Opinion
Court of Appeals No. A-12593 No. 6755
01-16-2019
COSTIA INGA III, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Maureen E. Dey, Gazewood & Weiner, P.C., Fairbanks, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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. 3KO-13-506 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Kodiak, Steve Cole, Judge. Appearances: Maureen E. Dey, Gazewood & Weiner, P.C., Fairbanks, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge WOLLENBERG.
Costia Inga III appeals the superior court's dismissal of his application for post-conviction relief. For the reasons explained in this opinion, we affirm the court's dismissal of his application.
Background facts
In 2012, Inga was on felony probation and parole for a sexual assault conviction, and he was living in his father's house in the village of Akhiok on Kodiak Island. Inga's probation/parole officer asked the state troopers to conduct a home visit. During their visit, the troopers discovered numerous firearms, including at least three handguns, one of which was found in Inga's bedroom and another of which had his fingerprint on it.
According to Inga's amended petition for post-conviction relief, he was also on parole for an earlier burglary conviction.
Because Inga was a felon, the State indicted him on two counts of third-degree misconduct involving weapons. At the grand jury proceeding, the State explained that both counts were based on Inga's possession of the same handgun, but each count alleged a different legal theory: first, that Inga knowingly possessed a firearm capable of being concealed on one's person; and second, that Inga resided in a dwelling knowing that the dwelling contained a firearm capable of being concealed on one's person. Based on these charges, the State also filed a petition to revoke Inga's probation in the sexual assault case, in which he had approximately 4 years of suspended jail time that could be imposed.
AS 11.61.200(a)(1) and AS 11.61.200(a)(10), respectively.
The parties negotiated a resolution to the weapons charges and the petition to revoke probation. The State dismissed one count of weapons misconduct and Inga pleaded guilty to the other, and he received a stipulated sentence of 2 years to serve. Inga also admitted that he violated his probation, and the State agreed that he would be returned to probation with no suspended time imposed.
Inga's application for post-conviction relief
Inga timely filed a pro se application for post-conviction relief related to the weapons misconduct case. In his application (as amended with the assistance of counsel), Inga alleged that his trial attorney in the weapons misconduct case had provided ineffective assistance. Inga argued that his attorney should have filed a motion to suppress the items seized during the home visit because (according to Inga) a parole search of his residence for weapons bore no direct relationship to his sexual assault conviction and was therefore invalid. Inga did not attach the judgment from his prior sexual assault conviction or a copy of his parole or probation conditions, nor did he detail his criminal history. Inga also asserted that his trial attorney should have filed a motion to dismiss the grand jury indictment on the theory that indicting him on two counts for possession of the same handgun violated the guarantee against double jeopardy.
As part of his post-conviction relief application, Inga filed an affidavit from his former attorney. In this affidavit, the attorney asserted that the State's plea offer had been contingent on Inga not filing any substantive motions — and that Inga was aware of this condition when they discussed the plea bargain. The attorney also stated that he had discussed the possible suppression and double jeopardy motions with Inga. He explained that he told Inga that prevailing on either motion "would be challenging," but that the decision whether to accept the State's plea offer was Inga's alone. (The attorney's file notes reflect these discussions.) The attorney warned Inga that if he filed the motions and the motions did not succeed, the likelihood of an acquittal at trial was low, and in addition to imposing sentence on the new conviction, the trial court could impose some or all of Inga's suspended time in his sexual assault case.
Inga filed two personal affidavits. In one of these affidavits, Inga asserted that he asked his attorney to file the double jeopardy motion but that the attorney refused to do so, without explanation. Inga did not discuss the suppression motion in either affidavit.
In its response to Inga's application for post-conviction relief, the State argued that Inga had not pleaded facts entitling him to relief under Risher v. State because Inga had not shown that his attorney's advice regarding the plea offer was incompetent. The State also contended that Inga's attorney had a sound reason not to file motions, because the State would have withdrawn the plea offer if he had.
Risher v. State, 523 P.2d 421 (Alaska 1974).
The superior court subsequently dismissed Inga's application for the reasons given by the State.
Why we reject Inga's claim that a remand is necessary for the superior court to explain its reasoning
Inga first challenges the court's decision to issue a summary order, without further explaining its reasoning. According to Inga, the order failed to adequately apprise him of the basis for the court's dismissal.
We have previously recognized that if a court dismisses a post-conviction relief application on the pleadings, the applicant is entitled to notice of the reasons for that dismissal. But the court's obligation is satisfied if the court orders dismissal for the reasons advanced by the State in a motion to dismiss, and the applicant had a full and fair opportunity to respond to the State's motion.
Tall v. State, 25 P.3d 704, 707 (Alaska App. 2001), abrogated on other grounds by David v. State, 372 P.3d 265, 269 n.1 (Alaska App. 2016).
Id. at 707-08.
Here, the court expressly dismissed Inga's application for the reasons argued by the State. Inga had notice of the State's arguments and a sufficient opportunity to respond. We therefore reject this claim.
Why we conclude that Inga failed to plead a prima facie case of ineffective assistance of counsel
Inga next argues that he pleaded facts sufficient to establish a prima facie case that his trial attorney was ineffective for failing to file the two motions he described in his application — a motion to suppress the handguns seized during the home visit, and a motion to dismiss the indictment on double jeopardy grounds. Inga's sole argument is that these motions would have succeeded and that Inga was therefore prejudiced by his attorney's failure to file them.
