Opinion
Court of Appeals No. A-12410 No. 6766
01-30-2019
COLIN ROGER COTTING, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Megan M. Rowe, Denali Law Group, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, 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. 3AN-10-5622 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, John Suddock, Judge. Appearances: Megan M. Rowe, Denali Law Group, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, and Wollenberg, Judges. Judge ALLARD.
Colin Roger Cotting pleaded guilty to first-degree murder and first-degree sexual assault for raping and killing his stepmother when he was sixteen years old. Cotting later filed an application for post-conviction relief, seeking to withdraw his plea based on alleged ineffective assistance from his trial attorneys. This application was dismissed by the superior court for failure to state a prima facie case for post-conviction relief. Cotting now appeals that dismissal, arguing that he set out a prima facie case for relief on one of his ineffective assistance claims — specifically, his claim that the four different attorneys who represented him at various times during the pretrial proceedings were ineffective for failing to file a motion to suppress his statements to the police.
See Cotting v. State, 2008 WL 4059580 (Alaska App. Sept. 9, 2008) (unpublished) (affirming 91-year sentence for murder and consecutive 8-year sentence for sexual assault).
Whether an application for post-conviction relief sets forth a prima facie case is a question of law that this Court reviews de novo. Here, Cotting alleged that his pretrial attorneys were ineffective for failing to file a motion to suppress his statements to the police based primarily on the exclusion of his mother from the police interview. Cotting concedes that the police asked him whether he wanted a parent present at the police interview, and that he declined this offer. He argues, however, that his confession was nevertheless involuntary because he was not informed that his mother was at the police station and available for the interview. (Cotting was only aware that his father was available.) Cotting also asserts that his confession was involuntary under the totality of the circumstances, contending that alleged abuse by his father had conditioned him to "give authorities what they wanted."
David v. State, 372 P.3d 265, 269 (Alaska App. 2016).
To plead a prima facie case for relief on this claim, Cotting was required to assert facts that would support the following findings: (1) that there were no legitimate tactical reasons for his attorneys to fail to file the suppression motion; (2) that the motion, if filed, would have been granted; and (3) that there was a reasonable possibility that the outcome of the proceedings would have been different if the motion had been granted and Cotting's statements had been suppressed — i.e., that there was a reasonable possibility that Cotting would not have pleaded guilty but for the incompetence of his attorneys in failing to file the purportedly meritorious suppression motion.
See, e.g., State v. Steffensen, 902 P.2d 340, 343 (Alaska App. 1995).
The superior court concluded that Cotting had failed to state a prima facie case on the first two prongs. As the superior court noted, Alaska law has squarely rejected a per se rule requiring a parent or guardian to be present before a minor can waive his or her Miranda rights. Instead, Alaska law treats the presence of an adult as one of the factors to be considered as part of the totality of the circumstances test used to evaluate the voluntariness of a minor's Miranda waiver. Given this well-established law, and given that Cotting was expressly told that he could have a parent present and he declined this offer, the superior court concluded that the suppression motion would probably not have been granted and that it was not incompetent for Cotting's attorneys to fail to file it.
Quick v. State, 599 P.2d 712, 719-20 (Alaska 1979); State v. J.R.N., 861 P.2d 578, 581 (Alaska 1993).
J.R.N., 861 P.2d at 581 (quoting Quick, 599 P.2d at 719-20).
The court also concluded that Cotting's pleadings failed to show that suppression of his statements would have made any difference to his decision to plead guilty or to the plea options available to him. The superior court based this conclusion on the fact that there was overwhelming evidence that Cotting raped and murdered his stepmother separate from the statements that would be the subject of the suppression motion. The victim's DNA was found on Cotting's pants, and Cotting's DNA was found on a cigarette near a blood-stained sheet at the crime scene. Cotting's semen was found in the victim's vaginal tract, and both Cotting's and the victim's DNA were found on a condom at the scene, fragments of which were found inside the victim's vagina. The victim's DNA was also found on Cotting's shoe, and a print resembling Cotting's shoe was found at the scene. Cotting's palm print was also found on the freezer in which the victim's body was found. In addition, property stolen from the victim's residence was found in the victim's car which Cotting had been driving, and the victim's underwear and other stolen property from the victim's residence were found in Cotting's bedroom.
See, e.g., Steffensen, 902 P.2d at 342-43; Ferguson v. State, 242 P.3d 1042, 1054 (Alaska App. 2010).
We have reviewed Cotting's pleadings, as well as the affidavits filed by three of Cotting's four trial attorneys. Based on this review, we agree with the superior court that the suppression motion was unlikely to have been granted and Cotting's attorneys were not incompetent for failing to file it. We also agree with the superior court that Cotting's pleadings failed to allege any factual basis from which a court could find prejudice with regard to Cotting's guilty plea in this case.
Cotting did not provide an affidavit from his fourth attorney (the attorney who was apparently in charge of all pretrial issues during her time representing Cotting) or explain why an affidavit from the attorney could not be provided. See Jones v. State, 759 P.2d 558, 570 (Alaska App. 1988) (holding that prima facie claim of ineffective assistance requires the defendant to file an affidavit from trial attorney addressing the defendant's post-conviction relief claim, or to explain why such an affidavit could not be filed).
Because we agree with the superior court that Cotting's pleadings failed to state a prima facie case for post-conviction relief, we AFFIRM the dismissal of Cotting's application for post-conviction relief.