Opinion
Court of Appeals No. A-9935.
April 1, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-05-6866 CR.
Brian T. Duffy, Assistant Public Advocate, and Rachel E. Levitt, Public Advocate, Anchorage, for the Appellant.
Blair M. Christensen, 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 Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Theodore McNamara pleaded no contest to one consolidated count of sexual abuse of a minor in the second degree. Prior to the entry of judgment, McNamara made two motions to withdraw his plea of no contest on the grounds that his appointed counsel was incompetent. Superior Court Judge Michael L. Wolverton denied McNamara's motions, ruling that NcNamara had failed to show that he was denied effective assistance of counsel. McNamara now argues that several aspects of the motion proceedings violated due process: that Judge W olverton relied on a favorable personal opinion of McNamara's first public defender, prevented him from access to the public defender's employment evaluations, and improperly considered the pleadings from the Office of Victims' Rights. McNamara also argues that another public defender who first filed the motion to withdraw had a conflict of interest. But we conclude that McNamara failed to object to the judge's comments, or the alleged conflict of interest, when he had an opportunity to do so. Likewise, the judge properly protected the employment evaluations because McNamara did not show that they were relevant. And the minor participation by the Office of Victims' Rights had no appreciable effect on the outcome of the motion.
AS 11.41.436(a)(2).
I. BACKGROUND
McNamara was indicted on one count of first-degree sexual abuse of a minor and five counts of second-degree sexual abuse of a minor on October 17, 2005, for sexually abusing three victims (two of whom were McNamara's children). McNamara entered into a plea and sentencing agreement while he was represented by his first attorney, an assistant public defender.
AS 11.41.434(a)(2).
AS 11.41.436(a)(2).
Pursuant to this agreement, on April 12, 2006, McNamara entered a plea of no contest to one consolidated count of second-degree sexual abuse of a minor in return for dismissal of the other counts and a sentence of 10 years, with 6 years suspended, and 10 years of probation. McNamara's attorney left the Public Defender Agency after the plea was entered but before sentencing had occurred. The Public Defender Agency eventually assigned David R. Weber to be McNamara's attorney.
McNamara filed a motion to withdraw his plea of no contest on January 4, 2007. According to McNamara's affidavit, his original attorney suggested that he accept the State's offer because "if he went to trial [he] would go to jail for many, many years." McNamara also asserted that other inmates in jail had told him that his original attorney was a bad lawyer who had never won a case at trial. McNamara argued that he "believed that he had no choice but to accept the State's offer due to his perception that his counsel was incapable of representing him in a trial."
The State filed a memorandum opposing McNamara's withdrawal of his plea, arguing that "McNamara's request to withdraw his plea [was] either gamesmanship or a change of heart" and that he could not show a fair and just reason for withdrawing his plea. The Alaska Office of Victims' Rights (OVR) also filed an appearance and statement opposing McNamara's motion to withdraw his plea.
The OVR argued that allowing McNamara to withdraw his plea would violate the victims' constitutional rights to have a prompt disposition of the case and to be treated with dignity, respect, and fairness. In response, McNamara filed a motion to strike the appearance of the O VR and its statemen t in opposition to his motion to withdraw his plea. He argued that its actions towards his case exceeded its statutory and constitutional authority.
Judge Wolverton held a hearing on January 29, 2007, on the pending motions. The judge denied McNamara's motion to strike and considered the OVR's arguments. Over McNamara's objection, Judge Wolverton allowed the mother of two of the victims to address the court about the detrimental effects her daughters would suffer if the court allowed McNamara to withdraw his plea.
After the mother's statement, Weber argued that McNamara had a fair and just reason to withdraw his plea because his decision had been based on his lack of faith in his original attorney's trial skills. However, Weber asserted that he would not be able to "put . . . [McNamara's original attorney] on the stand and attack her legal advice or her competence as a trial counsel" because of his own "ethical mandate" as a public defender working at the same office with which she had been previously affiliated. McNamara thus did not present any evidence about the attorney's alleged deficiencies.
