Opinion
A-13145
09-01-2021
ABRAHAM HENRY, Appellant, v. STATE OF ALASKA, Appellee.
Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Ed Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District Trial Court No. 4FA-12-01224 CI, Fairbanks, Paul R. Lyle, Judge.
Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
MEMORANDUM OPINION
ALLARD JUDGE
Abraham Henry appeals the dismissal of his pro se application for post-conviction relief, raising three claims. First, Henry argues that the superior court erred when it found that Henry had knowingly and intelligently waived his right to counsel in the post-conviction relief matter. Second, Henry argues that the superior court erred when it refused to reappoint counsel after Henry changed his mind about proceeding pro se in the post-conviction relief matter. Lastly, Henry argues that the superior court erred when it dismissed his claim that his attorneys had been ineffective in communicating a plea offer in his underlying criminal case.
For the reasons explained in this opinion, we conclude that Henry knowingly and intelligently waived his right to counsel and that the superior court did not abuse its discretion in refusing to reappoint counsel. We also conclude that Henry failed to a state a prima facie case for relief on his ineffective assistance of counsel claim.
Factual background and procedural history
Henry was convicted, following a jury trial, of first-degree assault for stabbing his sister in the chest. As a third felony offender, Henry faced a presumptive range of 15 to 20 years' imprisonment.
See Henry v. State, 2014 WL 7005580, at *1-2 (Alaska App. Dec. 10, 2014) (unpublished).
See former AS 12.55.125(c)(4) (2010).
Henry's trial attorneys negotiated a plea agreement with the State under which Henry would plead guilty to a reduced charge of third-degree assault and receive a sentence of 2½ years of jail time. Henry refused the offer, and insisted on going to trial, where he was convicted of first-degree assault. At sentencing, the court imposed a sentence of 18 years to serve.
Henry was represented at trial, but Henry chose to waive the assistance of counsel for his direct appeal, and he filed a pro se appeal. This Court affirmed Henry's conviction on appeal.
Henry, 2014 WL 7005580, at *5.
Prior to sentencing, Henry filed a pro se application for post-conviction relief. Henry was appointed counsel from the Office of Public Advocacy. The assistant public advocate appointed to the case moved to stay the post-conviction relief application until Henry's direct appeal was resolved. The attorney subsequently filed a motion to withdraw or to set a representation hearing, asserting that Henry wanted to waive counsel for his post-conviction relief application and instead proceed pro se. The superior court granted the motion to stay but delayed any action on the representation hearing until the direct appeal was resolved.
After this Court issued its decision in Henry's direct appeal, the superior court held a representation hearing. At that point, Henry had received a contract attorney from the Office of Public Advocacy. The attorney informed the court that he had been working with Henry and it no longer appeared that a representation hearing was needed.
Id.
Four months later, the attorney filed a motion for a representation hearing, indicating that Henry wanted a new attorney. At the representation hearing, the attorney informed the court that he had completed his review of Henry's case and was planning to file a certificate of no arguable merit under Alaska Criminal Rule 35.1(e)(2)(C). Henry then made clear that he was not seeking appointment of another attorney and instead he wanted to waive his right to counsel and proceed pro se. The court scheduled a separate hearing to address Henry's desire to waive counsel, noting that obtaining a waiver of the right to counsel was a lengthy process.
At the later representation hearing, Henry remained adamant that he wanted to represent himself. The court advised him about the benefits of counsel and the risks of proceeding pro se, especially in a post-conviction relief proceeding. The court also questioned Henry extensively about whether he understood the risks he was undertaking by waiving counsel, and the court questioned Henry about his knowledge of the law and the post-conviction relief claims he wanted to bring. Henry repeatedly affirmed that he understood the risks of waiving counsel, and he was able to provide a coherent narrative regarding the post-conviction claims he wanted to pursue, the law that governed those claims, and the procedural requirements that he needed to meet to bring those claims.
At one point during the hearing, Henry's attorney noted that Henry had previously alleged in an unrelated post-conviction proceeding that he suffered from depression that affected his executive functioning. Henry responded that he was not currently suffering from any mental health issues. At the end of the lengthy hearing, the court made provisional findings that Henry understood the risks of waiving counsel, that Henry was capable of presenting his case in a rational and coherent manner, and that Henry had made a knowing and intelligent waiver of his right to counsel. The court noted, however, that these findings were contingent on its review of the other post-conviction relief matter.
