Opinion
A-13558
06-21-2023
JAMES J. KUZMA, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Michael D. Rhodes, Denali Law Group, Anchorage, for the Appellant. Sarah E. Stanley, Municipal Prosecutor, and Patrick N. Bergt, Municipal Attorney, Anchorage, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the District Court, Third Judicial District, Anchorage No. 3AN-18-06109 CI, Leslie Dickson, Judge.
Michael D. Rhodes, Denali Law Group, Anchorage, for the Appellant.
Sarah E. Stanley, Municipal Prosecutor, and Patrick N. Bergt, Municipal Attorney, Anchorage, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
ALLARD, Judge
James J. Kuzma was convicted, following a jury trial, of domestic violence fear assault and domestic violence criminal mischief based on evidence that he pushed his girlfriend down, threatened her, and broke her iPhone.
Anchorage Municipal Code (AMC) 08.10.010(B)(3) and AMC 08.20.010(A)(1), respectively.
Following his conviction, Kuzma filed an application for post-conviction relief, alleging that he received ineffective assistance of counsel from his trial attorney. Kuzma alleged, inter alia, that his trial attorney was ineffective for incorrectly advising him about the terms and implications of a plea offer (a deferred sentencing agreement) that Kuzma rejected, and that his trial attorney was ineffective at trial and at sentencing.The district court dismissed Kuzma's claims for failure to state a prima facie case for relief. This appeal followed.
Kuzma also alleged that his trial attorney was ineffective for failing to advise him about the possibility of entering Veterans Court. The district court dismissed this claim for failure to state a prima facie case for relief, and Kuzma does not challenge that ruling on appeal.
On appeal, Kuzma argues that the district court erred in dismissing his post-conviction relief application, and he asserts that he has established a prima facie case for relief on six different ineffective assistance of counsel claims. Some of the claims that Kuzma argues on appeal were never ruled on by the district court and are therefore waived. Other claims are without sufficient factual support. Ultimately, we conclude that Kuzma's pleadings raised a prima facie case for relief on only one of his ineffective assistance of counsel claims - that the trial attorney's advice regarding the deferred sentencing agreement constituted ineffective assistance of counsel.
Accordingly, we remand this one claim to the district court for further proceedings. We otherwise affirm the judgment of the district court.
Factual background
On May 21, 2017, a security officer at the Sheraton Hotel called the Anchorage Police Department to report a suspected domestic violence incident between Kuzma and his girlfriend, Amber Thompson. A police officer responded to the 911 call and interviewed Thompson. According to Thompson, Kuzma pushed her down, threatened her, and destroyed her iPhone 7. Based on this report, the Municipality charged Kuzma with one count of domestic violence fear assault for recklessly placing Thompson in fear of imminent physical injury, and one count of domestic violence criminal mischief for intentionally damaging property worth more than $50.
AMC 08.10.010(B)(3) and AMC 08.20.010(A)(1), respectively.
Prior to trial, the Municipality extended a "deferred sentencing agreement" to Kuzma. Under the terms of the deferred sentencing agreement, Kuzma would plead guilty or no contest to one count of assault, and the criminal mischief count would be dismissed. Kuzma would then be required to abide by the following conditions for the next twelve months: (1) commit no new jailable offenses or any acts of violence; (2) obey all laws and attend all scheduled court hearings; (3) maintain contact with his attorney and notify his attorney if his residential address changes; (4) pay a $250 fee within eleven months; (5) have no contact with Thompson unless her prior written consent has been provided to the Municipality; and (6) complete a twelveweek anger management course. If Kuzma successfully met these conditions, he would be allowed to withdraw his plea and the entire case would be dismissed. If Kuzma failed to meet these conditions, then he would receive a suspended sentence of 180 days on the assault conviction with unsupervised probation for 3 years.
Kuzma rejected the deferred sentencing agreement and proceeded to trial, where he was convicted of both charged offenses. At sentencing, Kuzma received 3 years of unsupervised probation and an entirely suspended sentence (180 days suspended on the assault conviction; 30 days suspended on the criminal mischief conviction).
