Opinion
Court of Appeals No. A-11941 No. 6092
09-10-2014
GLENN OLSEN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Glenn Olsen, pro se, Wasilla. Duke K. Circle, Assistant District Attorney, Dillingham, 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. Trial Court No. 3DI-08-104 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Dillingham, Vanessa H. White, Judge. Appearances: Glenn Olsen, pro se, Wasilla. Duke K. Circle, Assistant District Attorney, Dillingham, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. PER CURIAM.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Glenn Olsen was convicted of second-degree sexual assault and fourth-degree assault. Following his conviction, he filed a motion for a new trial, arguing that his trial attorney was ineffective. Olsen claimed that his attorney exhibited racial bias against him and threatened him in an attempt to coerce him to give up his right to a jury trial and enter a plea. Superior Court Judge Vanessa H. White concluded, without an evidentiary hearing, that Olsen's claims were not credible and denied the motion.
Olsen v. State, 2013 WL 596524, at *1 (Alaska App. Feb. 13, 2013) (unpublished).
Id. at *4.
Id.
On appeal, we concluded that the superior court erred in denying Olsen's motion for a new trial based on the pleadings and affidavits. We explained that a court normally cannot make findings of fact, or enter summary judgment against a party, based on an assessment of the credibility of factual assertions in affidavits. We accordingly ruled that the superior court had insufficient evidence to deny Olsen's new trial motion, and we remanded the case for an evidentiary hearing.
Id.
Id.
Id.
An evidentiary hearing was held on March 3, 2014. At that hearing, Olsen testified in support of his allegations. Olsen's attorney testified that she did not use racial slurs or in any other way exhibit bias against Olsen. She also testified that she made no threats to induce Olsen to accept the State's plea offer, and that she was prepared for his trial. The attorney further testified that, because communicating with Olsen was difficult, she had another attorney or witness present whenever possible.
The superior court found the attorney's testimony credible and concluded that Olsen's allegations were not credible. The court further found that the attorney's actual performance at trial corroborated her testimony that she was prepared for trial, and that Olsen's demeanor in court was consistent with the attorney's testimony that he was "challenging" to communicate with. Based on these findings, the court reaffirmed its denial of Olsen's motion for a new trial.
Olsen now appeals that decision. He points to Frazer v. United States, a Ninth Circuit case holding that certain types of attorney misconduct, if proved, are so egregious that the court should presume the defendant was prejudiced, without an inquiry into the actual conduct of the trial. The Ninth Circuit held that "a verbal assault manifesting explicit racial prejudice and threatening to compromise the client's rights" would fall in this category of presumptively prejudicial misconduct.
Although Olsen filed a pro se petition for review of the superior court's decision, this Court concluded that the claim was properly litigated as an appeal, because the superior court's order denying Olsen's motion for a new trial was a final order under Appellate Rule 202(b). This Court offered Olsen the opportunity to more fully brief his claim, but he elected to rely on the pleading he had already filed.
18 F.3d 778, 783-85 (9th Cir. 1994).
Id. at 785.
In Olsen's case, the superior court determined, after an evidentiary hearing at which both Olsen and his attorney testified, that Olsen did not prove any of his allegations concerning his attorney's conduct. We are bound by the superior court's findings unless the record shows that they are clearly erroneous. As we have repeatedly held, "[t]he primary responsibility for determining [the] credibility [of witnesses] is with the trial court, since that court has the opportunity to hear testimony when it is given and to observe the demeanor of witnesses who appear before it."
Kenai Power Corp. v. Standberg, 415 P.2d 659, 660 (Alaska 1966).
Figueroa v. State, 689 P.2d 512, 513 (Alaska App. 1984).
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Olsen does not challenge the superior court's findings. Instead, he argues that he should not be required to prove that his attorney made the threats and racial slurs he alleges, because "normal communication between attorney and client is almost never recorded, and/or [takes place] in secluded areas where no one can hear what [is] being said."
We acknowledge the difficulty a defendant faces in trying to prove the type of egregious attorney misconduct alleged here when there is no independent witness to, or record of, the attorney-client interaction. But we decline to adopt a rule granting a defendant relief based on an allegation that such misconduct occurred particularly where, as here, the trial judge determined after a full hearing that there was no credible evidence to support it.
We AFFIRM the superior court's decision to deny Olsen's motion for a new trial.