Opinion
Court of Appeals No. A-11161 Trial Court No. 3AN-09-9038 CI No. 5965
07-24-2013
RAY C. HELVESTON, Appellant, v. STATE OF ALASKA, Appellee.
Michael R. Smith, Portland, Oregon, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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.
MEMORANDUM OPINION
AND JUDGEMENT
Appeal from the Superior Court, Third Judicial District, Anchorage, Andrew Guidi, Judge.
Appearances: Michael R. Smith, Portland, Oregon, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Bolger, Supreme Court Justice.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge ALLARD.
Ray C. Helveston was convicted of first-degree burglary and second-degree theft following a jury trial. After his convictions were affirmed on direct appeal, Helveston filed an application for post-conviction relief claiming ineffective assistance of trial counsel with regard to the burglary conviction (Helveston is no longer challenging the theft conviction).
Helveston's application survived an initial motion to dismiss for failure to state a prima facie case but was later dismissed on summary disposition. Following the dismissal, Helveston filed an untimely motion for reconsideration, attaching new evidence he wanted the superior court to consider. The superior court denied the motion for reconsideration.
Helveston now appeals, arguing that the superior court erred in failing to consider the new evidence submitted after his case was dismissed and failing to grant his motion for reconsideration. We conclude that Helveston's amended application (even with the new evidence) failed to raise any genuine issues of material fact warranting an evidentiary hearing. Accordingly, we affirm the superior court's dismissal of Helveston's application for post-conviction relief.
Factual Background and Prior Proceedings
In September 2007, the Anchorage residence of knife-maker and renowned artisan Bob Merry was burglarized. Shortly after the burglary, Helveston and a female companion, Tita Shelhamer, tried to sell some of the stolen ulus to a local store. Helveston was later arrested and charged with first-degree burglary and second-degree theft.
At trial, the State's case against Helveston on the burglary charge relied entirely on the trial testimony of Bryan McKay, a childhood friend of Helveston. McKay, who was facing felony charges of his own, was briefly housed in jail with Helveston. McKay testified that while they were "roommates," Helveston confessed to committing the burglary, providing specific details to McKay about the burglary and the stolen items that only the burglar would know. McKay also testified that he had seen some of the stolen items in Helveston's bathroom during a visit to Helveston's apartment shortly after the burglary.
Helveston's attorney, Adam Bartlett, argued to the jury that McKay was lying and that McKay had fabricated Helveston's confession to obtain favorable treatment on his own pending felony charges. Bartlett argued that McKay had access to Helveston's police reports and learned the details about the burglary and the stolen items through the police reports, not from Helveston. With regards to the theft charge, Bartlett argued that Helveston had not known that the ulus were stolen and that he was simply accompanying Tita Shelhammer.
The jury convicted Helveston of second-degree theft and first-degree burglary. Helveston appealed to this Court, which affirmed the convictions, holding that the superior court had not unfairly curtailed Bartlett's ability to cross-examine McKay on his then-pending felony charges.
See Helveston v. State, 2010 WL 1006562, at *5 (Alaska App. 2010).
While Helveston's direct appeal was still pending, Helveston filed a pro se application for post-conviction relief, alleging ineffective assistance of counsel against Bartlett and raising many of the same arguments he was making on direct appeal. Helveston was appointed counsel for his post-conviction case, but the application was otherwise stayed pending the resolution of the direct appeal.
On January 31, 2011, approximately ten months after the direct appeal was final, Helveston filed an amended application for post-conviction relief through his appointed counsel. In the amended application, Helveston argued that Bartlett had provided ineffective assistance of counsel by (1) failing to implement "an effective legal strategy and technique to impeach Mr. McKay"; and (2) failing to investigate and secure the testimony of "potentially exculpatory" witnesses who could have further impeached McKay.
The amended application only named one "potentially exculpatory" witness, Marquis Eloi. In his affidavit, however, Helveston identified two other "potentially exculpatory" witnesses, Dawn Osmos and Nick Lause. Helveston claimed that these three witnesses were "potentially exculpatory" because they would have been able to testify to his alibi at the time of the burglary and/or to seeing McKay with Helveston's police reports in his possession. Helveston further claimed that he had identified these three witnesses to Bartlett and/or Bartlett's investigator, Vern Rollins (now deceased), but that to his knowledge none of them were ever contacted by his defense team in time for trial.
