Opinion
Court of Appeals No. A-12579 No. 6830
10-23-2019
VIKTOR IVANOVICH NATEKIN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Carmen E. Clark, Ingaldson Fitzgerald, P.C., Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3PA-13-1442 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Appearances: Carmen E. Clark, Ingaldson Fitzgerald, P.C., Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Wollenberg, Judge, and Mannheimer, Senior Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Viktor Ivanovich Natekin was convicted of attempted first-degree sexual assault, based on an assault he committed upon a seventeen-year-old girl, J.M. This Court affirmed Natekin's conviction on direct appeal. See Natekin v. State, unpublished, 2011 WL 5904467 (Alaska App. 2011).
Natekin then filed an application for post-conviction relief, arguing that his trial attorney had provided ineffective assistance. After holding an evidentiary hearing on Natekin's claims, the superior court rejected many of these claims as factually unfounded, but the court also concluded that Natekin's trial counsel had performed incompetently in some respects. Ultimately, however, the court concluded that Natekin failed to demonstrate that he was prejudiced by his trial attorney's incompetence, so the court denied Natekin's petition for post-conviction relief.
In this appeal, Natekin challenges the superior court's denial of his petition for post-conviction relief. As we explain in this opinion, we uphold the superior court's resolution of this case.
Most of the claims that Natekin presents to us on appeal are materially different from the claims he raised in the superior court, or they are claims that the superior court never ruled on. We therefore conclude that these claims are waived, and we do not reach them.
With respect to the claims of ineffective assistance that Natekin did preserve for appeal, the superior court rejected many of these claims on their merits, and the evidentiary record supports the superior court's rulings.
Finally, with respect to Natekin's remaining appellate claims, we uphold the superior court's ruling that Natekin failed to show that there was any reasonable possibility that he was prejudiced by his attorney's inadequate performance. Natekin raised some justifiable concerns about his trial attorney's performance — particularly her failure to conduct any pre-trial investigation, and the limited amount of time she spent with Natekin prior to trial. But Natekin failed to show that he was prejudiced by his attorney's actions.
Underlying facts
On December 26, 2006, seventeen-year-old J.M. went to retrieve some personal belongings from the apartment of a friend, Lillia Zidrashko. When J.M. arrived at the apartment, she found Zidrashko and two men. All three of them were quite intoxicated. One of the men, 37-year-old Viktor Natekin, was also a friend of J.M.'s.
Shortly after J.M. collected her belongings, Natekin grabbed her, dragged her into the bedroom, shut the door, and pulled her to the floor. Natekin then got on top of J.M. and started kissing and strangling her. When J.M.'s cell phone rang and she tried to answer it, Natekin grabbed the phone and threw it against the wall.
Natekin ripped J.M.'s shirt open, and he kissed and sucked on her breasts. J.M. cried and screamed for Natekin to stop, but Natekin ignored her. He unbuttoned J.M.'s pants and stuck his hand inside her underwear (although he did not penetrate her genitals). Natekin then took off his belt, unzipped his pants, and told J.M. to give him oral sex.
Natekin then took J.M. by her hair and her throat but, just about that time, a friend of J.M.'s kicked in the bedroom door. Natekin got off of J.M., and J.M. ran out of the bedroom, crying and with her shirt torn. Natekin also emerged from the room, pulling up his pants as he left.
Based on these events, Natekin was charged with attempted first-degree sexual assault.
The State extended three plea offers to Natekin.
Early in the case, the State proposed that if Natekin pleaded guilty to the attempted sexual assault charge, the State would agree to a sentence of 25 years to serve. Natekin apparently either rejected or never responded to this offer.
Several months later, shortly before Natekin's trial was scheduled to begin, the State made a second offer: if Natekin pleaded guilty to second-degree sexual assault, the State would agree to a sentence of 10 years to serve. When court convened the next day, the prosecutor told the court about the new plea offer, and Natekin's attorney asked for time to speak to her client.
Natekin's attorney also informed the court that she did not have a court-certified Russian interpreter. (Natekin is a Russian national, and his native language is Russian.) However, the defense attorney told the court that Natekin's friend and family pastor, Sergiy Korelov, was available to serve as interpreter while she and Natekin discussed the State's offer. The court had Korelov take the interpreter's oath, and then Korelov participated (as interpreter) in the conference between Natekin and his defense attorney.
