Opinion
Court of Appeals No. A-11289 Trial Court No. 2KB-08-005 CI No. 6003
12-11-2013
RALPH G. HESS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David K. Allen, Sechelt, British Columbia, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Second Judicial District, Kotzebue, Michael I. Jeffery, Judge.
Appearances: David K. Allen, Sechelt, British Columbia, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge MANNHEIMER.
Ralph Hess appeals the superior court's denial of his petition for postconviction relief.
In 2007, Hess faced five felony charges: three counts of first-degree sexual assault and two counts of first-degree burglary. On the day that Hess's trial was scheduled to begin, Hess's attorney, Ms. Sidney Billingslea, told the court that Hess had reached a plea agreement with the State.
Under the terms of this agreement, Hess would plead guilty to one count of burglary, and he would receive a sentence of 10 years' imprisonment with 3 years suspended (i.e., 7 years to serve). For its part, the State would dismiss the three sexual assault charges and the other burglary charge.
When the superior court addressed Hess personally regarding this plea agreement, Hess assured the court that he understood the terms of the agreement, that he had had sufficient time to discuss the plea bargain with his attorney, and that he consented to the plea bargain freely and voluntarily. The superior court entered judgement against Hess and sentenced him in accordance with the terms of the plea agreement as announced in court.
A few months later, Hess filed an application for post-conviction relief. Hess alleged that his attorney, Billingslea, had pressured him into accepting the plea bargain, and that Billingslea had actively misinformed him concerning the terms of the bargain.
According to Hess, Billingslea told him he would receive a flat sentence of 4 years to serve. Hess also asserted that Billingslea told him that he would not have to serve the entire 4 years — that he would be eligible for early parole or probation because of his medical problems, and that he would serve only 1½ years.
The superior court held an evidentiary hearing on Hess's claims. At this hearing, both Hess and Billingslea took the stand. In his testimony, Hess reiterated his assertions that Billingslea had misinformed him about the plea agreement and the length of his sentence. But Billingslea testified that Hess understood the terms of the agreement, and that the agreement satisfied Hess's primary concern: that he not be convicted of a sex offense. Billingslea acknowledged that she had told Hess that he would only serve about 4 years in prison, but this was because Hess would receive a sentence of 7 years to serve, and he would get good time credit equal to one-third of this sentence, plus credit for time served.
After hearing the competing accounts offered by Hess and his attorney, and after listening to the audio record of Hess's change of plea, the superior court concluded that Billingslea had given Hess a correct description of the plea bargain, and that Hess's testimony to the contrary was "simply not credible".
Because the superior court resolved this matter based on an evaluation of witness credibility and on a finding of fact (that Hess received accurate information about the plea agreement), we must affirm the superior court's decision unless we are convinced that the superior court's finding is clearly erroneous. Having reviewed the record, we conclude that the superior court's finding is supported by the record.
Booth v. State, 251 P.3d 369, 373 (Alaska App. 2011).
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Accordingly, the judgement of the superior court is AFFIRMED.