Opinion
Court of Appeals No. A-9985.
June 30, 2010.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-03-489 CR.
Glenda J. Kerry, Law Office of Glenda J. Kerry, Girdwood, for the Appellant. W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
As part of a plea agreement, Alex Headrick agreed to enter a plea to murder in the second degree. The change of plea hearing was held October 29, 2004, in front of Superior Court Judge Eric Smith. The parties agreed that the court would impose a jail sentence of at least 30 years, but not more than 40 years. At the conclusion of the hearing, Judge Smith accepted the plea.
Headrick moved to withdraw his plea, ultimately relying on a claim that he received ineffective assistance of counsel. Judge Smith rejected Headrick's claim, finding that Headrick did not establish a prima facie case of ineffective assistance of counsel. We affirm Judge Smith's decision.
On appeal, Headrick raises additional issues he did not raise in the trial court. He argues that Judge Smith did not comply with Alaska Criminal Rule 11 in several respects. Headrick also argues that Judge Smith erred in accepting his plea, because he did not personally enter his plea of guilty or no contest. We conclude that these issues were not preserved for appeal and that Headrick has not established plain error.
Factual and procedural background
On November 14, 2005, over one year after the change of plea hearing and four days before the scheduled sentencing hearing, Headrick moved to withdraw his plea. In his motion, he alleged that he had received ineffective assistance of counsel because at the time he entered his change of plea he had not been advised that his attorney, David Berry, who had previously worked for the Department of Law, prosecuted him in "an unrelated misdemeanor matter some years before." Headrick asked for a hearing to determine whether Berry's representation was ineffective. Later Headrick asserted that Berry had an additional conflict of interest because he "may have represented Joshua Butler during a time when Mr. Butler was poised to testify against Mr. Headrick in an unrelated case. . . ." Headrick also asserted that he "did not fully understand the nature of the plea agreement in that he believed his total sentence, including suspended time, could not exceed 40 years."
An evidentiary hearing was continued several times for various reasons. On June 28, 2006, Sidney Billingslea entered her appearance as counsel for Headrick. The evidentiary hearing on Headrick's motion to withdraw his plea was continued to September 22, 2006. At this hearing, Headrick appeared in court, represented by Billingslea. She withdrew the motion to withdraw Headrick's plea and asked for a sentencing hearing in February. Headrick also addressed the court and indicated that he wanted the court to set a sentencing date in February 2007. Judge Smith scheduled sentencing for February 2, 2007.
On February 2, 2007, Billingslea informed the court that she might have a conflict of interest. Headrick informed the court that he was dissatisfied with Billingslea's representation because she had not done any independent investigation and had only advised him of what the State's case consisted of. He asked to withdraw his plea. Billingslea asked to withdraw from the case. The court granted her request. Judge Smith set a sentencing date for March 16, 2007, and ordered Headrick to file any plea withdrawal motion by March 9, 2007.
On February 8, 2007, Windy East entered her appearance on behalf of Headrick. She moved to continue the March 16, 2007, sentencing hearing. Judge Smith granted this motion and continued the hearing for March 30, 2007. East filed a motion to withdraw plea on March 29, 2007. But she informed the court that she had not had time to completely review Hendrick's case. Judge Smith asked for more briefing and told East that she should file a motion for plea withdrawal on all issues.
East filed a more detailed motion on April 14, 2007. In this motion, Headrick asserted that he had received ineffective assistance of counsel from Berry and Billingslea because neither had conducted an independent investigation into his case. Headrick also asserted that Berry had a conflict of interest at the time that Headrick pled no contest. He asserted that Billingslea was ineffective because she did not independently research his case.
Judge Smith denied Headrick's motion to withdraw his plea. Judge Smith concluded that Headrick had not provided an affidavit from Billingslea and had not presented any information tending to show that she had provided ineffective assistance of counsel. Thus, any claim that Headrick had about Berry's performance was moot because Headrick was later competently represented by Billingslea. With her assistance, Headrick had withdrawn his motion to withdraw his plea and agreed to go forward with sentencing based on his original plea.
Judge Smith reasoned that, to the extent that the issues surrounding Berry's representation were not moot, Headrick had not made a prima facie case of ineffective assistance because he had not presented any evidence in support of his allegations. He pointed out that Headrick never filed his own affidavit and had not obtained an affidavit from Berry. Judge Smith indicated that he had no information about any possible conflicts of interest. Thus, Headrick had not provided any information from which Judge Smith could conclude that Berry had provided ineffective assistance of counsel. Judge Smith went on to conclude that the State would be severely prejudiced if he allowed Headrick to withdraw his plea and that Headrick was attempting to manipulate the system.