The result of this conference was that Natekin did not accept the State's second offer, and his trial began.
After the prosecutor delivered her opening statement and presented the State's first witness, the prosecutor informed the trial judge that the victim, J.M., was refusing to come to court, apparently because she was scared of Natekin and his family. Based on this information, the court issued a warrant for J.M.'s arrest. J.M. was arrested that evening, and she was brought to court the next day.
To explain her non-attendance, J.M. told the judge that Natekin's wife and brother had offered her money if she declined to testify against Natekin. J.M. stated that she had refused this bribe, but she became scared of what Natekin's family might do to her if she came to court.
Following these events, the State made a third plea offer (a mid-trial offer) to Natekin: if Natekin pleaded guilty, the State would not pursue criminal charges against his wife. Natekin refused the State's third offer, and Natekin's trial resumed.
At trial, Natekin took the stand and testified that, although he had used physical force against J.M., he did so only because he believed that J.M. had stolen his wallet. Natekin asserted that his only purpose in using force against J.M. was to retrieve his wallet, and that nothing sexual occurred.
The jury rejected Natekin's defense and convicted him of attempted sexual assault. Natekin received a sentence of 30 years to serve (45 years with 15 years suspended).
After this Court affirmed Natekin's conviction on appeal, Natekin filed a petition for post-conviction relief. In this petition, Natekin asserted that his trial attorney, Abigail Sheldon, had represented him incompetently in several ways.
To resolve Natekin's claims, the superior court heard testimony from Natekin and from Sheldon, as well as from the prosecutor in Natekin's criminal case, Rachel Gernat, and from Sergiy Korelov, the man who served as interpreter during the pre-trial conference between Natekin and Sheldon where they discussed the State's second plea offer.
After hearing the testimony of these witnesses, the superior court denied Natekin's petition for post-conviction relief. Based on the testimony, the court found that most of Natekin's claims against Sheldon had no factual merit.
The superior court did conclude that three of Natekin's claims were supported by the evidence: that Sheldon acted incompetently (1) when she relied on Korelov to serve as the interpreter for the pre-trial conference, rather than waiting for the services of a certified Russian interpreter, (2) when she failed to provide Natekin with Russian translations of the charging document and key pre-trial discovery materials, and (3) when she failed to conduct any substantive investigation to see if she could find evidence to rebut J.M.'s allegation of sexual assault and/or evidence to corroborate Natekin's version of events. However, the superior court concluded that Natekin had failed to show any reasonable possibility that he was prejudiced by these deficiencies in Sheldon's performance.
Natekin's claims of ineffective assistance of counsel pertaining to the State's second plea offer
As we have explained, the State made its second plea offer to Natekin shortly before his trial began. Under the terms of this offer, Natekin would plead guilty to second-degree sexual assault and he would receive a sentence of 10 years to serve. When Natekin testified in support of his petition for post-conviction relief, Natekin asserted that he was never informed of this second plea offer.
Natekin acknowledged that he had a private conference with Sheldon just before his trial began, with Korelov serving as their interpreter. But Natekin declared that he never understood what the purpose of this conference was. More specifically, Natekin testified that he never understood that the State had made the second plea offer, and that he never knew what the terms of this second offer were, until after his trial was over.
The superior court also heard testimony from the other two participants in this pre-trial conference: Sheldon and Korelov.
Sheldon testified that, during this conference, she and Natekin had a lengthy discussion about the State's plea offer. Sheldon said that she and Natekin talked about the consequences of rejecting the State's offer and going to trial, including the possible outcomes of the trial and the likely consequences if Natekin went to trial and was convicted.
Korelov corroborated Sheldon's account in key respects. He testified that Sheldon and Natekin actively discussed the potential consequences of accepting or rejecting the State's plea offer. And although Korelov admitted that he was not a professional or certified interpreter, he assured the court that he had understood what Sheldon was telling Natekin, and that he translated everything that Sheldon said.
After hearing this competing testimony, the superior court found that Sheldon's description of the plea discussion was credible, and that Natekin's contrary testimony was not. That is, the court found that Natekin had indeed discussed the State's plea offer with Sheldon, and that Natekin had understood both the terms and the potential consequences of the State's offer, including Natekin's likely deportation to Russia if he was convicted of felony sexual assault. The court further found that Natekin had actively considered the State's offer and had knowingly decided to reject it — because he preferred "to take his chances" at trial.
