Opinion
A-13535
08-28-2024
Catherine Boruff, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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 District Court, Third Judicial District, Trial Court No. 3AN-17-07965 CI Anchorage, J. Patrick Hanley, Judge.
Catherine Boruff, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
MEMORANDUM OPINION
WOLLENBERG JUDGE
In 2016, Evan Jon Avras pleaded guilty to one count of fourth-degree assault. The following year, Avras filed a pro se post-conviction relief application challenging his conviction. Avras was appointed an attorney, and the attorney filed an amended application alleging that Avras suffered from mental health issues that rendered his plea involuntary. Following an evidentiary hearing, the court denied Avras's claim.
AS 11.41.230(a)(1).
On appeal, Avras does not challenge the denial of his application on the merits - that is, he does not argue that the court erred in rejecting the claim raised by his attorney. Rather, Avras raises two separate claims.
First, Avras argues that his post-conviction relief attorney's representation was so facially deficient as to require remand, under our decisions in Tazruk v. State and Demoski v. State, for re-litigation of his post-conviction relief application with a new attorney. Second, Avras argues that, during the evidentiary hearing, the judge erred in failing to inquire into a potential breakdown in the attorney-client relationship between Avras and his appointed counsel.
Tazruk v. State, 67 P.3d 687 (Alaska App. 2003); Demoski v. State, 449 P.3d 348 (Alaska App. 2019).
For the reasons explained in this opinion, we conclude that Avras has not shown that he is entitled to reversal on this record. To the extent Avras believes that his post-conviction relief attorney provided ineffective assistance of counsel, he may pursue that claim in a second post-conviction relief application.
Grinols v. State, 74 P.3d 889 (Alaska 2003).
We therefore affirm the denial of Avras's post-conviction relief application.
Background facts and proceedings
The underlying events in this case arose in September 2015. According to the State's charging document, on September 18, the police were dispatched to a location in downtown Anchorage to investigate a report of an assault. When the police arrived, they encountered Avras, who reported that he had been assaulted "by a bunch of kids." Avras said that he did not see any of the suspects because it happened too quickly. Avras had a cut on his forehead, but declined medical attention and began walking away.
Several minutes later, witnesses reported that Avras was pointing a knife at several people in Town Square Park and yelling threats to people in the area. The police responded and ordered Avras to drop the knife. The police took custody of Avras and later transported him to the hospital for medical clearance. (For this conduct, Avras was charged with third-degree assault, but the State dismissed this charge prior to trial.)
AS 11.41.220(a)(1)(A).
At the hospital, Avras was examined by a doctor. According to the charging document, when the doctor "was checking Avras's head for injuries, Avras out of nowhere kicked the doctor in the face[,] causing a cut on the right side of his nose." This conduct constituted the basis for Avras's fourth-degree assault charge - the charge underlying this case.
AS 11.41.230(a)(1).
Four months later, in January 2016, Avras proceeded to a jury trial on the fourth-degree assault charge. After the jury was selected, but before the jury was sworn in, the prosecutor informed the court that the doctor's mother had died, and the doctor would be unavailable for at least a week. The court granted the prosecutor's request for a continuance.
Later that day, Avras's trial attorney notified the court that Avras wanted to accept a plea offer. Under the terms of the plea agreement, Avras agreed to plead guilty to fourth-degree assault and receive a sentence of 60 days to serve. The State dismissed another pending case against Avras and agreed not to charge him with failure to appear.
See AS 12.55.135(d) (setting a 60-day minimum term of imprisonment for fourthdegree assault if the defendant "knowingly directed the conduct constituting the offense" at a "medical professional who was engaged in the performance of official duties at the time of the assault").
During the change of plea hearing, Avras expressed some hesitancy to accept the plea offer, indicating that he had wanted to go to trial, but also stating that "it's not going to work out that way so I'm accepting the circumstance." Avras also stated that he did not intend to kick the doctor - i.e., that it was "inadvertent" - and he had no memory of it. Avras stated that he had hoped to preserve his right to appeal, but the court explained that if he pleaded guilty, he would lose his right to appeal his conviction.
In light of Avras's statements, Avras's attorney asked Avras whether he wanted to discuss the plea agreement further. Avras responded, "No." And after further inquiry from the court, Avras said, "I'll accept it the way it is."
