Opinion
Court of Appeals No. A-8580.
December 29, 2004.
Appeal from the Superior Court, First Judicial District, Sitka, Larry C. Zervos, Judge. Trial Court No. 1SI-99-170 CR.
Brant McGee, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Johnny J. Joseph was convicted of sexual assault in the first degree and sexual abuse of a minor in the first degree. Superior Court Judge Larry C. Zervos merged the two convictions and imposed a maximum sentence of 30 years of imprisonment. Joseph appeals, arguing that he received ineffective assistance of counsel because there was a breakdown in the attorney-client relationship. Judge Zervos rejected this contention, concluding that any problems with the attorney-client relationship had been initiated by Joseph, who was manipulating the system, and that the attorney provided effective assistance. We affirm Judge Zervos's ruling. Joseph also contends that his 30-year sentence is excessive. We conclude that the sentence is not clearly mistaken.
Factual background
A.J. testified that in 1996, at age 10, he spent the night at the home of his cousin in Angoon. A.J.'s uncle, appellant Johnny Joseph, was also staying at the home that night. During the night Joseph invited A.J. to sleep with him in his room. Joseph asked A.J. to take off his clothes and lie on his stomach. Joseph then penetrated A.J.'s anus with his penis.
A.J. testified that another incident of sexual abuse occurred during the summer of 1997. After a family fishing trip, Joseph and A.J. were alone in Joseph's truck. Joseph stopped at the shooting range to use the bathroom. When Joseph returned to the truck, he pulled down A.J.'s pants and underwear. Joseph put his penis between A.J.'s legs and moved up and down for several minutes.
A.J. stated that during the winter of 1997, sometime before Christmas, he was again staying at his cousin's home. Joseph was also there. Joseph asked A.J. to come into the bedroom where he was playing video games. Joseph then put his hands in A.J.'s pants and touched his penis.
A.J. testified that in May of 1999, he was again staying at his cousin's house, as was Joseph, and another cousin. At some point in the night, Joseph drove the three boys to the store so they could buy food and rent a video. When they got to the store the two other boys ran into the store, but Joseph pulled A.J. back into the truck. Joseph then drove A.J. out to the boat harbor. While parked there, Joseph removed his own clothes, got on top of A.J., and moved up and down for several minutes with his penis between A.J.'s legs. A.J. was clothed during this assault.
A.J. stated that on June 12, 1999, he went to a Salvation Army picnic at the Angoon baseball field. During the picnic, Joseph, then age 33, asked A.J., then age 12, to go for a walk with him. When Joseph offered to show A.J. how to blow a deer call with a leaf, they took a trail into the woods. When A.J. had followed Joseph a short way in, Joseph picked A.J. up and continued to walk into the woods. After Joseph released A.J., A.J. attempted to walk back up the trail, but Joseph grabbed his ankle. A.J. also attempted to climb a tree but lost his grip. Joseph put on a condom and attempted to insert his penis into A.J.'s anus. A.J. attempted to prevent penetration by clenching his rear end. Joseph succeeded in slightly penetrating A.J.'s anus. After several minutes, when he was finished, Joseph pulled off the condom and threw it to the ground.
While the assault was occurring, A.J.'s mother was at the picnic looking for him. A.J.'s mother and her friend, Alberta Meyers, began to walk around looking for A.J. Meyers later saw A.J. standing beside the trail. She also saw Joseph run back into the woods. A.J. then told his mother that Joseph tried to have sex with him. When A.J.'s mother later asked Joseph if he had sexually abused anyone in Angoon, Joseph stated, "no one but [A.J.]."
A.J. later took Alaska State Trooper Willard Ellis to the trail where Joseph had sexually assaulted him. On the ground where A.J. said the assault occurred, Trooper Ellis found a used condom and its wrapper.
Trooper Ellis later interviewed Joseph about the sexual assault. Joseph admitted that he had told A.J. that he would show him how to make a deer call with a leaf. Joseph also admitted that he had engaged in anal intercourse with A.J., and that A.J. resisted the assault. Joseph acknowledged that he had used a condom during the assault. However, Joseph told Trooper Ellis that he had only assaulted A.J. the one time.
The condom was sent to the state crime lab for analysis. DNA found in skin cells and in semen obtained from the condom was a match for Joseph. No DNA matching the victim was found.
