Opinion
Court of Appeals No. A-8842.
February 22, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Richard D. Savell, Judge. Trial Court No. 4FA-02-125 CI.
Paul Ewers, Law Office of Paul Ewers, Fairbanks, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Brian K. Yoder Sr. appeals the dismissal of his application for post-conviction relief. This is the second time this application has been before the court. In an earlier opinion, we reversed the superior court's dismissal of the application.
Yoder v. State, Alaska App. Memorandum Opinion and Judgment No. 4711 (June 4, 2003), 2003 WL 21279447.
The remaining issue in the application was Yoder's contention that his trial attorney provided ineffective assistance of counsel by failing to apprise Yoder of a potential plea agreement offered by the State.
The superior court held an evidentiary hearing on this claim. Three witnesses testified: Yoder's trial attorney, the assistant district attorney who prosecuted Yoder's case, and Yoder himself. After hearing the testimony of these witnesses, Superior Court Judge Richard D. Savell found that Yoder had failed to prove that his trial attorney had neglected to inform Yoder of a potential plea agreement. In fact, Judge Savell found there was clear and convincing evidence that the State did not propose a plea bargain. Thus, Judge Savell rejected the basis of Yoder's claim, that his attorney had failed to inform him of a proposed plea bargain. Accordingly, Judge Savell denied Yoder's application.
We uphold the superior court's findings unless we are convinced the findings are clearly erroneous. From our review of the record, we conclude there is substantial evidence supporting Judge Savell's findings. Both Yoder's trial attorney and the assistant district attorney who prosecuted Yoder's case testified that there was no plea agreement proposed by either the State or the defense. Based on this evidence, Judge Savell's findings are not clearly erroneous.
See Merrill v. State, 457 P.2d 231, 233-34 (Alaska 1969).
Because Yoder failed to prove the factual basis of his application, Judge Savell properly denied Yoder's application. The judgment of the superior court is AFFIRMED.