The court then engaged in a colloquy with Avras, including confirming that he was not under the influence of any medications. The court accepted Avras's guilty plea and imposed sentence in accordance with the agreement.
The following year, Avras filed a post-conviction relief application seeking to withdraw his plea. Avras asserted that, at the time he kicked the doctor, he was "severely impaired" by a head injury he had sustained earlier that day and, when the doctor was examining his head, he had kicked the doctor accidentally. The court appointed counsel to represent Avras and ultimately, a contract attorney for the Office of Public Advocacy entered an appearance on behalf of Avras.
Avras's attorney filed an amended post-conviction relief application on Avras's behalf. The attorney noted Avras's assertion in his pro se application that his head injury had played a role in his underlying offense, and that his act of kicking the doctor was accidental - but he did not directly argue that this impacted Avras's decision to plead guilty or that Avras did not understand the charge to which he was pleading. Rather, counsel argued that Avras's plea was involuntary due to substantial mental health disorders Avras had suffered "throughout his adulthood" and the "shifting array of prescribed medications and their side effects" on Avras. Avras's attorney affirmed at later hearings before the court that his sole argument was the involuntariness of Avras's plea.
The State subsequently filed a motion to dismiss Avras's application. Avras's attorney opposed, filing together with his opposition a personal affidavit from Avras in support of the amended application for post-conviction relief. In his affidavit, Avras stated that he had "a lifelong history of mental health issues" as well as "multiple closed head injuries." He also stated that he had been on a number of medications throughout his life, many of which had caused adverse reactions. Avras alleged that, on the day of the incident, he had suffered another closed head injury and that, throughout the underlying criminal case, he had been placed on a number of medications that affected his ability to think clearly. Avras stated, "I did not understand the terms of my change of plea agreement and would not have entered into that change of plea agreement if my mind had been working properly."
The court denied the State's motion to dismiss. During the discovery phase, Avras's attorney provided the State with Avras's medical records - most were from 2013 or earlier, with one neuropsychological evaluation from 2018. The medical records - which were later provided to the court - showed that Avras had been diagnosed with several mental health conditions as well as (according to the 2018 neuropsychological examination) a major neurocognitive disorder due to traumatic brain injury. None of the records dated from 2015 or 2016 (the time period surrounding the underlying incident and change of plea).
Avras's case proceeded to an evidentiary hearing, at which he testified. The evidentiary hearing initially did not go smoothly, and during the early part of the attorney's direct examination of Avras, the two began to argue on the record about the attorney's representation. Ultimately, Avras and his attorney resolved the immediate dispute on the record, and Avras's attorney continued with his direct examination. (We explain this dispute in more detail below.)
Avras's attorney elicited testimony from Avras about his past mental health issues and diagnoses and the medications he had taken over the years, some of which had caused him to have "thinking problems" and to lose control of parts of his body. Avras gave contradictory answers as to whether any of these health issues, or the head injury he had suffered, affected his change of plea. Avras thought he might have been on medication at the time of the change of plea hearing, but he could not remember; he also said that his confusion at the change of plea hearing had "nothing to do with medication," and was instead related to his head injury. He later suggested, however, that the real problem was not his head injury, but his lack of education in the legal system. At the same time, he testified that he was not confused at the change of plea hearing - that instead, he was "miserable in jail" and just wanted to get out. He testified that he pleaded guilty because he was "up against the wall."
Following the evidentiary hearing, the court issued a written order denying Avras's application for post-conviction relief. The court reviewed the change of plea hearing, along with Avras's testimony at the evidentiary hearing. As to the change of plea hearing, the court found that Avras had "actively engaged" in the plea colloquy, responded to and raised questions "in a logical fashion" that "demonstrated that he understood what was happening and what his options were," and "did not exhibit any signs of confusion or distress." The court found that Avras had made a "knowing and voluntary decision to accept the plea offer," which was "consistent with Mr. Avras's testimony at the evidentiary hearing that he 'understood pretty clearly what was going on.'" The court noted the contradictory nature of Avras's testimony at the evidentiary hearing, and ultimately found that Avras had failed to meet his burden of proving that his plea was involuntary.
This appeal followed.
