Opinion
Court of Appeals No. A-12413 No. 6409
12-21-2016
ROBERT H. BALL JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Benjamin I. Whipple, Attorney at Law, Palmer, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna M. 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. 3PA-14-2496 CI MEMORANDUM OPINION Appeal from the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, Judge. Appearances: Benjamin I. Whipple, Attorney at Law, Palmer, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna M. Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD.
Judge MANNHEIMER, concurring.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
In April 2008, Wasilla Police officers intercepted a package containing a brick of heroin at a FedEx facility. The package was addressed to Deborah McMahon, who had earlier called the facility to ask that the package be held for pick up. When McMahon arrived, officers contacted her. She told the officers that she had been told to deliver the package to someone named "Bob," and she agreed to cooperate in completing the delivery. The officers then prepared a substitute parcel containing an object approximating the size and weight of the heroin and asked McMahon to deliver this substitute package. After McMahon delivered the package to Robert H. Ball Jr., the officers placed him under arrest.
The State charged Ball with second-degree misconduct involving a controlled substance (possession of heroin with intent to deliver), attempted second-degree misconduct involving a controlled substance (attempted possession of heroin with intent to deliver), and attempted fourth-degree misconduct involving a controlled substance (attempted possession of any amount of heroin). Pursuant to a plea agreement, Ball pleaded guilty to one count of attempted second-degree misconduct involving a controlled substance, a class B felony, and was sentenced to 10 years' imprisonment; the State dismissed the remaining charges.
Former AS 11.71.020(a)(1) (2014).
Former AS 11.71.020(a)(1) (2014) & AS 11.31.100(a).
AS 11.71.040(a)(3)(A)(i) & AS 11.31.100(a).
See AS 11.31.100(d)(3).
In March 2011, Ball filed a petition for post-conviction relief, apparently arguing that the 10-year sentence was excessive "as a matter of equity." On April 9, 2013, the superior court dismissed the petition for failing to state a prima facie claim for relief.
More than one year later—on October 6, 2014—Ball filed a second post-conviction relief petition. In this petition, Ball argued that his trial attorney had provided ineffective assistance of counsel during his plea negotiations and that his first post-conviction relief attorney was also ineffective for failing to raise this claim. (Chief Judge Mannheimer addresses the problems with Ball's claims of ineffectiveness in his accompanying concurrence.)
Because Ball's petition was filed outside the one-year limitation period for a successive petition for post-conviction relief, the State moved to dismiss the petition as untimely. Superior Court Judge Kari Kristiansen agreed and dismissed the petition.
See AS 12.72.025.
Ball challenges this ruling on appeal. Though Ball appears to acknowledge that his second petition was untimely, he asks this Court to graft a "discovery rule" exception onto the statutory one-year limitation period. Ball argues that such an exception is necessary as a matter of due process.
See, e.g., Richardson v. Anchorage, 360 P.3d 79, 85 (Alaska 2015) ("Under the discovery rule, the statute of limitations does not begin to run until the claimant discovers, or reasonably should have discovered, the existence of all elements essential to the cause of action." (internal quotations omitted)).
Ball did not raise this contention to the superior court. That is, this claim is not found in either his original petition, his amended petition, his second amended petition, or in his opposition to the State's motion to dismiss. This claim is therefore not preserved for appeal. Moreover, even on appeal, Ball has not explained how such a discovery rule would actually be of benefit to him in this case.
We recognize that Ball raised a due process claim in his opposition to the State's motion to dismiss. But that claim — that the court's failure to consider newly discovered evidence of actual innocence would violate due process — is markedly different from Ball's argument on appeal.
See Burton v. State, 180 P.3d 964, 975 (Alaska App. 2008). --------
We accordingly AFFIRM the judgment of the superior court. Judge MANNHEIMER, concurring.
I write separately to address Ball's underlying claims (1) that he received ineffective assistance from his trial attorney (i.e., the attorney who represented him during the negotiation of his plea bargain), and (2) that he received ineffective assistance from the attorney who represented him in his first post-conviction relief litigation (because that second attorney incompetently failed to perceive that Ball's plea-negotiation attorney was incompetent).
Both of these claims rest on Ball's assertion that, from the very beginning of his case, it was obvious that the State could not possibly prove the most significant of the original criminal charges against Ball — the charge of second-degree controlled substance misconduct (possession of heroin with intent to deliver).
As described in the lead opinion, the charges against Ball arose from the fact that the police intercepted a FedEx package containing a brick of heroin. When the addressee, Deborah McMahon, arrived to pick up this package, a state trooper contacted her. McMahon gave the trooper permission to open the package, she told the trooper that she had had no idea that the package contained heroin, and she said that she had been instructed to deliver the package to someone named "Bob" — i.e., Ball.
The trooper removed the brick of heroin and replaced it with a decoy object of approximately the same size and weight. He then had McMahon deliver the package to Ball as she had been instructed — leading to Ball's arrest.
Ball claims that his two previous attorneys — both the attorney who negotiated the plea agreement, and the attorney who represented Ball in his first petition for post-conviction relief — incompetently failed to perceive that, under these facts, the State could never prove that Ball was guilty of possessing heroin. Ball argues that, because he took delivery of a package that contained only a decoy object, the most that he could be guilty of was an attempt to possess heroin.
Ball's argument ignores AS 11.16.110, the statute that defines complicity in a crime. Under subsection (2) of this statute, a defendant can be held legally accountable for another person's conduct constituting an offense if the defendant solicited the other person to commit the crime, or if the defendant helped to plan or execute the crime. And under subsection (3) of the statute, a defendant can be held legally accountable if the defendant caused an innocent person to engage in the proscribed conduct.
According to the affidavit that was filed in support of the felony complaint against Ball, two state trooper investigators interviewed Ball after he took possession of the package (i.e., the package containing the decoy object). During this interview, Ball admitted that "he had sent $2,200 [in] cash ... to a guy he knew in Seattle who sold bulk heroin." Ball claimed that he had obtained this cash from a friend of his, and that this friend was going to get most of the heroin. Ball "was only supposed to keep a small portion of the heroin for helping his friend."
Ball further explained that his friend was acquainted with Deborah McMahon, and that "his friend was the one who enlisted Ms. McMahon to pick up the heroin" from the FedEx facility.
Under AS 11.16.110, if the State could prove the truth of Ball's statements to the troopers — i.e., if Ball knowingly assisted his friend in planning or executing the scheme whereby McMahon would pick up the heroin and deliver it to Ball — then Ball could be held legally accountable for McMahon's possession of heroin. This result would be the same regardless of whether McMahon was a knowing accomplice in the heroin scheme or, as she asserted to the police, McMahon was instead an innocent delivery person — because, under subsection (3) of AS 11.16.110, even if McMahon was an innocent agent, Ball would be legally accountable if he or his accomplice friend caused McMahon to unwittingly take possession of the heroin.
In other words, Ball could be guilty of the possession charge even though he never personally possessed the brick of heroin. Thus, Ball's previous attorneys were not incompetent when they proceeded under the assumption that the State could potentially prove this charge.