BOLGER

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, Third Judicial District, Palmer, Eric Smith, Judge.

Appearances: David K. Allen, Attorney at Law, Sechelt, BC, 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: Mannheimer, Chief Judge, Allard, Judge, and Bolger, Supreme Court Justice.

BOLGER, Supreme Court Justice.

Ronald Parks entered into a plea agreement on the morning of his trial. He pled guilty to a charge that he refused to submit to a chemical test, and the State agreed to dismiss charges that he had been driving under the influence and driving while his license was suspended. But after the sentencing hearing, Parks filed an application for post-conviction relief, asking to withdraw his guilty plea. Superior Court Judge Eric Smith concluded that Parks had not received ineffective assistance of counsel and that he did not suffer any other manifest injustice that entitled him to withdraw his plea. We conclude that the trial court's findings were not clearly erroneous and that, based on those findings, the court properly denied Parks's application for post-conviction relief.

Background

Parks was charged with felony driving under the influence, refusal to submit to a chemical test, and driving with a suspended or revoked license for a June 28, 2008 incident. On the morning of trial, Parks pled guilty to the refusal charge, and the State agreed that the other charges would be dismissed. The trial judge incorrectly advised Parks that he faced a presumptive range of two to four years' imprisonment. (Parks had two or more prior felony convictions, so he actually faced a three to five year range.) Parks stated that he fully understood his rights, that the decision to change his plea was his own decision, and that he had not been coerced into pleading guilty. The court accepted the plea and set sentencing for a later date.

At the sentencing hearing, the prosecutor asked the court to find several aggravating factors, and the court agreed that these factors would apply to Parks. But Parks objected that these factors were not part of the plea bargain. In response, the judge informed Parks that the presumptive sentencing range was three to five years, so that these aggravating factors were unnecessary to expose Parks to the maximum five-year sentence for this offense. After a break, the prosecutor withdrew his request for these aggravating factors, and the sentencing proceeded without further objection. The court imposed a sentence of five years' imprisonment.

About three months later, Parks filed an application for post-conviction relief, alleging that he had received ineffective assistance of counsel. In his supporting affidavit, Parks stated that his attorney failed to investigate the circumstances of Parks's arrest. In particular, Parks alleged that Brown should have investigated Parks's recollection that he had purchased alcohol from a liquor store clerk in Butte shortly before he was stopped and arrested. Parks also alleged that his trial attorney had threatened to lose at trial.

At the evidentiary hearing on the application, the only witnesses were Parks and his trial attorney, Bruce Brown. Brown testified that he and Parks explored the "big gulp" theory, where a defendant testifies that he had a large drink of alcohol after operating a vehicle but before blowing into the Datamaster. Brown testified that, if believed by a jury, the big gulp theory could be a defense to a DUI charge. However, Brown testified that the big gulp theory would not be a defense to the charge of refusing a chemical test, and that he did not believe that Parks had any tenable defense to the refusal charge.

Brown testified that Parks always expressed a desire to negotiate rather than go to trial. Several offers and counteroffers were exchanged, and Brown communicated with Parks on all of these offers and counteroffers. Brown told Parks that he had the right to go to trial if he did not receive an offer he was willing to accept. The last offer, at the trial call, was for open sentencing on either the DUI charge or the refusal charge; Parks accepted this offer just before the trial was scheduled to start.

Brown testified that any potential testimony from a Butte store clerk that Parks bought alcohol shortly before his arrest would not be significant. Brown was concerned that the State could have pointed out that Parks could have drank the alcohol while driving (before he was stopped), or that he could have been drinking before he went to the store to buy more alcohol. Brown did not attempt to interview anyone at the Butte store, because he thought this avenue was fruitless.

Brown also testified that Parks wanted him to obtain a video recording taken from the vehicle of the trooper who arrested him. Brown asked the prosecutor if there was any video recording, and she told him there was not.

Prior to trial, Brown wrote a letter to Parks, informing him that he could admit the DUI charge, and that the presumptive range would be three to five years. (Brown testified that he had also told Parks that he could admit the refusal charge instead of the DUI charge.) Brown explained that even if Parks successfully defended the DUI charge, the jury would likely find him guilty of the refusal charge.