On July 8, 1999, Dr. Henry Owen examined A.J.A.J. told Dr. Owen that Joseph had molested him on multiple occasions. Dr. Owen noted "obvious scarring on . . . [A.J.'s] anus, which was very unusual for a child this age." Dr. Owen also noticed that A.J. had "decreased tone in his rectal sphincter, which is unusual for a healthy child." All of the injuries were at least six weeks old and some were probably several years old. Dr. Owens testified that the injuries were most likely the result of "penetrating trauma" which he felt was consistent with the history of abuse that A.J. provided.
The State indicted Joseph for two counts of sexual abuse of a minor in the first degree, one count of sexual assault in the first degree, and four counts of sexual abuse of a minor in the second degree. All of these charges encompassed Joseph's sexual abuse of A.J.
AS 11.41.434(a)(1).
AS 11.41.410(a)(1).
AS 11.41.436(a)(2).
A jury ultimately convicted Joseph of one count of sexual assault in the first degree and one count of sexual abuse of a minor in the first degree. Both of these convictions were for Joseph's assault on A.J. on June 12, 1999. Judge Zervos merged these two convictions, and imposed the maximum sentence of 30 years of imprisonment.
Judge Zervos did not err in refusing to discharge Joseph's attorney
Joseph was represented at trial by a contract attorney retained by the Office of Public Advocacy. Joseph argues that Judge Zervos erred in denying his request before and during trial to substitute another attorney. Joseph argues that the denial was error because there was an obvious conflict and breakdown in the attorney-client relationship. In particular, he notes that at one point the attorney stated that he did not believe that he could zealously represent Joseph.
Defendants in criminal cases are guaranteed the effective assistance of counsel by the Federal Constitution and the Alaska Constitution. Indigent defendants have the right to an attorney at public expense; however, they have no right to demand a particular attorney. In the leading case of Coleman v. State, the supreme court stated that the "constitutional right to effective assistance of counsel does not encompass the right of a defendant to purposely frustrate his attorney's efforts on his behalf and then attempt to escape conviction on the basis of his own lack of cooperation."
U.S. Const. amend. VI; Alaska Const. art. I, § 11.
Daniels v. State, 17 P.3d 75, 82 (Alaska App. 2001).
621 P.2d 869 (Alaska 1980).
Id. at 880-81.
A review of the record convinces us that Judge Zervos made extensive efforts to ensure that Joseph received effective assistance of counsel. A trial court generally has an obligation to inquire into the reasons for a defendant's dissatisfaction with his attorney's representation. Judge Zervos met this burden by holding, on several occasions, ex parte hearings in order to inquire into the nature of the problems between the attorney and Joseph. It is true that at one point, just before trial, Joseph's attorney stated that he did not feel he could continue to zealously represent Joseph. But after the attorney made those statements, and Judge Zervos had heard from counsel and the defendant, Judge Zervos made extensive findings. In those findings, Judge Zervos went over the discussions he had previously had with Joseph and his counsel. He found that the attorney had zealously and effectively represented Joseph throughout the proceedings. He found that a major cause for all of the problems in the attorney-client relationship stemmed from Joseph's "own unwillingness to cooperate, [his] own unwillingness to listen to someone's opposing point of view." Judge Zervos directly addressed the attorney's statement that he could not zealously represent Joseph. He stated that he had a great deal of experience with the attorney and had found that the attorney "always met and exceeded the highest standards of our profession in all regards." He found that the attorney could and would zealously represent Joseph, because he had always zealously represented him in the past. He found that there was a substantial argument that Joseph, by trying to discharge his attorney, was just trying to manipulate the system. He concluded that there was no reason to discharge Joseph's attorney.
Wayne R. LaFave, Criminal Procedure § 11.4(b) (2d ed. 2003).
We conclude that Judge Zervos's findings are supported by the record and support his decision to refuse to appoint another attorney for Joseph. The record shows that Judge Zervos thoroughly investigated and considered all of Joseph's claims that he should have another attorney. Ultimately, Judge Zervos concluded that Joseph did not establish any grounds to obtain another attorney. Judge Zervos was certainly in a superior position to the one which we are in to evaluate the attorney's performance. The record supports Judge Zervos's conclusion that Joseph was a very difficult client with a difficult case. Judge Zervos could certainly conclude that the attorney was doing everything in his power to zealously represent Joseph. And the record supports the conclusion that Joseph obtained a favorable result. The evidence against Joseph on the counts for which he was convicted appears to be overwhelming. And the fact that the jury did not convict Joseph on the other counts supports the conclusion that Joseph's attorney achieved a favorable result.