Based on these findings, the superior court rejected Natekin's claim pertaining to the State's second plea offer.
On appeal, Natekin renews his argument that he never understood the purpose of his pre-trial conference with Sheldon. Natekin suggests that he never received a competent translation of what Sheldon was saying to him — and that, as a result, he did not comprehend the discussion, and he never made an intelligent decision about the State's plea offer.
But as we just explained, the superior court (after hearing the competing testimony on this issue) found that Natekin had understood the discussion, and that Natekin knowingly chose to reject the State's plea offer because he preferred to "take his chances" at trial. The superior court's findings on these issues of fact are not clearly erroneous, and we therefore affirm the superior court's ruling.
Natekin also raises an alternative argument. He argues that even if he understood the reason for his conference with Sheldon (i.e., to discuss the State's second plea offer), and even if he understood the terms of the State's offer, Sheldon nevertheless failed to give him competent advice about this offer. In particular, Natekin claims that Sheldon failed to adequately communicate the strength of the State's case, the consequent likelihood that Natekin would be convicted if he went to trial, and the potential penalties that Natekin faced if he was convicted. Without this kind of advice, Natekin argues, he could not appreciate how favorable the State's offer was.
But this claim is fundamentally inconsistent with Natekin's testimony at the evidentiary hearing.
Natekin testified that he never understood why he and Sheldon had a conference just before his trial began, and Natekin claimed that he never made a decision about the State's second plea offer because he did not understand that any offer was on the table. In other words, Natekin testified that he did not know about the plea offer, that he did not know that Sheldon was offering him any advice about the plea offer, and that he never understood that he had to make a decision.
Given Natekin's testimony on these matters, the content of Sheldon's advice to him would be a moot issue: Natekin's actions could not possibly have been influenced by any purported deficiencies in the advice that Sheldon gave him about whether to accept or reject the State's bargain.
This is probably why, when the superior court addressed Natekin's claim that Sheldon had failed to adequately advise him regarding the State's plea offer, the superior court declared that, "at bottom", Natekin's argument was based on the assertion that Sheldon was incompetent for using Korelov as an interpreter during her pre-trial conference with Natekin. The court understood Natekin to be arguing that Korelov's translation of that conference discussion was grossly inadequate, and that (as a result) Natekin never even understood what he and Sheldon were discussing.
Based on the evidence presented at the hearing, the superior court concluded that even though Korelov was not a certified interpreter, his translation was adequate to the purpose, and Natekin sufficiently understood the conversation to make an informed decision about the State's plea offer.
To the extent that Natekin's petition raised a separate claim that, even if Sheldon's advice to Natekin was adequately translated, the content of that advice was incompetent, the superior court never issued a ruling on that issue. As a consequence, the issue is not preserved for appeal.
See Mahan v. State, 51 P.3d 962, 966 (Alaska App. 2002) (to preserve an issue for appeal, a litigant must obtain an adverse ruling from the lower court).
Natekin's claim that Sheldon failed to competently investigate the case
The superior court agreed with Natekin that his defense attorney, Sheldon, was incompetent for failing to conduct any substantive investigation of the case prior to trial. Nevertheless, the superior court concluded that Natekin had failed to show any reasonable possibility that he was prejudiced by Sheldon's actions — i.e., failed to show that any additional investigation would have uncovered evidence favorable to Natekin's case.
On appeal, Natekin does not directly dispute the superior court's ruling. Instead, Natekin reframes his "failure to investigate" claim into a more general claim about how Sheldon's deficiencies prejudiced him — how Sheldon's failure to investigate the case undermined her ability to properly advise Natekin regarding whether to accept the State's various plea offers, as well as her ability to properly advise Natekin whether he should testify at trial.
But these arguments were not raised in the superior court, so they are not preserved.
Moreover, these arguments rest on the implicit premise that, if Sheldon had done more investigation, she would have uncovered information that would have materially altered Natekin's decision-making. But as the superior court noted, Natekin failed to show that more investigation would have uncovered anything material to Natekin's case (either favorable or unfavorable to him).
