Opinion
Court of Appeals No. A-9916.
January 13, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-04-7564 Civ.
Bret F. Maness, in propria persona, Atwater, California, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Bret F. Maness appeals the superior court's dismissal of his petition for post-conviction relief. In his petition, Maness asserted that he received ineffective assistance of counsel from the attorneys who represented him at his criminal trial and in his earlier appeal to this Court. For the reasons explained here, we agree with the superior court that Maness failed to set forth a prima facie case for post-conviction relief, and therefore the superior court properly dismissed his petition.
Underlying facts and procedural history of this case
This case stems from a homicide that occurred in November 1997. Maness killed a man named Delbert White during a confrontation outside Maness's home. When the police arrived, they took Maness and his neighbor, Paul Hackett, into custody, and then they proceeded to search the apartments of both men for additional suspects or victims. The police did not find any additional participants or victims, but they did find marijuana plants and firearms in Maness's apartment. Based on this discovery, the police applied for a warrant to re-enter Manness's home and seize these items.
Maness was indicted for murder in connection with the death of Delbert White, and he was also charged with several offenses based on his possession of the firearms and marijuana: one count of second-degree weapons misconduct (possession of a firearm in furtherance of a drug felony), and four counts of fourth-degree controlled substance misconduct (maintaining a building or other structure used for illegally keeping or distributing a controlled substance; possessing one pound or more of marijuana; possessing one ounce or more of marijuana with the intent to deliver; possessing twenty-five or more marijuana plants).
AS 11.61.195(a)(1).
AS 11.71.040(a).
Following a jury trial, Maness was acquitted of the murder, but he was convicted of the weapons misconduct charge and two of the controlled substance misconduct charges: maintaining a building or other structure used for illegally keeping or distributing controlled substances, and possession of one or more pounds of marijuana.
Maness appealed these convictions to this Court. In Maness v. State, 49 P.3d 1128 (Alaska App. 2007), we reversed Maness's weapons misconduct conviction because the superior court failed to instruct the jury concerning a necessary element of this offense: the existence of a nexus between Maness's possession of the firearm and his commission of a drug felony. Id. at 1132.
We also concluded that there was a flaw in the jury instructions concerning the charge that Maness maintained a structure for illegally keeping or distributing a controlled substance. Id. at 1133. Specifically, the jury was not instructed that this charge required the State to prove that the prohibited use — keeping or distributing a controlled substance — was a "substantial purpose" of the structure, and that this prohibited use was "continuous to some degree". Id. (relying on our prior decision in Dawson v. State, 894 P.2d 672, 678-79 (Alaska App. 1995)).
However, we did not reverse Maness's conviction of this offense. Rather, we concluded that the flaw in the jury instructions was harmless — because the evidence presented at Maness's trial undisputedly established that a substantial amount of Maness's living space was devoted to growing marijuana plants, and because the presence of this extensive growing operation clearly established that Maness's use of his apartment for this unlawful purpose was sufficiently continuous to satisfy the Dawson test. Id. at 1133. Maness did not petition the Alaska Supreme Court to review our decision.
After the time for petitioning the supreme court expired and our decision became final, Maness's case returned to the superior court for a retrial of the weapons misconduct charge. At that second trial, Maness was acquitted of the weapons charge.
By this time, Maness had served all of the sentence originally imposed for his two drug convictions, so he was released from custody.
In May 2004, Maness filed a petition for post-conviction relief. Maness was represented by an attorney in the post-conviction relief proceedings, but he was also granted co-counsel status and was permitted to file his own pleadings in the superior court.
In his petition (as ultimately amended and supplemented), Maness made several claims of ineffective assistance of counsel against his trial attorneys and his appellate attorney.
With regard to the actions of his trial attorneys, Maness claimed that his attorneys should have pursued a "personal use" defense to the marijuana possession charge ( i.e., the charge that Maness possessed one pound or more of marijuana). Maness argued that he had a constitutional right to possess any amount of marijuana he wished, so long as the marijuana was for his personal use — and, thus, the statute prohibiting the possession of one pound or more of marijuana was unconstitutional to the extent that it applied to people who did not intend to sell or distribute the marijuana. In his petition for post-conviction relief, Maness contended that his attorneys were incompetent for failing to raise this defense.