The sentence that Judge Zervos imposed was not clearly mistaken
In 1986, Joseph was convicted of sexual abuse of a minor in the second degree and was sentenced to 5 years with 3½ years suspended. The court placed Joseph on probation for 4 years and ordered him to participate in sex offender and substance abuse counseling. Joseph's probation was revoked for failure to obtain alcohol treatment and for failure to attend Alcoholics Anonymous meetings. The court revoked 3½ years of his previously suspended time. In 1991, Joseph was again convicted of sexual abuse of a minor in the second degree. The court sentenced him to 6 years with 2 years suspended. His mandatory parole was revoked for refusal to participate in court-ordered sex offender treatment while incarcerated. Joseph's parole was twice more revoked for failure to participate in court-ordered sex offender treatment.
Sexual assault in the first degree and sexual abuse of a minor in the first degree are unclassified felonies with a maximum sentence of 30 years of imprisonment. Because of his two prior felony convictions, Joseph faced sentencing as a third felony offender and was subject to a presumptive sentence of 25 years of imprisonment. Judge Zervos found that two aggravating factors applied: (1) that Joseph had previously been convicted of a sex offense and had engaged in similar conduct with the same or another victim, and (2) that Joseph had a criminal history of repeated instances of conduct violative of criminal laws similar in nature to the offenses for which he had been convicted. Judge Zervos recognized that the two aggravating factors overlapped, and stated that he would consider that fact in sentencing Joseph.
AS 12.55.125(i).
AS 12.55.125(i)(4).
AS 12.55.155(c)(18)(B).
AS 12.55.155(c)(21).
The presentence report sums up Joseph's prior criminal record as follows:
The defendant's prior convictions, multiple victims and refusal to participate in sex offender treatment strongly indicates he is undeterrable and incapable of rehabilitation. Since his first conviction, the defendant has exhibited a compulsive pattern of sexually assaulting young boys. He served five . . . years in prison for his first conviction and six . . . years for the second. He served everyday of these sentences because he refused to comply [with] probation and parole conditions requiring sex offender treatment. Isolation, to protect the public should be the court's highest priority when sentencing the defendant.
Judge Zervos noted Joseph's prior record in imposing the sentence. He concluded that Joseph was an incorrigible sex offender who was a danger to young children. He concluded that Joseph's prospects for rehabilitation were "non-existent." He found that Joseph was a worst offender who would continue to prey on children unless he was incarcerated. These findings are supported by the record and support Judge Zervos imposing the maximum sentence.
Joseph argues that Judge Zervos erred in finding the aggravating factors, which relied on Joseph's history of prior assaults. Joseph argues that AS 12.55.155(e) precludes using his prior convictions to aggravate his present offense because those prior convictions were used to establish his status as a third-felony offender. But AS 12.55.155(e) states that "if a factor in aggravation is a necessary element of the present offense, or requires the imposition of a presumptive term under AS 12.55.125(c)(2) (providing for presumptive terms for first-felony offenders convicted of class A felonies in certain aggravating circumstances) that factor may not be used to aggravate the presumptive term." Joseph's prior sexual offenses were not an element of his present convictions. And Joseph did not face a presumptive term under AS 12.55.125(c)(2). Therefore, Judge Zervos could properly consider Joseph's prior convictions for sexual assault in finding the aggravating factors.
But we do not need to decide this issue. Judge Zervos pointed out that, even if he did not consider Joseph's prior convictions, the aggravating factors were established by the evidence of numerous other sexual assaults for which Joseph had not been convicted. Judge Zervos's findings are supported by the record, and support his conclusion that the State had proven the aggravating factors by clear and convincing evidence, even if he did not consider Joseph's prior convictions for sexual abuse.
Conclusion
We conclude that Judge Zervos did not err in refusing to appoint a different attorney for Joseph. We also conclude that Judge Zervos did not err in sentencing Joseph to a maximum term of 30 years of imprisonment. We accordingly AFFIRM the conviction and the sentence.
AFFIRMED.