Why we reject Avras's claim that he is entitled to a remand under Tazruk and Demoski
On appeal, Avras does not challenge the superior court's denial of his post-conviction relief application based on the issue litigated by Avras's attorney. Rather, relying on our decisions in Tazruk and Demoski, Avras argues that his attorney filed a facially deficient application and took "minimal action" to pursue the claim raised in the amended petition - thus violating Avras's constitutional right to the effective assistance of counsel and requiring remand for re-litigation of his postconviction relief application with a new attorney.
Tazruk, 67 P.3d 687; Demoski, 449 P.3d 348; see also Grinols, 74 P.3d at 893-95 (holding that the due process clause of the Alaska Constitution guarantees the right to the effective assistance of counsel to pursue a first post-conviction relief application).
As we recently discussed in Amarok v. State, Tazruk and Demoski establish that there are certain circumstances in which a post-conviction relief attorney's representation is so plainly deficient that the defendant is entitled to a remand for further proceedings. But these circumstances are limited to "cases where the application appears to be facially deficient and the attorney fails to offer 'any substantive explanation for why the application is not facially deficient.'"
Amarok v. State, 543 P.3d 259, 262-63 (Alaska App. 2024).
Id. at 263 (quoting Demoski, 449 P.3d at 351).
By contrast, "Tazruk and Demoski do not apply to cases where the record shows that the attorney actively investigated and litigated the case and where the application is not plainly deficient on its face." This is because "Tazruk and Demoski do not guarantee error-free representation; instead, they are focused only on the most obvious examples of attorney incompetence and lack of diligence."
Id. at 267.
Id.; see also Griffin v. State, 18 P.3d 71, 75-76 (Alaska App. 2001) ("Courts have the constitutional responsibility to make sure that an indigent defendant's application for post-conviction [relief] is resolved in a way that is related to the merit of the petition - not dismissed simply because the defendant's attorney is unwilling to devote the necessary effort to the case." (internal quotations omitted)).
Here, Avras's attorney actively investigated and litigated the case, and Avras's application was not plainly deficient on its face, as demonstrated by the fact that Avras's application survived the State's motion to dismiss and proceeded to an evidentiary hearing at which Avras testified. We therefore conclude that Avras is not entitled to a remand under Tazruk and Demoski.
For this reason, Avras's reliance on Bienek v. State is misplaced. In Bienek, the attorney did not clearly choose any of the three procedural pathways available to an attorney representing an indigent post-conviction relief applicanti.e., an amended application, a notice of intent to proceed on a pro se application, or a certificate of no arguable merit. Bienek v. State, 2021 WL 2822282, *3-5 (Alaska App. July 7, 2021) (unpublished); see also Alaska R. Crim. P. 35.1(e)(2). Here, the attorney filed an amended application and successfully opposed the State's motion to dismiss for failure to establish a prima facie case.
This is not to say Avras's complaints about the representation he received are without merit. As we discuss in the next section, Avras's attorney was confused at the evidentiary hearing about which of Avras's applications for post-conviction relief was at issue in this case, and the attorney was ultimately unable to muster any real evidentiary support for the claim he chose to raise. But determining whether this conduct rises to the level of ineffective assistance of counsel would require further development of the record as to the attorney's conduct and decision-making and any resulting prejudice. To the extent Avras wishes to pursue a claim of ineffective assistance of counsel against his post-conviction relief attorney, he may do so in a second post-conviction relief application under Grinols v. State.
See Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974). For example, Avras maintains that he had a potentially viable claim for relief on the ground that he did not have knowledge of the offense or the nature of the charge when he entered his plea, since the court did not advise Avras of the elements of the offense (including the need for a voluntary act), and Avras provided an explanation for his actions that was inconsistent with guilt. Avras relies on our decision in Walsh v. State, where we vacated the defendant's plea because the defendant offered an innocent explanation for his conduct and the court did not ensure that he understood the elements of the offense the State would be required to prove. Walsh v. State, 758 P.2d 124, 127-28 (Alaska App. 1988). But in Walsh, the defendant entered a no contest plea at his arraignment without the benefit of counsel. Id. at 126-27. Here, Avras had an attorney; indeed, Avras and his attorney had been prepared to go to trial. During the initial investigation of Avras's post-conviction relief application, Avras's post-conviction attorney indicated (in various motions for extensions of time to file the amended application) that he had communicated with Avras's trial attorney. Because the post-conviction attorney never submitted an affidavit from the trial attorney, the record before us does not document the nature of any discussions between Avras and his trial attorney and whether they would have supported or undermined a claim that Avras did not understand the nature of the offense to which he pleaded. Cf. Peterson v. State, 988 P.2d 109, 112-13 (Alaska App. 1999) (recognizing that a defendant may elect not to contest a charge despite claims of innocence and what matters is whether the defendant understood the charge and voluntarily agreed not to contest it). Unlike situations in which the postconviction attorney is functionally conceding the absence of any colorable issues, the attorney here was under no obligation to explain his reasoning for failing to raise other claims, and thus additional evidence on this point would be required to decide this claim.
