Opinion
A-12994
08-11-2021
KAO CHING SAELEE, Appellant, v. STATE OF ALASKA, Appellee.
Rachel E. Cella, Assistant Public Defender, and Beth Goldstein, Acting Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Trial Court No. 3AN-12-09106 CI Anchorage, Eric A. Aarseth, Judge.
Rachel E. Cella, Assistant Public Defender, and Beth Goldstein, Acting Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
TERRELL JUDGE
Kao Ching Saelee appeals from the superior court's dismissal of his application for post-conviction relief. Saelee's application claimed that he received ineffective assistance of counsel because his trial attorney did not object to the definition of "serious and protracted disfigurement" that the court gave in connection with a first- degree assault charge, and because his attorney failed to move for a judgment of acquittal as to the theory of first-degree assault involving "serious and protracted disfigurement." The superior court concluded that Saelee had not rebutted the presumption of competency and that there appeared to be valid tactical reasons for his trial attorney's actions. Because we conclude that the superior court was correct in its analysis, we affirm the dismissal of Saelee's post-conviction relief application.
The pertinent facts of this case are set out in our decision affirming Saelee's conviction on direct appeal. At the time of the offenses in this case (May 2005), Saelee had been involved in a relationship with Lama Phothong for eight years. His belief that Phothong was cheating on him, and his attempts to locate her at the apartment that her sister, Vantiene Phothong, shared with Ian Palma led Saelee to commit multiple offenses over a three-day period. The first-degree assault charge stems from the following facts:
Saelee v. State, 2011 WL 807391 (Alaska App. Mar. 2, 2011) (unpublished).
Id. at *2.
Id.
The next day (Saturday, May 14th), Saelee again drove to the apartment where Ian Palma and Vantiene Phothong lived. Saelee knocked on the door, but when neither Vantiene nor Palma responded, Saelee went outside, climbed onto their deck, and then entered the apartment through an unlocked sliding door.
Once inside, Saelee backed Palma up against a wall. With one hand, he pointed a gun at Palma, while with the other hand he pressed the blade of a knife against Palma's neck. Saelee yelled at Palma, asking where Phothong was, and threatening to kill him. Saelee then swung his knife at Palma's neck, upper body, and legs. In this process, Saelee sliced Palma on the neck.
Id.
The cut was on the left side of Palma's neck, near the collar bone, and although it initially bled a great deal, the cut was able to be closed with six stitches which were removed after a week and a half.
Id. at *7.
Palma stated that the area of the wound gets "sore when it's cold outside" and that he couldn't scratch it "because if you put too much pressure [on it], it hurts." Palma added that the wound would occasionally bother him: he would feel a "sharp pain," but only "once in a blue moon."
Id.
The cut left a visible scar on Palma's neck.
Id.
Saelee was charged with first-degree assault under AS 11.41.200(a)(1), which required the State to prove that Saelee recklessly caused "serious physical injury" to Palma by means of a dangerous instrument. "Serious physical injury" is defined in the alternative: the first prong is satisfied by proving a physical injury "caused by an act performed under circumstances that create a substantial risk of death," and the second prong is satisfied by, inter alia, any physical injury "that causes serious and protracted disfigurement." Saelee's trial counsel did not object to the jury being instructed on both definitions of "serious physical injury," nor did he move for a partial judgment of acquittal on the "serious and protracted disfigurement" theory at the close of the State's evidence, but he used the definition of "serious and protracted disfigurement" in his closing argument to argue that Palma's wounds came nowhere close to meeting that standard and that the existence of this charge showed that the State was over-charging Saelee. The jury nonetheless convicted Saelee of the first-degree assault charge.
Id. at *6.
Former AS 11.81.900(b)(56)(A)-(B) (2005).
Saelee, 2011 WL 807391, at *6, *8.
Id. at *9.
After we affirmed Saelee's convictions and the Alaska Supreme Court denied his petition for hearing, Saeleefileda pro se application for post-conviction relief. Counsel was appointed and Saelee filed an amended application, alleging that trial counsel was ineffective because he did not object to the jury being instructed on the "serious and protracted disfigurement" definition of "serious physical injury" and because he did not move for a judgment of acquittal as to that theory of first-degree assault. The amended application was accompanied by an affidavit from trial counsel, in which he stated that he defended this charge using the argument that it was really only a third-degree assault and that the State could not prove the "serious physical injury" aspect of the first-degree assault charge. As to both claims, trial counsel asserted that having reviewed the trial record materials, it "seems" that he should have objected and moved for a judgment of acquittal, and stated that he could not give a strategic reason why he did not take those actions.
Trial counsel testified at an evidentiary hearing that he made deliberate decisions regarding how to instruct the jury and otherwise respond to the various aspects of the first-degree assault charge, though he could still not remember the particular reasons for his decisions at issue. But the State's counsel cross-examined him on a tactical reason that seemed obvious from the record and that we noted in our decision in Saelee's direct appeal, i.e., that trial counsel "used the obvious weakness of the State's evidence of disfigurement as a way of casting doubt on the probative force of the State's evidence with regard to the other prong of the definition of 'serious physical injury[, ]'" and trial counsel conceded that this was a legitimate defense strategy and that it was "possible" that that was in fact his reason for not objecting to the instruction on "serious and protracted disfigurement." Trial counsel also agreed that moving for acquittal would have possibly alerted the State to any deficiencies in its case that it needed to cure before the evidence was closed, and to what his closing arguments would be, giving the State a better chance to rebut them.
Id. at *10.
The superior court denied Saelee's amended post-conviction relief application in a written order, ruling that Saelee had not rebutted the presumption that trial counsel acted competently and for legitimate tactical reasons, for the reasons noted by the State. We agree. Courts presume that defense counsel acted competently and for valid tactical reasons. It is a post-conviction relief applicant's burden to show otherwise, demonstrating that no competent defense attorney would have taken the actions (or inactions) that the applicant challenges. The record here suggests that the challenged actions were the result of tactical decisions that a reasonably competent defense attorney could make.
State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
Id.
The judgment of the superior court is AFFIRMED.