Maness also claimed that his trial attorneys were ineffective because they incompetently allowed the trial judge to give a faulty instruction to the jury concerning the charge of maintaining a structure for the illegal keeping or distributing of a controlled substance. As we have already explained, the jury instruction failed to tell the jurors that the State was required to prove that Maness's prohibited use of the structure (unlawfully keeping or distributing a controlled substance) was a "substantial purpose" of the structure, and that this prohibited use was "continuous to some degree". Maness, 49 P.3d at 1133.
Maness contended that any competent criminal defense attorney would have asked the trial judge to rectify this faulty instruction.
With regard to the actions of his appellate attorney (who was also his lead trial attorney), Maness claimed that she gave him incompetent advice in the days following the issuance of our decision in Maness ( i.e., our decision of Maness's direct appeal). At that time, Maness and his appellate attorney discussed whether to ask the Alaska Supreme Court to review our decision (that is, review our affirmance of Maness's drug convictions) or, in the alternative, to let our decision take effect and allow Maness's case to immediately return to the superior court for a new trial on the weapons charge.
According to the affidavit filed by Maness's appellate attorney, this Court's resolution of Maness's direct appeal confronted Maness with a choice, because his weapons conviction had been reversed but his two drug convictions had been affirmed. If Maness petitioned the supreme court to review this Court's decision affirming the two drug convictions, this would delay the effect of this Court's order reversing the weapons conviction. On the other hand, if Maness did not pursue a petition to the supreme court, this Court's opinion would take immediate effect and Maness would get a quicker retrial of the weapons charge. Moreover, if Maness was acquitted at this retrial (which, in fact, he was), he would be released from jail immediately because he had already served all of his time for the drug offenses.
After discussing these matters with his appellate attorney, Maness chose the second course of action; that is, he chose not to petition the supreme court to review this Court's decision. Maness himself acknowledges (both in his petition for post-conviction relief and in his current brief to this Court) that he made the decision to forego a petition for discretionary review to the Alaska Supreme Court because he did not want to risk spending any more time in jail than necessary, given his chance for an acquittal at the retrial of the weapons charge.
Nevertheless, in his petition for post-conviction relief, Maness claimed that his appellate attorney was incompetent for failing to suggest (and pursue) the alternatives of (1) requesting a long-term extension of the deadline for filing a petition for discretionary review in the supreme court ( i.e., an extension until after Maness was retried on the weapons charge) or (2) seeking a partial stay of this Court's judgement under Appellate Rule 507(c) ( i.e., a stay of this Court's affirmance of the two drug convictions).
In addition to these claims of ineffective assistance of counsel, Maness also claimed that he had new evidence pertaining to the lawfulness of the police decision to conduct a protective sweep of Maness's apartment when the police responded to the homicide. As explained above, it was during this protective sweep that the police found the firearms and the marijuana inside Maness's apartment. Maness claimed that, based on the newly discovered evidence, he could now demonstrate that the protective sweep was unlawful — thus warranting suppression of the evidence found inside his apartment.
In a related claim, Maness asserted that his trial attorneys were incompetent for failing to fully or effectively investigate the circumstances surrounding the protective sweep of Maness's apartment.
The State asked the superior court to dismiss Maness's petition for post-conviction relief, arguing that Maness had failed to set forth prima facie grounds for relief. Superior Court Judge Michael L. Wolverton granted this motion to dismiss.
In his order dismissing the petition, Judge Wolverton addressed four of Maness's claims. Three of these claims rested on the assertion that Maness had not received competent representation from his trial attorneys: (1) the claim that Maness received ineffective assistance from his trial attorneys because these attorneys failed to seek a correction of the jury instruction pertaining to the "maintaining a structure" charge; (2) the claim that Maness's trial attorneys were ineffective because they failed to identify and call Maness's newly discovered witness at the suppression hearing; and (3) the claim that Maness's trial attorneys were ineffective because they failed to raise a "solely for personal use" defense to Maness's drug possession charges. The fourth claim that Judge Wolverton addressed in his decision was the claim that, even if Maness's attorneys were not incompetent for failing to present Maness's new witness, the testimony of this new witness would necessitate a re-opening of the suppression issue in any event.
