Opinion
Court of Appeals No. A-11801 No. 6316
04-27-2016
JAMES C. HOOVER JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, and Richard Allen, Public Advocate, Anchorage, for the Appellant. June Stein, 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-11-2920 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael P. McConahy, Judge. Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, and Richard Allen, Public Advocate, Anchorage, for the Appellant. June Stein, 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. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Following a jury trial, James C. Hoover Jr. was convicted of felony refusal to submit to a chemical test. Hoover filed a direct appeal to this Court, which affirmed his conviction. Hoover then filed an application for post-conviction relief in the superior court alleging that his trial attorney provided ineffective assistance of counsel. The superior court dismissed the application for failure to state a prima facie case for relief. For the reasons explained here, we affirm the superior court's ruling.
AS 28.35.032(a), (p).
Hoover v. State, 2010 WL 2637016, at *1 (Alaska App. June 30, 2010) (unpublished).
Factual background and prior proceedings
In February 2008, James Hoover was arrested following a traffic stop in North Pole during which the officer observed signs of intoxication and Hoover failed various field sobriety tests.
Following his arrest, Hoover was taken for processing, read an implied consent warning, and asked to provide a breath sample. According to the officer who administered the DUI processing, Hoover was uncooperative during processing and unsure whether or not to provide a breath sample. At one point, Hoover agreed to provide a breath sample but did not actually blow into the DataMaster when given the opportunity to do so.
Following this failed attempt, the officer re-read Hoover the implied consent warning and proceeded to give him two more opportunities to provide a breath sample. The first time, Hoover blew into the DataMaster for 14.69 seconds, but the machine failed to register a valid sample. The second time, Hoover blew haltingly into the DataMaster's mouthpiece — at one point putting his tongue into it, puffing up his cheeks, and (as the officer testified at trial) "[blowing] really hard" like a "chipmunk." The machine again failed to register a valid sample. The officer later testified that, in his opinion, Hoover never made a good faith effort to provide a valid breath sample.
Hoover was subsequently indicted for both felony driving under the influence and felony refusal to submit to a chemical test. The offenses were charged as felonies because Hoover had two prior DUI convictions within the last ten years, one in 2000 and one in 2004.
AS 28.35.030(a), (n) and AS 28.35.032(a), (p), respectively.
Prior to trial, Hoover's defense attorney moved to bifurcate the trial so that the jury would not hear about Hoover's prior DUI convictions until after the jury had reached a decision on the underlying criminal conduct of DUI and refusal. The prosecutor partially opposed the motion to bifurcate, arguing that he should be allowed to introduce Hoover's prior convictions for impeachment purposes if Hoover testified that he was unable to provide a valid breath sample because of his asthma. The trial court granted the motion to bifurcate, but noted that it would revisit its ruling if Hoover's testimony later opened the door to these convictions.
See Ostlund v. State, 51 P.3d 938, 941-42 (Alaska App. 2002).
At trial, Hoover's defense was that he was not guilty of DUI because he was not intoxicated, and that he was not guilty of refusal because he had tried, however unsuccessfully, to provide a breath sample.
The jury convicted Hoover of refusal but was unable to reach a decision on the DUI charge. (The State ultimately dismissed the DUI charge) Hoover appealed, and we affirmed his conviction.
Hoover, 2010 WL 2637016, at *1.
Hoover then filed an application for post-conviction relief, asserting that his trial attorney was constitutionally ineffective for failing to investigate and present Hoover's proposed defense to the refusal charge: that he was not able to provide a valid breath sample because of his chronic obstructive pulmonary disease (COPD).
In support of this claim, Hoover provided an affidavit in which he stated that he had "poor lung function" due to COPD and asthma. Hoover further declared that he "believe[d] that these issues impacted [his] ability to provide an adequate breath sample," and that although he discussed them with his trial attorney, she "declined to use this information as part of [his] defense." Hoover later submitted numerous copies of medical records documenting his long-standing problems with asthma and his diagnosis of COPD in 2005.
Finally, Hoover provided an affidavit from his trial attorney, Marna Kranenberg, which had been prepared in response to Hoover's claims. The affidavit stated, in relevant part,
3. My theory of defense at trial was that Mr. Hoover was innocent of both charges because he was not intoxicated, and he did not refuse to blow into the breath testing machine.Hoover argued that his attorney's explanation for her actions was facially unreasonable because the two defenses were actually complementary rather than contradictory — that is, his attorney could have argued both that Hoover complied with the test by blowing and that his COPD prevented him from providing a valid breath sample despite his efforts.
