Opinion
Court of Appeals No. A-11903 No. 6591
02-28-2018
ALVIN E. WASSILLIE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Nancy Driscoll Stroup, Palmer, under contract with the Office of Public Advocacy, for the Appellant. Donald Soderstrom, 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. Trial Court No. 3NA-11-045 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Naknek, Fred Torrisi, Judge. Appearances: Nancy Driscoll Stroup, Palmer, under contract with the Office of Public Advocacy, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d). --------
In March 2008, Alvin E. Wassillie was charged with third-degree assault for threatening his brother with a gun, and with third-degree criminal mischief for damaging the door and wall of a police holding cell after he was arrested.
At the time of this incident, Wassillie was on federal probation, and his possession of a firearm constituted a separate crime under federal law.
Wassillie reached a plea agreement with the State. On June 24, 2008, under the terms of this agreement, Wassillie pleaded no contest to the third-degree assault charge, and the criminal mischief charge was dismissed.
During Wassillie's change-of-plea hearing, the parties discussed the possibility that the federal authorities might take action against Wassillie for violating his probation and/or for possessing a firearm. The prosecutor told Wassillie (and the court) that the State of Alaska had notified the federal authorities of the plea bargain — and that, although the State was not going to encourage the federal government to take separate action against Wassillie, the State could not guarantee that the federal government would not prosecute Wassillie.
As a separate part of the plea bargain, the State agreed that Wassillie would be released on his own recognizance pending sentencing, for the purpose of attending a 6- to 9-month treatment program offered by the Salvation Army. The State further agreed that if Wassillie successfully completed this program, he would receive credit against his sentence for the time he spent there.
(To facilitate this portion of the plea agreement, the superior court delayed Wassillie's sentencing hearing for approximately 6 months.)
The superior court accepted Wassillie's plea, and he was released so that he could enter the Salvation Army treatment program. But in September 2008, Wassillie was involuntarily discharged from the Salvation Army program (prior to completion) because he was caught drinking alcohol.
In December 2008, Wassillie asked the superior court to allow him to withdraw his plea. Wassillie told the court that he wanted to withdraw his plea because, following his discharge from the Salvation Army treatment program, he had arranged to enter a different treatment program (the Chanlyut program), but the State would not agree to give him credit against his sentence for this second program. Wassillie also told the court that he wanted to withdraw his plea because he now wished to challenge the factual allegations against him.
The superior court denied Wassillie's motion to withdraw his plea, and Wassillie was sentenced on February 23, 2009.
After his sentencing, Wassillie filed a second motion to withdraw his plea. One of his primary complaints was that his plea agreement with the State did not explicitly preclude the State from referring his case to the federal authorities for prosecution. He also argued that he had not understood, when he pleaded no contest, that he would be precluded from contesting the State's allegation of assault.
The superior court denied this second plea-withdrawal motion. In particular, the superior court noted that even if the plea agreement did not explicitly preclude the State from referring Wassillie's case for federal prosecution, Wassillie could show no prejudice — because the State had not, in fact, referred Wassillie's case to the federal authorities.
After the superior court denied Wassillie's request to withdraw his plea, Wassillie appealed the superior court's ruling to this Court. This Court affirmed the superior court's decision: Wassillie v. State, unpublished, 2011 WL 3413268 (Alaska App. 2011). Wassillie then petitioned the supreme court to hear his case, but the supreme court denied his petition. (See Supreme Court File No. S-14433, order dated September 29, 2011.)
Wassillie then filed a petition for post-conviction relief in the superior court, alleging that his defense attorney had coerced him into accepting the State's plea agreement by telling him that, if he did not reach an agreement with the State, the federal authorities could easily convict him of violating his federal probation and of possessing a firearm. Wassillie also alleged that his defense attorney was incompetent for failing to include this claim when she litigated the prior motions to withdraw Wassillie's plea.
The superior court dismissed Wassillie's petition for post-conviction relief on the pleadings — i.e., for failing to state a prima facie case for relief.
Specifically, the superior court concluded that even if the State had threatened to refer Wassillie's case to the federal authorities if he did not reach a plea agreement with the State, and even if Wassillie's defense attorney had urged him to reach a plea agreement with the State so that he could avoid federal prosecution, these actions did not constitute impermissible "coercion" under the circumstances. The court further concluded that, given the circumstances, Wassillie had failed to offer any reason to believe that his defense attorney was incompetent for failing to include such claims when she litigated his earlier motions to withdraw his plea.
We have reviewed the record, and we agree with the superior court that Wassillie's petition for post-conviction relief failed to state a prima facie claim for relief. Accordingly, the judgement of the superior court is AFFIRMED.