Kuzma's application for post-conviction relief
Following his conviction, Kuzma filed an application for post-conviction relief alleging that he received ineffective assistance of counsel from his trial attorney. Kuzma alleged, inter alia, that (1) his trial attorney incorrectly advised him about the deferred sentencing agreement; and (2) his trial attorney's performance at trial and at sentencing "was so unreasonably deficient and obviously incompetent that the law required the trial judge to intervene." Within these two broad claims, Kuzma also argued additional instances of alleged ineffective assistance of counsel. In support of his arguments, Kuzma submitted two affidavits from himself as well as an affidavit from his trial attorney.
It is not clear why Kuzma's post-conviction relief attorney framed these ineffective assistance of counsel claims in terms of trial court intervention. Generally speaking, a defendant does not have to show that their attorney's deficient performance was so deficient that the trial court should have sua sponte intervened in order to obtain postconviction relief. This is because most ineffective assistance of counsel claims rely on facts outside the trial record that were not known to the trial court at the time. See Burton v. State, 180 P.3d 964, 968-69 (Alaska App. 2008) (citing Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984) (explaining that ineffective assistance of counsel claims must "ordinarily be litigated in post-conviction relief proceedings rather than raised as claims of plain error on direct appeal" because "the record of the trial proceedings will seldom conclusively establish incompetent representation")).
In his affidavits, Kuzma claimed that his attorney had erroneously told him that he would have a "conviction on [his] record" and would "permanently" lose his gun rights if he entered into the deferred sentencing agreement. According to Kuzma, his attorney never explained to him how the deferred sentencing agreement worked - that is, the attorney never explained that if Kuzma successfully completed the deferred sentencing agreement's conditions, his plea would be vacated, the charge would be dismissed, and his gun rights would not be affected. Kuzma asserted that if he had known that successfully completing the deferred sentencing agreement would have resulted in all charges being dismissed, he would have entered into the agreement rather than gone to trial.
In his first affidavit, Kuzma asserted that his trial attorney told him that if he agreed to the deferred sentencing agreement, he "would have a conviction on [his] record and that [he] would lose [his] gun rights." Kuzma later submitted a second affidavit that further clarified that his claim was that the trial attorney had erroneously told him that entering into the deferred sentencing agreement would result in the permanent loss of his gun rights.
The trial attorney contested Kuzma's version of events in his affidavit. According to the attorney, he did not tell Kuzma that his gun rights would be permanently affected if he entered into the deferred sentencing agreement. Instead, the attorney stated:
I [told Kuzma] if he agreed to the [deferred sentencing agreement] he would have a conviction on his record and he could lose his gun rights for the period of time while the conviction was on his record. I told him that if he accepted the [deferred sentencing agreement], and if he did not get in trouble the remaining conviction would be dismissed and his gun rights would then be restored. I did emphasize, however, that if the Municipality did not dismiss the case and if he got in further trouble he could lose his gun rights forever.
The trial attorney further stated that Kuzma rejected the deferred sentencing agreement for reasons other than its possible effect on his gun rights:
After we discussed the [deferred sentencing agreement] carefully Mr. Ku[z]ma rejected it even though accepting it would have been much cheaper than going to trial. Mr. Kuzma did not want to accept the [deferred sentencing agreement] for the following reasons: First, he had not done anything wrong (I believed him) and Second, he was very much afraid of losing his hospital job if his employer learned of the possibi[l]ity that he was involved in a domestic violence incident.... [H]is big concern was about having a
conviction on his record however, even i[f] i[t] was for only 12 months, because he felt if his employer found out that if he had such a conviction, he would be fired from his employment.
In response to the trial attorney's affidavit, Kuzma argued that the trial attorney was incompetent for advising him that he would have a "conviction on [his] record" during the pendency of the deferred sentencing agreement. According to Kuzma, the court system website does not treat presentencing pleas as convictions of record and does not report such pleas to the Alaska Public Safety Information Network (APSIN) until sentencing occurs and a final judgment is issued. (Kuzma supported this claim with printouts from the court system's website.) Thus, according to Kuzma, he would not have faced any collateral consequences to his plea during the pendency of the deferred sentencing agreement, and his trial attorney was incompetent in advising him that his gun rights would be affected (albeit, perhaps only temporarily) during the pendency of the deferred sentencing agreement.
The Municipality filed a motion to dismiss, arguing that Kuzma had failed to state a prima facie case for relief on any of his ineffective assistance of counsel claims. Kuzma filed an opposition and a motion for an evidentiary hearing. Kuzma also moved for summary disposition, arguing that he was entitled to post-conviction relief as a matter of law.
