Opinion
Court of Appeals No. A-10861 Trial Court No. 4AK-08-063 CR No. 5913
02-06-2013
LYNN ROBERT MAILLELLE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Brooke Berens, Assistant Public Advocate, Office of Public Advocacy, Anchorage, Whitney G. Glover, Assistant Public Advocate, Anchorage, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Micheal Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Fourth Judicial District, Bethel, Leonard R. Devaney III, Judge.
Appearances: Brooke Berens, Assistant Public Advocate, Office of Public Advocacy, Anchorage, Whitney G. Glover, Assistant Public Advocate, Anchorage, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Micheal Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, dissenting.
Lynn Robert Maillelle pled guilty to assault in the second degree but later moved to withdraw his plea. Superior Court Judge Leonard Devaney denied the motion. Maillelle appeals. We affirm.
Factual and procedural background
Maillelle was charged with assault in the second degree based on events that occurred on June 28, 2008. Maillelle's niece, B.D., alleged that he had violently sexually assaulted her. The State indicted Maillelle for assault in the second degree, sexual assault in the second degree, incest, and tampering with physical evidence. The State made an offer for Maillelle to plead to assault in the second degree with a sentence of eight years with four years suspended. The State would drop the other charges.
After several continuances, Maillelle, who was represented by an assistant public defender, pled guilty to assault in the second degree. But before sentencing, Maillelle filed a motion to withdraw his plea and a motion for the Public Defender Agency to withdraw as counsel. The Office of Public Advocacy was then appointed to represent Maillelle. In his motion Maillelle claimed that his attorneys had been ineffective in failing to provide him with information about his case which was critical to his decision to enter his plea and that his plea was involuntary because he was confused and did not fully understand what he was doing.
Judge Devaney conducted an evidentiary hearing at which Maillelle was the only witness. Following the hearing, Judge Devaney found that Maillelle failed to establish that his attorneys had been ineffective or that his plea was involuntary. [R. 68] Maillelle appeals.
Analysis
Alaska Rule of Criminal Procedure 11(h)(2) provides that "[b]efore sentencing, the trial court shall allow a defendant to withdraw a plea whenever the defendant ... proves that withdrawal is necessary to correct manifest injustice," and that "the trial court may in its discretion allow the defendant to withdraw a plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea." The defendant bears the burden to show a fair and just reason or to show that plea withdrawal is necessary to correct manifest injustice.
Lott v. State, 836 P.2d 371, 376 (Alaska App. 1992).
Maillelle contends that the attorneys who represented him when he entered his plea were ineffective because they did not show him discovery documents, investigate the case, or explain his possible defenses, and that he "was emotionally distressed at the time of his plea." Particularly, Maillelle contends that his attorneys never showed him police reports or a crime lab report. Maillelle claims that if he had known about the information in the lab report before he entered his plea, he would not have pled guilty.
There is a strong presumption under Alaska law that defense counsel has acted competently and that counsel's actions were the result of a tactical choice. Tactical choices are virtually immune from attack unless the defendant can show that the tactic was an unreasonable one — that it was a tactic that no effective attorney would use. It is ordinarily difficult to rule out the possibility that counsel made a tactical choice without obtaining an affidavit or the testimony of the attorney. But this requirement is not to be enforced inflexibly. "In some cases, the accused may personally be aware of specific facts ruling out the possibility of sound tactical choice, or there may be other evidence available to rule out that possibility."
State v. Jones, 759 P.2d 558, 569-70 (Alaska App. 1988).
Id. at 570.
Id. at 570 (footnote omitted).
In the present case, at Maillelle's request, Judge Devaney issued an order requiring Maillelle's former attorneys to submit affidavits addressing Maillelle's assertions that they provided ineffective assistance. But, several weeks later, Maillelle asked the court to vacate the order requiring the affidavits. In response, Judge Devaney vacated his order. When he vacated his order Judge Devaney stated that affidavits from counsel were often helpful in determining whether an attorney's representation had been effective, but he concluded that he should allow Maillelle's current attorney to decide how he wanted to present his case.
