Opinion
Court of Appeals No. A-10874 Trial Court No. 4BE-07-0056 CI No. 5908
01-09-2013
FLOYD DEMIENTIEFF, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Contract Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
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, Fourth Judicial District, Bethel, Leonard Devaney III, Judge.
Appearances: Jane B. Martinez, Contract Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Floyd Demientieff filed an application for post-conviction relief alleging that his trial counsel was ineffective for failing to discover that the alleged victim of his assault had been convicted of a theft offense. The superior court dismissed his application for failure to state a prima facie case, and Demientieff now appeals. We conclude that the court properly dismissed Demientieff's application because the victim's conviction was not entered until after Demientieff changed his plea, and he has failed to adequately support his conclusory allegations that his trial attorney should have discovered the victim's pending charge before he changed his plea.
Background
On September 8, 2005, Alaska State Troopers in Bethel received a complaint from R.P. that she had been raped by Demientieff in her home in Holy Cross. Demientieff told the investigating trooper that he had blacked out from alcohol consumption and could not remember what he had done. He was charged with one count of first-degree sexual assault, three counts of second-degree sexual assault, and one count of first-degree burglary.
AS 11.41.410.
AS 11.41.420.
AS 11.46.300.
On December 13, while Demientieff's charges were pending, R.P. was charged with a felony crime of dishonesty in Anchorage. (The record does not contain the exact details of this charge.) On January 5, 2006, R.P. was arraigned on that charge. On that same date, the Bethel court held trial call in Demientieff's case, and the trial was set to begin on January 9. On the morning of trial, Demientieff pleaded no contest to second-degree sexual assault, and the other charges were dismissed.
Over two months later, on March 22, R.P. pleaded no contest to a reduced misdemeanor charge in the Anchorage case. On May 1, about a week before Demientieff's sentencing hearing, he filed a motion to withdraw his no contest plea. The motion stated that, after Demientieff had learned about the victim's Anchorage charge, he had decided that he wanted to go to trial.
In the order denying the motion, Superior Court Judge Leonard Devaney III noted that at the change of plea hearing he had advised Demientieff of his rights and determined that his plea was knowing and voluntary. Judge Devaney found that Demientieff "simply [felt] his case [had] grown stronger because the witness's credibility can now be attacked." Judge Devaney also found that the State would be prejudiced if the plea were withdrawn, because of the passage of time and the cost to fly its witnesses from Holy Cross to Bethel a second time.
Demientieff did not appeal Judge Devaney's order. Instead he filed an application for post-conviction relief. Demientieff's application was "based on the theory that his plea was neither knowing nor voluntary, and that he entered that plea after being inadequately and ineffectively counseled by his trial attorney to enter such a plea to a charge that lacked a factual basis." The application alleged that Demientieff's counsel should have brought the victim's "serious credibility problems" to Demientieff's attention before he pleaded no contest.
The State filed a motion to dismiss Demientieff's application for failure to state a prima facie case. Judge Devaney granted the motion, and Demientieff now appeals.
Discussion
Demientieff argues that his application adequately alleged that he received ineffective assistance of counsel when he pleaded no contest. A defendant in a criminal case is entitled to effective assistance of counsel when making the decision to plead guilty or no contest. "In order to render 'effective assistance' during a plea, counsel must be familiar with the facts of the case and the applicable law so that he can fully advise the defendant of the options available to him."
See Arnold v. State, 685 P.2d 1261, 1265 (Alaska App. 1984).
Id.
When we review a decision granting a motion to dismiss, we view the application and all supporting factual information in the light most favorable to the applicant. But this favorable viewpoint does not apply to the applicant's statements concerning the law or conclusory assertions concerning the ultimate facts to be decided. And we do not assume the truth of assertions that are patently false or unfounded. In addition, the applicant is required to attach affidavits or other evidence supporting the application or explain the lack of support.
DeJesus v. State, 897 P.2d 608, 618 (Alaska App. 1995).
LaBrake v. State, 152 P.3d 474, 481 (Alaska App. 2007).
Id.
See Alaska Criminal Rule 35.1(d).
In this case, Demientieff's application included a conclusory allegation that his trial attorney provided ineffective assistance by failing to advise him that R.P. had serious credibility problems. This allegation was supported by an affidavit from the trial attorney, stating that she had believed that Demientieff faced an even chance of conviction at trial, until she learned that R.P. had been convicted of a crime of dishonesty. The trial attorney stated that she would not have advised Demientieff to plead no contest if she had known that the victim had "credibility problems."
In other words, the trial attorney's affidavit implied that R.P. had been convicted of a crime of dishonesty before Demientieff had entered his plea. This implication was not true; the parties agree that R.P.'s conviction was not entered until over two months after Demientieff's plea.
Demientieff now argues that his trial attorney was incompetent for failing to discover R.P.'s pending Anchorage charge. But Demientieff did not support his application with any evidence suggesting that a minimally competent attorney would have discovered this pending charge during the brief period before Demientieff changed his plea. His trial attorney's affidavit only states the advice that she would have given with the benefit of hindsight.
In Winkler v. State, the defendant alleged that his attorney failed to adequately investigate possible defenses and alternatives to pleading no contest, but the defendant offered no evidence to support that argument. The supreme court held that Winkler had failed to establish ineffective assistance of counsel. In this case, Demientieff has likewise failed to provide any supporting evidence or legal authority suggesting that his trial attorney breached her professional duties. He has therefore failed to state a prima facie case of ineffective assistance of counsel.
580 P.2d 1167, 1173 (Alaska 1978).
Id.
Demientieff also argues that his plea was not knowing and voluntary. But this argument appears to be premised on the assumption that his attorney rendered ineffective assistance of counsel, the assumption we have examined and rejected. To the extent that Demientieff is arguing another basis to withdraw his plea, we agree with Judge Devaney's conclusion that this issue was conclusively determined when the court denied Demientieff's presentence motion to withdraw his plea.
See AS 12.72.020(a)(5).
--------
Conclusion
We therefore AFFIRM the superior court's order dismissing the application for post-conviction relief.