The district court denied Kuzma's motion for summary disposition and granted the Municipality's motion to dismiss. The court ruled, inter alia, that it did not matter whether the trial attorney's advice regarding Kuzma's gun rights was incompetent because (according to the court) the attorney had no duty to advise Kuzma on the "collateral" consequences of the deferred sentencing agreement. The court also ruled that Kuzma had failed to show that he was prejudiced by any of the allegedly incompetent advice because he failed to show that he would have successfully completed the deferred sentencing agreement or that his rejection of the agreement contributed to his conviction at trial.
This appeal followed.
Why we conclude that the district court erred when it dismissed Kuzma's ineffective assistance of counsel claim regarding the deferred sentencing agreement
Whether a defendant's pleadings establish a prima facie case for postconviction relief is a question of law that we review de novo. When determining whether the defendant has pleaded a prima facie case, we are required to view all factual allegations in the light most favorable to the applicant.
Burton, 180 P.3d at 974.
See Steffenson v. State, 837 P.2d 1123, 1125-26 (Alaska App. 1992); LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007).
The law is well-established that a criminal defendant has a federal and state constitutional right to effective assistance of counsel with regard to accepting or rejecting a plea offer. Thus, if a defendant erroneously rejects a favorable plea agreement based on the incompetent advice of their attorney, and the defendant is later convicted at trial and receives a less favorable outcome, the defendant may seek a remedy for the constitutional violation by filing a timely application for post-conviction relief alleging ineffective assistance of counsel and seeking reinstatement of the plea offer.
Lafler v. Cooper, 566 U.S. 156, 162 (2012); see also Missouri v. Frye, 566 U.S. 134, 145 (2012); Ahvakana v. State, 475 P.3d 1118, 1124-25 (Alaska App. 2020).
Lafler, 566 U.S. at 174.
To establish a prima facie case for ineffective assistance during the plea bargaining process, the defendant must plead facts that, if proven true, would show that (1) the attorney's advice regarding the plea offer fell below the minimal competence expected of an attorney experienced in criminal law; and (2) there is a reasonable possibility that, but for the attorney's incompetent advice, the defendant would have accepted the more favorable plea offer (and the offer would, in turn, have been accepted by the court and not been withdrawn by the prosecution because of intervening circumstances).
Id. at 164; Risher v. State, 523 P.2d 421, 425 (Alaska 1974); see also Frye, 566 U.S. at 148; Ahvakana, 475 P.3d at 1125. We note that if the allegation is that the trial attorney's incompetent advice caused the defendant to accept a plea offer that they would not have otherwise accepted, then the prejudice prong requires the defendant to prove that, but for the incompetent advice, there is a reasonable possibility that the defendant would not have accepted the plea offer and would instead have gone to trial. Hill v. Lockhart, 474 U.S. 54, 59 (1985); see also Wilson v. State, 1994 WL 16196274, at *4 (Alaska App. May 4, 1994) (unpublished).
Viewing the facts in the light most favorable to Kuzma - as we are required to do at this preliminary stage of the post-conviction proceedings - we conclude that Kuzma's pleadings set forth a prima facie case for relief on the ineffective assistance of counsel claim related to Kuzma's rejection of the deferred sentencing agreement. In ruling otherwise, the district court committed a number of legal errors.
First, the court erroneously ruled that it did not matter whether the trial attorney provided incompetent advice about Kuzma's gun rights because (according to the court) the attorney had no duty to advise Kuzma on his gun rights or any other "collateral consequence" of the deferred sentencing agreement. In support of this ruling, the district court cited to Ferguson v. State. In Ferguson, we discussed the general rule that there is no duty to advise a defendant of the collateral consequences of a plea. Thus, an attorney's failure to advise a defendant of a collateral consequence of a plea generally will not give rise to an ineffective assistance of counsel claim. But, as we made clear in Ferguson, "[a] different rule [applies]" if the attorney provides affirmatively misleading advice about a collateral consequence. As we explained:
Ferguson v. State, 242 P.3d 1042, 1053 (Alaska App. 2010) (quoting Moore v. State, 207 S.W.3d 725, 730 (Mo. App. 2006)).