Natekin's claim regarding his decision to testify at his trial
As we explained earlier in this opinion, Natekin took the stand at his trial and testified that he was not guilty of attempted sexual assault. Natekin admitted that he had used physical force against J.M., but he claimed that he had not acted with any sexual intent. Rather, Natekin asserted, his only purpose was to regain possession of his wallet (which he believed that J.M. had stolen).
In his petition for post-conviction relief, Natekin asserted that his attorney, Sheldon, failed to adequately counsel him regarding whether he should or should not testify at trial, and that she failed to adequately advise Natekin of the potential dangers of testifying. Natekin also asserted that Sheldon failed to adequately prepare him for his testimony (especially the prosecutor's likely cross-examination regarding the weaknesses in Natekin's account of events). Natekin contended that if he had understood his options and the potential dangers of testifying, he would not have taken the stand at his trial.
Indeed, at the evidentiary hearing in the superior court, Natekin testified that Sheldon was the one who made the decision to go to trial (i.e., the decision to reject the State's plea offer and for Natekin to persist in his plea of "not guilty"). Natekin further testified that he did not know he was going to testify at trial until minutes before he took the stand.
Sheldon, on the other hand, testified that she repeatedly spoke to Natekin about whether he would testify at trial, beginning with the first time that she interviewed Natekin with an interpreter and got his version of events. Sheldon said that she explained to Natekin that he could either testify or refrain from testifying, and that he could wait to make this decision until he heard the other evidence in the case. According to Sheldon, she continued to discuss this matter with Natekin as the trial unfolded, and they talked about the fact that, if Natekin took the stand, the prosecutor would cross-examine Natekin about what happened.
As the superior court noted in its decision, Sheldon's account was corroborated by the record of Natekin's trial. After the prosecutor rested the State's case, the trial judge asked Sheldon if Natekin planned to testify. The judge's question led to the following exchange:
Ms. Sheldon: My client will wait to hear what our [defense] witnesses have to say [before making that decision], Your Honor.Later, during a break in the prosecutor's cross-examination of the second defense witness, Sheldon told the trial judge that she had spoken again to Natekin, and that "we would be calling [Natekin] to testify".
The Court: So he's going to make his mind up while he's listening to these two [witnesses]?
Ms. Sheldon: Yes. And then I will ask for a moment to speak with him one final time about it.
The Court: Okay, okay.
Ms. Sheldon: We [have] discussed it many, many times.
Sheldon admitted that she did not write out her direct examination of Natekin or discuss with him in detail what he was going to say. But according to Sheldon, Natekin had earlier given her a "pretty distinct" account of what happened between him and J.M., and Sheldon did not want Natekin's testimony to come across as "scripted".
After hearing Natekin's and Sheldon's competing testimony, and after examining the pertinent portion of Natekin's trial proceedings (which we just quoted), the superior court concluded that Sheldon's testimony was the more credible account. The court found that Sheldon "[spoke] with Natekin about his testimony on several occasions". The court expressly rejected Natekin's contrary claim that he had "no idea that he was going to testify, or what he might be getting into [if] he did testify". Rather, the court found, Natekin spoke to Sheldon "on several occasions and at some length about the need for and the risks of his testimony".
The superior court also rejected Natekin's suggestion that Sheldon had directed him to testify. The court found that Natekin "was not told to testify" — that, instead, "he was given the option to do so".
The court further found that even though Sheldon did not write out her direct examination of Natekin, or discuss with Natekin in detail what he was going to say, her level of performance was adequate.
The superior court also concluded that even if Sheldon's performance was arguably inadequate, Natekin had failed to show a reasonable possibility that he was prejudiced.
The court noted that there was very little difference between Natekin's account of events and J.M.'s account of events in terms of the physical details of the encounter. Rather, the court explained, the "key difference" between Natekin's account and J.M.'s account turned on the question of Natekin's mental state: "[Natekin] claimed that he was trying to get his wallet back ... and that he had no intention of sexually assaulting her." In addition, the court noted that Natekin had failed to present any evidence as to what he might have said differently, or what he might have refrained from saying, if he had been better prepared for his testimony.
Finally, the superior court noted that Natekin had presented no evidence suggesting that Natekin's testimony was crucial to the jury's decision whether to believe J.M. In other words, Natekin presented no evidence suggesting that, if he had chosen not to testify, the outcome of his trial would have been any different.