After Judge Wolverton dismissed the petition for post-conviction relief, Maness filed a motion for reconsideration, pointing out that Judge Wolverton had failed to address Maness's claim that he had received ineffective advice from his appellate attorney concerning the possibility of asking the Alaska Supreme Court to review this Court's decision in Maness. However, Maness's motion for reconsideration was untimely: Judge Wolverton's decision was distributed on March 28, 2007, and Maness's motion for reconsideration was mailed to the superior court on April 20th. Judge Wolverton did not respond to the untimely motion for reconsideration.
Maness now appeals the superior court's dismissal of his petition for post-conviction relief.
Why we conclude that Maness did not present a prima facie case that his trial attorneys were incompetent for failing to raise a "personal use" defense to the marijuana possession charge
In his petition for post-conviction relief, Maness argued that the Alaska Constitution, as interpreted in Ravin v. State, 537 P.2d 494 (Alaska 1975), protects a person's right to possess marijuana in any amount, no matter how large, unless the State establishes that the marijuana possession was for purposes of sale or other distribution. Based on this interpretation of the Alaska Constitution, Maness contended that his trial attorneys were incompetent for failing to pursue a "personal use" defense to the charge that Maness possessed one pound or more of marijuana.
In Walker v. State, 991 P.2d 799 (Alaska App. 1999), this Court rejected Maness's proposed interpretation of Ravin. Specifically, we rejected the argument that, under Ravin, the State is barred from prosecuting a person for marijuana possession unless the State proves that the marijuana possession was for purposes of sale or distribution. 991 P.2d at 802-03. Rather, we held that Alaska law allows prosecutions for possession of four ounces or more of marijuana, "even when no intent to sell is proved". Id. at 802.
Given our decision in Walker, even though Maness's trial attorneys did not pursue his proposed "personal use" attack on the marijuana possession statute, Maness can not show that his attorneys' failure to litigate this proposed defense meant that their representation fell below the minimal standard of competence required of criminal law practitioners. And, for the same reason, Maness can not show that he was prejudiced by his trial attorneys' failure to litigate this point.
Why we conclude that Maness did not present a prima facie case that his trial attorneys were incompetent for failing to object to the faulty jury instruction on the elements of maintaining a structure to unlawfully keep or distribute a controlled substance
In his petition for post-conviction relief, Maness argued that his trial attorneys acted incompetently when they failed to object to a faulty jury instruction concerning the charge that Maness maintained a structure for the illegal keeping or distributing of a controlled substance.
As this Court acknowledged when we decided Maness's direct appeal, the jury instruction that defined the elements of the crime was indeed faulty: it failed to tell the jurors that the State was required to prove that Maness's prohibited use of the structure (unlawfully keeping or distributing a controlled substance) was a "substantial purpose" of the structure, and that this prohibited use was "continuous to some degree".
However, as we have already explained, we concluded that the flawed jury instruction did not require us to reverse Maness's conviction of this offense. Maness, 49 P.3d at 1133. Instead, we concluded that the failure of the jury instruction to mention these two elements was harmless — because the evidence presented at Maness's trial undisputedly established that a substantial amount of Maness's living space was devoted to growing marijuana plants, and because the presence of this extensive growing operation established that Maness's use of his apartment for this unlawful purpose was sufficiently continuous to satisfy the Dawson test. Id.
Because of our earlier conclusion, in Maness's direct appeal, that the flaw in the jury instruction was harmless, it would appear that even if Maness could demonstrate that his trial attorneys were incompetent for failing to object to the jury instruction, Maness could not show that he was prejudiced by his attorneys' failure to object.
But Maness points out that, in his direct appeal, we addressed this issue as a claim of plain error (because there was no objection to the jury instruction at Maness's trial). Maness further points out that, as a general rule, when a claim is raised as a matter of plain error, the test for whether the error calls for reversal of the lower court's judgement is whether the error was manifestly prejudicial to the fairness of the trial — whether it manifestly affected the verdict.