Judge Wolverton stated that, based on his own experiences with the attorney in the past, she was "as tenacious a defense attorney as [he'd ever] seen." The judge then ruled that McNamara could not withdraw his plea simply because his case had been assigned to a new defense attorney. However, the superior court agreed with Weber that the Public Defender Agency should be allowed to withdraw so that the Office of Public Advocacy could review McNamara's claims.
Accordingly, McNamara filed a another motion to withdraw his plea on March 19, 2007, represented by Paul Maslakowski, an assistant public advocate. McNamara asserted that the original attorney had a poor reputation as a trial attorney among his fellow inmates and that her insistence that "he could not win his case if he went to trial" confirmed his doubts as to her abilities. He alleged that the Public Defender Agency "was aware of [the attorney's] lack of the requisite trial skills to handle serious felony charges, . . . yet took no action." Moreover, McNamara alleged that the Public Defender Agency "forced [her] from her position . . . because of her [poor] trial skills." In response, the State filed an affidavit from the attorney that described her review of McNamara's case and discussed her preparations for trial and plea negotiations.
Judge Wolverton presided at a hearing on the second motion to withdraw on May 11, 2007. The only witness that McNamara called was Quinlan Steiner, the Director of the Public Defender Agency. Steiner testified that there had been employment evaluations of the attorney when she was employed at the Public Defender Agency, but he refused to provide any specific information about what was included in those evaluations without a court order. The court then asked the attorney whether she would be willing to waive the confidentiality of the evaluation records, but she declined.
In addition, the State objected to McNamara's entire line of questioning as irrelevant because the test for ineffective assistance of counsel is case-specific and would not necessarily relate to the attorney's general performance at the Public Defender Agency. Judge Wolverton sustained the State's objection and ruled that the Public Defender Agency's past evaluations of the attorney's performance were irrelevant to the issue of ineffective assistance of counsel in McNamara's case.
Maslakowski then made an offer of proof, stating that he would have also called Dan Lowery and Julia Moudy, both of whom had supervised the attorney at the Public Defender Agency. Lowery had apparently received complaints from McNamara concerning her representation. Furthermore, Maslakowski would have called the attorney and asked her about her trial record as well as the circumstances surrounding her leaving the Public Defender Agency.
Judge Wolverton then ruled that McNamara had failed to show that the attorney's performance denied him the effective assistance of counsel and consequently denied McNamara's motion to withdraw his plea of no contest. The court then imposed the agreed-upon sentence of 10 years' imprisonment, with 6 years suspended, and a probation term of 10 years.
II. Discussion
A. McNamara Failed to Preserve His Claim That Weber Was Ineffective
McNamara based his initial motion to withdraw his plea on the portion of Alaska Criminal Rule 11(h)(2) that allows a 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." Weber, McNamara's new attorney from the Public Defender Agency, argued that McNamara agreed to plead no contest only because he questioned his first attorney's ability to represent him at trial. In his reply memorandum, Weber also argued that McNamara's opinion of his attorney made his plea involuntary. However, Weber stated that he could not assert that the attorney had actually provided ineffective assistance of counsel to McNamara. Weber asserted that he was precluded from advancing this argument because both he and the first attorney worked for the Public Defender Agency.
After hearing argument from both parties, Judge Wolverton ruled that McNamara had not established a fair and just reason to withdraw his plea. But in view of the possible limitation on Weber's advocacy, Judge Wolverton allowed the Public Defender Agency to withdraw from the case and then appointed the Office of Public Advocacy to represent McNamara for all further proceedings.
The Office of Public Advocacy did file another motion to withdraw McNamara's plea, but this motion was based only on the ground that the original attorney had provided ineffective assistance of counsel. McNamara did not ask Judge Wolverton to review or reconsider any other grounds that would support McNamara's request.
McNamara now argues that Weber provided ineffective assistance of counsel because his conflict of interest prevented him from effectively arguing that there was a fair and just reason for McNamara to withdraw his plea. Ordinarily, this type of claim cannot be raised for the first time on appeal. We do not have an adequate record to review this claim because McNamara never raised this claim with Judge Wolverton even though his public advocate had a fair opportunity to do so. We therefore conclude that McNamara has failed to preserve this claim for appeal because he failed to present this issue to the superior court. B. McNamara Failed to Show the Need for His Attorney's Personnel Records
See Barry v. State, 675 P.2d 1292, 1296 (Alaska App. 1984).