Judge Devaney conducted an evidentiary hearing on Maillelle's motion to withdraw his plea. Maillelle was the only witness at the hearing. We have previously set out the essence of Maillelle's testimony. Judge Devaney found that "[g]iven the number of chances Mr. Maillelle had to decide to plead guilty, and his demeanor on the stand at his change of plea hearing and his motion to withdraw his plea hearing, this Court cannot give his testimony sufficient weight to find a fair and just reason to grant his motion to withdraw his plea of guilty."
On appeal, Maillelle points out that, in issuing his decision, Judge Devaney referred to the fact that Maillelle had not presented any testimony or affidavits from the attorneys who advised him in entering his plea. Maillelle argues that this was unfair since the court had allowed him to proceed without providing affidavits from his former counsel.
All Judge Devaney did was decide the motion based upon the evidence that the parties presented. Whether or not Maillelle provided affidavits or testimony from his former attorneys, he had the obligation to overcome the strong presumption that his attorneys had acted competently. Judge Devaney simply stated that Maillelle had not overcome that presumption with the evidence that he presented.
Judge Devaney concluded that, in deciding whether to accept the plea agreement, Maillelle had to make a difficult choice. But he found that, after Maillelle decided to accept the plea agreement, he had simply changed his mind, regretted accepting the plea agreement, and hoped to negotiate a better deal.
Judge Devaney rejected Maillelle's claim that his attorneys had failed to provide him with police reports, a lab report, and other information which was important for Maillelle to consider before entering his plea agreement. He concluded that Maillelle had simply not established that he did not receive the information or that his attorneys had not adequately discussed the information with him, or that the information was important to Maillelle's case or Maillelle's decision to enter his plea.
In summary, Judge Devaney's conclusion was that Maillelle's decision to withdraw his plea was simply that Maillelle had changed his mind. This is a decision based upon Judge Devaney's finding that Maillelle's testimony was not credible. We are to uphold a decision based upon a trial court's assessment of witness credibility unless it is clearly erroneous. And we have previously held that a court may deny a presentence request to withdraw a plea where the request is simply based on the fact that the defendant has changed his mind about entering a plea.
Rausch v. Devine, 80 P.3d 733, 737 (Alaska 2003).
Shetters v. State, 751 P.2d 31, 35 (Alaska App. 1988) (citing McClain v. State, 742 P.2d 269 (Alaska App. 1987).
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The judgment of the superior court is AFFIRMED. Judge MANNHEIMER, dissenting.
This Court should not affirm the superior court's denial of Maillelle's motion to withdraw his plea. Rather, this Court should vacate the superior court's decision, and order the superior court to give Maillelle another opportunity to litigate his motion. Here is why I reach this conclusion:
Maillelle's motion to withdraw his plea, based on a claim of ineffective assistance of counsel
Maillelle pleaded guilty to second-degree assault, but he later sought to withdraw that plea, claiming that his two former attorneys did not adequately advise him of his rights, that they kept him in the dark concerning the contents of the police reports and a laboratory report, and that they did not adequately investigate the State's case and Maillelle's potential defenses to the charges.
During the superior court litigation of these claims, Maillelle (now represented by a different attorney) initially asked the court to order his former attorneys to file affidavits responding to these claims. But several weeks later, Maillelle withdraw this request, choosing to proceed without the affidavits.
When the State perceived that Maillelle did not intend to present affidavits from his former attorneys, the State asked the superior court to disregard Maillelle's wishes and maintain its earlier order directing the attorneys to provide the affidavits. The State asserted (correctly) that because Maillelle's motion to withdraw his plea was based on assertions of attorney incompetence, he was legally required to produce the attorney affidavits, or to explain why the affidavits could not be obtained. See Lott v. State, 836 P.2d 371, 376-77 (Alaska App. 1992).
Despite the fact that the State's position was legally correct, the superior court declared that Maillelle could litigate his motion without the affidavits if he wished. Specifically, the court stated, "Although an affidavit is often helpful in determining [the] effectiveness of ... counsel, this court is unaware of any authority [allowing] the court, or the district attorney, to tell the defendant how to run his case."
This was an incorrect description of Alaska law. When a defendant advances a claim of ineffective assistance of counsel, the affidavit of the defendant's former attorney is not just "often helpful" (as the superior court put it). Rather, the affidavit is a required component of the defendant's case.
