Opinion
A-13817 0350
10-25-2023
COLTEN EVAN ZAUKAR, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Barber, Attorney at Law, Boston, Massachusetts, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District, Bethel, Trial Court No. 4BE-16-00450 CI, Nathaniel Peters, Judge.
Michael L. Barber, Attorney at Law, Boston, Massachusetts, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Colten Evan Zaukar was convicted, following a jury trial, of kidnapping, first-degree sexual assault, second-degree sexual assault, third-degree assault, first-degree burglary, and third-degree criminal mischief. For these crimes, Zaukar received a composite sentence of 61 years and 3 days to serve. Zaukar appealed his convictions and sentence to this Court. This Court directed the trial court to merge some of the sexual assault convictions but otherwise affirmed Zaukar's convictions and sentence.
Zaukar v. State, 2018 WL 1901619, at *1 (Alaska App. Apr. 18, 2018) (unpublished).
Id.
Zaukar filed a timely application for post-conviction relief, raising various ineffective assistance of counsel claims against his trial attorney. The superior court dismissed the application for failure to state a prima facie case for relief. Zaukar now appeals that ruling.
On appeal, Zaukar argues that he established a prima facie case for relief on two of his ineffective assistance of counsel claims. (Zaukar does not challenge the dismissal of his other claims.)
First, Zaukar argues that his trial attorney provided ineffective assistance of counsel by failing to move to dismiss the indictment on the grounds that it contained duplicative counts and that the grand jury was not instructed on the unanimity requirement. To establish a prima facie case on this first claim, Zaukar was required to show, inter alia, that no competent attorney would have failed to attack the indictment on the grounds proposed by Zaukar. But, in the submitted attorney affidavit, the trial attorney provided a reasonable tactical reason for not moving to dismiss the indictment on these grounds. As the trial attorney explained, "grand jury motions have the potential to further educate a prosecutor concerning defense strategy" and "the prosecutor will almost certainly cure most defects at a subsequent grand jury." The trial attorney noted specifically that "[f]ailure to give a unanimity instruction in particular is easily cured." Because the trial attorney's explanation for his inaction was objectively reasonable and because Zaukar has not shown that the State would not be able to reindict him, Zaukar has failed to make a prima facie showing on this claim.
See LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007); Risher v. State, 523 P.2d 421, 424 (Alaska 1974).
See Shetters v. State, 751 P.2d 31, 36 (Alaska App. 1988) (noting that, in part, to prevail on an ineffective assistance of counsel claim, a defendant must demonstrate that, a "motion to dismiss the indictment, if made, would have been granted and, if granted, would have prevented reindictment"); Wilson v. State, 711 P.2d 547, 550 n.2 (Alaska App. 1985); see also Risher, 523 P.2d at 424.
Second, Zaukar argues that his trial attorney provided ineffective assistance of counsel by failing to move to dismiss Count VI of the indictment for insufficiency of the evidence. (Count VI is the count alleging anal penetration.) But, once again, the trial attorney provided an objectively reasonable explanation for his inaction. In his affidavit, the trial attorney stated that he "determined early on . . . that litigation concerning the sex assault counts at grand jury would do Mr. Zaukar more harm than good" and that "a motion for judgment of acquittal at trial was the better strategic approach given the likelihood of re-indictment by the grand jury." The trial attorney's prediction that the State would be able to reindict is supported by the fact that, on appeal, we rejected Zaukar's claim of insufficiency on that count. Accordingly, because Zaukar failed to show that all competent attorneys would have filed a motion to dismiss Count VI of the indictment and also failed to show that the State would not have been able to reindict on that count had such a motion been filed, we agree with the superior court that Zaukar failed to establish a prima facie case for relief on this claim.
Zaukar, 2018 WL 1901619, at *1.
See Shetters, 751 P.2d at 36; see also Risher, 523 P.2d at 424.
The judgment of the superior court is AFFIRMED.