Opinion
Court of Appeals No. A-10921 Trial Court No. 3AN-09-8595 CI No. 5995
12-04-2013
DAVID L. PARKER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Brooke Berens, Assistant Public Advocate, Appeals & Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Nicholas A. Polasky, Assistant District Attorney, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
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, Third Judicial District, Anchorage, Sharon Gleason, Judge.
Appearances: Brooke Berens, Assistant Public Advocate, Appeals & Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Nicholas A. Polasky, Assistant District Attorney, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge ALLARD.
David L. Parker was convicted of first-degree controlled substance misconduct, unlawful exploitation of a minor, and possession of child pornography following a no contest plea. He later filed an application for post-conviction relief, challenging the constitutionality of the exploitation of a minor and child pornography statutes as applied to him. His application also sought to vacate his plea on the drug offense based on alleged ineffective assistance of trial counsel.
While Parker's application for post-conviction relief was still pending, Parker was released on parole, with the condition that he participate in sex offender treatment. At the sex offender treatment evaluation, Parker admitted the conduct underlying the sexual offenses but argued that his actions were not criminal. Parker denied the conduct underlying the drug offense. After Parker was rejected for sex offender treatment, the Parole Board revoked his parole.
Parker then filed another application for post-conviction relief, alleging that he received ineffective assistance of counsel from the attorney who represented him at the parole revocation hearing. He argued that his attorney was ineffective for failing to assert, as a defense to his parole revocation, that he had a Fifth Amendment privilege not to discuss the conduct underlying his drug conviction because it was the subject of an ongoing legal challenge. (Parker acknowledged that he did not have a Fifth Amendment privilege with regard to his sexual offenses because he was challenging only the constitutionality of those convictions and had also freely admitted the conduct underlying the sexual offenses.) The superior court dismissed the application on summary disposition, and Parker appeals.
Although we agree with Parker that he had a Fifth Amendment right not to discuss the conduct underlying his drug offense at his sex offender treatment evaluation, we conclude that summary disposition on Parker's claims of ineffective assistance of counsel was nevertheless appropriate. The record is clear that the Parole Board revoked Parker's parole because he refused to accept criminal responsibility for his sexual offenses, not because he refused to discuss his drug offense. Therefore, even if Parker's attorney had explained Parker's Fifth Amendment privilege not to discuss his drug offense at the sex offender evaluation, the Parole Board would still have revoked his parole. In other words, Parker was not prejudiced by his attorney's failure to assert this defense. Accordingly, we affirm the superior court's decision to dismiss Parker's application for post-conviction relief.
See James v. State, 75 P.3d 1065, 1072 (Alaska App. 2003).
Background on Parker's offenses
In 1995, David Parker pleaded no contest to one count of attempted unlawful exploitation of a minor for taking sexually suggestive photographs of two minor girls.
In 2000, Parker was charged with multiple counts of unlawful exploitation of a minor and possession of child pornography based on sexually explicit photographs and videos he had taken of V.M., a seventeen-year-old with whom Parker, then fifty-two years old, was sexually involved. Under Alaska law, Parker's consensual sexual relationship with V.M. was legal because V.M. was over sixteen years old; however, the sexually explicit photographs and videos of V.M. were not legal because V.M. was under eighteen years old. Parker's trial attorney moved to dismiss the charges against Parker on the ground that the statutes under which he was charged were unconstitutional. The superior court denied the motion.
Parker v. State, 90 P.3d 194, 196 (Alaska App. 2004); Parker v. State, 2004 WL 720111, at *1 (Alaska App. Mar. 31, 2004)(unpublished).
Parker, 90 P.3d at 196; Parker, 2004 WL 720111, at *1.
During the investigation of these sexual offenses, the police discovered more than 100 hits of LSD in Parker's briefcase. V.M. and two other minor girls reported that Parker had given them LSD. Based on this evidence, Parker was also charged with misconduct involving a controlled substance in the first degree, a class A felony. Parker's trial attorney moved to suppress the evidence of Parker's drug offense. The superior court also denied that motion.
Parker then agreed to plead no contest to one count of attempted misconduct involving a controlled substance in the first degree, one count of unlawful exploitation of a minor, and one count of possession of child pornography. He ultimately received a composite sentence of 18 years with 7 years suspended (11 years to serve), and 10 years of probation.
Parker, 90 P.3d at 196; Parker, 2004 WL 720111, at *1.
Parker's parole violations and the final parole revocation hearing
In August 2007, Parker was released on parole, and his parole conditions required that he participate in sex offender treatment for both the 1995 and 2001 sex offenses.
In September 2008, Parker reported to Cathy Loughlin for a sex offender treatment evaluation. At that evaluation, Parker freely admitted taking sexually explicit pictures and videos of V.M., but he argued that none of his actions was criminal because V.M. was of legal age and had consented to the sex and the pictures. Parker told Loughlin that he had challenged the constitutionality of the statutes governing these offenses in an application for post-conviction relief, and that he was confident his convictions would be overturned. Parker denied having LSD in his briefcase when it was seized by the police and stated that he believed the LSD was planted.
With regard to his 1995 conviction for taking sexually explicit photographs of two teenage girls, Parker at first denied that the photographs were sexually explicit or that he had done anything wrong. When advised that he would be considered "unamenable to treatment" because of this denial, Parker changed his statement and admitted his actions had been wrong. However, he continued to assert that he was wrongly convicted of the 2000 offenses and that they would be overturned as a result of his post-conviction relief application.