Prior to filing an answer to Helveston's amended application, the State filed a motion to dismiss for failure to state a prima facie case, pointing out that the amended application lacked an attorney affidavit from Bartlett, a required element under Alaska law.
See Peterson v. State, 988 P.2d 109, 113 (Alaska App. 1999); Steffensen v. State, 837 P.2d 1123, 1126-27 (Alaska App. 1992); State v. Jones, 759 P.2d 558, 570 (Alaska App. 1988).
After Helveston filed an affidavit from Bartlett, the State filed an answer and the case proceeded to the discovery phase. In his affidavit, Bartlett acknowledged that he was responsible for directing the investigation and requesting what witnesses should be contacted. He stated, however, that he believed that he or his investigator spoke with "all the important exculpatory witness [sic] prior to trial." Bartlett's affidavit did not mention Dawn Osmos, Nick Lause, or Marquis Eloi by name; nor did it address whether he ever knew about these witnesses, and, if so, why he did not consider them "important exculpatory witnesses."
See Steffensen, 837 P.2d at 1126-27 (attorney's affidavit must be directly responsive to defendant's claims).
On August 24, 2011, Superior Court Judge Andrew Guidi issued an order denying the State's motion to dismiss and scheduling an evidentiary hearing for November 7, 2011.
In the interim, however, the State filed a motion for summary disposition. The State argued that discovery had demonstrated that there were no genuine issues of material fact in dispute and that the State was entitled to judgment as a matter of law. The State emphasized that Helveston had failed to produce an affidavit directly from Eloi and therefore failed to demonstrate that his testimony would have been exculpatory or that it would have made any difference to the outcome of his case.
See Alaska R. Crim. P. 35.1(f)(3) ("The court may grant a motion by either party for summary disposition of the application when it appears from the pleadings, depositions, answers to interrogatories, and admissions and agreements of fact, together with any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.").
See Allen v. State, 153 P.3d 1019, 1026 (Alaska App. 2007) ("[A] defendant seeking post-conviction relief must supply supporting affidavits from people who could testify to the pertinent information if called to the stand — or, alternatively, the defendant must explain why such affidavits can not be obtained."); Jones, 759 P.2d at 574 (defendant has a duty "to allege and prove ... what would have been said by [the] potential witnesses who were not called").
Helveston opposed the State's motion for summary disposition, arguing that the motion was "simply an attempt to have a second bite at the apple" after its first motion to dismiss was denied. Helveston claimed that he was entitled to an evidentiary hearing simply because his case had survived the State's prior motion. Helveston's attorney also filed an affidavit, asserting that his investigator had located and interviewed Eloi and was working on getting an affidavit from Eloi. Helveston argued that was sufficient to warrant a full evidentiary hearing on his claims. He did not request a continuance so that an affidavit could be secured; nor did he ask for leave to supplement his opposition.
A month after Helveston filed his opposition, and after briefing on the State's motion for summary disposition was complete and the motion was otherwise ripe for a ruling, Helveston filed a "supplement" to his opposition to the State's motion. The supplement included a signed (but unnotarized) affidavit from Eloi.
Eloi's affidavit was very short. In his affidavit, Eloi stated that he had seen Native art items in McKay's residence around the time of the burglary and that the items seemed out of place. Months later, Eloi found out that Helveston (not McKay) was charged with the theft of similar items. Helveston argued that Eloi's affidavit raised a triable issue of fact as to the competency of Bartlett's pretrial investigation because, if called to testify, Eloi could have impeached McKay by suggesting that McKay, not Helveston, was the burglar.
Judge Guidi agreed to consider the late-filed Eloi affidavit, even though it was filed without leave of the court. The judge gave the State ten days to respond to the Eloi affidavit but indicated that he intended to rule on the pending motion immediately afterwards.
The State timely filed its response. The State argued that Helveston's application was still insufficient as a matter of law even with Eloi's affidavit. The State also pointed out that Helveston had previously admitted under oath in response to an interrogatory request that he was unaware of Eloi's existence prior to trial. The State argued, therefore, that Bartlett could not be ineffective as a matter of law for failing to secure a witness that nobody had known about at the time.
On November 4, 2011, shortly after receiving the State's response, the superior court issued an order granting the State's motion for summary disposition and dismissing Helveston's case.