Id.
Where counsel misinforms a client regarding a particular consequence and the client relies on that misrepresentation in deciding whether to plead guilty, the distinction between direct and collateral consequences of the guilty plea is unimportant. If counsel affirmatively misrepresents a collateral consequence of pleading guilty, that misrepresentation may result in an ineffective assistance of counsel.
Id. (citations omitted).
Thus, contrary to the district court's ruling, Kuzma's attorney was required to provide competent advice with regard to the collateral effect of the deferred sentencing agreement on Kuzma's gun rights.
Here, there is clearly a factual dispute regarding the nature of the advice Kuzma received. According to Kuzma's affidavit, the trial attorney told him that he would permanently lose his gun rights if he entered into the deferred sentencing agreement. According to the trial attorney's affidavit, the advice he gave was that Kuzma would temporarily lose his gun rights if he entered into the deferred sentencing agreement, but Kuzma would permanently lose his gun rights if he failed to successfully complete the deferred sentencing agreement.
Kuzma argued that, either way, the advice was incompetent. We agree that if the attorney told Kuzma that he would permanently lose his gun rights if he entered into the deferred sentencing agreement, such advice would clearly be incompetent because Kuzma's gun rights would not be permanently affected if he successfully completed the deferred sentencing agreement.
Whether it was incompetent for the attorney to advise Kuzma that his gun rights would be temporarily affected during the pendency of the deferred sentencing agreement even if he were otherwise successful at completing the agreement is a closer question. Kuzma put forth examples suggesting that the court system did not report presentencing pleas to APSIN (which would mean that Kuzma's gun rights would not be affected during the pendency of the deferred sentencing agreement). Notably, the Municipality did not put forward direct evidence that contradicted Kuzma's claim that the court system did not report presentencing pleas to APSIN. Instead, the Municipality relied on case law indicating that there are some contexts (such as bail) where a presentencing plea can be considered a "conviction."
See Kwallek v. State, 658 P.2d 794, 795 (Alaska App. 1983) (noting that AS 12.30.040(b), which governs bail on appeal, applies to a person who has been "convicted" but is pending sentencing); see also State v. Otness, 986 P.2d 890, 893 (Alaska App. 1999) (Mannheimer, J., concurring) (rev'd on other grounds) (noting that "convicted" can have different meanings depending on the context).
In its order, the district court emphasized the absence of any clear statutory authority for deferred sentencing agreements, and the court therefore ruled that the trial attorney was not incompetent for "advis[ing] a client of the worst possible scenarios" and advising Kuzma that his gun rights could be affected during the pendency of the deferred sentencing agreement.
But there is a difference between "advis[ing] a client of the worst possible scenarios," i.e., advising a defendant that the law is unclear and that there is a risk that his gun rights could be affected, and definitively telling a defendant that his gun rights would be affected, knowing that the gun rights issue was critical to the defendant's decision of whether to enter the agreement. At this preliminary stage of the proceedings, the trial court was required to view Kuzma's pleadings in the light most favorable to Kuzma. Viewing Kuzma's pleadings in this manner, we conclude that Kuzma established a prima facie case for relief on the first prong of the Risher test, even if the trial attorney's advice was what the attorney claimed it to be.
