Opinion
Court of Appeals No. A-9645.
September 19, 2007.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Dale O. Curda, Judge, Trial Court No. 4BE-98-0304 CI.
Averil Lerman, Assistant Public Advocate, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant.
Nancy R. Simel, 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
This is the second time Moses Moses has appealed after the superior court granted the State's motion to dismiss his application for post-conviction relief. Because the superior court did not apply the proper analysis when it granted the State's motion, we reverse.
On the morning of Moses's trial for one count of first-degree sexual assault and one count of kidnapping, Moses entered into a plea agreement with the State. The agreement provided that Moses would enter a plea of no contest on the first-degree sexual assault count and that the State would dismiss the kidnapping charge. In addition, Moses, a third-felony offender for purposes of presumptive sentencing and thus facing a presumptive 25-year term, agreed that the superior court would impose the maximum term then allowed under AS 12.55.125(i), 30 years.
AS 11.41.410(a)(1) and AS 11.41.300(a)(1), respectively.
Moses changed his plea pursuant to the agreement, and on November 1, 1995, the superior court entered judgment against Moses. Moses received the bargained-for 30-year flat time sentence for first-degree sexual assault. A few days later, Moses sent a pro se letter dated November 4, 1995, to Judge Curda. In that letter, Moses wrote that he wished "to appeal [his case] under Rule 35.1." The letter requested all court hearing records related to his case and provided a very basic statement of the issues Moses wanted reviewed.
In September of 1996, Moses filed a motion in the superior court requesting an exemption from filing fees for a post-conviction relief action. The court denied the motion. On January 27, 1998, more than two years after Moses was sentenced, Moses sent a letter to the Bethel Clerk of Court explaining that Moses had tried to contact the Public Defender Agency in Bethel (the Public Defender Agency represented Moses at trial) to obtain materials related to his trial, and noting that he was having difficulty obtaining relief in his case without an attorney. Judge Curda ordered the Office of Public Advocacy (OPA) to provide an attorney to represent Moses.
On September 23, 1998, Moses filed an application for post-conviction relief. On May 26, 2000, Moses, then represented by attorney Scott Sidell on behalf of OPA, filed an amended application for post-conviction relief.
In July of 2000, OPA attorney David Henderson replaced Sidell. On October 4, 2000, Henderson moved to withdraw as Moses's counsel and to dismiss Moses's application for post-conviction relief. Henderson explained in an affidavit filed with the motion that he had asked Moses to send him any filings that Moses had made within the two-year statute of limitations that followed his sentencing. Henderson stated that Moses had not provided him with anything that he had filed within this time period, and Henderson therefore concluded that the application was time-barred.
See AS 12.72.020(a)(3)(A).
Moses personally responded to Henderson's motion to dismiss. Moses asserted that immediately after sentencing, he told his trial attorney that he wanted to appeal. He reminded the court that he sent a letter to the court dated November 4, 1995, announcing his plan to file an appeal "under Rule 35.1." Moses claimed that in spite of his desire to appeal, his attorney did nothing. He claimed that he was disadvantaged because of his limited understanding of English and his less than average intelligence. He maintained that he had been diligent in pursuing his appellate remedies, and described fruitless efforts to file an application for post-conviction relief in 1996 and 1997.
On November 21, 2000, Henderson moved to withdraw both his motion for withdrawal as Moses's counsel and his motion to dismiss. Henderson pointed out that he had now received information from Moses that Moses had made attempts to file a post-conviction relief application within the statute of limitations. He also pointed out that Moses had limited ability in English and a limited ability to understand the legal process. The State opposed the motion to withdraw the motions, arguing that it was undisputed that Moses had filed beyond the two-year deadline and argued that Moses had not made an adequate showing to avoid the statute of limitations.
Judge Curda dismissed the case, relying on the statute of limitations, and ordered the OPA to withdraw. Henderson moved for reconsideration of the dismissal, arguing mainly that Moses suffered from a learning disability and that this was cause to extend the statute of limitations. Judge Curda did not grant this motion.
See AS 12.72.020(b)(1)(A).
Moses appealed, and, in October of 2003, we reversed the superior court because we concluded that Judge Curda should have allowed the attorney to continue to represent Moses in order to explore whether Moses had a viable claim for post-conviction relief.
See Moses v. State, Alaska App. Memorandum Opinion and Judgment No. 4781 (Oct. 22, 2003), 2003 WL 22405390.
