Opinion
Court of Appeals No. A-10729 Trial Court No. 3PA-08-1950 CI No. 5940
04-10-2013
ERIC HOLDEN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Public Defender Contract Attorney, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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 JUDGMENT
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge.
Appearances: Jane B. Martinez, Public Defender Contract Attorney, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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 Coats, Senior Judge.
Sitting by assignment made pursuant to article IV, section 11 of the Alaska Constitution and Administrative Rule 23(a).
COATS, Senior Judge.
Eric Holden entered a no contest plea to refusal to submit to a chemical test. Superior Court Judge Eric Smith sentenced Holden to 30 months of imprisonment. Holden was released on bail pending appeal, subject to electronic monitoring.
While Holden's case was on appeal, this court decided Matthew v. State, 152 P.3d 469, 473 (Alaska App. 2007), holding that defendants could not receive credit toward their sentence for time that they spent on electronic monitoring while out on bail.
In August 2007, this court affirmed Holden's conviction on appeal. Holden then requested credit for the time he spent on electronic monitoring on bail pending appeal. Relying on the Matthew decision, Superior Court Judge Eric Smith held that he was precluded from granting credit to Holden for the time he spent on electronic monitoring.
Holden v. State, Mem. Op. & J. No. 5250, 2007 WL 2216605 (Alaska App. Aug. 1, 2007).
Holden then filed an application for post-conviction relief, alleging that his attorney, Eugene Cyrus, had provided ineffective assistance of counsel by advising him that he would receive credit for time that he spent on electronic monitoring. In his affidavit, Holden alleged that he would not have pled no contest if he had realized that he would not receive credit for the time he spent on electronic monitoring.
In an affidavit supporting Holden's application, Cyrus stated that he advised Holden that he would receive credit for the time which he served on electronic monitoring while he was released on bail pending appeal. Cyrus also stated that his advice was erroneous.
In the proceedings on Holden's application for post-conviction relief, Holden's post-conviction-relief attorney indicated that he did not believe that there were any factual disputes and that Judge Smith could decide the case without an evidentiary hearing. Judge Smith indicated that he would review the pleadings and conduct an evidentiary hearing only if he thought it was necessary.
Judge Smith ultimately concluded that it was unnecessary to hold an evidentiary hearing, and he issued an order denying Holden's application for post-conviction relief. Judge Smith assumed, for purposes of his order, that Holden had relied on Cyrus's advice. However, Judge Smith concluded that Cyrus was not ineffective when he informed Holden that Holden would get credit for the time on electronic monitoring. Judge Smith observed that, at the time Holden changed his plea, several trial courts, including his own, had ruled that defendants would receive credit for time which they spent on bail subject to electronic monitoring as long as the electronic monitoring program was as restrictive as the program used by the Department of Corrections.
Judge Smith also concluded that, at the time that he entered his plea, Holden was not prejudiced by his reliance on Cyrus's advice because Holden had no basis to believe that he would be released on electronic monitoring pending appeal. He asserted that the court had consistently denied Holden's applications to be released on electronic monitoring.
Why we conclude that the record does not support Judge Smith's ruling
To dismiss an application for post-conviction relief without holding an evidentiary hearing, the court must look at all the well-pleaded facts in the light most favorable to the applicant and conclude that these facts are insufficient to support the request for relief.
See Lindeman v. State, 244 P.3d 1151, 1154 (Alaska App. 2011).
Judge Smith concluded that Holden was not prejudiced because, at the time Holden entered his plea, Holden had no reason to believe that he would be released on electronic monitoring pending appeal. The record does not support this finding. Eight days prior to Holden's change of plea, Judge Smith had granted Holden's request to be released on electronic monitoring if the details could be worked out with the monitoring company. And ultimately, Holden was released on electronic monitoring. Although Holden had not yet been released at the time he entered his plea, on this record it is entirely possible that Holden believed that he would soon be released on electronic monitoring, and that Holden had a reasonable basis for believing so. Moreover, because there was no evidentiary hearing, Judge Smith had already assumed for purposes of this order that Holden had relied on Cyrus's advice regarding electronic monitoring and had changed his plea based on that advice.
We further conclude that it is not possible, on this record, to decide whether Eugene Cyrus provided competent advice when he told Holden that Holden would receive credit for time spent on electronic monitoring. In order to determine whether Cyrus provided competent advice, it is necessary to determine whether his advice was "within the range of reasonable [advice] which might have been [given] by an attorney skilled in the criminal law." In order to make this determination, it is necessary to know exactly what advice Cyrus gave and whether that advice was within the range of advice that would have been given by a reasonably competent attorney at the time Holden entered his plea. The record is insufficient to make this determination.
Risher v. State, 523 P.2d 421, 424 (Alaska 1974).
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We accordingly conclude that, when we view the record in the light most favorable to Holden, Judge Smith could not dismiss Holden's application for post-conviction relief without holding an evidentiary hearing. We therefore VACATE Judge Smith's order and REMAND this case to the superior court for further proceedings.
We do not retain jurisdiction of this case.