Opinion
Court of Appeals No. A-10797.
September 14, 2011.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Douglas L. Blankenship, Judge, Trial Court No. 4FA-04-2731 Civ.
David K. Allen, Sechelt, British Columbia, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
In 2002, Jonathan Kukes was indicted on a total of eight felony counts. The State alleged that Kukes had sexually abused his two daughters over the course of ten years. The most serious charges against Kukes were five counts of first-degree sexual abuse of a minor and one count of first-degree sexual assault. (Both of these offenses are unclassified felonies). Kukes was represented by attorney James Hackett.
In April 2003, on the second day of Kukes's trial, Kukes decided to accept a plea bargain agreement offered by the State. Under the terms of this agreement, Kukes pleaded no contest to two counts of the lesser offense of second-degree sexual abuse of a minor, and the State agreed that Kukes would serve no more than 10 years in prison.
In July 2003, before Kukes was sentenced, Kukes told Hackett that he wished to withdraw his pleas because he believed that Hackett had failed to represent him competently. A new attorney, Robert S. Noreen, was appointed to represent Kukes, but Noreen reviewed the case and concluded that Kukes had no colorable claim against Hackett — and that Kukes therefore had no valid ground for withdrawing his no contest pleas. In September 2003, Kukes was sentenced in accordance with the plea bargain: 10 years to serve, with an additional 6 years suspended.
One year later, in September 2004, Kukes filed a petition for post-conviction relief, again seeking to withdraw his pleas on the ground that he received ineffective assistance of counsel from Hackett. Specifically, Kukes alleged that Hackett had concluded early on that Kukes was guilty, that Hackett did little to acquaint himself with the evidence against Kukes, and that Hackett failed to adequately investigate potential defenses and potential pre-trial motions — including a potentially dispositive motion to dismiss the case for violation of Alaska's speedy trial rule, Criminal Rule 45. Kukes asserted that, as a result of these failings, Hackett was not in a position to represent him and advise him competently concerning the decision whether to accept the State's offered plea bargain.
Hackett filed an affidavit responding to Kukes's assertions of incompetence. In this affidavit, Hackett listed the work he did on Kukes's case, including copies of correspondence between himself and Kukes, records that demonstrated Hackett's investigation of Kukes's case, and a list of pre-trial motions that Hacket filed.
Superior Court Judge Douglas L. Blankenship concluded that Kukes's petition should be dismissed because Kukes had failed to set forth a prima facie case for relief. Judge Blankenship noted that Kukes's claim that Hackett failed to file pre-trial motions was disproved by the court's own file in Kukes's case, which contained many pre-trial motions filed by Hackett. The judge further noted that the litigation of these motions tolled the running of the speedy trial clock under Criminal Rule 45 — and, thus, it was clear (from the contents of the court's file) that Kukes was brought to trial within the time limits of Rule 45.
With regard to Kukes's claim that Hackett failed to acquaint himself with the State's case, and failed to investigate potential defenses, Judge Blankenship concluded that Kukes's petition for post-conviction relief (and its supporting documents) "fail[ed] to describe [what] evidence a more thorough investigation would have revealed and how [that] evidence would have created a potential defense that a competent attorney in Mr. Hackett's position would have pursued." The judge observed that, even though Kukes's petition referred to potential defense witnesses, Kukes did not explain what testimony any potential witnesses would have provided if they had been contacted by Hackett. As a result, Judge Blankenship concluded that Kukes had failed to make a prima facie showing that Hackett was incompetent in his investigation of potential defenses. The judge also found that Kukes had failed to make a prima facie showing that Hackett represented him incompetently with regard to the decision whether to accept the plea bargain — because Kukes failed to explain "how this unidentified evidence would have affected Kukes' decision [concerning] the State's offer[,] or how [this unidentified] evidence would have changed a competent attorney's advice about whether Kukes should accept the offer."
Kukes now appeals the superior court's dismissal of his petition.
In his petition for post-conviction relief, Kukes asserted that Hackett failed to discover or investigate the following alleged facts that were potentially favorable to Kukes:
(1) that one of his daughters was raped by an unspecified 35-year-old man, and "they brought charges against [him] after[wards]";
(2) that Kukes contacted the police chief of Nenana, who "told [Kukes] about [his] daughter", and "nothing was done";
(3) that "while [Kukes was jailed] in [the Fairbanks Correctional Center], [unspecified] men [told Kukes that his] wife was teaching [his daughters] about sex [by using Kukes's] son and the [unspecified] rapist";
(4) that an unspecified man told Kukes that his wife had asked him to engage in "sex games";
(5) that "[Kukes's] son and [daughters] had no problem while [he] was home", and that "only after [Kukes] was gone [did] this happen[]"; and that "[Kukes's] son went [to] jail while under [his] wife's care, [and he] was released to her[,] and he went back to jail again, under [Kukes's] wife's care";
(6) that Kukes's wife admitted to being abused, and that she used drugs; and
(7) that Kukes's wife's lover uses cocaine.
The State contends that there is nothing in Kukes's pleadings to show that he ever informed Hackett of these matters. Although the record is not clear on this issue, there are some indications that Kukes communicated these matters to Hackett. In his petition, Kukes declares that "[some] people [whom] I told [my] lawyer about never were contacted." And in a March 2003 letter from Hackett to Kukes, Hackett asked Kukes to provide him with contact information for "potential witnesses you have identified in your letter to the court." We therefore conclude that, at least for purposes of deciding whether the superior court correctly granted judgement to the State on the pleadings, Kukes presented some evidence that he informed Hackett of these potential avenues of investigation.
