Opinion
A-14010
09-25-2024
DAVID S. FORSTER, Appellant, v. STATE OF ALASKA, Appellee.
Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
This is a summary disposition issued under Alaska Appellate Rule 214(a). Summary dispositions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d).
Appeal from the Superior Court, Third Judicial District Trial Court No. 3KN-11-01136 CI, Kenai, Lance Joanis, Judge.
Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, 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: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
David S. Forster was convicted of one count of first-degree murder and three counts of third-degree assault after he obtained a police officer's gun and then shot the officer twice, killing him. This Court affirmed his conviction on direct appeal.
AS 11.41.100(a)(1)(A) and AS 11.41.220(a)(1)(A), respectively.
Forster v. State, 236 P.3d 1157 (Alaska App. 2010).
Forster filed an application for post-conviction relief raising fourteen claims of ineffective assistance of counsel. The application included an affidavit from Forster's trial attorney in which the attorney explained the tactical decisions he made.
Among Forster's claims was that his trial attorney "failed to . . . [p]resent a reasonable theory of defense" by adopting a trial strategy that prioritized Forster's ability to appeal certain pretrial evidentiary rulings. The State moved to dismiss this claim for failure to state a prima facie claim, and the superior court granted this motion. Forster now appeals that ruling.
To plead a prima facie claim for post-conviction relief, an application must "specifically set forth the grounds upon which [it] is based" and provide evidence supporting the allegations. If the claim alleges ineffective assistance of counsel, the application must also plead facts establishing that the attorney performed incompetently and that the performance prejudiced the defendant. There is a presumption that attorneys are competent.
Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974).
State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988) (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)). See also Condon v. State, 498 P.2d 276, 285 (Alaska 1972) ("[A]n attorney's choice of defense theory ordinarily will not be subject to a claim of denial of effective assistance of counsel.").
We have reviewed the trial record and Forster's application, and we conclude that the application failed to state a prima facie case that Forster's trial attorney performed incompetently. The trial record demonstrates that Forster's attorney presented an opening statement, cross-examined twenty-eight State witnesses, admitted multiple exhibits, and presented a closing argument. Further, during closing argument, Forster's attorney highlighted Forster's erratic behavior and argued that Forster lacked the intent to commit first-degree murder and that the shooting was a tragic accident.
The trial attorney's affidavit explained that the attorney considered pursuing other defenses and defense tactics, including claiming insanity. But he elected not to pursue alternative defenses for various reasons, including the consequences of a "guilty but mentally ill" verdict, a lack of evidence, and the need for Forster to testify, which would have been "very detrimental" to Forster's appeal. In pretrial proceedings, the court had refused the defense attorney's request to suppress certain statements made by Forster after he was arrested, but did suppress others. As the attorney explained in his affidavit, his "focus at trial was to be sure the [S]tate relied on [Forster's] statement so as to avoid an issue of harmless error, and to seed the record with additional information that would support the conclusion that [these] statements were not admissible." The attorney was concerned that if Forster testified, this would undermine any chance of a successful appeal.
AS 12.47.050(b) ("The Department of Corrections shall provide mental health treatment to a defendant found guilty but mentally ill. The treatment must continue until the defendant no longer suffers from a mental disease or defect that causes the defendant to be dangerous to the public peace or safety."); State v. Clifton, 315 P.3d 694, 697 (Alaska App. 2013) (explaining that a defendant found "guilty but mentally ill" is required to receive mental health treatment while serving their sentence, and is ineligible for parole or furlough release while receiving this treatment).
Given these facts, we agree with the superior court that Forster's attorney was not incompetent. Rather, the attorney made a reasonable tactical decision about what defense to pursue, and "reasonable tactical decisions are virtually immune from subsequent challenge even if, in hindsight, better approaches could have been taken."
Alexander v. State, 838 P.2d 269, 273 (Alaska App. 1992) (citing Jones, 759 P.2d at 569-70).
Additionally, Forster has failed to show that he suffered prejudice - i.e., that "there is at least a reasonable possibility that the result at [his] trial would have been different but for the attorney's incompetence." In his amended application, Forster did not explain which alternative defenses (if any) were viable, what his testimony would have been had he testified at trial, how this testimony would have benefitted his defense, and how alternative defense tactics could have resulted in an acquittal. Forster therefore failed to plead a prima facie case that he was prejudiced by his attorney's performance.
State v. Carlson, 440 P.3d 364, 389 (Alaska App. 2019) (citing Risher, 523 P.2d at 424-25).
For these reasons, the superior court properly rejected Forster's application for post-conviction relief.
The judgment of the superior court is AFFIRMED.