After issuing the order, the court received another supplemental pleading from Helveston. The new supplemental pleading response contained information about an entirely new exculpatory witness, Tanya Hicks, who had just been located by Helveston's investigator, but who had never been mentioned before in Helveston's pleadings.
Helveston then filed an untimely motion for reconsideration, attaching the supplemental pleading and two new affidavits. The first affidavit was from the investigator who had interviewed Hicks over the telephone but had not been able to obtain an affidavit from her because of bad weather. The investigator reported that Hicks had told her that she was familiar with both McKay and Helveston and that McKay's nickname was "Booster" because he liked to "boost" (i.e., steal) things. Hicks also told the investigator that she was present at Helveston's house when McKay convinced Helveston to sell Native art items that McKay had in his backpack, and which McKay represented he had stolen. Finally, Hicks told the investigator that she was familiar with Helveston's lawyer, Adam Bartlett, because he had previously represented her, but that Bartlett had never mentioned Helveston or McKay to her.
The second affidavit was from Nick Lause, one of the "potentially exculpatory" witnesses mentioned in Helveston's affidavit. Like Eloi's affidavit, Lause's affidavit was very short, and like Eloi's affidavit, it did not actually provide the exculpatory evidence about Helvestion's alibi or the police reports that Helveston had claimed it would. Instead, Lause's affidavit stated that he was living with Helveston around the time of the burglary because he was homeless. He stated that he was using Helveston's bathroom every day during this time but that he had never seen any Native art items in the bathroom, as McKay had claimed in his trial testimony. Lause's affidavit also stated that he had been contacted prior to trial by Vern Rollins, Bartlett's investigator, but that Rollins had not shown for their scheduled interview.
In his motion for reconsideration, Helveston argued that the testimony of these three witnesses — Eloi, Hicks, and Lause — singly or in combination, raised a triable issue of fact as to the competency of Bartlett's pretrial investigation and the reasonableness of his impeachment strategy at trial.
The superior court denied the motion for reconsideration, reaffirming its decision that the State was entitled to summary disposition. This appeal followed.
Discussion
On appeal, Helveston makes four overlapping arguments for reversal: (1) that the superior court erred in failing to consider the second supplemental response prior to dismissing Helveston's case; (2) that the court erred in failing to consider the new evidence contained in Helveston's motion for reconsideration; (3) that the court erred in failing to provide Helveston with notice of its intent to dismiss and an opportunity to be heard prior to dismissing his case; and (4) that the court erred in failing to hold the scheduled evidentiary hearing when Helveston's amended application raised triable issues of material fact.
Did the superior court err in dismissing Helveston's case without considering Helveston's second supplemental response?
Helveston argues first that the superior court erred in dismissing his case without considering Helveston's second supplemental pleading, which Helveston claims the court received prior to dismissing Helveston's case, and which Helveston also claims contained "vital exculpatory evidence."
But the record is clear that the superior court did not receive Helveston's second supplemental pleading until after it had already ruled on the State's pending motion for summary disposition and after it had already dismissed Helveston's case. The record is also clear that Helveston provided no notice to the court that he intended to file a second supplemental response, nor did he ever request a continuance or leave from the court to do so. Given these circumstances, it was not an abuse of discretion for the superior court to rule on the pending motion for summary disposition without considering a supplemental pleading that it had not yet received and which it had no reason to believe would be filed.
Cf. Alaska R. Civ. P. 56(f) (trial court may grant continuance or delay ruling on a motion for summary judgment when the non-moving party requires additional time to obtain the discovery needed to properly respond to the motion); see also Mat-Su Regional Medical Center, LLC v. Burkhead, 225 P.3d 1097, 1104-05 (Alaska 2010) (requests for a continuance under Civil Rule 56(f) should be "freely granted" if the non-moving party provides an adequate explanation for why the necessary evidence could not be obtained within the original time frame).
Did the superior court err in failing to consider the new evidence Helveston submitted as part of his untimely motion for reconsideration?
Helveston argues next that the superior court erred in denying his motion for reconsideration without considering the new evidence and affidavits he submitted as part of that motion.
But, as the State points out in its briefing, a trial court is generally under no obligation to consider evidence that is not properly before it. Under Civil Rule 77(k), a motion for reconsideration must be filed within ten days of the trial court's decision and the motion cannot be based on evidence or an argument that has not been previously presented to the court. As the Alaska Supreme Court has noted:
We refuse to allow a motion for reconsideration to be used as a means to seek an extension of time for the presentation of additional evidence on the merits of the claim. To do so would defeat the limited purpose of Rule 77(k): to remedy mistakes in judicial decision-making where grounds exist, while recognizing the need for a fair and efficient administration of justice.Moreover, if a trial court declines to address new evidence submitted as part of a motion for reconsideration, the issue typically cannot be pursued on appeal.