We note one other complexity to this case. On its face, the deferred sentencing agreement required Kuzma to plead to a physical assault even though he was charged with (and ultimately convicted at trial of) a fear assault. In the proceedings below, the parties did not clearly address this discrepancy, but appeared to have been operating with the understanding that this was a scrivener's error that would have been corrected if Kuzma had chosen to enter the deferred sentencing agreement. If this is true and Kuzma would have been allowed to plead to a fear assault, then the trial attorney was likely wrong that a conviction for fear assault under AMC 08.10.010(B)(3) would affect Kuzma's gun rights. Federal law - specifically, the Lautenberg Amendment to the Gun Control Act of 1968, codified at 18 U.S.C. § 922(g)(9) - prohibits a person convicted of a "misdemeanor crime of domestic violence" from possessing a firearm that has been shipped through interstate commerce. But to qualify as a "misdemeanor crime of domestic violence," the crime must have an element that includes "the use or attempted use of physical force" or "the threatened use of a deadly weapon." See 18 U.S.C. § 921(a)(33)(A). Here, Kuzma was charged with fear assault under AMC 08.10.010(B)(3) ("A person commits an assault if . . . (3) By words or other conduct that person recklessly places another person in fear of imminent physical injury." (emphasis added)). Notably, courts in other jurisdictions have repeatedly held that such fear assaults do not qualify as "misdemeanor crime[s] of domestic violence" for purposes of the federal firearm prohibition. See, e.g., United States v. Daniels, 316 F.Supp.3d 949, 962-63 (N.D. Tex. 2018) (holding that the Texas fear assault statute did not qualify as a "misdemeanor crime of domestic violence," and noting that it was not aware of any cases in which a statute criminalizing intentionally causing another to reasonably fear imminent bodily harm required physical force); United States v. Horse Looking, 828 F.3d 744, 747 (8th Cir. 2016); United States v. Smith, 171 F.3d 617, 620 (8th Cir. 1999); Frazier v. N. State Prison, Dep't of Corr., 921 A.2d 479, 482 ( N.J.Super.Ct.App.Div. 2007) (holding that an assault that could be committed by "physical menace" did not qualify as a "misdemeanor crime of domestic violence" because "an assailant could violate [the physical menace assault statute] by raising a clenched fist in a menacing manner, without hitting or attempting to hit the victim"); see also Doubek v. Kaul, 973 N.W.2d 756, 761 (Wis. 2022) (disorderly conduct, which can include "all kinds of conduct that does not involve the use or attempted physical force or threatened use of a deadly weapon - for example, profane or unreasonably loud behavior" is not a misdemeanor crime of domestic violence)
We further conclude that, viewing the pleadings in the light most favorable to Kuzma, Kuzma also established a prima facie case for relief on the second prong of the Risher test - the prejudice prong. To prove prejudice in this context, Kuzma was required to show that there was a reasonable possibility that, but for the attorney's incompetent advice, he would have accepted the more favorable plea offer (and the offer would have been accepted by the court and not been withdrawn by the prosecution because of intervening circumstances).
Lafler v. Cooper, 566 U.S. 156, 164 (2012); Risher v. State, 523 P.2d 421, 425 (Alaska 1974); see also Missouri v. Frye, 566 U.S. 134, 148 (2012); Ahvakana v. State, 475 P.3d 1118, 1125 (Alaska App. 2020).
The district court ruled that Kuzma had not met this burden because he had not shown that he would have successfully completed the deferred sentencing agreement. But Kuzma was only required to show that the outcome would have been "more favorable" if he had entered into the deferred sentencing agreement. At trial, Kuzma was convicted of two misdemeanors (domestic violence fear assault and domestic violence criminal mischief). However, if he had entered into the deferred sentencing agreement, he would have received either (1) a complete dismissal of both charges if he successfully completed the agreement; or (2) a conviction of record for only one misdemeanor charge (the assault) if he was not successful at completing the agreement. In either case, the outcome would have been "more favorable" than what occurred at trial. The district court therefore erred in requiring Kuzma to prove that he would have successfully completed the deferred sentencing agreement in order to obtain post-conviction relief.
The district court also erroneously believed that Kuzma had to prove that "rejecting the deferred sentencing agreement contributed to his conviction at trial in some way."
Frye, 566 U.S. at 148.
Thus, because Kuzma's pleadings - when viewed in the light most favorable to Kuzma - established a prima facie case that his trial attorney was ineffective for incorrectly advising him about the terms and implications of the deferred sentencing agreement, we remand this claim to the district court for further proceedings and active litigation on the materially contested facts related to (1) what advice Kuzma received; (2) whether that advice fell below the minimal standard expected of an attorney experienced in criminal law; and (3) whether, notwithstanding Kuzma's claim of innocence, there is a reasonable possibility that Kuzma would have entered into the deferred sentencing agreement but for the allegedly incompetent advice he received.
Why we affirm the district court's dismissal of the remainder of Kuzma's ineffective assistance of counsel claims
On appeal, Kuzma raises five additional claims of ineffective assistance of counsel. Only some of these claims were ruled on by the district court. For the reasons explained here, we reject each claim.