After reviewing the other post-conviction relief matter, the court affirmed its provisional findings in a written order, and found again that Henry had made a "knowing and voluntary" waiver of his right to counsel and that Henry was minimally capable of presenting his case to the court.
Henry subsequently filed a thirty-five page amended application for post-conviction relief, raising numerous claims of ineffective assistance of counsel. Henry's pleading was well-organized and had appropriate citations to legal authority.
The State moved to dismiss the amended application for failure to state a prima facie case. Henry filed an eighteen-page opposition to the State's motion to dismiss, which included his own counter motion for summary judgment on the pleadings. In his opposition, Henry noted that two of his former trial attorneys had not responded to his request for their affidavits. The attorneys subsequently filed their affidavits with the court.
The court denied Henry's counter motion for summary judgment without prejudice, and the court issued a comprehensive sixty-five page order, outlining all of Henry's claims and the specific reasons why the court was inclined to grant the State's motion to dismiss. The court then gave Henry 120 more days to respond to the court's notice of intent to dismiss.
Henry did not file a response. Instead, Henry filed a request for counsel to be appointed because he was indigent.
The court denied the request for counsel, finding that granting the request would cause undue delay. The court noted that Henry had been well-informed of the risks of proceeding without counsel and he had made a knowing and intelligent decision to do so. The court also expressed its opinion that Henry had a history of "frivolous disputes" with his court-appointed counsel. The court noted that Henry had been dissatisfied with every attorney he had received from the very beginning of the criminal case, and the court had no reason to believe that Henry would be satisfied with any new attorney who was appointed. The court then gave Henry another 120 days to respond to the notice of intent to dismiss.
Henry filed a motion for reconsideration of his request for counsel. The court denied the motion for reconsideration and again gave Henry 120 days to respond to the notice of intent to dismiss.
Henry petitioned for review to this Court, requesting that this Court exercise its discretion to reverse the court's ruling and appoint counsel. This Court denied the petition. The denial was without prejudice to Henry raising this issue on appeal.
Henry ultimately did not file a response to the notice of intent to dismiss, and the court subsequently granted the State's motion to dismiss, dismissing all of Henry's post-conviction relief claims.
This appeal followed.
Henry's claim that the superior court erred when it found that he knowingly and intelligently waived his right to counsel
Under Alaska law, a criminal defendant has a right to counsel to assist the defendant in litigating their first application for post-conviction relief. A defendant also has a constitutional right to waive that right to counsel. However, before a defendant can be permitted to waive their right to counsel, the trial court must engage the defendant in an on-the-record inquiry to ensure that the defendant understands the benefits of counsel and the risks of proceeding pro se and that the defendant's waiver of their right to counsel is knowing and intelligent.
See AS 18.85.100(c); see also Grinols v. State, 74 P.3d 889, 894 (Alaska 2003).
McCracken v. State, 518 P.2d 85, 89-91 (Alaska 1974); Burks v. State, 748 P.2d 1178, 1181-82 (Alaska App. 1988) (holding that a defendant must be allowed to proceed pro se upon showing a knowing and intelligent waiver of the right to counsel and minimal competence to proceed pro se).
See Gladden v. State, 110 P.3d 1006, 1009-10 (Alaska App. 2005).
This Court independently reviews the record to determine if a waiver of counsel was knowing and intelligent.
Id. at 1009.
Here, the record shows that the superior court engaged in a lengthy and comprehensive colloquy with Henry regarding the benefits of counsel and the risks of self-representation, particularly in the post-conviction relief context. Henry argues that the court's recitation of the benefits of counsel was a "nullity" in his case because he was already aware that his appointed counsel believed that his post-conviction relief application had no arguable merit. But the court made clear that the attorney would still be of assistance to Henry even if a certificate of no merit was filed. Moreover, this was not a case where Henry wanted new counsel and only sought to represent himself when that request was denied. Instead, this was a case where Henry affirmatively wanted to represent himself and was not interested in proceeding with different counsel, regardless of how their approach to his case might have been different.
Henry also argues that the superior court used the wrong legal standard when determining whether Henry had "knowingly and intelligently" waived his right to counsel. Henry points out that the court repeatedly found that Henry had "knowingly and voluntarily" waived his right to counsel rather than "knowingly and intelligently" waived his right to counsel. But, as the State points out, the court also expressly found that Henry had made a "knowing and intelligent" waiver of his right to counsel.