Over a year later, in March 2005, Moses amended his application again. This latest amendment asserted that Moses should be allowed to withdraw his plea to prevent manifest injustice. Moses claimed that he did not receive effective assistance of counsel during the plea negotiations because "there was no reason to plead to the maximum sentence" and because Moses did not understand the plea bargain communicated by counsel due to his mental state and restricted language skills.
About five months later, the State moved to dismiss the application, pointing out several deficiencies in the application — primarily Moses's failure to include affidavits from several of Moses's attorneys who were mentioned in the application — and arguing that the application failed to plead a prima facie case for relief.
See Peterson v. State, 988 P.2d 109, 113 (Alaska App. 1999) ("We have repeatedly held that a defendant asserting ineffective assistance of counsel must provide the court with an affidavit from the former attorney, addressing the various claims of ineffective representation[.]").
Moses opposed the motion to dismiss and moved to supplement his application with additional affidavits and discovery materials.
On April 14, 2006, Judge Curda dismissed Moses's application. Judge Curda implicitly granted Moses's motion to supplement the application with the additional affidavits and discovery materials. The court concluded that Moses had been represented by competent counsel. The court also found that Moses had offered no evidence of mental disability and found from the court's own observations of Moses and from the submissions of two of the attorneys that Moses did not have problems understanding the proceedings. Moses appeals.
Discussion
The State argues in this appeal that we can uphold the superior court because the record shows that the application at issue in Moses's first appeal was barred by the statute of limitations. But the State did not move to dismiss the case on this basis, so Moses had no reason to address this issue in the superior court.
Moses's personal opposition in October 2000 — submitted in response to his appointed counsel's motion to withdraw on the basis that the application had no merit — contained assertions about Moses's efforts to proceed on the application within the statutory time period. Those assertions may establish an arguable basis to conclude that Moses filed within the statute. As we concluded in Moses's first appeal, the statute of limitations issue was debatable. That issue was not litigated in the superior court after we reversed the case the first time, and the record before this court does not present a definitive answer to this issue.
Moses, Memorandum Opinion and Judgment No. 4781 at 4, 2003 WL 22405390 at *2.
When the superior court considers a motion to dismiss an application for post-conviction relief, the court must accept all well-pleaded assertions of fact as true. The court must then decide whether these assertions of fact would entitle the applicant to post-conviction relief.
Steffensen v. State, 837 P.2d 1123, 1125-26 (Alaska App. 1992) ("[W]hen the superior court decides whether the defendant's petition states a prima facie case for relief, the superior court is obliged to view the factual allegations of the defendant's petition in the light most favorable to the defendant."). See also State v. Jones, 759 P.2d 558, 565 (Alaska App. 1988).
LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007).
Judge Curda did not apply this standard. Instead, Judge Curda ruled on the merits of the case, concluding that Moses had not shown manifest injustice because he had received effective assistance of counsel. Judge Curda also cited evidence establishing that Moses did not have communication problems, and found that Moses had not presented evidence that he had a mental deficiency around the time he changed his plea.
It may be fair to conclude, ultimately, that Moses received effective assistance of counsel and that Moses's application does not plead facts that entitle him to relief based on a communication problem. (The present application and supporting material in this record do not plead facts showing incompetent representation in the advice that Moses plead to first-degree sexual assault and receive the maximum term of imprisonment. Moses's conduct supporting the plea and the description of the offense demonstrate a tactical reason for Moses's attorney to recommend that plea, particularly when Moses faced additional imprisonment on the other charge, kidnapping, which was dismissed pursuant to the plea agreement. The application contains no well-pleaded facts that an attorney's advice to Moses to enter that plea bargain was incompetent. Nor does the present application plead specific facts or include a statement or affidavit from Moses regarding how his asserted language-based communication problems or a disability prevented him from understanding the plea agreement.)
However, Judge Curda resolved the competency of counsel claim and Moses's claim that he was not able to understand the plea agreement because of mental deficiencies or communication problems on their merits, rather than deciding whether Moses's application pleaded a prima facie case. If the State again moves to dismiss the application, the superior court must accept Moses's well-pleaded factual assertions as true, and then accepting the truth of those assertions, analyze whether Moses's application presents an arguably meritorious case.
Conclusion
The judgment of the superior court is REVERSED.
I write separately to more fully explain our resolution of this case to the superior court and the parties.