For these reasons, the superior court rejected Natekin's claims relating to his decision to testify at his trial.
On appeal, Natekin raises a different claim: He argues that Sheldon chose a defense strategy that practically required Natekin to testify, thus effectively usurping Natekin's decision whether to take the stand.
More specifically, Natekin contends that it was Sheldon who chose to defend Natekin's case by asserting that Natekin was only trying to retrieve his stolen wallet. Natekin further contends that, after Sheldon informed him that this would be the defense, Natekin concluded that his only realistic choice was to take the stand. Natekin now argues that no competent defense attorney would have adopted this trial strategy, and thus Sheldon's incompetent choice of strategy forced him to testify, regardless of his wishes.
This claim was not raised in the superior court, and it is therefore not preserved for appeal.
We also note that it was Natekin who told Sheldon, in an early interview, that he used force against J.M., but only because he was trying to retrieve his wallet from her. Given Natekin's version of events, Sheldon's options were limited. And in the superior court, Natekin never identified an alternative defense strategy that would not need to be supported by his testimony. Indeed, Natekin's own expert witness — an experienced defense attorney — testified that Natekin's case was the type of case where "[Natekin] had to testify in order to have any defense."
Natekin also briefly renews his claim that Sheldon failed to adequately prepare him to testify, and he argues that if Sheldon had done a better job in preparing him to take the stand, he would have made a better impression on the jury. But Natekin offers only a conclusory argument in support of this claim. He does not engage in a specific analysis of why Sheldon's approach should be viewed as incompetent. And as the superior court noted in its decision, Natekin did not offer any explanation of how his testimony might have been different if he had had more or different preparation.
We therefore reject Natekin's claims relating to his decision to take the stand at his trial.
Natekin's cumulative error argument
Finally, Natekin asserts that his trial was rendered unfair by Sheldon's cumulative errors: her failure to provide Natekin with a competent interpreter during their discussion of the State's second plea offer, her failure to investigate the case, her failure to prepare Natekin to testify (both on direct and on cross-examination), and her "preposterous trial decisions". Natekin contends that, because of the cumulative impact of Sheldon's incompetence, there is a reasonable possibility that the outcome of Natekin's trial was affected.
The doctrine of cumulative error applies when real errors have been identified, and when these errors, in combination, were so prejudicial as to undermine the trustworthiness of the underlying judgement — even though each error, taken individually, might not require reversal. In other words, "the doctrine of cumulative error is really a doctrine of cumulative prejudice."
State v. Savo, 108 P.3d 903, 916 (Alaska App. 2005) (citing Sivertsen v. State, 963 P.2d 1069, 1073-74 (Alaska App. 1998)); see also Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005) (concluding that because none of the defendant's claims resulted in a finding of error, there could be no cumulative error requiring reversal).
Savo, 108 P.3d at 916. --------
Here, the superior court rejected most of Natekin's claims that Sheldon had represented him incompetently, and we have upheld the superior court's rulings on these matters. Natekin cannot rely on these claims to support his claim of "cumulative error", because Natekin failed to prove that there was error.
The superior court did agree with three of Natekin's challenges to Sheldon's performance: her failure to conduct a substantive pre-trial investigation of the case (other than eliciting Natekin's version of events), her failure to obtain a Russian translation of various discovery materials, and her reliance on Sergiy Korelov, rather than a court-certified interpreter, to interpret for her and Natekin during the pre-trial conference where they discussed the State's second plea offer. But the superior court concluded that Natekin had failed to establish a reasonable possibility that he was prejudiced by Sheldon's actions. We have upheld the superior court's rulings on these matters as well.
Thus, the only remaining question is whether these instances of substandard performance, taken together, were so prejudicial as to require reversal of Natekin's conviction.
As we have already explained, Natekin never made an offer of proof as to what material evidence Sheldon would have uncovered if she had investigated Natekin's case more fully. Nor did Natekin suggest how his lack of translated discovery materials made any difference to his decision-making or participation in the case. And the superior court affirmatively found that, even though Korelov was not a certified interpreter, Natekin understood both the terms and the potential consequences of the State's second plea offer, he actively considered this offer, and he knowingly decided to reject it.
Thus, even when we view these errors in combination, Natekin has failed to establish that Sheldon's errors prejudiced him.
Conclusion
The judgement of the superior court is AFFIRMED.