At the end of the assessment, Loughlin concluded that, "Parker was in complete denial of the instant offenses and was, therefore, unamenable to treatment at this time." Loughlin recommended that Parker "be required to serve a significant portion of the remainder of his sentence to afford him an opportunity to consider his on-going criminal thinking and to best insure community and victim safety." After reviewing this assessment, Parker's parole officer recommended that the Parole Board revoke all of Parker's parole time (approximately 2 years) because Parker "denies culpability and ... fails to recognize the impact his criminal behavior has had on his victims."
Parker's final parole revocation hearing was held on January 12, 2009. Parker was represented by court-appointed counsel. His attorney told the Board that Parker had challenged the constitutionality of the sex offense statutes under which he was convicted but that Parker had admitted to the underlying conduct in the sexual offenses and was otherwise willing to do sex offender treatment. She argued that he should therefore be allowed to participate in sex offender treatment and his parole should not be revoked. The Board rejected this argument and revoked Parker's parole.
Parker's ineffectiveness claim against his attorney at the parole hearing
After his parole was revoked, Parker filed an application for post-conviction relief alleging that his attorney had provided ineffective assistance of counsel at his final parole revocation hearing by failing to argue that he had a Fifth Amendment privilege under James v. State with regard to his drug offense. In James, we held that the defendant was entitled to invoke his Fifth Amendment privilege during an evaluation for sex offender treatment because his case was still on appeal and any admissions might be used against him if he were granted a retrial. We further held that his probation could not be revoked for invoking that privilege.
75 P.3d 1065 (Alaska App. 2003).
Id. at 1072.
Id.
The State moved for summary disposition in Parker's case, alleging that he did not have a valid Fifth Amendment privilege to assert because his post-conviction relief application was not pending at the time of his final parole revocation hearing. Parker opposed, arguing that his application was pending at the time of his sex offender evaluation, and that he therefore had a valid Fifth Amendment privilege not to discuss his drug convictions in that evaluation.
Judge Gleason granted the State's motion for summary disposition. Parker moved for reconsideration. He emphasized that his argument was not that his attorney was ineffective for failing to invoke his Fifth Amendment privilege at the parole revocation hearing, but rather that she was ineffective for failing to argue that he had properly asserted his Fifth Amendment privilege at the sex offender evaluation, and that he therefore had a defense to the parole revocation. Judge Gleason denied the motion for reconsideration.
Did the superior court err in dismissing Parker's case on summary disposition
This Court reviews a grant of summary disposition in a post-conviction relief case de novo, viewing the facts in the light most favorable to the non-moving party. The moving party is entitled to summary disposition if there are no genuine issues of material fact and the party is entitled to judgment as a matter of law.
Lindeman v. State, 244 P.3d 1151, 1153 (Alaska App. 2011).
Id. at 1153.
State v. Jones, 759 P.2d 558, 566 (Alaska App. 1988).
Parker argues that the superior court's order dismissing his application for post-conviction relief mistakenly focused on whether his application was pending at the time of his parole revocation hearing. We agree that the superior court focused on the wrong time period. The critical period for purposes of Parker's Fifth Amendment claim under James was the sex offender treatment evaluation, not the revocation hearing. At the time of Parker's treatment assessment, his original application for post-conviction relief was still pending, and if that application had been successful with regard to his drug offense, he could have received a new trial on that offense. Parker therefore had a valid Fifth Amendment privilege under James not to discuss the drug offense and his probation could not be revoked based on his assertion of that privilege.
We do not agree, however, that Parker is therefore now entitled to a remand so that he can continue to litigate his ineffective assistance of counsel claim against his parole attorney. To present a prima facie case for ineffective assistance of counsel, a defendant must plead facts that, if true, would entitle the defendant to relief under both prongs of the Risher test. That is, the defendant must assert specific facts demonstrating (1) that the attorney's performance fell below the objective standard of minimal competence; and (2) that there is a reasonable possibility that the incompetent performance contributed to the outcome.
See Jones, 759 P.2d at 567-68; see also Risher v. State, 523 P.2d 421, 425 (Alaska 1974).
Jones, 759 P.2d at 567-68; Risher, 523 P.2d at 424-25.
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Parker argues that summary disposition is inappropriate in his case because there are still factual issues in dispute regarding whether his attorney knew or should have known that his PCR included a challenge to his drug conviction and whether Parker directly acquiesced in his attorney's strategy. But even assuming arguendo that all of these facts are resolved in Parker's favor, Parker still cannot establish the second prong of the Risher test. Parker's parole was revoked because he was deemed unamenable to sex offender treatment based on his refusal to view the conduct underlying his child exploitation and pornography convictions as criminal, not because he denied committing the drug offense.
Parker argues that the drug charges were "inextricably intertwined" with the sex offenses. But the record does not support Parker's assertion that it was his refusal to talk about the drug conviction that formed the basis of the Parole Board's decision to revoke his parole. The sex offender treatment evaluation refers to the drug conviction only tangentially, and the drug conviction was not mentioned at all in the parole violation report or at the preliminary and final parole revocation hearings. The issue the sex offender treatment provider, the parole officer, and the Parole Board cared about was Parker's attitude toward his sex offenses.
Parker acknowledges that he did not have any Fifth Amendment privilege with regards to the sex offenses. As the superior court found, Parker "readily admitted" the conduct underlying his sexual offenses; he simply refused to acknowledge that they were crimes and claimed that he had been convicted under unconstitutional statutes.
Therefore, although Parker is correct that he had a Fifth Amendment privilege not to discuss his drug offense at the sex offender treatment evaluation, there is nothing to support his assertion that raising this privilege as a defense at the parole revocation hearing would have altered the Parole Board's decision. Because Parker's claim of ineffective assistance of counsel fails as a matter of law, we uphold the superior court's grant of summary disposition in this case.
Conclusion
The judgment of the superior court is AFFIRMED.