The problem here is that, even though the State asked for judgement on the pleadings ( i.e., asked the superior court to dismiss Moses's petition for post-conviction relief on the ground that the petition failed to present a prima facie case for relief), Judge Curda's decision appears to be a decision on the underlying merits of Moses's claims for relief. As a procedural matter, this was error. The question at this point in the litigation is whether Moses's petition (together with its supporting pleadings) states a prima facie case for relief.
That being said, it does appear that the State's request for dismissal should have been granted — because Moses's petition seemingly fails to state a prima facie case.
Moses was indicted for kidnapping and first-degree sexual assault. He ultimately agreed to plead no contest to first-degree sexual assault, and he further agreed that he would receive 30 years to serve (which was, at that time, the maximum term of imprisonment for that offense). In exchange, the State dropped the kidnapping charge — an unclassified felony with a maximum penalty of 99 years' imprisonment.
Moses essentially makes two claims in his petition for post-conviction relief.
First, Moses claims that his attorneys were incompetent because they negotiated a plea agreement in which Moses agreed to accept the maximum sentence for first-degree sexual assault. There appears to be no basis for this claim of incompetence. According to the attorneys' affidavits, the case against Moses was quite strong. Moreover, Moses was a third-felony offender, so he faced a presumptive 25 years' imprisonment for the first-degree sexual assault — which, at that time, was only 5 years less than the statutory maximum sentence for this offense. In addition, the plea agreement allowed Moses to avoid liability on the more serious charge, kidnapping. According to one attorney's affidavit, Moses "was very afraid of the kidnaping charge and [the] possible sentence [on that charge]". Moses's petition offers nothing to rebut the presumption that his attorneys were competently representing his interests when they negotiated the plea agreement and counseled Moses to accept it.
Moses's second claim for post-conviction relief is grounded on the assertion that he suffers from a learning disability and that he has great difficulty with the English language — and that, for these reasons, he did not adequately understand the terms and significance of the plea bargain.
(Moses also makes a related claim of ineffective assistance of counsel: the claim that his attorneys incompetently failed to take steps to alleviate Moses's language difficulties. However, this claim obviously stands or falls on Moses's underlying assertion that he did not adequately understand his situation and did not adequately understand, or assent to, the plea bargain.)
When a court rules on a motion for summary judgement or for judgement on the pleadings, all well-pleaded facts must be taken in the light most favorable to the non-moving party — i.e., the party who will be thrown out of court if the motion is granted. But as this Court recently explained in LaBrake v. State, 152 P.3d 474 (Alaska App. 2007), this does not mean that the superior court was obliged to assume the truth of Moses's conclusory assertions about his mental and linguistic disabilities or his lack of understanding.
LaBrake involved a petition for post-conviction relief based on allegations of ineffective assistance of counsel. In support of the petition, the defendant made various factual assertions about his dealings with his attorney, but the defendant also made certain conclusory assertions about what his attorney had done or failed to do, as well as assertions about the legal categorization or effect of his attorney's conduct. We held that the superior court was obliged to accept the first category of assertions as true, but not the second and third categories. Here is how we explained this issue in LaBrake:
In deciding [the State's motion to dismiss], the superior court was obliged to presume that LaBrake's well-pleaded assertions of fact were true, notwithstanding [his trial attorney's] competing affidavit.
For example, LaBrake asserted (in his affidavit) that [his attorney] spoke with him only once before LaBrake decided to accept the State's plea bargain, and that [the attorney] "sought no information from [LaBrake]" concerning potential defenses to the State's allegations.
[LaBrake's attorney] responded (in his affidavit) that he spoke with LaBrake several times during this period and that they discussed LaBrake's view of the charges — but that the "crucial facts [of LaBrake's offense] were uncontested" and that LaBrake "unrealistically minimized or rationalized every aspect of his involvement [in the offense]". Although the record contains these competing versions of the underlying facts, the superior court was obliged to presume that LaBrake's statements were true.
However, this presumption does not apply to LaBrake's statements concerning the law, or concerning mixed questions of law and fact ( e.g., his assertions concerning the legal effect or categorization of the underlying occurrences), nor does the presumption apply to LaBrake's conclusory assertions concerning the ultimate facts to be decided.