But Inga did not go to trial in his underlying criminal case, so it is not enough for him to establish a prima facie case as to the likely success of the motions. Rather, Inga entered into a plea agreement with the State. In order to succeed on a claim of ineffective assistance of counsel in this context, Inga must show that his trial attorney acted incompetently when he advised (or failed to advise) Inga during the plea negotiations and that, absent this incompetent advice, Inga would not have accepted the plea bargain.
See, e.g., Ferguson v. State, 242 P.3d 1042, 1048-49 (Alaska App. 2010).
The State's plea offer in this case was contingent on Inga not filing any substantive motions. According to Inga's pleadings in the superior court, Inga was initially in favor of pursuing motion practice rather than accepting the plea offer. But after multiple discussions with his attorney, he decided to forgo the motions and accept the State's offer.
Ultimately, this was Inga's decision to make, not the attorney's. Inga does not argue that he was somehow forced into accepting the plea offer, nor does he argue that he did not knowingly and voluntarily accept the plea offer. He also does not contend that he mistakenly thought that he could still file motions even after he accepted the plea offer.
Accordingly, the key issue is whether Inga presented a prima facie case that his attorney's advice regarding the plea offer was incompetent. More specifically, the question is whether Inga presented some basis for believing that his attorney's advice regarding the motions — that prevailing on the motions "would be challenging" and that Inga ought to consider the State's offer — was unreasonable. This question does not turn on whether the motions might arguably have been successful (the attorney's advice left room for that possibility), but rather on whether either of the motions would have clearly prevailed, so that the only reasonable advice from counsel would have been to reject the State's offer and pursue motion practice. Inga fails to properly frame his argument in these terms.
See State v. Steffensen, 902 P.2d 340, 342 (Alaska App. 1995).
Even if we interpret Inga's claim as challenging the competency of his attorney's advice, Inga has failed to set out a prima facie case as to each of the motions. In Garhart v. State, we explained that the State may indict a defendant on multiple counts that represent separate theories of the same crime, and may pursue separate jury verdicts on those counts, even if the double jeopardy clause will ultimately require merger of the separate counts into a single conviction. Accordingly, even if Inga's attorney "refused" to file Inga's proposed double jeopardy motion, as Inga asserted in his affidavit, that decision was a competent one, because Inga's proposed motion had no arguable merit.
Garhart v. State, 147 P.3d 746, 752-53 (Alaska App. 2006) (citing Whitton v. State, 479 P.2d 302 (Alaska 1970)).
Moreover, in his affidavit, Inga's attorney stated that he advised Inga that, even if the indictment was dismissed, the State could still indict Inga on additional charges related to the other handguns. Inga does not contend that this advice was incompetent.
With respect to the proposed suppression motion, Inga failed to plead facts sufficient to show that his attorney's advice was erroneous and that this motion would have obviously prevailed. Inga presented no facts to support the conclusion that discovery of the handguns arose from an unlawful search of his father's home. More specifically, while Inga's claim was implicitly an argument that the search exceeded the authority of one or more of his conditions of probation or parole, Inga did not identify those conditions. Nor did he describe the circumstances surrounding the discovery of the guns or negate the possibility that other of his conditions might have offered an independent basis for a home visit and search.
See, e.g., Roman v. State, 570 P.2d 1235, 1242-43 (Alaska 1977) ("Parole officers . . . are empowered to interview their charges and to visit them at their residences. If contraband is discovered during such a visit, and not the result of a search, it would fall within the plain view exception to the search warrant requirement.").
Moreover, Inga failed to present a prima facie case that a condition authorizing a weapons search was clearly unrelated to his rehabilitation or the protection of the public at the time it was imposed. At most, Inga asserted that there was no mention of a weapon in our prior decision affirming Inga's sexual assault conviction on appeal. But Inga has a prior burglary conviction — and was apparently still on parole for that burglary at the time of the search. He did not present his criminal history or the record of sentencing from his sexual assault conviction.
See State v. Thomas, 133 P.3d 684, 685 (Alaska App. 2005) (recognizing that a probation condition must be "reasonably related to the rehabilitation of the offender and the protection of the public" and not unduly restrictive of liberty) (quoting Roman, 570 P.2d at 1240).
See Inga v. State, 2004 WL 719626 (Alaska App. Mar. 31, 2004) (unpublished).
We also note that we have previously declined to decide whether a defendant may argue, for the first time in a motion to suppress evidence in a new criminal case, that the probation condition that authorized the search was not reasonably related to the defendant's rehabilitation and never should have been imposed. Thomas, 133 P.3d at 684-85. --------
Finally, we note that Inga did not assert in his affidavit that he wished to file the motion to suppress in lieu of pleading guilty, or that he would not have pleaded guilty had he received different advice about the motion. (In fact, Inga did not mention the suppression motion at all.) Thus, even if Inga demonstrated that the suppression motion was clearly meritorious, he has failed to set out a prima facie case of prejudice — i.e., he has failed to set out facts that, if believed, would demonstrate that he would have rejected the State's offer in favor of filing the motion.
Conclusion
We AFFIRM the superior court's dismissal of Inga's application for post-conviction relief.