1. Kuzma's claim that his trial attorney was ineffective "for not ensuring the court made a LaVigne inquiry andfor not advising Kuzma of his right to testify at trial"
Kuzma asserts that his trial attorney was ineffective "for not ensuring the court made a LaVigne inquiry and for not advising Kuzma of his right to testify at trial." But Kuzma did not raise this LaVigne claim in his post-conviction relief pleadings and the district court never ruled on this claim. It is therefore waived.
LaVigne v. State, 812 P.2d 217 (Alaska 1991).
Marino v. State, 934 P.2d 1321, 1327 (Alaska App. 1997); Erickson v. State, 824 P.2d 725, 733 (Alaska App. 1991).
Furthermore, this claim is factually unsupported. The record shows that the district court advised Kuzma that he had the right to testify at trial and that this was his personal decision, not the decision of his attorney. Kuzma never alleged in either of his affidavits that he did not understand his right to testify, and that this right was personal to him. Nor did Kuzma ever assert that he would have testified at trial, or explain what that testimony would have been. Accordingly, we find no merit to this claim on appeal.
See Alvarez-Perdomo v. State, 454 P.3d 998, 1008-09 (Alaska 2019) (noting that LaVigne requires the trial court to properly advise the defendant of their personal right to testify but does not necessarily require a trial judge to obtain a defendant's affirmative waiver of the right).
Cf. Weist v. Anchorage, 929 P.2d 668, 669 (Alaska App. 1996) (explaining that a defendant must still establish prejudice in cases where no LaVigne inquiry occurred and must affirmatively show that (1) they would have taken the stand if they had understood that was their right; and (2) they had relevant testimony to offer).
2. Kuzma's claim that his trial attorney was ineffective for "not performing any pretrial investigation and not reviewing the charging document or discovery prior to trial"
Kuzma also claims that his attorney was ineffective for "not performing any pretrial investigation and not reviewing the charging document or discovery prior to trial." The district court dismissed this claim because it found that Kuzma had failed to show that his attorney's efforts fell below the minimal standard of competency expected of an attorney experienced in criminal law. The district court also found that Kuzma had failed to establish that he was prejudiced by this allegedly deficient performance. We conclude that we need not reach the question of whether Kuzma's attorney's pretrial investigation and preparation was deficient, because we agree with the district court that Kuzma has failed to establish that he was actually prejudiced by this alleged lack of investigation and preparation. For example, Kuzma has not presented any affidavits from the witnesses that he claims his attorney should have interviewed, nor has he shown that additional pretrial investigation or preparation would have made any difference in the outcome of his trial. Accordingly, we conclude that this claim was properly dismissed for failure to state a prima facie case for relief on the prejudice prong.
3. Kuzma's claim that his trial attorney was ineffective for making "offensive comments to the jury" about domestic violence
Kuzma argues that his trial attorney made various offensive comments to the jury that he asserts prejudiced him. The district court disagreed with this characterization of the trial attorney's comments, finding that the attorney's statements, when viewed in context, were not offensive or likely to prejudice Kuzma. We agree, and we therefore reject this claim on appeal.
4. Kuzma's claim that his trial attorney was ineffective for making "disparaging comments" about Kuzma at sentencing and "not advocating for him in any way"
At sentencing, Kuzma received a fully suspended sentence with a term of probation. On appeal, Kuzma argues that his attorney failed to present mitigating evidence at sentencing, including the fact that Kuzma had no prior criminal history, had served in the military, had a good employment record, and had made restitution to the complaining witness prior to sentencing. But as the district court explained in its order, it was aware of this information at sentencing and "took all those factors into consideration when imposing the sentence." The district court ultimately denied this claim because it found that Kuzma had failed to show that the outcome of his sentencing would have been any different if his trial attorney had advocated for him differently than he did. We agree with this assessment, and we therefore reject this claim on appeal.
5. Kuzma's claim that his trial attorney was ineffective for committing "ethics violations"
On appeal, Kuzma lists fifteen ethical rules that he claims his trial attorney violated. But he does not articulate precisely how the attorney violated these ethical rules nor does he explain how the outcome of his trial would have been different but for these alleged ethical violations. Accordingly, we reject this claim as inadequately briefed.
Conclusion
For the reasons explained here, we REMAND Kuzma's ineffective assistance of counsel claim related to the deferred sentencing agreement to the district court for further proceedings in accordance with the post-conviction relief statute. We otherwise AFFIRM the judgment of the district court.