Moreover, our review of the record convinces us that the superior court was using the correct legal standard even if it did not always use the correct words. The requirement that a defendant's waiver of counsel be "knowing and intelligent" is grounded in the requirement that waiver should not be found unless the defendant has been apprised of the benefits of counsel and has demonstrated an understanding of the rights and privileges that the defendant is opting to forgo when choosing to waive counsel and proceed pro se. Here, the record shows that the superior court took great pains in explaining the benefits of counsel and the risks of self-representation, and Henry's responses to the court's questions indicate that he understood those benefits and risks but nevertheless wanted to represent himself.
Faretta v. California, 422 U.S. 806, 835 (1975); Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938); Gladden, 110 P.3d at 1009-10; McIntire v. State, 42 P.3d 558, 560-61 (Alaska App. 2002).
Henry also argues that the on-the-record inquiry was inadequate because the superior court did not explicitly go through Henry's education and background. But as the State points out, the court was already aware of Henry's education and background from sentencing and from the prior on-the-record colloquy when Henry waived his right to counsel and represented himself on direct appeal. In other words, the court's findings in this case were directly informed by all of the court's prior dealings with Henry, and the court's finding that Henry was competent to represent himself is well supported by the record and by the pleadings that Henry filed in this case.
The same judge presided over all of these hearings.
Lastly, Henry asserts that he did not understand the law well enough to competently represent himself. But a defendant has the constitutional right to self-representation even if the defendant is not an expert in the law. Indeed, one of the reasons for the on-the-record inquiry is to ensure that thedefendant understands that they are not an expert in the law in the way that attorneys are. To find a valid waiver of counsel, a court must find that the defendant is minimally competent at presenting their case in a coherent and non-disruptive manner; a defendant need not be an expert in the law in order to exercise their constitutional right to self-representation.
See McIntire, 42 P.3d at 560-61.
See Johnson, 304 U.S. at 462-64; Gladden, 110 P.3d at 1010.
See Burks v. State, 748 P.2d 1178, 1180-81 (Alaska App. 1988) (citing Annas v. State, 726 P.2d 552, 557 (Alaska App. 1986)).
In sum, having independently reviewed the record, we conclude that the superior court did not err when it found that Henry had knowingly and intelligently waived his right to counsel and that Henry was competent to proceed pro se.
Henry's claim that the superior court abused its discretion when it denied his request to have counsel reappointed
Once a defendant has validly waived their right to counsel, the decision to reappoint counsel falls within the broad discretion of the trial court. As Professor LaFave has explained:
See Gottschalk v. State, 602 P.2d 448, 451 (Alaska 1979).
A defendant properly allowed to proceed pro se may find himself stuck with that choice. A trial court may refuse to permit him to change his mind and obtain the representation of counsel if that course of action would require a disruptive continuance.
3 Wayne R. LaFave et al., Criminal Procedure § 11.5(c), at 863-64 (4th ed. 2015).
In the current case, the superior court denied Henry's request for reappointment of counsel because the court found that reappointment of counsel would significantly delay the case:
The court declines to reappoint counsel to represent Mr. Henry. Mr. Henry made a knowing and voluntary waiver of his right to counsel in this matter, and he cannot absolve himself of the consequences of that decision by changing his mind at the eleventh hour. Mr. Henry's regret is not a sufficient reason to reappoint counsel. To rule otherwise would significantly delay disposition of this matter, and would afford Mr. Henry additional opportunities to delay matters even further.
This finding is supported by the record. Henry's case had already been significantly delayed by Henry's decision to waive counsel and represent himself after his appointed attorney had already reviewed his case and decided upon a course of action. Moreover, the case was in its final stages when Henry asked for counsel to be reappointed. That is, Henry had already filed a comprehensive amended application for post-conviction relief and a response to the State's motion to dismiss, and the court had already issued its sixty-five page notice of intent to dismiss based on all of these pleadings.
The court further found that another continuance to reappoint counsel would be disruptive. The court noted that Henry had yet to be satisfied with any of the five attorneys assigned to his criminal and post-conviction relief case, and the court declared that it had no reason to believe that Henry would not likewise become dissatisfied with any counsel who was appointed, thereby further prolonging the litigation in this case. The record supports the court's concerns that reappointment of counsel would be a "charade" that would simply lead to Henry seeking to waive counsel again, as he had repeatedly done during the life of this criminal case.