Under State v. Jones, 759 P.2d 558, 570 (Alaska App. 1988), Steffensen v. State, 837 P.2d 1123, 1126-27 (Alaska App. 1992), and Peterson v. State, 988 P.2d 109, 113 (Alaska App. 1999), a defendant claiming ineffective assistance of counsel must provide the court with either (1) an affidavit from their former attorney addressing the defendant's claims of incompetence, or (2) an explanation of why it was not possible to obtain such an affidavit. And in Lott v. State, 836 P.2d 371, 375-77 (Alaska App. 1992), this Court expressly held that this evidentiary requirement applies to cases like Maillelle's — cases where a defendant files a motion under Criminal Rule 11(h) seeking to withdraw a plea based on assertions of ineffective assistance of counsel.
Thus, the State was correct in asserting that Maillelle was procedurally required to produce affidavits from his two former attorneys (or explain why he could not produce them). Nevertheless, the superior court allowed Maillelle's plea-withdrawal litigation to proceed to an evidentiary hearing without the affidavits.
At the beginning of this evidentiary hearing, before any evidence was presented, the State asked the superior court to dismiss Maillelle's plea-withdrawal motion on the basis that Maillelle had failed to provide affidavits from the attorneys whose competence he was questioning. The court denied this motion, again based on this same misinterpretation of Alaska law. The court declared that, even though attorney affidavits were "obviously ... recommended", the court would not dismiss Maillelle's claim simply because Maillelle failed to provide these affidavits.
When the evidentiary hearing went forward, Maillelle did not present testimony from his former attorneys. Maillelle was the sole witness at this hearing.
Maillelle testified that his two former attorneys did not share the police reports and the laboratory report with him, and that they pressured him to accept the State's proposed plea bargain. Maillelle also testified that he would not have agreed to accept the plea bargain, and would not have pleaded guilty to the second-degree assault charge, if he had known the contents of the police and laboratory reports.
The primary legal problem in this case arises from the fact that, after the superior court repeatedly assured Maillelle that he could litigate his plea-withdrawal claim without the attorney affidavits, the superior court rejected Maillelle's ineffective assistance of counsel claim solely on the ground that Maillelle failed to produce these affidavits.
The superior court's written decision in this case has separate sections that address the two legal facets of Maillelle's plea-withdrawal request: (1) Maillelle's assertion that he should be allowed to withdraw his plea because of "manifest injustice" (i.e., because his attorneys gave him ineffective assistance of counsel), and (2) Maillelle's assertion that there was a "fair and just reason" for allowing him to withdraw his plea, because he was ignorant of important aspects of his case when he made his decision to accept the State's plea offer.
The way I interpret the superior court's decision, the court rejected Maillelle's claim of manifest injustice / ineffective assistance of counsel because Maillelle failed to produce affidavits from his former attorneys.
My colleagues assert that this is not true. The majority opinion declares that the superior court decided Maillelle's claim "based upon the evidence ... presented", and that the superior court "simply stated" that, without affidavits from his attorneys, Maillelle's testimony was factually not sufficient to establish ineffective assistance.
That is not how I read the superior court's decision. The superior court began by citing the case law supporting the State's position — the case law declaring that Maillelle's claim was legally inadequate without affidavits from his former attorneys:
A defendant asserting ineffective assistance of counsel must provide the court with an affidavit from their former attorney addressing the various claims of ineffective representation, or must explain why such an affidavit cannot be obtained. [The superior court supported this statement of law with a footnote citing Jones, Steffensen, and Peterson.]The superior court noted that Maillelle had voluntarily chosen not to present affidavits from his former attorneys:
[U]pon motion by defense counsel, this court ordered [the] Defendant's prior counsel to produce affidavits. However, the Defendant ... [later asked] this court to rescind its order ... .The superior court then declared that, in the absence of testimony or affidavits from Maillelle's former attorneys, Maillelle "[had] not met the evidentiary requirements to prove ineffective assistance of counsel":
In short, the Defendant did not present any testimony or affidavits from his former attorneys. ... This court has the Defendant's affidavit and his brief testimony accusing his former attorneys of ineffective assistance. This is not enough to overcome the strong presumption of competency.