As this Court acknowledged in Burton v. State, 180 P.3d 964, 969-970 (Alaska App. 2008), this "manifestly prejudicial" test for reversible error is more stringent than the "harmless beyond a reasonable doubt" test that applies to claims of ineffective assistance of counsel. For this reason, there will be times when a finding of "no plain error" on direct appeal is nonetheless consistent with a finding of reversible error when the matter is later litigated in a post-conviction relief action as a claim of ineffective assistance of counsel:
[W]hen an appellate court's finding of "no plain error" is based on the conclusion that the error did not harm the defendant[,] the appellate court's decision is relevant to, and potentially decisive of, any later claim of ineffective assistance of counsel. If, indeed, the defendant suffered no harm on account of the error, then even if the defendant can prove that the error was the result of attorney incompetence, the defendant will not be able to prove the second prong of the Risher-Strickland test (the prejudice prong).
We [nonetheless] acknowledge that, when an appellate court decides a direct appeal, the appellate court will often use a test for reversible error ( e.g., whether the error "appreciably affected the jury's verdict") that is less strict than the test for prejudice under the Risher-Strickland standard ( i.e., whether there is a reasonable possibility that the error affected the outcome). In such cases, if a defendant proves their attorney's incompetence in a post-conviction relief action, the defendant would then be entitled to argue that the appellate court's conclusion of "no harm" should be re-evaluated under the "harmless beyond a reasonable doubt" standard specified in Risher and Strickland.
Burton, 180 P.3d at 969-970.
See Risher v. State, 523 P.2d 421, 425 (Alaska 1974) (holding that, if a defendant proves that their attorney failed to act with the minimum level of competence expected of criminal law practitioners, the defendant is entitled to relief if the defendant can additionally demonstrate "a reasonable doubt that the [attorney's] incompetence contributed to the outcome"). As this Court explained in State v. Jones, 759 P.2d 558, 572-73 (Alaska App. 1988), the Risher rule differs from the normal rule that governs constitutional error, in that the defendant (rather than the government) bears the burden of proof on the issue of prejudice. That is, the defendant must show that there is some reasonable possibility that their attorney's incompetence adversely affected the result of the challenged proceedings.
Based on this explanation from Burton, Maness argues that it is possible for him to satisfy the prejudice prong of the ineffective assistance of counsel test, even though this Court previously held, in Maness's direct appeal, that he was not harmed by the faulty jury instruction.
This argument fails under the particular facts of Maness's case.
In our decision of Maness's direct appeal, we neglected to explicitly state what standard we were applying when we concluded that the two omissions in the jury instruction were harmless. However, our discussion of this point — and, in particular, our description of the evidence at Maness's trial — shows that the errors in the jury instruction were harmless beyond a reasonable doubt.
To reiterate, the challenged jury instruction was flawed in two respects. First, the instruction did not ask the jury to find whether keeping or distributing a controlled substance was a "substantial purpose" of Maness's residence. Second, the instruction did not ask the jury whether this prohibited use was "continuous to some degree".
But in our decision of Maness's direct appeal, we summarized the trial court record by stating that it was "uncontested that Maness was growing a substantial amount of marijuana" in his residence. Maness, 49 P.3d at 1133. We further stated that, "[given the] evidence . . . that Maness used a substantial amount of his living space to grow [the] marijuana[,] . . . it seems apparent that the presence of the marijuana in his residence was not a `single, isolated occurrence of drug-related activity' but was [rather] a continuous growing operation." Id.
Given this trial court record, it is clear that the two errors in the jury instruction were harmless beyond a reasonable doubt. It necessarily follows that even if Maness could show that his trial attorneys were incompetent for failing to object to the faulty instruction, Maness can not satisfy the prejudice prong of the Risher test for ineffective assistance of counsel. Accordingly, his petition for post-conviction relief failed to present a prima facie case for relief on this issue.
