Opinion
Court of Appeals No. A-11674 No. 6080
08-13-2014
MARCELO M. SORIA, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael T. Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, 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. 1WR-12-36 CI
t/w 1WR-11-19 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Wrangell, Kevin Miller, Judge. Appearances: Michael T. Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge ALLARD.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Marcelo M. Soria filed an application for post-conviction relief asserting that he received ineffective assistance of counsel in connection with his decision to plead guilty to possession of methamphetamine with intent to deliver. The superior court held an evidentiary hearing and denied Soria's application on its merits. Soria appeals. We agree with the superior court that Soria failed to meet his burden of proving ineffective assistance of counsel because he did not point to any specific way in which his attorney's alleged incompetence prejudiced his case. We accordingly uphold the superior court's decision to deny Soria's application for post-conviction relief.
Background facts
In June 2011, Soria pleaded guilty to third-degree misconduct involving a controlled substance. The plea agreement specified a sentence of 6 years with 3½ years suspended (2½ years to serve). Soria admitted as part of his plea agreement that his offense was aggravated because of the large amount of methamphetamine that he possessed when the police apprehended him. In exchange for Soria's plea, the State agreed not to pursue other felony charges based on evidence that Soria sold drugs to a police informant on other occasions.
AS 11.71.030(a)(1).
AS 12.55.155(c)(25).
After Soria was sentenced, he filed an application for post-conviction relief, seeking to withdraw his plea on the ground of ineffective assistance of counsel. Soria asserted that his privately-retained attorney had provided ineffective assistance of counsel by failing to communicate sufficiently with him about his case and failing to ensure that he had the information he needed to make a knowing and intelligent decision whether to enter a plea.
Following a lengthy evidentiary hearing, the superior court denied Soria's application on its merits. The judge found that there was considerable dispute regarding the number of meetings the attorney had with Soria and about the role of the Spanish interpreter the attorney had hired. However, the court also found that the majority of Soria's testimony was not credible and that many of his factual allegations were demonstrably false.
Because Soria is not a native English speaker, Soria's attorney hired an interpreter, Laura Massin, to assist his attorney-client communications with Soria. Massin had been trained to work as an interpreter but she was not officially certified to do so, and Soria's case was her first employment in that capacity. Massin was present at Soria's change of plea hearing. Although Soria suggests in his brief that Massin's interpretation at the change of plea hearing was inadequate, Soria has not argued on appeal that he did not understand the terms of his plea agreement or the deportation consequences of his plea.
The court acknowledged that it had "serious concerns" about the limited contact Soria had with his private attorney. But the court ultimately concluded that the attorney provided Soria with competent representation and negotiated a reasonable plea agreement on his behalf. The court also concluded that because Soria offered no evidence explaining how his attorney's alleged incompetence affected Soria's decision to accept or reject the plea agreement, Soria failed to prove any prejudice.
Soria now appeals the denial of his application for post-conviction relief.
Why we conclude that the superior court did not err in denying Soria's application for post-conviction relief
A defendant is entitled to withdraw a guilty plea if the defendant proves he received ineffective assistance of counsel from the attorney who advised him to enter the plea. Alaska courts apply a two-pronged test in evaluating ineffective assistance of counsel claims: "first, the defendant must prove that their attorney failed to give them legal assistance within the range of competence expected from criminal law practitioners; and second, the defendant must show that there is a reasonable possibility that the attorney's lack of competence affected the outcome of the proceedings against the defendant."
Garay v. State, 53 P.3d 626, 627 (Alaska App. 2002); Arnold v. State, 685 P.2d 1261, 1265 (Alaska App. 1984).
Garay, 53 P.3d at 628 (citing Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974)).
Soria concedes that he understood the terms of the State's plea offer and the procedures related to the entry of his plea. His argument relates to the amount of time his attorney spent with Soria discussing the State's case. He asserts that his attorney never provided him with discovery and that the attorney only spent thirty minutes on the telephone discussing the case with him, aided by an inexperienced Spanish-language interpreter. Soria contends that this amount of communication was inadequate given that he was charged with a serious offense involving "voluminous and complex" evidence. He further argues that this inadequate communication prejudiced his case because the limited time his attorney spent explaining the State's case was insufficient, as a matter of law, for him to make a knowing and voluntary decision about whether to accept the State's offer and enter a plea.