See Steffensen v. State, 837 P.2d 1123, 1126 (Alaska App. 1992) ("To establish prima facie entitlement to post-conviction relief, it was essential for [the defendant's] pleadings to establish either that he communicated his version of events to his attorney or that his attorney refused him any reasonable opportunity to do so.").
However, the record also shows that Kukes failed to confront Hackett with these assertions and solicit his response to these claims of incompetence. Hackett's affidavit does not mention any of this information, and Kukes does not claim that he asked Hackett to respond to these matters and that Hackett refused. This fact is fatal to Kukes's claims of attorney incompetence. This Court has repeatedly held that when a petition for post-conviction relief alleges ineffective assistance of counsel, the petition is deficient as a matter of law if the defendant fails to confront the attorney with the allegations of incompetence and seek the attorney's response.
See, e.g., State v. Savo, 108 P.3d 903, 909 (Alaska App. 2005); Peterson v. State, 988 P.2d 109, 114 (Alaska App. 1999); Steffensen v. State, 837 P.2d 1123, 1127 (Alaska App. 1992).
Kukes's pleadings suffer from another deficiency. Many of the assertions of fact in Kukes's petition depend on information that was not known to Kukes personally, but rather was known to other people — people who later communicated this information to Kukes. This being so, Kukes was required to support these assertions of fact with affidavits from the people who had direct knowledge of these matters (or else provide an explanation of why he was unable to procure these affidavits).
See Allen v. State, 153 P.3d 1019, 1025 (Alaska App. 2007) ("[I]f the parties choose to submit affidavits, the affidavits must be based upon personal knowledge, must set forth facts that would be admissible evidence at trial, and must affirmatively show that the affiant is competent to testify to the matters stated."). But see Adkins v. Nabors Alaska Drilling, Inc., 609 P.2d 15, 22 (Alaska 1980) (holding that a court may consider a hearsay affidavit if no party objects).
Finally, even if we assume that Kukes could prove all of the assertions of fact listed in his petition, this does not lead to the conclusion that Hackett's representation of Kukes was incompetent. The information recited by Kukes does not tend to demonstrate that Kukes was innocent of sexually abusing his daughters. At best, this information would provide material that might be used to impeach the State's witnesses, but would not directly contradict the State's allegations against Kukes. Moreover, some of this information appears to be inadmissible under Evidence Rule 404 (the restrictions on the use of character evidence) and, potentially, under Alaska's rape-shield statute, AS 12.45.045(a).
In his brief to this Court, Kukes argues that even if no single fact alleged in his petition bespeaks Hackett's incompetence, the set of facts alleged in the petition, "[when] taken together, . . . provide a tenable theory of defense", and thus "it is at least [arguable] that [further investigation of these matters] would have led to admissible evidence which could . . . have improved . . . Kukes' position as trial approached."
Kukes's argument of this point misapprehends a defendant's duty of pleading in post-conviction relief litigation. A defendant seeking post-conviction relief must do more than simply allege that their defense attorney might have pursued other avenues of investigation, and that this proposed additional investigation conceivably might have led to admissible evidence that potentially would have improved the defendant's chances at trial.
As this Court emphasized in State v. Jones, 759 P.2d 558 (Alaska App. 1988), "a mere conclusory or speculative allegation of harm" will not suffice to establish that the defendant received ineffective assistance of counsel. A petition for post-conviction relief must offer "a specific factual showing that [the alleged] incompetence [of the defendant's attorney] had some actual, adverse impact on the case". 759 P.2d at 573. It is not enough for the defendant to "assert, conclusorily, that the attorney's mistakes must have affected the result". Billy v. State, 5 P.3d 888, 889 (Alaska App. 2000).
When a defendant seeks post-conviction relief on the ground that their attorney failed to adequately investigate potential defenses, the defendant must offer evidence that the proposed investigation would, in fact, have yielded fruit. In other words, the defendant (or their attorney or investigator) must actually pursue the proposed investigation and, in the petition for post-conviction relief, must offer evidence tending to show that, if this investigation had been undertaken by the defendant's original attorney, it would have uncovered admissible evidence that would have significantly benefited the defendant's position in the underlying criminal proceedings.
See LaBrake v. State, 152 P.3d 474, 481-82 (Alaska A pp. 2007), w here this Court affirmed the superior court's dismissal of a petition for post-conviction relief because the defendant did not explain how further investigation of the case would have yielded a viable defense to the charges, or how additional investigation of the case would have caused a competent attorney to recommend that the defendant reject the State's proposed plea bargain.
Accordingly, we agree with Judge Blankenship that Kukes failed to set forth any reason to believe that Hackett's preparation of the defense case would have been significantly different if he had investigated the information listed in Kukes's petition, nor any reason to believe that this information would have affected Hackett's advice to Kukes concerning whether to accept the State's proposed plea agreement.
Because Kukes's petition for post-conviction relief failed to set forth a prima facie case that he received ineffective assistance from his trial attorney, the judgement of the superior court is AFFIRMED.