Why we uphold Judge Smith's decision
We affirm Judge Smith's decision denying Headrick's motion to withdraw his plea. Headrick's motion was based on an allegation that he received ineffective assistance of counsel in entering his plea. But to show ineffective assistance of counsel, a defendant cannot rely on conclusory or speculative allegations. In almost all circumstances, to show ineffective assistance of counsel, a defendant must submit an affidavit from the counsel he alleges provided the ineffective assistance to allow the court to decide the defendant's claim. We agree with Judge Smith that Headrick did not present a prima facie case of ineffective assistance because he did not submit an affidavit from Berry. He never presented evidence that Berry had any conflict of interest. And he did not explain how any conflict of interest might have affected Berry's representation. Headrick has also not established that Judge Smith was incorrect in deciding that the issue of Berry's representation was moot in light of the fact that, while represented by Billingslea, Headrick withdrew his motion to withdraw his plea and, by implication, reaffirmed his desire to go forward with the plea agreement.
State v. Jones, 759 P.2d 558, 570-75 (Alaska App. 1988).
We also conclude that Judge Smith did not err in holding that Headrick did not establish a prima facie case that Billingslea provided ineffective assistance of counsel. Headrick never submitted his own affidavit or an affidavit from Billingslea. Headrick's claim that Billingslea provided ineffective assistance of counsel simply relies on conclusory allegations.
From the record, it seems clear that Headrick had every opportunity to present his allegations when he was represented by Windy East. Judge Smith did not err in finding that Headrick had not established a fair and just reason to withdraw his plea. The issues Headrick raises for the first time on appeal
On appeal, Headrick raises additional issues he did not raise in the trial court. To prevail on these issues, Headrick must establish plain error. To establish plain error, Headrick must show the error was so obvious that it would have been apparent to any competent judge or lawyer even without an objection and that the error was so substantially prejudicial that failure to correct it on appeal would constitute a miscarriage of justice.
Adams v. State, 927 P.2d 751, 756 (Alaska App. 1996).
Headrick argues that "[t]he court did not substantially comply with Criminal Rule 11 and the non-compliance affected substantial rights of Mr. Headrick." Headrick never raised this issue in the trial court. He therefore never alleged that the violations of Criminal Rule 11 substantially affected his rights. And neither the State nor the court had the opportunity to address this issue. We therefore conclude that the issue was not preserved for appeal. We hold that the court's failure to comply with Criminal Rule 11 does not constitute plain error because failure to correct it on appeal would not result in the miscarriage of justice.
Headrick argues that Judge Smith erred in accepting his plea because at the change of plea hearing he did not personally enter a plea of guilty or no contest. Headrick raises this issue for the first time on appeal. Both the State and Headrick rely on State v. Burns. In that case, the Wisconsin Supreme Court strongly suggested that the trial court, in accepting a plea, should require the defendant to personally enter a guilty or no contest plea. The court stated: "[A] defendant expressly and personally pleading guilty or no contest on the record in open court is the best way for a circuit court to assure itself that the defendant has personally made the decision to so plead." The court urged "circuit courts to follow the usual and strongly preferred practice of asking defendants directly and personally in open court and on the record how they plead to the charged offenses and of entering the pleas on the record." However, in Burns, in spite of the fact that the trial court had failed to have Burns personally enter his plea, the appellate court concluded that "the only inference possible from the totality of the facts and circumstances in the record is that the defendant intended to plead no contest." The appellate court therefore concluded that the record established the defendant's intent to enter a no contest plea in spite of the fact that the defendant did not personally enter a plea.
594 N.W.2d 799 (Wis. 1999).
Id. at 801 (footnote omitted).
Id. at 804-05.
Id. at 805.
Therefore, the authority that Headrick relies on holds that a defendant does not have to personally enter a plea of guilty or no contest for the plea to be valid. Relying on Burns, Headrick goes on to argue that the record in his case does not clearly establish that his intent was to plead guilty or no contest. But because Headrick did not raise this issue in the trial court, the parties have not had an opportunity to develop the record and the trial court never had the opportunity to rule on this issue. We therefore conclude Headrick did not preserve this issue for appeal. He has not established plain error.
Conclusion
The judgment of the superior court is AFFIRMED.