As explained in Wright and Miller's Federal Practice and Procedure, a court deciding a motion for judgement on the pleadings need not assume the truth of the non-moving party's conclusions of law, nor the truth of the non-moving party's assertions concerning facts that are legally impossible, or the party's assertions concerning matters that would not be admissible in evidence. Moreover, the court need not assume the truth of assertions that are patently false or unfounded, based on the existing record or based on the court's own judicial notice. In addition, 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.
Thus, for example, LaBrake asserted in his affidavit that [his attorney] coerced him into accepting the State's proposed plea bargain. The superior court was not obliged to presume the truth of this conclusory assertion about the legal effect of [the attorney's] conduct on LaBrake's state of mind.
Likewise, the superior court was not obliged to presume the truth of LaBrake's conclusory assertion that [his attorney] failed to investigate the case. LaBrake did not claim to have first-hand knowledge that this was true; rather, this was LaBrake's conclusion or suspicion based on what he observed. The superior court did not have to treat this conclusion as true — although the court did have to assume the truth of LaBrake's assertions concerning the events within his knowledge that led him to reach this conclusion.
Returning, then, to the assertions in LaBrake's affidavit, Judge Steinkruger was obliged to assume that [the attorney] met with LaBrake only once before LaBrake decided to accept the State's plea bargain. But this, in itself, does not establish a prima facie case that [the attorney's] advice to LaBrake (that LaBrake was likely to lose if he went to trial, and that LaBrake should accept the plea agreement) was incompetent or was based on an inadequate investigation of the case.
LaBrake further asserted that [his attorney] failed to give him a "meaningful" opportunity to review the grand jury record before asking him to make a decision regarding the proposed plea bargain. But this assertion is problematic; LaBrake appears to be conceding that he had some opportunity to review the grand jury record, although he now believes that this opportunity was not "meaningful". Judge Steinkruger was not obliged to accept LaBrake's conclusory characterization of the facts.
Moreover (and more important), LaBrake failed to assert how or why a closer examination of the grand jury record would have revealed a substantial flaw in [the attorney's] evaluation of the case or would have altered a competent attorney's advice as to whether LaBrake should accept or reject the State's offer.
LaBrake, 152 P.3d at 480-81 (footnotes omitted).
Our decision in LaBrake clarifies that it was not sufficient for Moses to make conclusory assertions that his learning and linguistic disabilities prevented him from making an intelligent and knowing decision about the plea bargain. Rather, Moses had to offer more specific evidence on this point.
It is true that Moses's petition contains an affidavit from his post-conviction relief attorney, David Henderson, in which Henderson asserts that Moses "has only a fifth[-]grade education", that he "needs assistance to communicate . . . in writing", that he "is not properly able to communicate in the English language", and that he "suffers from a learning disability in reading and speaking the English language". However, the fact that Moses may be operating on a fifth-grade level of education and/or English proficiency does not, by itself, entitle him to post-conviction relief. The real issue is whether these disabilities prevented Moses from attaining a sufficient understanding of the plea agreement, and giving meaningful assent to that agreement.
Criminal Rule 35.1(d) requires that, in a petition for post-conviction relief, all "[f]acts within the personal knowledge of the applicant shall be set out separately from other allegations of facts[,] and shall be under oath." If Moses did not understand the terms and consequences of the plea agreement, this would be a matter within his personal knowledge, and such an assertion would have to be supported by his personal affidavit. But Moses submitted no affidavit (on any subject).
The only affidavits that deal directly with the issue ( i.e., Moses's understanding of, and assent to, the plea agreement) are the affidavits submitted by Moses's attorneys. These affidavits assert that Moses could communicate with his attorneys and that Moses did understand the terms and the consequences of the plea agreement.
In other words, the pleadings that Moses submitted to the superior court did not present a prima facie case for post-conviction relief on either of the two grounds that he asserted. Moreover, this remained the case even after Moses was given an opportunity to supplement his petition on these issues. For this reason, even though Judge Curda committed error when he ruled on the underlying merits of Moses's two claims, it appears we should nevertheless affirm the superior court's dismissal of the petition.
Nevertheless, in the interest of justice, and because we recently clarified a defendant's pleading requirements in LaBrake, we have decided to send Moses's case back to the superior court so that he can have one more opportunity to supplement his pleadings and potentially answer the State's assertion that he has failed to present a prima facie case for relief.
The superior court should give Moses a reasonable amount of time to supplement his petition, and then the superior court should again take up the State's motion for dismissal.
We do not retain jurisdiction of this case.