Grinols v. State, 74 P.3d 889 (Alaska 2003).
Why we reject Avras's claim that the court was required to inquire further into a potential breakdown in the attorney-client relationship between Avras and his attorney
Early in the evidentiary hearing, the attorney's questioning of Avras devolved into an on-the-record dispute. The problem arose when the attorney began asking Avras questions about another one of Avras's post-conviction relief applications, which was not before the court at the time. (The other post-conviction relief application challenged Avras's assault conviction in a 2012 case, but presented a claim similar to the one raised here.) The same attorney represented Avras on both postconviction relief applications.
In response to his attorney's questioning, Avras immediately became confused, asking, "Are we talking about the 2012 [case]?" When the attorney responded that they were, Avras said, "I'm sorry. I was confused."
Avras then began to respond to counsel's questions (about the 2012 case) with long, narrative responses, and the attorney expressed frustration with Avras's inability to focus on the question asked. Avras responded that they had not "talked in many months" and he "had no idea what was going to happen today." A few minutes later, when the narrative answers continued, the attorney told Avras: "Mr. Avras, stop. You are not even coming close to answering my questions. You answer them initially, and then you go on and on about everything else[.]"
Avras again complained about their relationship and lack of prior communication, stating: "This is the nature of our relationship right now. This has been going on for years, and I've never even got a chance to talk to you about this." At that point, the attorney and Avras disputed how often they had spoken, and Avras indicated he had "another attorney lined up" because of the nature of his relationship with his current attorney. When Avras asserted that his current attorney had left him "high and dry since 2018," the attorney told Avras that he should be cognizant about not committing perjury.
Avras then announced that he wanted the court to understand the nature of his relationship with the attorney. The court sought to move the hearing along, explaining to Avras that his attorney, and then the prosecutor, would ask questions; the court then directed counsel to continue his direct examination. But counsel told the court that Avras was questioning his representation and suggested that Avras could hire an attorney if he wished to do so.
Despite counsel's apparent request for the court to intervene on the question of representation, Avras did not request a new attorney. Rather, Avras immediately softened his position, stating, "It's just a misunderstanding." Avras reiterated that, because they had not spoken recently, he did not know what questions would be asked. The attorney stated that he had tried calling Avras that morning, but Avras did not answer.
The court again tried to move the hearing along, noting that "there could be some confusion" because Avras had more than one pending post-conviction relief action. The court told Avras that his attorney would continue to ask questions, and Avras responded, "That's fine."
A few minutes later, the court noted that the 2012 case was not before it at that time and sought to ensure that everyone was "on the same page." Avras expressed some relief, explaining that his confusion and concern about his attorney's representation resulted from his attorney's questions about the 2012 case: "That's why I brought up my relationship with [my attorney] because he . . . started asking me about [the 2012 case]." The court then clarified that the post-conviction relief application currently before the court related to the 2015 case (and not the 2012 case).
After reviewing his files, the attorney acknowledged that he had been asking questions about the wrong post-conviction relief application. The attorney apologized to Avras and admitted he had caused confusion. Avras also apologized to his attorney, and the direct examination continued, with questioning about the 2015 case and the related post-conviction relief application.
On appeal, Avras argues that the trial court abused its discretion when the court failed to inquire into whether there was a breakdown in the attorney-client relationship in light of this exchange.
In Alaska, an indigent defendant is entitled to the assistance of counsel in litigating a first post-conviction relief application. While a defendant is not entitled to counsel of their choice, a trial court nevertheless has an obligation to inquire into a potential breakdown of the attorney-client relationship when presented with a substantial claim that the relationship has deteriorated to the point where the attorney is incapable of effective communication with the defendant or objective decision-making about the case.
Id. at 893-94.
See Walsh v. State, 134 P.3d 366, 369 (Alaska App. 2006).
