Opinion
A-12985
08-11-2021
TRACY G. HUTTON, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Barber, Barber Legal Services, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage Trial Court No. 3AN-16-04671 CI, Jack Smith, Judge.
Michael L. Barber, Barber Legal Services, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Tracy G. Hutton was convicted of first-degree weapons misconduct for firing a gun from a vehicle under circumstances manifesting a substantial and unjustifiable risk of physical injury to a person or damage to property, and of third-degree weapons misconduct for being a felon in possession of a concealable firearm.The Alaska Supreme Court reversed his conviction for third-degree weapons misconduct on appeal, but left his other conviction in place. Hutton filed an application for post-conviction relief alleging a number of claims of ineffective assistance of counsel. The superior court dismissed his application for failure to state a prima facie case.
AS 11.61.190(a)(2) and AS 11.61.200(a)(1), respectively; see also Hutton v. State, 305 P.3d 364, 366 (Alaska App. 2013).
Hutton v. State, 350 P.3d 793, 794 (Alaska 2015).
On appeal, Hutton argues that the superior court erroneously dismissed his claim that his trial attorney was ineffective for failing to move to dismiss his indictment. Hutton's trial attorney, however, did not address the issue in her affidavit, as is required.This claim was therefore properly dismissed.
See Allen v. State, 153 P.3d 1019, 1021-22 (Alaska App. 2007) ("When a petitioner for post-conviction relief contends that their trial attorney was incompetent in one or more respects, the petitioner is required to seek an affidavit from the trial attorney in which the attorney addresses the petitioner's contentions." (emphasis added)).
Hutton also argues that the superior court erroneously dismissed his claim that his trial attorney was ineffective for failing to call an expert witness in tool marks or firearms to challenge the State's expert's conclusions. Hutton's application for post-conviction relief, however, did not plead any facts that would demonstrate prejudice from this decision, as is required. Therefore, this claim was also properly dismissed.
See David v. State, 372 P.3d 265, 269-70 (Alaska App. 2016).
Hutton finally argues that the superior court erroneously dismissed a series of claims that his trial attorney failed to adequately investigate the case and cross-examine certain witnesses. But the subjects Hutton claims his attorney should have investigated more diligently, or cross-examined witnesses about more aggressively, were either tangential to the main issues in the case or had been fully addressed during direct examination. We therefore agree with the State that Hutton failed to establish either incompetency or prejudice as to these claims.
See Risher v. State, 523 P.2d 421, 425 (Alaska 1974).
The judgment of the superior court is AFFIRMED.