As noted above, the superior court found that Soria's testimony at the evidentiary hearing lacked credibility and that his attorney's performance had not fallen below the standard of competent counsel. We conclude that it is unnecessary for us to decide whether the superior court was correct that Soria's attorney provided competent representation because we agree with the court's finding that Soria did not meet his burden of establishing any prejudice.
Soria cites two cases to support his claim that the superior court's decision regarding the lack of prejudice was error: Garay v. State and Arnold v. State. Both of these cases are easily distinguished from this case.
In Garay, the pertinent question was whether the defendant was prejudiced by his attorney's failure to provide him with specific discovery that might have influenced his decision to enter his plea. Shortly before Garay pleaded no contest to second-degree sexual assault, the prosecutor gave Garay's attorney information on two police interviews: one with the complaining witness's daughter, who alleged that her mother had a history of falsely accusing men of rape when she was drunk, and another with a former boyfriend of the victim, who said the victim became violent and sexually aggressive when she was drunk. Because Garay's attorney failed to read the new discovery the prosecutor had just provided, Garay entered his plea without any knowledge of this evidence.
Garay, 53 P.3d at 628-29.
Id. at 627.
Id.
We concluded that the attorney's failure to read this evidence was incompetent. We also concluded that Garay was prejudiced by that incompetence because there was a reasonable possibility that the undisclosed information would have affected Garay's decision to accept or reject the plea bargain.
Id. at 628.
Id. at 629.
Unlike Garay, Soria has pointed to no specific evidence or information his attorney failed to communicate to him that might have affected his decision to accept or reject the State's plea offer.
In Arnold, the defendant was involved in a motor vehicle collision that killed one person and injured several others; he entered a no contest plea to manslaughter and three counts of second-degree assault. Arnold later moved to withdraw his plea. The evidence at his post-conviction relief hearing showed that his attorney had minimal knowledge of the facts of the case — the attorney did not review the police reports (other than the initial accident report), the grand jury testimony, or the medical and blood-alcohol reports, and he did not interview any witnesses. Moreover, the attorney did not understand the applicable law — including the critical distinction between negligent homicide and manslaughter — and he conducted no legal research. The attorney also significantly underestimated the sentence Arnold would receive based on his plea. On appeal, the State conceded that Arnold had received ineffective assistance of counsel and urged this Court to allow Arnold to withdraw his plea. We agreed with the State's concession of error and ruled that "the only conclusion that a reasonable person could draw was that Arnold could not make an informed choice about pleading no contest based upon the advice he received from [his attorney]."
Arnold, 685 P.2d at 1262-63.
Id. at 1263.
Id. at 1266.
Id.
Id. at 1263, 1266.
Id. at 1262.
Id. at 1266.
We acknowledge that, in Arnold, we did not require the defendant to point to a specific way in which he was prejudiced by his attorney's incompetence. Instead, we concluded that his attorney could not have meaningfully advised Arnold without a fuller understanding of the facts and law related to the case. Because "the record supported a finding that [Arnold] had literally received no assistance of counsel at all in conjunction with his plea," the prejudice to him was established as a matter of law.
Monroe v. State, 752 P.2d 1017, 1020 (Alaska App. 1988).
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But here, the trial court found that Soria's attorney spent six or seven hours reviewing the discovery the State provided. Soria did not contest that finding, nor has he disputed that his attorney was familiar with the relevant facts and applicable law. And unlike Arnold's attorney, Soria's attorney had been practicing law for more than thirty years and specialized in criminal defense.
In other words, this is not a case in which the defendant's representation was so deficient that it was tantamount to no representation at all. Therefore, Soria was still obligated to advance some specific way in which his attorney's alleged incompetence affected his decision to accept or reject the plea agreement. Because Soria did not meet his burden of proving prejudice, the superior court properly held that he failed to establish ineffective assistance of counsel and was not entitled to withdraw his plea.
Conclusion
The superior court's decision is AFFIRMED.