See id. at 369, 371; see also State v. Kazee, 432 N.W.2d 93, 95 (Wis. 1988) (holding, consistent with the majority of federal courts, "that if at any time during the proceeding a defendant makes a substantial complaint that could reasonably be interpreted as a request for new counsel, the trial judge should inquire whether there are proper reasons for substitution"); Blair v. State, 2023 WL 234326, at *11-12 (Alaska App. Jan. 18, 2023) (unpublished) (Harbison, J., concurring) (stating that "in order to protect the defendant's right to counsel, a trial court generally has an affirmative duty to conduct an inquiry into the defendant's allegations" of a breakdown of the attorney-client relationship or that their attorney is ineffective).
Although neither Avras nor his attorney made an express request for new counsel, there were significant indications in the record of a breakdown in the relationship between them. Avras repeatedly stated that he had not spoken to his attorney about his case (he alleged that he had only spoken with an investigator), and he declared that their relationship was "so defunct right now" and that "the whole nature of th[e] relationship . . . is wrong." Avras accused his attorney of leaving him "high and dry" for two years. In response, the attorney directly challenged Avras's assertions, told Avras that he "can get a new attorney, then," and warned Avras about potentially committing perjury.
By the time the attorney declared that Avras was "questioning [his] representation" and that Avras could hire a lawyer if he wanted to, there were indications of a possible breakdown in the attorney-client relationship that required further court action.
See In the Matter of K.B., 551 P.3d 1141, 1146 (Alaska 2024) (holding that when an indigent party's request for a new lawyer "can be reasonably inferred from the circumstances," the trial court must assess whether the party's complaint would support a conclusion that there has been an attorney-client breakdown and if so, has a duty to inquire further into the potential breakdown); cf. Henry v. State, 2020 WL 2909329, at *3 (Alaska App. June 3, 2020) (unpublished) (recognizing that, once confronted with information that defense counsel had concerns about his ability to provide zealous representation in light of his "adversarial feelings" toward his client, "the trial court should have inquired further of [the attorney] as to whether a conflict actually existed and what the basis for that alleged conflict was"); cf. United States v. Lott, 310 F.3d 1231, 1249-50 (10th Cir. 2002) (holding that, where the defendant repeatedly asserted that his attorney failed to communicate with him, the court erred in failing to hold a hearing on defendant's request for new counsel).
But the aftermath of this exchange shows that the court took sufficient action to resolve the main source of the dispute - the attorney's mistaken questioning about Avras's other post-conviction relief case. While the judge did not hold a representation hearing to inquire into the status of the attorney-client relationship, he did seek to ensure that everyone was "on the same page" and clarify the purpose of the evidentiary hearing and the case before the court. This immediately cleared up the confusion that was causing animosity between Avras and his attorney; indeed, Avras said that the reason "why [he] brought up [his] relationship with [his attorney was] because he . . . started asking [Avras] about [the 2012 case]." Once the confusion was cleared up, Avras and his attorney apologized to each other and continued with the evidentiary hearing. Given this, it is difficult to see how further inquiry or a separate representation hearing on the question of whether there had been a breakdown in the attorney-client relationship would have led to a different result.
The court may have had good reason for trying to move the hearing along. Avras did not appear for the initial evidentiary hearing, which caused the court to dismiss Avras's post-conviction relief application. At the time, the attorney challenged the dismissal - informing the court that Avras was unhoused and difficult to contact, and also suffered from mental health issues. But the court noted that it had previously informed Avras of the hearing date, and the court stated that it was "not convinced" that Avras would attend court reliably if the case were continued. The court later reinstated the case on counsel's motion.
See K.B., 551 P.3d at 1146-47 (holding that the trial court did not have any duty to further inquire into the attorney-client relationship where the issue causing the dispute was explored by the court and resolved in favor of continued representation by the attorney).
Ultimately, Avras's complaints appear to be related to the quality of the representation he received, including the lack of preparation that resulted in the attorney questioning his client about the wrong case for the first half hour of the hearing. But the attorney ultimately pursued and completed his direct examination, which suggests - particularly in the absence of any express request for a change in counsel - that the relationship had not deteriorated to the point where the attorney was "incapable of effective communication," or that he "could not make objective decisions about the case," as required to show an attorney-client breakdown.
Walsh, 134 P.3d at 371.
Conclusion
The judgment of the district court is AFFIRMED.