Summary
concluding that an attorney's letter to the defendant - which "outlined the evidence against [the defendant], evaluated the difficult choice that he faced, and strongly urged [the defendant] to accept the State's offer" - was not inherently coercive
Summary of this case from Chamberlain v. StateOpinion
Court of Appeals No. A-10290.
October 7, 2009.
Appeal from the Superior Court, First Judicial District, Petersburg, Trevor Stephens, Judge, Trial Court No. 1PE-08-00010 CI.
David K. Allen, Assistant Public Advocate, Fairbanks, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard A. Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Thomas Even son III was charged with murder in the first degree and murder in the second degree along with two codefendants, Anthony Haube and Tom Lyons. Evenson's first trial ended with a hung jury. After Evenson's second trial, the jury acquitted him of murder in the first degree, but it did not reach a verdict on the charge of murder in the second degree. So the superior court scheduled a third trial on Evenson's second-degree murder charge.
Meanwhile, codefendant Lyons entered into a plea agreement in which he pled guilty to criminally negligent homicide and received a sentence of 10 years' imprisonment with 3 years suspended. Codefendant Haube was convicted by jury of murder in the second degree, and shortly after Evenson's second trial, Haube received a sentence of 85 years' imprisonment.
Several weeks after Haube's sentencing hearing, the State made an offer to allow Evenson to plead no contest to a reduced charge of assault in the second degree in return for a sentence of 8 years' imprisonment with 3 years suspended. Evenson's attorney relayed the offer in a letter strongly encouraging Evenson to accept.
Evenson accepted the State's offer and entered a plea of no contest to the reduced charge of assault in the second degree. During the plea hearing, the judge asked Evenson if anyone had pressured him into accepting the agreement, and Evenson replied, "No."
Prior to the sentencing hearing, disputes arose because Evenson filed a pro se pleading objecting to the court's consideration of certain aggravating factors. But at the sentencing hearing, Evenson's attorney stated that Evenson did not have any objection to the aggravating factors that were required to support the sentencing agreement. The judge told Evenson that if he objected to the sentencing portion of the agreement, then he would have to move to withdraw his plea. Evenson adamantly declined to do so.
About a month later, Evenson filed a pro se application for post-conviction relief. The court appointed new counsel, and Evenson determined to proceed solely on the claim that his plea was coerced by his trial attorney.
The application alleged that Evenson's trial attorney had written him a letter that "threatened] and coerce[d]" him into pleading no contest to assault in the second degree. The application also alleged that the letter was a denial of Evenson's constitutional right to effective assistance of counsel. A copy of the letter was attached to the application.
Evenson also filed an affidavit from his trial attorney responding to the coercion claim. The affidavit includes the following specific response:
I am aware that Mr. Evenson claims that I exerted undue pressure on him to change his plea. I do not concur with Mr. Evenson's characterization of our discussions. Neither myself nor Mr. Fannon exerted coercive pressure on Mr. Evenson in these discussions. I presented to Mr. Evenson legal advice regarding the possible outcome of a third trial, and an analysis of strategic improvements the State could make to its case before a third trial.
The affidavit makes it clear that the discussions between Evenson and his attorney were based on the letter attached to his application for post-conviction relief.
The State filed a motion to dismiss Evenson's application for post-conviction relief, and the superior court granted the motion. The court concluded that the letter from the defense attorney to Evenson was not inherently coercive, and that Evenson had failed to allege any facts explaining how he was coerced, or any facts that would establish that his attorney was incompetent. Evenson filed this appeal from the superior court's order dismissing his application for post-conviction relief.
An application for post-conviction relief that states only conclusory allegations of attorney misconduct fails to state a prima facie case. To avoid dismissal, the application must allege facts ruling out the possibility that the attorney made a sound tactical choice. In particular, conclusory allegations that a defendant has been coerced into accepting a plea agreement are insufficient to overcome the presumption of competence that attaches to a trial attorney's advice.
State v. Jones, 759 P.2d 558, 570 (Alaska App. 1988).
Serradell v. State, 129 P.3d 461, 463 (Alaska App. 2006).
Evenson, however, argues that he has raised disputed factual issues based on this court's decision in Vizcarra-Medina v. State. But in Vizcarra-Medina, the defendant actually filed multiple letters declaring that he was willing to assert under oath that he did not understand key terms of his plea agreement with the State. Vizcarra-Medina would have been entitled to relief if the superior court believed his testimony.
195 P.3d 1095 (Alaska App. 2008).
Id.
Id. at 1097.
But in the present case, Evenson has failed to plead any facts showing that he was actually subject to coercion. He relies solely on the wording of the letter he received from his attorney. However, the superior court accurately noted that the letter itself was not inherently coercive. In fact, the letter clearly suggested that it was Evenson's choice whether to go to trial, even though his attorney strongly advised against it.
The letter bluntly outlined the evidence against Evenson, evaluated the difficult choice that he faced, and strongly urged Evenson to accept the State's offer. Evenson does not allege that any of the statements in the letter were untrue or that any of his attorney's advice was incompetent. The superior court could properly conclude that this letter, unaccompanied by any other factual assertions, was insufficient to allege a prima facie case for post-conviction relief.
We therefore AFFIRM the superior court's judgment.