Opinion
Court of Appeals No. A-8779.
November 1, 2006
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-03-587 CI.
Appearances: Rachel Levitt, Assistant Public Advocate, Palmer, and Joshua Fink, Public Advocate, Anchorage, for the Appellant.
Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Danny Bradshaw appeals the superior court's denial of his application for post-conviction relief. Bradshaw argues that Superior Court Judge Eric Smith should have found his attorney's performance incompetent, and that Judge Smith improperly failed to address the merits of a potential suppression motion in the course of determining whether his attorney's allegedly incompetent performance affected the outcome of his case. We affirm the superior court because its decision is supported by the record.
Background facts and proceedings
In February 2002, Danny Bradshaw was arrested in Palmer for driving while under the influence. At the Palmer police station, Bradshaw submitted to a breath test; the test result showed a blood alcohol content of .155 percent. Bradshaw asked for an independent chemical test at his own expense to be performed at his physician's office in Wasilla. The officer who arrested Bradshaw, Palmer Police Officer Mark Lapinskas, told Bradshaw he could be transported for an independent test in Palmer, but not in Wasilla. Officer Lapinskas was the only officer on duty in Palmer at the time. Judge Smith found that Bradshaw was offered Valley Hospital in Palmer as an alternative.
The State charged Bradshaw with felony driving while under the influence under AS 28.35.030(n) because Bradshaw had at least two prior qualifying convictions. The court appointed the Public Defender Agency to represent Bradshaw.
Bradshaw told the assistant public defender who was assigned to his case that he might have prior convictions and a problem with his probationary status in Kansas. Although Bradshaw testified at the evidentiary hearing that he did not tell his public defender about a problem in Kansas, and in fact disputes that he has a felony conviction in Kansas, the superior court found that the public defender's testimony about the potential Kansas problem was credible. The public defender did not make any official inquiries into Bradshaw's criminal history in Kansas because she did not want to alert the Kansas or Alaska authorities to Bradshaw's possible abscond status. In addition, if the State had more time to research Bradshaw's record, Bradshaw's attorney thought he might face a longer mandatory minimum sentence.
The State proposed a plea agreement, and Bradshaw and his public defender discussed the proposal. Bradshaw asked his attorney about the potential issue regarding the independent blood test. They discussed the possibility of filing a motion to suppress the police department's breath test based on an argument that his right to an independent test of blood alcohol content was violated. Drawing on her preexisting understanding of the case law and after consulting with her colleagues at the Public Defender Agency, the attorney advised Bradshaw that she did not think the motion would prevail. In addition, Bradshaw was concerned about the time he might spend in jail and was worried about being away from his children.
See Gundersen v. Anchorage, 792 P.2d 673 (Alaska 1990).
Because the time to accept the State's plea offer was limited, the attorney advised Bradshaw that the offer might expire if she took the necessary time to research the suppression issue. The attorney testified that she discussed with Bradshaw the fact that if he wanted to pursue suppression of the breath test, he would have to turn down the State's plea agreement, wait for a grand jury indictment (the State had already filed an information), and then file the suppression motion. She told him that if the case proceeded to indictment, motion practice, and beyond, and if the State was able to prove that Bradshaw had other prior offenses, he might face a higher mandatory minimum sentence than the sentence the State was offering in the plea agreement. She also advised him that if the case went to trial, the State might learn of his Kansas parole violation, which could both increase his sentence for the current charged offense in Alaska and potentially lead to independent legal repercussions in Kansas. Finally, the attorney shared her opinion with Bradshaw that even if the suppression motion was granted, the State might convict him at trial with the remaining evidence.
Bradshaw accepted the plea agreement. In April 2002, Bradshaw waived indictment and pleaded no contest to one count of felony driving while under the influence.
AS 28.35.030(a)(1) and/or (2); AS 28.35.030(n).
After the change of plea, Bradshaw wrote a letter to his attorney asking again about the potential suppression motion. The attorney reminded Bradshaw of their earlier conversations discussing the motion. At sentencing in July 2002, Superior Court Judge Eric Smith imposed 2 years' imprisonment with all but 120 days suspended. Bradshaw did not appeal.
In April 2003, Bradshaw filed an application for post-conviction relief, alleging that he had received ineffective assistance of counsel. Bradshaw's public defender submitted an affidavit describing her representation of Bradshaw, and she and Bradshaw were the only witnesses who testified at the evidentiary hearing on Bradshaw's application.
Judge Smith found that the trial attorney's assessment of the potential motion was appropriately based on her knowledge of the law and consultations with her colleagues. He also found that the attorney was willing to do more research on the motion, but after presenting the benefits and drawbacks of doing so to Bradshaw, Bradshaw preferred to accept the State's plea agreement. He also found that the attorney's decision not to inquire into Bradshaw's criminal history was based on her fear of alerting Kansas or Alaska authorities to Bradshaw's (alleged) felony abscond status.
Judge Smith concluded that Bradshaw's attorney did not act incompetently, and dismissed Bradshaw's claim for post-conviction relief. Bradshaw appeals.
Discussion
In Risher v. State, the Alaska Supreme Court announced a two-prong test to determine whether a defendant has been denied effective assistance of counsel:
523 P.2d 421 (Alaska 1974).
Before reversal will result, there must first be a finding that counsel's conduct either generally throughout the trial or in one or more specific instances did not conform to the standard of competence which we have enunciated. Secondly, there must be a showing that the lack of competency contributed to the conviction. If the first burden has been met, all that is required additionally is to create a reasonable doubt that the incompetence contributed to the outcome.
Id. at 425.
The court defined the standard of competence as follows:
Lawyers may display a wide spectrum of ability and still have their performance fall within the range of competence displayed by one of ordinary training and skill in the criminal law. It is only when the ability is below the nadir of that range that we would hold it to constitute a deprivation of effective assistance of counsel. We are not condoning the second-guessing of trial counsel in making the myriad decisions encountered in a criminal trial, for it is a truism that hindsight furnishes 20-20 vision. All that is required of counsel is that his decisions, when viewed in the framework of trial pressures, be within the range of reasonable actions which might have been taken by an attorney skilled in the criminal law, regardless of the outcome of such decisions.
Id. at 424.
In addition, an applicant bears the burden to rebut the strong presumption that the trial attorney's actions were the product of "sound tactical considerations." In order to rebut this presumption, an applicant must present evidence that rules out the possibility of a tactical reason to explain his counsel's actions.
State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
Id.
Bradshaw's attorney testified that she analyzed the issue regarding Bradshaw's request to have an independent test at his doctor's office in Wasilla. The attorney obtained and reviewed the tape recordings of Bradshaw's DUI processing that contained the discussion of the independent test. She reviewed the police report. After analyzing the issue, she discussed the situation with Bradshaw, including her evaluation of the motion and the advantages and disadvantages of accepting the plea agreement.
Judge Smith concluded that the attorney's representation leading up to Bradshaw's decision to accept the plea agreement was not incompetent.
It was Bradshaw's burden to convince Judge Smith that his attorney was incompetent. From our review of the record, we conclude that the record supports Judge Smith's findings and his conclusion that Bradshaw's attorney was not incompetent. Thus, Judge Smith appropriately dismissed Bradshaw's application for post-conviction relief without considering the merits of the potential suppression motion.
Conclusion
The judgment of the superior court is AFFIRMED.