Opinion
Court of Appeals No. A-10817 Trial Court No. 3AN-03-9754 CI No. 5895
11-14-2012
JOE HOMER MARK, Appellant, v. STATE OF ALASKA, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Nancy Driscoll Stroup, Attorney at Law, Palmer,
for the Appellant. W.H. Hawley, 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.
BOLGER, Judge.
Joe H. Mark applied for post-conviction relief, alleging that his appellate counsel was ineffective for failing to argue certain legal issues in the appeal from his murder conviction. After a hearing on Mark's application, the trial court granted the State's motion to dismiss because Mark failed to submit evidence minimally sufficient to show his right to post-conviction relief. Mark now appeals from the order granting that motion. We conclude that Mark failed to establish any of the three required elements of this claim.
Background
In 1999, Mark was convicted of murder, sexual assault, and tampering with physical evidence. The convictions arose from an incident where a woman's body was found lying in a pool of blood next to the Holiday Inn in downtown Anchorage. The evidence at trial suggested that the woman had fallen, jumped, or been pushed from the third-floor hotel room where Mark was staying.
Patrick Soolook testified that he was a high school classmate of Mark's, and that he went to Mark's room at the Holiday Inn with a woman named P.A.J. on the night of this incident. At one point, P.A.J. slapped Mark and said that she wanted to go to Mountain View with Soolook, but later she changed her mind. Shortly thereafter, Soolook left the room at Mark's request.
The following morning, a security officer found P.A.J.'s body, lying in a pool of blood on the sidewalk, directly below Mark's third-floor hotel room. The rooms below Mark's room were both unoccupied. When the police searched Mark's room , they found blood on one of the beds, on a wall, on the floor of the bathroom, and on Mark's blue jeans and one of his shoes. An autopsy suggested that P.A.J. had been strangled, but that she had died from the fall. DNA material from a vaginal swab from P.A.J. matched a sample obtained from Mark.
Mark appealed his convictions, arguing that the initial police entry into his hotel room was unlawful, that his consent to the search of his room was not voluntary, and that the police subjected him to custodial interrogation without obtaining a waiver of his Miranda rights. This court affirmed Mark's conviction in 2002.
See Mark v. State, Mem. Op. No. 4540, 2002 WL 341979 (Alaska App. Mar. 6, 2002).
Id. at *1.
In 2003, Mark filed an application for post-conviction relief. Among other claims, Mark alleged that his appellate counsel was ineffective for failing to argue three additional legal issues: (1) that there was insufficient evidence to support Mark's convictions; (2) that the trial judge should have granted Mark's request for a mistrial following final argument; and (3) that the trial judge should have granted Mark's motion to suppress a second statement to the police because of a Miranda violation.
At the hearing on Mark's application, Mark called only one witness, his trial attorney for the underlying criminal trial. Mark did not call his appellate counsel as a witness at the hearing. At the conclusion of the hearing, Mark asserted that his appellate counsel would testify consistently with his pretrial affidavit—that appellate counsel could not remember why he chose the claims he argued in Mark's appeal. In response, Superior Court Judge Peter A. Michalski pointed out that the burden was on Mark to prove that his attorney's choice of claims was incompetent. The judge ordered the parties to file post-hearing briefs.
Following the hearing, the State filed a motion to dismiss arguing that Mark had failed to establish that his appellate counsel had been ineffective. Judge Michalski granted the State's motion and dismissed the application for post-conviction relief. This appeal followed.
Discussion
Mark now argues that his appellate counsel provided ineffective assistance of counsel when he failed to raise these additional issues. It is unclear why the State chose to file a post-hearing motion to dismiss rather than arguing the merits of these claims. But we note that Civil Rule 41(b) does authorize a civil defendant in a judge-tried case to move for dismissal after the presentation of the plaintiff's evidence "on the ground that upon the facts and the law the plaintiff has shown no right to relief." Since Judge Michalski did not issue any findings on these issues, we view the record in the light most favorable to Mark's application, and ask whether the evidence he presented was minimally sufficient to establish his claims of ineffective assistance by his appellate counsel.
See Glover v. Sager, 667 P.2d 1198, 1201-02 (Alaska 1983); Correa v. Stephens, 429 P.2d 254, 257 (Alaska 1967); see also Wilson v. State, 244 P.3d 535, 536-37 (Alaska App. 2010) (stating that when we review a ruling granting a motion to dismiss, we review the facts stated in an application for post-conviction relief in the light most favorable to the applicant).