Given these circumstances, we conclude that the superior court did not abuse its discretion when it denied Henry's request for reappointment of counsel.
We now turn to Henry's substantive claim that the superior court erred when it dismissed one of his ineffective assistance of counsel claims.
Henry's claim that he established a prima facie case that his attorneys were ineffective in failing to properly advise him of the State's plea offer
Whether a defendant has established a prima facie case for post-conviction relief is a question of law that we review de novo.
David v. State, 372 P.3d 265, 269 (Alaska App. 2016).
Here, the superior court dismissed all of Henry's claims for post-conviction relief for failure to state a prima facie case for relief. On appeal, Henry challenges the dismissal of only one claim - his claim that his trial attorneys provided ineffective assistance of counsel when they allegedly failed to properly advise him regarding the State's plea offer.
As already mentioned, Henry was charged with first-degree assault for stabbing his sister in the chest. As a third felony offender, Henry faced a presumptive range of 15 to 20 years for this crime.
See AS 11.41.200(a)(1) and (2).
See former AS 12.55.125(c)(4) (2010).
However, prior to trial, there were extensive plea negotiations in Henry's case. Ultimately, the State was willing to allow Henry to plead guilty to a reduced charge of third-degree assault with an agreed-upon mitigated sentence of 2½ years to serve.
The record shows that Henry's attorneys strongly advised him to accept the plea offer. The record includes emails between Henry's attorneys and the assistant district attorney discussing the plea offer. It also includes a two-page letter from the assistant public advocate who represented Henry at trial. In the letter, the assistant public advocate advises Henry "once again" to take the plea offer. She warns Henry that he is "making a terrible mistake if [he] decides to go to trial in this case." She also warns him that, as they have discussed "many times," she does not believe that they will win at trial, and if they lose, he will be convicted of first-degree assault and receive a sentence of 15 to 20 years in jail. The remainder of the letter answers various legal questions Henry had about his case, and the reasons why none of those legal issues have merit. The letter concludes with the assistant public advocate "once again" urging Henry to take the plea offer.
Henry nevertheless rejected the plea offer, and instead went to trial. Henry was convicted at trial and was sentenced to 18 years to serve, a sentence within the applicable presumptive range.
Henry now claims that he established a prima facie case that he was not properly advised with regard to the plea offer. To establish a prima facie case that his attorneys were ineffective for failing to properly advise him regarding the State's plea offer, Henry was required to plead facts that, if true, would establish (1) that his attorneys provided advice that was below the minimal competence of an attorney trained in criminal law, and (2) there was a reasonable possibility that if Henry had received competent advice, he would have taken the plea offer.
See Risher v. State, 523 P.2d 421, 425 (Alaska 1974); see also Arnold v. State, 685 P.2d 1261, 1267 (Alaska App. 1984).
In his amended application for post-conviction relief, Henry asserts, in a conclusory manner, that he was "not properly briefed on the plea offer" and that he would have accepted the plea offer if he had been "properly briefed." But Henry does not claim that he was unaware of the plea offer or that he did not receive the assistant public advocate's letter recommending that he take the plea offer. Nor does he actually identify any deficiencies in the advice he received from the assistant public advocate and his other attorneys, all of whom were uniform in urging Henry to accept the plea offer.
Instead, Henry attacks other aspects of the assistant public advocate's trial performance, arguing that she was incompetent for, inter alia, failing to hire a medical expert or request a Daubert hearing.
In LaBrake v. State, this Court explained that the trial court should presume the truth of all well-pleaded assertions of fact when determining whether an application for post-conviction relief establishes a prima facie case for relief. However, the court is not required to presume the accuracy of"conclusory assertions concerning the ultimate facts to be decided." In addition, "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."
LaBrake v. State, 152 P.3d 474, 480-81 (Alaska App. 2007).
Id. at 481.
Id.
Here, Henry made conclusory assertions that he was not "properly briefed" on the State's plea offer. But he offered no specifics as to how the advice he received was deficient, and the record shows that his attorneys repeatedly urged him to take the plea offer and that they competently assessed the likelihood that Henry would be convicted at trial. Given this record, we find no error in the superior court's dismissal of this ineffective assistance of counsel claim for failure to state a prima facie case for relief.
Conclusion
The judgment of the superior court is AFFIRMED.