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concluding that the statement in the defendant's affidavit that he had "no memory of not wanting to go forward on an appeal" was not sufficient to state a prima facie case because the statement appeared to be solely about "his own thought processes and his own decision-making" but also "acknowledg[ing] that there are times when people say that they have 'no memory' of an event, when, in context, what they actually mean is that they do not think that the event occurred"
Summary of this case from Miller v. StateOpinion
Court of Appeals No. A-9509.
January 2, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, John Suddock, Judge, Trial Court No. 3AN-03-8188 CI.
Glenda Kerry, Assistant Public Advocate, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Jeffrey G. Marrese appeals the superior court's dismissal of Marrese's application for post-conviction relief. Because we agree with the superior court that Marrese's application did not plead a prima facie case for relief, we affirm the superior court. Background facts and proceedings
The grand jury charged Marrese with one count of second-degree robbery and two counts of fourth-degree assault after Marrese attacked a tourist in downtown Anchorage and took his wallet. The court appointed an attorney from the Public Defender Agency to represent Marrese. At the defense attorney's request, the trial court ordered a competency evaluation of Marrese. The evaluation found Marrese competent, and the court ordered the case to proceed.
After the Public Defender Agency discovered a conflict of interest and moved to withdraw, the court appointed the Office of Public Advocacy to represent Marrese; Assistant Public Advocate Heather O'Brien entered an appearance. Ms. O'Brien obtained a second psychiatric evaluation of Marrese. The evaluation recommended additional testing, but did not address Marrese's competency.
Marrese was released on bail on March 28, 2002, but was arrested six weeks later on another charge, kidnapping. The Public Defender Agency was appointed to represent Marrese in the new case. Shortly thereafter, Marrese pleaded no contest to a charge of second-degree theft in exchange for dismissal of the robbery and assault charges in his earlier case. At the time of the plea, the Department of Corrections was administering Neurontin to Marrese to control his behavior. In a separate plea agreement, Marrese pleaded no contest to a charge of coercion in exchange for a dismissal of the kidnapping charge.
On September 16, 2002, Superior Court Judge Dan A. Hensley sentenced Marrese in both cases (the theft and coercion cases). Judge Hensley imposed 5 years with 1 year suspended for the theft case and 3 years for the coercion case, with 18 months imposed consecutively to the term imposed for the theft case.
On May 30, 2003, Marrese filed an application for post-conviction relief, alleging that O'Brien had provided ineffective assistance of counsel. The superior court appointed counsel to represent Marrese in his post-conviction relief action. On January 9, 2004, Marrese's attorney filed an amended application and, shortly thereafter, filed supporting affidavits from counsel.
Over three months later, in November 2004, the State moved to dismiss Marrese's amended application, arguing that Marrese had not alleged a prima facie case for relief. Marrese opposed the motion.
On August 2, 2005, Superior Court Judge John Suddock granted the State's motion to dismiss on all the claims Marrese asserted — except a claim that depended on a disputed issue of fact: whether Marrese had asked O'Brien to move to withdraw his plea. That remaining claim was resolved in an evidentiary hearing before Superior Court Judge Donald D. Hopwood on November 10, 2005. Judge Hopwood found that Marrese had not communicated a request to withdraw his plea to his attorney and rejected that remaining claim.
Marrese appeals.
Marrese's claim that his attorney incompetently failed to appeal his case
Under Alaska law, the decision whether to appeal a conviction is the defendant's decision. A lawyer who overlooks a client's decision to appeal has provided incompetent representation. Conversely, an attorney has no obligation to appeal a case when the defendant decides not to appeal.
Alaska Rule of Professional Conduct 1.2(a) ("In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer . . . whether to take an appeal.").
Broeckel v. State, 900 P.2d 1205, 1207-08 (Alaska App. 1995).
Id. at 1207.
The affidavit from Marrese's trial attorney detailed her discussion with Marrese and the steps she took to protect Marrese's right to appeal. She stated that Marrese's final decision was that he did not want to appeal. However, in Marrese's affidavit supporting his application for post-conviction relief, he asserted that he had "no memory of not wanting to go forward on an appeal."
A court considering the State's motion to dismiss an application for postconviction relief must accept all well-pleaded factual allegations in the application as true, and then decide if those allegations, if proven, would entitle the applicant to relief. Here, Marrese's attorney declared that Marrese ultimately decided not to appeal. Marrese did not directly contradict that assertion; nor did he provide any reason to doubt the attorney's assertion. Instead, Marrese merely alleged that he had "no memory" of not wanting to pursue an appeal.
LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007); Steffensen v. State, 837 P.2d 1123, 1125-26 (Alaska App. 1992).
We acknowledge that there are times when people say that they have "no memory" of an event, when, in context, what they actually mean is that they do not think that the event occurred. But here, Marrese, was speaking of his own thought processes and his own decision-making. In this context, the superior court was entitled to interpret Marrese's statement at face value: that Marrese was not saying that his attorney was lying; he simply had no memory of the events and conversations that his attorney described.
Such a claim of no memory is not sufficient to create a litigable issue of fact. Thus, Marrese's application for post-conviction relief did not allege a prima facie case that his attorney incompetently failed to honor his desire to appeal.
Marrese's claim that his attorney incompetently failed to inform the court that he was medicated when he entered his plea
Marrese argues that the superior court erred when it dismissed his claim for ineffective assistance of counsel based on his trial attorney's failure to inform the court of his mental status and that he was taking psychotropic medication when he changed his plea pursuant to the plea agreement. Marrese claims that the medication he was taking and his mental status was crucial information that the court should have been aware of in order to fulfill its duties under due process and Criminal Rule 11.
In her affidavit, Marrese's attorney stated that she concluded that there was no need to inform the court of Marrese's medications and mental health status at the change of plea hearing. She explained that she reviewed Marrese's medical records and psychiatric evaluations and concluded that these matters provided no basis for questioning Marrese's legal competency to accept the plea bargain and enter the plea. The attorney's affidavit also states that, at the time of the change of plea hearing, Marrese never indicated to her that he was confused or did not understand what he was doing. Rather, he appeared to be "lucid, coherent and competent."
Furthermore, when Marrese appeared before Judge Hensley to change his plea, Judge Hensley asked Marrese whether he was taking any medication that would interfere with his ability to understand and proceed with the plea agreement. Marrese replied that he was not.
It is true that Marrese's application did allege that his plea was not "knowing, intelligent and/or voluntary." But as this court pointed out in LaBrake v. State, "a court need not assume the truth of pro forma assertions of the ultimate facts to be proved when these assertions are not supported by specific details." Marrese's application did not expressly allege that his decision to accept the plea agreement and enter his no contest plea was affected by any medication he was taking. Thus, Marrese failed to provide specific factual allegations to support his claim, and the superior court could properly dismiss the claim.
Id. at 481 (citing 5C Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 1368, at 255 (3rd edition 2004).
Conclusion
The judgment of the superior court is AFFIRMED.