Magden v. Alaska USA Fed. Credit Union, 36 P.3d 659, 663 (Alaska 2001).
Cooper v. Dist. Court, 133 P.3d 692, 715-16 (Alaska App. 2006) (citing Blackburn v. Dep't. of Transp. & Pub. Facilities, 103 P.3d 900, 906 (Alaska 2004)).
In his reply brief, Helveston acknowledges at least some of the procedural infirmities of his motion for reconsideration, but he argues that "good cause" existed for the late filing. As discussed in more detail below, we do not necessarily agree that "good cause" existed for the untimeliness and procedural irregularities in Helveston's pleadings. However, we do not need to resolve this question directly, given our conclusion that the State was still entitled to judgment as a matter of law, even with the new information.
Did the superior court fail to give Helveston adequate notice and an opportunity to be heard prior to dismissing his case?
Helveston argues that the superior court erred in not giving him notice of its intent to dismiss prior to dismissing his case. But as we recognized in Tall v. State, a trial court is not required to provide a separate notice of intent to dismiss "when the court grants a dismissal in response to a motion by the State and for the reasons advanced in that motion."
25 P.3d 704, 707 (Alaska App. 2001).
Here, the State moved for summary disposition and the trial court ultimately dismissed the case for the reasons advanced in the State's motion after giving Helveston a full opportunity to respond to the motion. Like the defendant in Tall, therefore, Helveston received clear notice of the proposed dismissal and the reasons for the dismissal. And like the defendant in Tall, he cannot now claim surprise or lack of opportunity to correct whatever defects still remained in his application.
See id.
See id.
Did Helveston's amended application (with or without the new evidence) raise any genuine issues of material fact requiring an evidentiary hearing?
Finally, Helveston argues that the superior court erred in dismissing his application because he claims his application raised genuine issues of material fact regarding whether Bartlett provided ineffective assistance of counsel in his case. Helveston asserts that a competent pretrial investigation would have found Eloi, Hicks, and Lause, and that a competent attorney would have also used these witnesses to impeach McKay, rather than relying solely on McKay's pending felony charges for impeachment.
But as we emphasized in LaBrake v. State, conclusory allegations of a trial attorney's ineffectiveness are insufficient to plead a prima facie case of ineffective assistance of counsel and insufficient to provide any grounds for post-conviction relief. As we explained in LaBrake:
152 P.3d 474, 481 (Alaska App. 2007).
[A] court deciding a motion for judgement on the pleadings need not assume the truth of the non-moving party's conclusions of law, nor the truth of the non-moving party's assertions concerning facts that are legally impossible, or the party's assertions concerning matters that would not be admissible in evidence. Moreover, the court need not assume the truth of assertions that are patently false or unfounded, based on the existing record or based on the court's own judicial notice. In addition, a court need not assume the truth of pro forma assertions of the ultimate facts to be proved when these assertions are not supported by specific details.Thus, in order to raise genuine triable issues of fact on his ineffectiveness claims, Helveston needed to assert specific facts that, if later proven at an evidentiary hearing, would establish that no competent attorney would have failed to locate and secure these potentially exculpatory witnesses and that Bartlett's actions (or lack thereof) were not based on "sound tactical considerations."
Id. (citing 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1368, at 243-45, 255 (3d ed. 2004)).
See Jones, 759 P.2d at 568-69; Risher v. State, 523 P.2d 421 (Alaska 1974).
Helveston's pleadings fail to meet this standard as a matter of law. During discovery, Helveston admitted under oath that he had no knowledge of Eloi prior to trial, and he does not claim otherwise on appeal. Instead, Helveston's investigator simply asserts that "a competent pretrial investigation" would have produced Eloi. But this type of conclusory assertion is insufficient under LaBrake.
Helveston's pleadings face a different problem with regards to Hicks, the exculpatory witness who is never mentioned in his earlier pleadings and whose purportedly exculpatory testimony is based on the hearsay statements of the investigator who interviewed her over the telephone rather than an affidavit from Hicks herself. Although Helveston tries to ignore these procedural problems in his appeal, both are fatal under Alaska's post-conviction relief law.
