Opinion
Court of Appeals No. A-9860.
April 1, 2009.
Appeal from the Superior Court, Fourth Judicial D istrict, Bethel, Peter Ashman, Judge pro tem, Trial Court No. 4BE-02-145 CI.
Lee A. DeGrazia, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Joseph Ashepak was tried and convicted of sexual assault in the first degree. On direct appeal, this court affirmed his conviction and sentence. Ashepak filed an application for post-conviction relief, and then filed an amended application after the court appointed counsel to represent him.
AS 11.41.410(a)(1).
Ashepak v. State, Alaska App. Memorandum Opinion and Judgment No. 4764 (Sept. 24, 2003), 2003 WL 22208540.
The amended application alleged, in pertinent part, that Ashepak's trial counsel had been ineffective because he failed to object when the complaining witness appeared to be under the influence of alcohol. Ashepak alleged that the witness "was obviously drunk to the eye of the accused. . . ." He also alleged that "the alleged victim was inebriated to the degree that she could not communicate clearly and be meaningfully cross-examined by his trial counsel."
The superior court required Ashepak to file an affidavit from his trial attorney to support the application. In his affidavit, the attorney stated that "[t]he victim testified at trial that she was `hung over.' I tactically chose to exploit this at trial, instead of moving to strike her testimony, or making her come back at a later time."
The State then filed a motion to dismiss Ashepak's amended application, alleging that Ashepak had failed to allege a prima facie case for relief. Ashepak apparently did not file any response to this motion to dismiss. After Superior Court Judge pro tempore Peter G. Ashman issued two notices of intent to dismiss the application, Ashepak filed a short pro se response. But in his response, Ashepak did not address his claim that his attorney had incompetently failed to object to the intoxicated witness. The superior court then dismissed Ashepak's application for post-conviction relief for failure to state a prima facie case.
In order to properly state his claim of ineffective assistance of counsel, Ashepak was required to plead two elements: (1) that his trial attorney's conduct fell outside the range of reasonable conduct for an attorney skilled in the criminal law, and (2) that the attorney's ineffective conduct contributed to the defendant's conviction. In evaluating Ashepak's application, the court was required to apply a strong presumption of competence: "When . . . an application for post-conviction relief alleges potential mistakes or oversights on the part of trial counsel but does not go on to allege facts ruling out the possibility of sound tactical choice, it fails to set out a prima facie case."
See Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974).
State v. Jones, 759 P.2d 558, 570 (Alaska App. 1988).
Ashepak's application failed to state facts that could rebut this presumption of competence. Ashepak's attorney's affidavit suggested that he deliberately chose to exploit the witness's questionable condition, rather than moving to strike her testimony or requesting a continuance. This appears to have been a reasonable tactical choice. It would have been difficult to establish that the witness was incompetent, as this would have required a showing that the witness could not communicate intelligibly or that she could not understand her duty to tell the truth. And if the attorney had requested a continuance, the witness would have had an opportunity to recover her sobriety before facing cross-examination.
See A.R.E. 601; Spencer v. State, 164 P.3d 649, 652-53 (Alaska App. 2007) (rejecting a rule excluding the testimony of witnesses who have been drinking).
Ashepak cites to portions of the trial transcript in support of his argument that the witness was intoxicated. However, this reliance is inappropriate because the transcript was not provided to the superior court when it ruled on the motion to dismiss. In fact, the portions of the trial record that Ashepak relies on suggest that his trial attorney chose to exploit the witness's condition. On cross-examination, the witness admitted that she could not remember everyone present while drinking on the night of the assault. Additionally, she could not remember when she arrived at the house, where she had been drinking, or when she left. She also could not remember how long she was in a steam bath with Ashepak (where the assault occurred), nor could she recognize photographs of the steam bath. Finally, she could not remember the police taking her to the hospital. Accordingly, Ashepak's attorney argued that the jury should find that she was not a credible witness based on her incomplete memory.
In summary, Ashepak failed to allege facts ruling out the possibility that his trial attorney made a reasonable tactical choice when he decided to cross-examine the complaining witness instead of objecting on the basis that she was under the influence of alcohol. We therefore AFFIRM the superior court's decision dismissing the application for post-conviction relief.