Summary
suggesting that defendant could establish his innocence by clear and convincing evidence if he proved that "his illegal act was actually the product of entrapment"
Summary of this case from Clayton v. StateOpinion
Court of Appeals No. A-11959 No. 6393
10-26-2016
SHELDON MARVIN FOX II, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Olena Kalytiak Davis, Attorney at Law, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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. 4FA-13-1615 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Bethany S. Harbison, Judge. Appearances: Olena Kalytiak Davis, Attorney at Law, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. PER CURIAM.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
On January 23, 2008, Sheldon Marvin Fox II signed himself out of a community residential center where he was serving a prison sentence and did not return. The State charged Fox with first-degree unlawful evasion, to which Fox later pleaded guilty as part of a plea agreement pursuant to Alaska Criminal Rule 11.
AS 11.56.335(a)(1).
More than four years later, Fox filed a petition for post-conviction relief challenging his evasion conviction. According to the petition, Fox had recently learned that his placement at the community residential center violated Department of Corrections policies because of his prior criminal history. Fox argued that the State's decision to place him at the community residential center in contravention of the Department's policies, and to then prosecute him for leaving the facility, constituted entrapment.
Superior Court Judge Bethany S. Harbison dismissed the petition as untimely, ruling that the purportedly new information about Department of Corrections policies did not qualify as "newly discovered evidence" under the post-conviction exception for untimely petitions because the new information would not establish Fox's innocence by clear and convincing evidence.
On appeal, Fox argues that the judge erred in dismissing his petition as untimely. We find no error.
Under AS 12.72.020(a)(3)(A), a claim for post-conviction relief must be brought within eighteen months of the entry of judgment on the conviction or, if the judgment was appealed, within a year after the appeal was decided. The legislature has codified an exception to this timeliness rule for claims based on newly discovered evidence. But to qualify for this exception, the petitioner must demonstrate, among other things, that the new evidence "establishes by clear and convincing evidence that the applicant is innocent." In other words, to survive the State's motion to dismiss, Fox was required to allege facts which, if proven, would establish that his illegal act was actually the product of entrapment.
AS 12.72.020(b)(2).
AS 12.72.020(b)(2)(D).
To prove the affirmative defense of entrapment under Alaska law, a defendant must show that a public law enforcement official induced the defendant "to commit the offense by persuasion or inducement as would be effective to persuade an average person, other than one who is ready and willing, to commit the offense." The defendant must also demonstrate "that the questioned police conduct actually caused the defendant to engage in the illegal conduct."
AS 11.81.450.
White v. State, 2014 WL 1356891, at *5 (Alaska App. Apr. 2, 2014) (unpublished) (citing Anchorage v. Flanagan, 649 P.2d 957, 962 (Alaska App. 1982); Grossman v. State, 457 P.2d 226 (Alaska 1969)).
Here, even viewing the facts in the light most favorable to Fox's petition, Fox has failed to allege a prima facie case of entrapment. Specifically, Fox has failed to demonstrate any causal relationship between his illegal conduct (failing to return to the community residential center) and the State's decision to place him at the facility in violation of Department of Corrections policies. Because Fox has not alleged facts which, if proven, would establish his actual innocence, we find no error in the dismissal of his petition.
See Lindeman v. State, 244 P.3d 1151, 1153 (Alaska App. 2011). --------
We accordingly AFFIRM the judgment of the superior court.