Opinion
Court of Appeals No. A-9675.
January 19, 2011.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge, Trial Court No. 4FA-05-1078 CI.
David K. Allen, Assistant Public Advocate, Fairbanks, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Introduction
A jury convicted Randolph C. Joseph, an Alaskan Native, of first-degree murder for killing Doris Folger. The murder took place in Rampart, Alaska. The jury trial was held in Fairbanks. Joseph appealed his conviction. This court affirmed in 2006.
Joseph v. State, Memorandum Opinion and Judgment No. 5076, 2006 WL 1360945 (Alaska App., May 17, 2006).
Id. at *1.
While his case was on appeal, Joseph also filed an application for post-conviction relief. Joseph argued that he received ineffective assistance of counsel and that his due process rights were violated because his attorney, without consulting him, allowed his trial to be conducted in Fairbanks rather than in Nenana, which was a permissible alternative site under Alaska Civil Rule 18(e). Joseph contended that he was prejudiced by having his case tried in Fairbanks rather than in Nenana because Nenana was more rural and had a higher Native population than Fairbanks. Superior Court Judge Mark I. Wood denied the application following a hearing. Joseph appeals.
Discussion
Under Alaska Criminal Rule 18(b), Fairbanks is the presumptive site for a superior court trial for crimes which are charged to have occurred in Rampart. Under Criminal Rule 18(e), Joseph had a right to have the court transfer venue of his jury trial from Fairbanks to Nenana. But because Joseph did not so move, he waived his right under the rule.
Joseph was represented at trial by attorney James Cannon. In the post-conviction relief litigation, Cannon filed an affidavit and later testified at an evidentiary hearing. Cannon had worked for the Public Defender Agency from 1980 until 2005 and had extensive experience defending criminal cases. Cannon testified that he thought generally about whether the case should be tried in Fairbanks, but he didn't look up the rule to see about changing venue. He stated that he knew that Rampart was too small for a jury trial. He thought Fort Yukon was a possibility, but had heard that trials were not being held there because of problems with the facilities. He thought about the fact that both the defendant and the alleged victim were Native. He concluded that having a trial in Fairbanks would not increase the risk that Joseph would be convicted. He stated, "I didn't see Fairbanks as a site that would be hostile or significantly increase the chances of conviction because Mr. Joseph was Alaska Native." Cannon stated that he did not believe that he asked Joseph about where the case should be tried. He said that he thought that this was a decision for the attorney.
Joseph supported his application with an affidavit from attorney John Franich. In his affidavit, Franich stated that, in his opinion, the failure to advise a client about his right to change venue under Criminal Rule 18(e) constituted ineffective assistance. Franich further asserted that the right to select the trial venue is a personal right that belongs to the client, not the lawyer. He also stated that, even if the decision whether or not to change venue was a tactical decision for the lawyer to make, it was incompetent to fail to discuss this option with the client, who might be aware of important facts and circumstances that the lawyer might not be aware of.
Joseph also supported his application with an affidavit from Robert Downes, a Fairbanks attorney with extensive experience defending criminal cases. Downes stated that, in his professional opinion, "a competent attorney practicing in the larger cities of this State would almost always want to have venue of a criminal trial in a smaller more rural community, when possible, especially if the defendant were a rural Alaska Native." Downes stated that competent legal representation included knowing that Criminal Rule 18(e) allowed moving Joseph's trial from Fairbanks to Nenana and required advising the client of this right. He also stated that the failure to move for a change of venue was, "in itself, ineffective assistance."
In rejecting Joseph's claim that Cannon had provided ineffective assistance of counsel, Judge Wood concluded that Joseph had not proved that Cannon's decision to leave the trial in Fairbanks was incompetent under the facts of Joseph's case.
Judge Wood also ruled against Joseph on Joseph's related due process claim because he concluded that the choice of venue for Joseph's trial was a tactical decision for Joseph's attorney to make and that his attorney was not required to consult with him on this issue.
On appeal, Joseph claims that Cannon's testimony was insufficient to show that Cannon had made a tactical decision to try the case in Fairbanks rather than in Nenana. He points out that Cannon's testimony shows that it never occurred to Cannon that Nenana was a possible site for the trial.
An applicant for post-conviction relief who alleges ineffective assistance of counsel has the burden of ruling out the possibility that counsel's actions were tactical. If "counsel's actions were undertaken for tactical or strategic reasons, they will be virtually immune from subsequent challenge, even if, in hindsight, the tactic or strategy appears to have been mistaken. . . ." However:
State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
Id. at 568.
[A] mistake made out of ignorance rather than from strategy cannot later be validated as being tactically defensible. On the other hand, when a tactical choice has in fact been made, even if it was made by an attorney who was not fully informed as to available options, the choice will be subject to challenge only if the tactic itself is shown to be unreasonable — that is, a tactic that no reasonably competent attorney would have adopted under the circumstances.
Id. at 569-70 (citations omitted).
Cannon testified that he considered whether to seek a change of venue in Joseph's case, specifically to Fort Yukon. He concluded that trying the case in Fairbanks did not increase the risk of Joseph being convicted. He stated that he would have thought more about the issue if he thought that Fairbanks was an undesirable place for Joseph's trial. But he concluded that Fairbanks was not a place "that would be hostile or significantly increase the chances of conviction because Mr. Joseph was Alaska Native."
In rejecting Joseph's claim that Cannon provided ineffective assistance of counsel, Judge Wood found that Cannon "considered the question of appropriate venue in Joseph's case and made a strategic decision to try the case in Fairbanks." The record supports this conclusion.
Joseph did submit the affidavits of two attorneys who were experienced in defense of criminal cases. In those affidavits, the attorneys stated their opinions that Cannon's failure to move Joseph's case from Fairbanks to Nenana constituted ineffective assistance of counsel. But Judge Wood could properly conclude that Cannon's testimony established that he made a tactical decision to try the case in Fairbanks, and that Joseph had not established that this was an unreasonable tactic — "that is, a tactic that no reasonably competent attorney would have adopted under the circumstances."
Id. at 570 (citations omitted).
Joseph also claims that Cannon provided ineffective assistance of counsel and violated Joseph's right to due process of law under the Alaska Constitution because he did not inform Joseph of his right to move his jury trial from Fairbanks to Nenana under Criminal Rule 18(e).
Joseph's argument is based upon his contention that the decision where his trial should be held was a personal decision for him to make or, at least, that Cannon was required to consult with him before making this decision. But Alaska Professional Conduct Rule 1.2(a) provides that "in a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, whether the client will testify, and whether to take an appeal."
In Simeon v. State, we held that "the rule specifies clearly those decisions over which the client has the ultimate authority. Since the rule limits the client's authority to those decisions, it follows that the lawyer has the ultimate authority to make other decisions governing trial tactics. . . ." The decision about where a criminal defendant's jury trial should be held is not one of the decisions over which the client has the ultimate authority. It therefore follows that Judge Wood was correct when he ruled that Cannon's tactical decision that Fairbanks was an appropriate venue for Joseph's trial was properly a decision for Cannon, as the attorney in charge of the case, to make. Therefore, Cannon's act of making this decision without Joseph's input did not constitute ineffective assistance of counsel or violate Joseph's due process rights under the Alaska Constitution. For the same reasons, we reject Joseph's argument that the trial court violated his right to due process because the court did not inform Joseph of his right to move his jury trial under Criminal Rule 18(e).
90 P.3d 181 (Alaska App. 2004).
Id. at 189.
Conclusion
The judgment of the superior court is AFFIRMED.