Brown testified that at trial call he told the judge that he was still negotiating and asked to continue the trial for 30 days. But Parks stood up and shouted that he was not waiving his right to a speedy trial. Later that day, Parks told Brown that he wanted to accept the latest plea bargain offer from the State.

In his testimony, Parks asserted that he consistently told Brown that he was not going to plead guilty to something he did not do, and that he wanted to go to trial. But Parks explained that he felt that he was not going to be represented adequately if he went to trial. He believed that Brown had not done "the things that [were] necessary to prepare for trial."

On direct examination, Parks testified that he believed that he would receive a two- to four-year sentence under the plea bargain. He said that he was confused when he received a sentence higher than the sentence Brown predicted.

On cross examination, however, Parks admitted that he pled guilty to a previous felony DUI in July 2006, and that the sentencing range for that case was three to five years. Parks testified that he told Brown he would not plead guilty to the DUI charge, but he admitted that he agreed to plead guilty to the charge of refusing a chemical test.

Judge Smith issued a written decision on Parks's claims. Judge Smith found that Brown testified credibly that he reviewed the proposed plea agreement with Parks and that Parks understood that he could be sentenced to five years in jail. The judge found that Brown had a serious discussion with Parks about the long odds of prevailing at trial, but did not put any pressure on Parks to take the plea bargain.

Judge Smith concluded that any testimony from the Butte store clerk would be "at most marginally relevant" and that Brown was therefore not incompetent for failing to look for and question the store clerk. Judge Smith also found that Parks had not demonstrated that the lack of this testimony caused him any prejudice. There was no evidence that the liquor store clerk would have testified that Parks was sober when he purchased the alcohol. Even that hypothetical testimony would have no bearing on whether Parks drank alcohol after leaving the store but before he was stopped.

The judge also concluded that the clerk's potential testimony would have been "utterly irrelevant" to Parks's refusal charge. Brown told Parks that he had no defense to that charge, and Parks did not dispute that assessment.

Judge Smith concluded that Brown did not render ineffective assistance and that Parks had not proven that he would suffer any other manifest injustice connected to his guilty plea. Based on these findings, Judge Smith denied Parks's petition for post-conviction relief.

Discussion

A criminal defendant is entitled to competent advice from their attorney in connection with the decision whether to accept a proposed plea agreement. If an attorney provides incompetent advice on an issue that is crucial to the defendant's decision to accept a plea bargain, and as a result of that incompetent advice the defendant accepts when he otherwise would not have accepted, this constitutes "manifest injustice" for purposes of Criminal Rule 11(h)(3) and the defendant is entitled to withdraw his plea. Manifest injustice requiring a plea withdrawal also results if a defendant enters a plea without knowledge that the sentence actually imposed could be imposed.

A defendant alleging ineffective assistance of counsel must show that his attorney's performance fell below that of a lawyer with ordinary training and skill in the criminal law, and that the defendant suffered prejudice as a result of that incompetent performance. There is a strong presumption that an attorney acted competently, and the defendant carries the burden to rebut the presumption.

Judge Smith reasonably concluded that Parks had not shown that Brown was ineffective for deciding not to investigate the liquor store clerk's potential testimony. Parks offered no evidence that a minimally competent lawyer would have pursued the clerk's testimony; Brown could reasonably have made a tactical choice not to pursue this lead. Parks also admits in his brief that "Brown's failure to investigate was not sufficient in itself to establish ineffective assistance, since there was no evidence as to what testimony the store clerk, if called at trial, would have given."

Judge Smith could also reasonably conclude that Parks had not proven any other manifest injustice. Judge Smith characterized the relationship between Parks and Brown as "quite poor," but found that Parks was familiar with the criminal justice system and the sentencing standards. In particular, the judge found that Parks "fully understood that he could receive a sentence of five years." This finding was supported by Brown's testimony, the letter Brown wrote to Parks about the potential plea bargain, and the fact that Parks had previously been sentenced on a felony DUI with a presumptive range of three to five years. Judge Smith's finding that Parks understood that, under the plea bargain, he could be sentenced to five years' imprisonment was not clearly erroneous.

Conclusion

We therefore AFFIRM the superior court's order denying the application for post-conviction relief.