See Sengupta v. Univ. of Alaska, 139 P.3d 572, 581 (Alaska 2006).
As noted above, Judge Wolverton scheduled an evidentiary hearing to resolve the claims raised in McNamara's second motion to withdraw. But at the hearing, McNamara did not present any evidence that his original attorney had acted ineffectively. Instead, McNamara called Quinlan Steiner, the Director of the Public Defender Agency, to question him about her employment evaluations. When Steiner testified that the records were confidential, the prosecutor objected that the entire line of questioning was irrelevant and overbroad. Judge Wolverton sustained the prosecutor's objection, noting that the evaluations were not relevant to McNamara's claim that the attorney had rendered ineffective assistance of counsel and that "general jailhouse talk" should not lead to court examination of the attorney's evaluations.
The judge's ruling is consistent with previous cases where we have required a specific showing of relevance before granting access to sensitive materials requested during trial or hearing. For example, Dana v. State involved a defendant who sought the production of an undercover police o fficer's personnel records in the middle of a trial. Responding to the defendant's request for discovery, "[t]he trial judge ruled that the request for the personnel file was not timely and that the defendant had not made a sufficient showing of his need to obtain the file." On appeal, this court agreed with both rationales of the trial judge. But of particular significance to McNamara's case, this court applied a test balancing the employee's privacy interests against the defendant's "showing of any necessity for discovery of the file." Dana failed the balancing test because his attorney "did not make any showing that the material he wanted from the personnel file would be more than a fishing expedition for unspecified material for impeachment."
623 P.2d 348 (Alaska App. 1981).
Id. at 354-55.
Id. at 355.
Id.
Id.
Id.; see also Cockerham v. State, 933 P.2d 537, 543 (Alaska 1997).
In McNamara's case, Judge W olverton had to weigh a number of competing considerations. The prosecutor objected on the basis that the attorney's employment evaluations were inadmissable to show her perform ance in this case. This objection raised a valid concern that McNamara was seeking to use the records of the attorney's general character to prove that she had acted incompetently in this case — an approach that is inconsistent with Alaska Evidence Rule 404(a).
Cf. Marsingill v. O'Malley, 58 P.3d 495, 499-502 (Alaska 2002) (holding that a physician's inability to pass a board-certification test was inadmissible in a malpractice action).
Steiner also noted his understanding that the requested records were confidential. In responding to this concern, the judge correctly recognized that the attorney might have a protected privacy interest in her employment records.
See AS 39.25.080.
See Int'l Ass'n of Fire Fighters, Local 1264 v. Municipality of Anchorage, 973 P.2d 1132, 1134-35 (Alaska 1999).
In response to these arguments, McNamara failed to make any showing that the attorney's employment records would be relevant to her performance when she represented him. In the absence of any specific showing of relevance, Judge Wolverton was entitled to conclude that this request involved an unwarranted "fishing expedition." The judge did not, therefore, commit an abuse of discretion when he ruled that the employment records would be inadmissible. C. Judge Wolverton Did Not Improperly Rely on His Personal Opinion
See Dailey v. State, 65 P.3d 891, 898 (Alaska App. 2003) (noting that evidentiary rulings are reviewed for abuse of discretion).
Judge Wolverton twice mentioned that he had previously observed the attorney's performance in his courtroom. First, when the judge denied McNamara's first motion to withdraw his plea, the judge commented that the attorney was a tenacious defense attorney and that he had "no basis whatsoever to believe from any source that she was incompetent as counsel." Second, when the judge sustained the prosecutor's objection to the discovery of the employment records, he noted that McNamara had not presented any evidence that the attorney was incompetent in the way she handled his case, stating:
[R]egardless of what previous reviews and evaluations of [the attorney] may have revealed, I would always have my own personal observations of . . . [her] in my courtroom over the years and never has there been any suggestion in any case that I can ever recollect that she was ineffective under the terms of our case law in any regard as a . . . criminal defense attorney.
McNamara now argues that these statements indicate how Judge Wolverton improperly relied on his personal opinion of the attorney. But McNamara did not make any objection or any motion for disqualification of Judge Wolverton and consequently must now show plain error. But it is not obvious that Judge Wolverton committed error when he made these comments. A judge does not have a disqualifying personal prejudice simply because he has formed an opinion relative to parties who have been involved in prior proceedings.
See Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005); see also AS 22.20.020(b) (explaining that a party waives the right to disqualify a judge unless he raises an objection).
See Vickers v. State, 175 P.3d 1280, 1286 (Alaska App. 2008).
There is likewise no indication that McNamara was prejudiced by Judge Wolverton's comments. In context, the first comment is consistent with the presumption of competence that McNamara was required to overcome to prove his claim of ineffective assistance. And the second comment is also consistent with the requirement that McNamara must make a showing of specific need to overcome the attorney's privacy interest in the confidential employment records. It is true that a judge should not rely on his personal knowledge of matters outside the judicial record, but Judge Wolverton did not rely on his personal opinion when he delivered his final ruling that "there is no evidence of ineffective assistance of counsel by [the original attorney] in this case." In other words, McNamara has not shown that the judge's comments had any effect on the proceeding. Consequently, we conclude that McNamara has not shown how the superior court committed plain error by referring to the attorney's past performance.
See State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988) (explaining that when evaluating an ineffective assistance of counsel claim a court must apply a strong presumption of competence).
See Dana, 623 P.2d at 355.
Tuttle v. State, 65 P.3d 884, 887 (Alaska App. 2002).
D. The Filings by the Office of Victims' Rights Did Not Violate Due Process
After McNamara filed his motion to withdraw his plea, the OVR filed an entry of appearance and a written victim's statement opposing the motion to withdraw. The victim's statement relied on two of the rights of crime victims protected by the Alaska Constitution: (1) "the right to be treated with dignity, respect, and fairness during all phases of the criminal . . . process," and (2) "the right to timely disposition of the case." According to the statement, two of the minor victims had been told that the case was closed. The statement asserted that these two victims had moved to another state, that they had begun to recover from the abuse that they suffered, and that their recovery w ould be undermined if the defendant were allowed to withdraw his plea.
Alaska Const. art. I, § 24.
McNamara now argues that this participation by the OVR violated his constitutional rights in several different ways: that the investigative powers of the OVR threaten judicial independence, that the OVR acts as a biased special prosecutor, and that the existence of the OVR violates Article II of the Alaska Constitution (which defines the powers and procedures of the legislature). But McNamara did not raise any of these arguments in the superior court and has therefore failed to preserve these issues for review.
See Bobby v. State, 950 P.2d 135, 139 (Alaska App. 1997).
Finally, McNamara argues that the OVR's participation violated due process because there was no statute or court rule authorizing the OVR to file this type of victim's statement. To determine if this court procedure violated due process, we apply a three-factor test where we consider: (1) the private interest affected by the official action, (2) the risk of an erroneous deprivation of the private interest and the probable value of additional safeguards, and (3) the governments' interest, including the fiscal and administrative burdens of the additional safeguards.
See Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18 (1976); Alyeska Pipeline Serv. Co. v. State, Dep't. of Envtl. Conservation, 145 P.3d 561, 569 (Alaska 2006).
In this case, the second factor is fatal to McNamara's claim because he has not shown that participation of the OVR created any risk of error. The OVR is generally authorized to make a victim's statement if requested to do so by the crime victim. But even if the victim's statement in this case exceeded the OVR's statutory authority, the statement included only arguments that the State itself was entitled to make, specifically, that the adverse emotional reaction of these young crime victims was a type of prejudice that outweighed McNamara's asserted reason to withdraw his plea. The OVR's minimal participation simply had no appreciable impact on the fairness of the proceeding Judge Wolverton employed when he denied the motion to withdraw McNamara's plea. Therefore, McNamara has failed to show how the OVR's existence or participation in his case violates his right to due process.
See Alyeska, 145 P.3d at 569.
See AS 24.65.110(b).
See Alaska R. Crim. P. 11(h)(2); see also McClain v. State, 742 P.2d 269, 271 (Alaska App. 1987).
III. CONCLUSION
The superior court did not commit any prejudicial legal error or abuse of discretion when it denied McNamara's motion to withdraw his plea of no contest. We therefore AFFIRM the judgment of the superior court.