In order to prove his claims, Mark was required to establish three elements: (1) that the additional issues he identified are significantly stronger than the issues that were raised in his appeal; (2) that his appellate counsel had no valid tactical reason for failing to include these issues; and (3) that, if these issues had been included, there is a reasonable possibility that the outcome of the appeal would have been different.
Coffman v. State, 172 P.3d 804, 813 (Alaska App. 2007).
We first turn to the second element of the foregoing test because this element presents the most glaring deficiency. When a post-conviction applicant asserts a claim of ineffective assistance of counsel, he must overcome "a strong presumption of competence." To rebut this presumption the applicant must present some "evidence ruling out the possibility of a tactical reason to explain counsel's conduct." The applicant cannot establish a claim of ineffective assistance of counsel unless he rebuts this presumption.
Nelson v. State, 273 P.3d 608, 611 (Alaska 2012) (per curiam); State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
Nelson, 273 P.3d at 611 (quotation omitted).
Id.
As noted above, Mark did not submit any testimony from his appellate counsel or any other evidence ruling out the possibility that his appellate counsel made a tactical decision on the issues to raise in Mark's appeal. Mark simply relied on his appellate counsel's affidavit stating that he could not remember why he chose the claims to raise in Mark's appeal.
This record is insufficient to rule out the possibility that Mark's counsel made a reasonable tactical decision. An attorney's inability to remember the reason for a decision does not show that the decision was incompetent. Instead, a lack of evidence concerning the reason for an attorney's decision means that the applicant has failed to make his case. Mark had the burden to establish that his appellate counsel did not make a reasonable tactical decision when he chose the issues to argue on appeal, and Mark failed to submit any proof on this issue.
See Allen v. State, 153 P.3d 1019, 1027 (Alaska App. 2007).
Id.
In view of this deficiency, we are not required to decide the merits of the appellate issues that Mark now wants to raise. But we have reviewed the record and the briefing on these issues, and we now address them briefly.
As noted above, Mark argues that there was insufficient evidence supporting the jury's verdicts. On this claim, we view the evidence in the light most favorable to the verdicts and ask whether a reasonable juror could have concluded that the defendant was guilty beyond a reasonable doubt. Mark argues that there are several inconsistencies in the trial evidence. But the resolution of these inconsistencies was a matter for the trial jury; we do not weigh the evidence on appeal. We conclude that the trial evidence appears to reasonably support the jury's verdicts.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012).
Id. at 849.
Mark also argues that the trial judge should have granted a mistrial requested by his trial attorney following closing arguments. On this type of claim, we generally defer to the trial court's judgment; we reverse only if there is an abuse of discretion. In this case, the trial judge reasonably concluded that the prosecutor's closing argument did not violate any protective order and that the jury instructions adequately stated the prosecution's burden to prove the absence of the victim's consent to support Mark's conviction for sexual assault.
Rogers v. State, 280 P.3d 582, 593 (Alaska App. 2012).
Mark also argues that the trial court should have granted his motion to suppress his second statement to the police because after the detective read the Miranda warnings, he told Mark that he also had the "right" to tell his side of the story. But we rejected a similar claim in Malloy v. State, where before reading Miranda warnings from a card, the detective stated, "One of the rights that aren't on that card, though, is that you have the right to tell me your side of the story if you want to." It is unlikely that Mark's appellate counsel would have been successful on a similar claim, the final claim that Mark now wants to pursue.
1 P.3d 1266, 1277 (Alaska App. 2000), vacated on other grounds, 46 P.3d 949 (Alaska 2002).
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As noted above, Mark did not call his appellate counsel as a witness. And Mark did not offer any evidence about the strength of the issues that his appellate counsel actually raised on appeal. So there is no evidence that the additional issues Mark now identifies are any stronger than the issues that were raised in his appeal. In view of their questionable merit, we conclude that it is unlikely that the outcome of Mark's appeal would have been different if these additional issues had been included.
Conclusion
In summary, we agree with the trial judge that Mark failed to submit sufficient evidence to establish that he has any right to relief on his claims of ineffective assistance of counsel. We therefore AFFIRM the superior court's order dismissing the application for post-conviction relief.