Opinion
A-13389
02-09-2022
CLINT LAVELL BERNHARDT, Appellant, v. STATE OF ALASKA, Appellee.
Jane Martinez, Law Office of Jane B. Martinez, LLC, 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 Clyde Sniff en Jr., Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge Trial Court No. 3AN-13-07632 CI.
Jane Martinez, Law Office of Jane B. Martinez, LLC, 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 Clyde Sniff en Jr., Acting Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Clint Lavell Bernhardt was convicted of first-degree sexual assault and fourth-degree assault after he attacked and sexually assaulted a woman in an Anchorage hotel room. We affirmed his convictions on direct appeal. Bernhardt then filed an application for post-conviction relief, raising a number of ineffective assistance of 1 counsel claims. The superior court ultimately denied his claims after an evidentiary hearing. Bernhardt now appeals the denial of two of those claims.
Bernhardt v. State, 2013 WL 12475851 (Alaska App. Feb. 6, 2013) (unpublished).
First, Bernhardt argues that the superior court erred in rejecting his claim that his attorney failed to competently negotiate a settlement for a lesser charge. We disagree. In rejecting this claim, the court found that Bernhardt's attorney had several discussions, both with the prosecutor and with Bernhardt, about a possible plea agreement, but that "they could not agree on the terms." Specifically, Bernhardt made it clear that he would not plead guilty to any sexual offense, while the prosecutor made it clear that he would not agree to a plea deal that did not involve a sexual offense.
Based on this impasse between what the prosecutor would offer and what the defendant would agree to, the superior court found that Bernhardt had failed to prove that his attorney was incompetent during the plea negotiations. We have reviewed the record, and the court's factual findings are amply supported by the testimony of Bernhardt's trial attorney. Given these facts, the court correctly concluded that Bernhardt failed to demonstrate that his attorney acted incompetently.
See Risher v. State, 523 P.2d 421, 425 (Alaska 1974) (holding that to succeed on a claim of ineffective assistance of counsel, the defendant must demonstrate that his attorney was incompetent and that he was prejudiced).
Second, and relatedly, Bernhardt argues that his attorney failed to properly advise him of the risk that he would be convicted at trial. Bernhardt claims, in essence, that if he had been aware of the risk of being convicted, he might have agreed to plead guilty to a lesser sexual offense, despite his initial refusal to do so.
The superior court rejected this claim, relying primarily on a letter Bernhardt wrote to the complaining witness while he was incarcerated in which Bernhardt acknowledged that he faced a lengthy prison sentence. Based on this letter, the court concluded that Bernhardt was aware of the risks of taking his case to trial. 2
In this appeal, Bernhardt faults the superior court for relying on the letter. But Bernhardt did not testify at the evidentiary hearing, and the letter was the only direct evidence of Bernhardt's awareness of the risks of taking his case to trial. Furthermore, Bernhardt was required to prove his underlying factual claims by clear and convincing evidence. In light of the letter indicating Bernhardt's awareness of the risk of a conviction, and in the absence of any contrary testimony from Bernhardt, the court did not clearly err in concluding that Bernhardt had failed to establish a critical fact - his unawareness of the risks of going to trial - by clear and convincing evidence. The superior court therefore did not err in denying this claim of ineffective assistance of counsel.
AS 12.72.040 ("A person applying for post-conviction relief must prove all factual assertions by clear and convincing evidence.").
The judgment of the superior court is AFFIRMED. 3