4. Mr. Hoover indicated to me before trial that he wanted me to introduce evidence that he had illnesses causing poor lung function and that these conditions impacted his ability to provide an adequate breath sample.
5. I contacted a doctor in the community about Mr. Hoover's condition. Based on my discussion with the doctor, I did not believe that this was a strong defense. I also did not introduce evidence about this issue at trial because I believed that it would conflict with my theory of defense that he blew for 14.6 seconds and therefore complied with the test.
Hoover also argued that his attorney was incompetent for rejecting his proposed COPD defense, which Hoover characterized as his best and strongest defense, in favor of the attorney's own chosen defense, which Hoover characterized as one whose "only foreseeable outcome" was a guilty verdict on the refusal charge.
The State moved to dismiss Hoover's application for failure to present a prima facie case for relief. The State asserted that the record showed that Hoover's attorney had made a tactical decision to forgo the COPD defense based on the medical opinion she received from a doctor that she consulted prior to trial. The State pointed out that Hoover had failed to substantiate his medical claims with affidavits from any medical experts of his own, and that Hoover's application therefore failed as a matter of law. The State also pointed to the parties' pretrial discussion about bifurcation as yet another good reason why a competent defense attorney might have been concerned about introducing evidence of Hoover's respiratory impairment, noting that this evidence may have opened the door to admission of Hoover's prior DUI convictions.
In response, Hoover argued that it was unreasonable for his attorney to worry about opening the door to his prior DUI convictions because these convictions occurred in 2000 and 2004, prior to his diagnosis of COPD. Hoover asserted that because COPD is a "progressive disease," his ability to provide a valid breath sample in 2004 was irrelevant to his ability to provide a valid breath sample in 2008. Hoover also provided the court with printouts from two websites that described the symptoms of COPD in general terms.
The superior court granted the State's motion to dismiss, ruling that Hoover had failed to rebut the presumed competence of his attorney's tactical decision to forego a defense based on his COPD.
Hoover now appeals.
Why we affirm the superior court's dismissal of Hoover's application for post-conviction relief
Whether a defendant's post-conviction pleadings state a prima facie case for relief is a question of law that this Court reviews de novo.
Burton v. State, 180 P.3d 964, 974 (Alaska App. 2008).
To establish a prima facie case of ineffective assistance of counsel under Alaska law, a defendant must plead facts that, if true, would entitle the defendant to relief under both prongs of the Risher test. That is, the defendant's pleadings must show (1) that his or her attorney's performance fell below the objective standard of minimal competence and (2) that there is a reasonable possibility that the incompetent performance contributed to the outcome. In addition, because a presumption of competence attaches to an attorney's actions, the defendant bears the burden of specifically pleading facts in his application for post-conviction relief that either rule out the possibility of a tactical decision by the attorney or affirmatively demonstrate that the tactic was one that no competent criminal defense attorney would have adopted under the circumstances.
Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974).
Id.
See LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007); State v. Jones, 759 P.2d 558, 570-71 (Alaska App. 1988). --------
Here, it was undisputed that Hoover's attorney had made a tactical decision to forego Hoover's proposed COPD defense. It was also undisputed that the attorney had consulted with a doctor about Hoover's claim that his impaired lung functioning interfered with his ability to provide a valid breath sample and the attorney had concluded, based on this expert consultation, that the defense was weak. Thus, in order to rebut the presumption of competency that attached to his attorney's actions and decision-making process, Hoover needed to provide (at a bare minimum) testimony or an affidavit from a medical expert of his own establishing that, contrary to the medical advice his attorney received, Hoover's COPD defense was a viable and medically supportable defense. But Hoover never did so, despite several opportunities and despite the State's own partial concession that Hoover "might have a claim" if he could provide such a medical expert.
The absence of any expert support for Hoover's medical claims is fatal to his ineffective assistance of counsel claim given the circumstances of his case. We therefore affirm the superior court's dismissal of Hoover's application for post-conviction relief for failure to state a prima facie case for relief.
Conclusion
We AFFIRM the judgment of the superior court.