
Jones, 759 P.2d at 569-70.
Baker's position in this appeal raises another problem. The issue of whether Derleth provided ineffective assistance of counsel cannot be resolved in this appeal. As we pointed out in Barry v. State, we cannot tell from the record before this court the nature of Derleth's representation. In order to evaluate the representation, we would need, at a minimum, affidavits from Derleth and Baker. To the extent that Baker has such a claim, he must prove it in a post-conviction relief application attacking Derleth's representation.
675 P.2d 1292 (Alaska App. 1984).
Id. at 1295-96.
See Grinols v. State, 74 P.3d 889, 894 (Alaska 2003) (authorizing defendant to bring post-conviction relief application challenging effectiveness of attorney appointed to represent him in his first application for post-conviction relief).
We accordingly conclude that Judge Huguelet did not err in dismissing Baker's application for post-conviction relief. The judgment of the superior court is AFFIRMED.