The Defendant has not met the evidentiary requirements to prove ineffective assistance of counsel[.]
My colleagues interpret this passage as the equivalent of a finding that Maillelle's testimony was not convincing enough to overcome the presumption of attorney competency. I think this is a misintepretation of what the superior court wrote.
The superior court did not say that it found Maillelle's testimony unconvincing, nor did the court declare that Maillelle's testimony, even if true, failed to establish ineffective assistance of counsel. Rather, the superior court wrote that Maillelle failed to meet "the evidentiary requirements to prove ineffective assistance of counsel".
What "evidentiary requirements" was the court talking about? I think it is fair to conclude that the court was talking about the evidentiary requirements that the court had just described in the preceding paragraphs of its decision: the requirements imposed by Jones, Steffensen, and Peterson of either (1) affidavits from the defendant's former attorneys or (2) explanations of why those affidavits could not be obtained.
Put simply, I conclude that the superior court dismissed Maillelle's manifest injustice / ineffective assistance of counsel claim because the court ruled — belatedly — that, in the absence of attorney affidavits (or an explanation for the lack of affidavits), Maillelle's own affidavit and testimony were legally insufficient to support his claim of attorney incompetence.
This is, in fact, a correct characterization of Alaska law. Under Jones, Steffensen, Peterson, and Lott, defendants who claim ineffective assistance of counsel must either provide affidavits from the attorneys whose competence is being attacked, or must explain why those affidavits are unobtainable. The problem is that the superior court repeatedly assured Maillelle that it would not enforce this rule against him — and then the court denied Maillelle's claim on this very basis.
Maillelle's second ground for seeking to withdraw his plea: his assertion of a "fair and just reason"
I acknowledge that the second part of the superior court's decision — the part that discusses Maillelle's "fair and just reason" claim — is worded in a way that could reasonably be interpreted as a rejection of Maillelle's factual assertions on their merits, based on the unconvincingness of Maillelle's testimony and the absence of corroborative testimony from his former attorneys.
If this had been the sole basis for the superior court's rejection of Maillelle's "fair and just reason" claim, then one might reasonably argue that this Court should overlook the procedural unfairness of the first part of the superior court's ruling, or that we should declare the procedural unfairness to be harmless, because the superior court rejected Maillelle's factual assertions on their merits in this second part of its decision.
The problem with this approach is that the superior court did not reject Maillelle's "fair and just reason" claim solely on the basis that Maillelle's assertions of fact might have been unconvincing. Rather, the superior court declared that its rejection of Maillelle's "fair and just reason" claim was based, in part, on a finding that the State would suffer prejudice if Maillelle was allowed to withdraw his plea.
Prejudice to the State is a valid consideration when a defendant seeks to withdraw a plea under the "fair and just reason" rationale. See Alaska Criminal Rule 11(h)(2). But prejudice to the State is not a valid consideration when a defendant seeks to withdraw a plea because of manifest injustice. Ibid; Harrison v. State, 860 P.2d 1280, 1285 (Alaska App. 1993).
Because the superior court's rejection of Maillelle's "fair and just reason" claim was partially based on a finding that the State would be prejudiced if Maillelle was allowed to withdraw his plea, one can not assume or infer that the superior court's ruling on this issue necessarily entails a factual rejection of the claims of attorney incompetence that form the basis of Maillelle's "manifest injustice" claim.
In other words, we can not proceed under the assumption that the error in the superior court's rejection of Maillelle's "manifest injustice" claim was cured or rendered harmless by the superior court's rejection of Maillelle's "fair and just reason" claim.
Conclusion
For these reasons, I dissent from this Court's resolution of Maillelle's case. It was fundamentally unfair for the superior court to lead Maillelle to believe that he could pursue his manifest injustice / ineffective of assistance of counsel claim without presenting affidavits from his former attorneys, only to later reject Maillelle's claim solely on the basis that Maillelle failed to present these affidavits.
This Court should vacate the superior court's decision, and we should give Maillelle another opportunity to litigate this claim, now that Maillelle has been informed that these affidavits are required.