See Allen, 153 P.3d at 1024-25 (investigator's hearsay affidavit of witness interview insufficient to state prima facie case for relief); State v. Savo, 108 P.3d 903, 909 (Alaska App. 2005) (defendant has duty to confront trial attorney with acts or omissions that defendant contends demonstrate incompetence); Steffensen, 837 P.2d at 1126 (if the trial attorney's affidavit does not address a crucial point, the defendant's application remains deficient).
Moreover, even if we accept the truth of Hicks's hearsay statements to the investigator, it is clear that her testimony was "potentially exculpatory" only as to the burglary charge and was entirely inculpatory with regards to the theft charge. According to her statements, Hicks was present in Helveston's apartment when McKay allegedly convinced Helveston to sell the Native art items that McKay represented he had himself stolen. Under Hicks's version of events, therefore, Helveston was guilty of selling stolen property and her testimony would have directly undermined his defense to the theft charge at trial, which was that he was simply accompanying Tita Shelhammer and did not know the ulus were stolen. Given the partially incriminating nature of Hicks's potential testimony, therefore, it is entirely understandable why Bartlett might not have considered her an "important exculpatory witness," even assuming arguendo that Helveston ever told Bartlett about Hicks.
In any case, Helveston's pleadings fail to establish that Bartlett knew about Hicks or that Bartlett should have known about Hicks. Unlike the other "potentially exculpatory" witnesses, Helveston's affidavit does not claim that he told Bartlett or Rollins about Hicks. Indeed, none of his initial pleadings even mention Hicks's name. The first time Helveston mentions Hicks is in the second supplemental response, which was filed only after the superior court granted the State's motion for summary disposition and after Helveston's case had been dismissed.
Helveston tries to argue that he had "good cause" for the untimely pleadings, claiming that Hicks was a "newly discovered" witness. But a claim of "newly discovered evidence" is generally incompatible with a claim of ineffective assistance of counsel. Counsel cannot be deemed ineffective for failing to secure evidence that he or she was not told about and had no reason to know about. Moreover, evidence qualifies as "newly discovered" only if the evidence was unknown to the defendant and the defense attorney at the time of trial and the evidence could not have been discovered through reasonable diligence. Here, Helveston was certainly personally aware of Hicks's existence and the nature of her potentially exculpatory information because he was present at the scene Hicks claimed to have witnessed, even though it is not clear that he ever told Bartlett about Hicks. Hicks does not qualify as a "newly discovered" witness; nor does her hearsay interview with the investigator raise any triable issues of material fact regarding Bartlett's alleged ineffectiveness in failing to secure her testimony prior to trial.
Salinas v. State, 373 P.2d 512, 514 (Alaska 1962).
Sharp v State, 837 P.2d 718, 722 (Alaska App. 1992).
Ultimately, the only "potentially exculpatory" witness that Helveston's pleadings affirmatively indicate Bartlett may have known about prior to Helveston's trial was Lause. But although Helveston's pleadings establish that Bartlett may have known about Lause, they still fail to establish that Bartlett was incompetent for failing to secure Lause for trial.
While trial counsel must make "reasonable efforts" to locate important witnesses, what constitutes a "reasonable effort" hinges on the circumstances known to counsel at the time: "[E]xpenditure of time and effort is dependent on a reasonable indication of materiality." Here, Helveston asserts no facts that, if proven, would support the conclusion that Bartlett was ineffective for failing to secure the testimony of Lause, a witness who was clearly reluctant to cooperate and whose actual impeachment value as shown by his affidavit was negligible.
Allen, 153 P.3d at 1026 (quoting Jones, 759 P.2d at 572).
As we explained in State v. Jones, a motion for summary disposition under Alaska Criminal Rule 32.1(f)(3) is intended to provide an efficient, orderly procedure for the disposition of non-meritorious applications for post-conviction relief, without the need to hold a full evidentiary hearing. Based on our de novo review of Helveston's pleadings, we conclude that the superior court did not err in dismissing Helveston's case at summary disposition and in later denying his untimely motion for reconsideration. In addition to the procedural infirmities of his various pleadings, Helveston's pleadings fail to raise any triable issues of material fact warranting an evidentiary hearing in this case.
759 P.2d at 565-66.
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Conclusion
The judgment of the superior court is AFFIRMED.