Why we conclude that Maness did not present a prima facie case that his appellate attorney gave him incompetent advice concerning the choice that Maness faced after this Court reversed his weapons conviction but affirmed his drug convictions
As we explained earlier, this Court's resolution of Maness's direct appeal confronted Maness with a difficult choice, in that we reversed Maness's weapons conviction but we affirmed his two drug convictions.
Under Alaska Appellate Rules 507(b) and 512(a) (read together), decisions of this Court take effect when the time for seeking discretionary review from the Alaska Supreme Court expires — or, if a petition for hearing is filed in the supreme court, on the day after the supreme court resolves that petition. Thus, if Maness petitioned the supreme court to review this Court's decision affirming the two drug convictions, this would delay the effect of this Court's order reversing his weapons conviction. On the other hand, if Maness did not pursue a petition to the supreme court, this Court's opinion would take immediate effect and Maness would get a quicker retrial of the weapons charge. Moreover, if Maness was acquitted at this retrial (which, in fact, he was), he would be released from jail immediately because he had already served all of his time for the drug offenses.
After consulting his attorney, Maness chose not to file a petition for hearing with the Alaska Supreme Court. In other words, he gave up the right to seek further appellate review of his drug convictions in favor of a prompt retrial of his weapons conviction.
Maness now argues that his appellate attorney incompetently failed to advise him about other potential solutions to his dilemma.
Maness first suggests that, instead of filing a petition for hearing in the supreme court, he might merely have filed a motion seeking a long-term extension of the deadline for filing the petition for hearing — an extension until after his retrial on the weapons offense. But this would not have solved Maness's problem.
Under the pertinent provision of Appellate Rule 512(a), a decision of this Court takes effect "on the day after the time for filing a petition for hearing expires". Normally, under Appellate Rule 303(a)(1), litigants have 15 days to file a petition for hearing in the supreme court, but litigants can ask the supreme court to extend this deadline pursuant to Rule 303(d). If the supreme court grants the litigant's motion, then (by definition) the supreme court's action will delay the time when this Court's decision takes effect — because the supreme court will have extended "the time for filing a petition for hearing".
In other words, under the literal terms of these appellate rules, if Maness had filed a motion seeking an extension of the deadline for filing a petition for hearing until after the completion of his second trial on the weapons charge, this Court's decision would not have taken effect, jurisdiction over his case would not have returned to the superior court, and his second trial on the weapons charge would not have taken place.
Maness also suggests that he might have filed a motion for a partial stay of this Court's judgement under Appellate Rule 507(c). This rule states, "A motion to stay the effect of the judgment of the appellate court beyond the day specified in Rule 512(a) shall be made to that court." Maness contends that, pursuant to Rule 507(c), he might have asked this Court to give immediate effect to our reversal of his weapons conviction but to stay the effect of our affirmance of his drug convictions until after the retrial of the weapons offense.
As a practical matter, Maness is proposing that he might have asked this Court to let the legal status of the two drug convictions remain in limbo until such time as the retrial of the weapons charge was completed (and, if Maness was again convicted, until such time as he was re-sentenced). Moreover, as Maness acknowledges, the whole purpose of this procedure would have been to give Maness an open-ended extension of the deadline for filing a petition for hearing in the supreme court — but without the need to obtain the supreme court's approval of the extension.
There is another, more fundamental flaw in Maness's suggested approach. Maness was charged with second-degree weapons misconduct under the theory that he possessed a firearm in furtherance of a felony drug offense. In other words, Maness's weapons offense hinged on proof that he was guilty of at least one of the two drug offenses that we affirmed on appeal.
If, following our decision in Maness's direct appeal, we had done what Maness now proposes — i.e., if we had stayed the effect of our affirmance of the drug convictions, but given immediate effect to our reversal of the weapons conviction — and if Maness had gone to trial a second time on the weapons offense and had been convicted again, Maness could then (at last) attack his drug convictions by filing a petition for hearing in the supreme court. And if he succeeded — that is, if he convinced the supreme court to reverse his convictions on the drug offenses — he could then attack his weapons conviction again, based on the supreme court's reversal of the predicate drug felonies. In other words, Maness's suggested approach could have led to a spiral of litigation.
For all of these reasons, it is unlikely that this Court would have granted the motion for partial stay that Maness now proposes. More importantly, we can not say that Maness's appellate attorney acted incompetently when she failed to consider this novel approach.
For these reasons, we conclude that Maness's petition for post-conviction relief failed to present a prima facie case for relief on this issue.
Why we conclude that Maness did not present a prima facie case for post-conviction relief regarding his claim that the protective sweep of his apartment was illegal
In his petition for post-conviction relief, Maness asserted that he had newly discovered evidence concerning the police decision to conduct a protective sweep of his apartment. Maness asserts that this new evidence shows that the police had no legitimate reason to believe that additional suspects or shooting victims might be in the apartment, and thus the officers acted unlawfully when they entered Maness's apartment without a warrant.
(In the superior court, Maness also asserted that his trial attorneys were incompetent for failing to unearth this information and use it to attack the State's offered justification for the protective sweep. However, in his reply brief to this Court, Maness withdrew this claim.)
Specifically, Maness wrote in his reply brief, "[In its brief, the] State again employs a misdirection tactic and attempts to lull this Court into a belief that this issue is based on [a claim of] ineffective assistance of counsel. [Appellee's] Br. at 35. Mr. Maness has entirely abandoned [any claim of] ineffective assistance concerning this issue on appeal."
Even if Maness proved his claim ( i.e., even if he proved that the police lacked a proper justification for the protective sweep of his apartment), this would not establish Maness's factual innocence of the weapons and drug offenses. Rather, it would only prove that the evidence found in his apartment was obtained unlawfully. Under Alaska law, Maness is not entitled to obtain post-conviction relief on this ground. Specifically, AS 12.72.020(a)(1) states that a claim for post-conviction relief "may not be brought under AS 12.72.010 or the Alaska Rules of Criminal Procedure if . . . the claim is based on the admission or exclusion of evidence at trial[.]"
We acknowledge that Judge Wolverton did not rely on this reasoning when he ruled that Maness had failed to state a prima facie case for relief on this issue. However, on appeal, this Court may affirm Judge Wolverton's ruling on any legal basis revealed by the record. Maness's other claims could have been raised on direct appeal, and thus they are not proper grounds for post-conviction relief
See, e.g., Demoski v. New, 737 P.2d 780, 786 (Alaska 1987); Linscott v. State, 157 P.3d 1056, 1059 (Alaska App. 2007); Millman v. State, 841 P.2d 190, 195 (Alaska App. 1992).
In his brief to this Court, Maness asserts (independent of any claim of ineffective assistance of counsel) that the Alaska Constitution, as interpreted in Ravin, prohibits the legislature from proscribing the possession of marijuana unless the State establishes that the person possessing the marijuana intended to sell it or otherwise distribute it.
Maness also asserts that, because one of his claims in his earlier appeal was that the marijuana seized from his apartment did not actually weigh one pound or more (as the State alleged), it was the State's duty to present this Court with the physical evidence — the marijuana itself — so that this Court could independently determine whether the weight of the marijuana (calculated under the applicable legal rules) was sufficient to support Maness's conviction.
In conjunction with this claim, Maness further asserts that the State engaged in "spoliation" of this evidence because the State destroyed the marijuana sometime after the completion of Maness's first trial. Based on this fact, Maness claims that when this Court considered and decided his first appeal, he was entitled to a presumption that the marijuana seized from his apartment did not weigh the requisite one pound.
Finally, Maness asserts that this Court lacked sufficient information to validly decide his earlier appeal because (according to Maness) "a significant portion of the audio recording of the trial proceedings had been deleted".
All of these claims could have been pursued in Maness's direct appeal of his convictions. Accordingly, under Alaska law, Maness is not entitled to obtain post-conviction relief on these grounds. Specifically, AS 12.72.020(a)(2) states that a claim for post-conviction relief "may not be brought under AS 12.72.010 or the Alaska Rules of Criminal Procedure if . . . the claim was, or could have been but was not, raised in a direct appeal from the proceeding that resulted in the conviction[.]"
Conclusion
The judgement of the superior court is AFFIRMED.