Opinion
Court of Appeals No. A-9811.
April 30, 2008.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court No. 3PA-04-613 CI.
Paul T. Stavenjord, in propria persona, Eloy, Arizona, for the Appellant. Douglas H. Kossler, 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
Paul T. Stavenjord was convicted of two counts of first-degree murder for shooting Carl H. Beery and D.R. in 1997 near Chulitna. We affirmed Stavenjord's convictions on direct appeal. This case is before us because the superior court dismissed Stavenjord's application for post-conviction relief. The only pertinent issue before us in this appeal is whether the application pled a prima facie case that Stavenjord's appellate attorneys in his direct appeal were incompetent. Because we conclude that Stavenjord's application did not plead a prima facie case for relief, we affirm the superior court.
Stavenjord v. State, 66 P.3d 762, 764 (Alaska App. 2003).
Id. at 764, 770.
Background facts and proceedings
On direct appeal for his murder convictions, Stavenjord was represented by two attorneys from the Public Defender Agency, Margi A. Mock and Wallace H. Tetlow. Mock and Tetlow selected two issues to pursue in the appeal — whether the superior court wrongly denied Stavenjord's motion to change venue and whether the superior court wrongly denied Stavenjord's attack on the search warrants. This Court affirmed Stavenjord's convictions. Stavenjord petitioned the Alaska Supreme Court for hearing and the supreme court denied his petition.
Id.
Stavenjord v. State, Alaska App. Memorandum Opinion and Judgment No. 5034 at 4 (Jan. 18, 2006), 2006 WL 120181 at *2.
Thereafter, Stavenjord filed an application for post-conviction relief. That application raised claims that were initially included in the points on appeal filed by trial counsel but that Mock and Tetlow later decided not to pursue in the direct appeal. The State moved to dismiss the application on several grounds: the application raised claims that could have been raised on direct appeal; the application was untimely because it was filed more than a year after the decision on appeal was final; the claims were barred because it was Stavenjord's second application; and Stavenjord's application alleged grounds that were not materially different from those that were decided in the direct appeal.
Id.
Id. at 5, 2006 WL 120181 at *2.
Stavenjord opposed the motion and claimed, for the first time, that he had received ineffective assistance of counsel on direct appeal. He argued that Mock and Tetlow chose the issues to pursue on appeal and did not pursue the issues Stavenjord wanted to pursue. Judge Smith dismissed Stavenjord's application for the reasons set forth in the State's motion to dismiss.
Id.
Id.
Id.
Stavenjord appealed. We upheld the superior court on most of the issues, but ruled that Stavenjord could pursue the claim that he received ineffective assistance of counsel in his direct appeal. Even so, we observed that this remaining potential claim had a "difficult hurdle to overcome". The record in the case included a letter from Stavenjord's appellate counsel that stated that the choice to narrow the issues to be argued on direct appeal was a tactical choice by the attorneys. We advised that Stavenjord would have to plead facts that demonstrated that the choice by counsel was a choice that no competent attorney would make.
Id. at 5-6, 2006 WL 120181 at *3.
Id. at 6, 2006 WL 120181 at *3.
Id.
Id. at 7, 2006 WL 120181 at *3 (citing State v. Laraby, 842 P.2d 1275, 1279 (Alaska App. 1992)).
When the case returned to the superior court, Judge Smith held a hearing to determine if Stavenjord wanted counsel to be appointed on his behalf. The court found that Stavenjord knowingly and voluntarily declined appointed counsel.
Stavenjord amended his application for post-conviction relief. He asserted that the decision of what issues to pursue on appeal was his decision, not a decision for his attorneys. He asserted that, because his attorneys did not follow his instructions to brief all of the issues in the statement of points on appeal, they were ineffective.
Stavenjord included affidavits from Mock and Tetlow in his amended application. Mock's affidavit explained that after reviewing the case, she decided to argue that Judge Smith erred in denying Stavenjord's motion to change venue. Mock also concluded that testimony from the evidentiary hearing strongly supported the defense claim that the search warrant was obtained as a result of material misrepresentations made by the police in the application for the search warrants.
See State v. Malkin, 722 P.2d 943 (Alaska 1986) (holding that a warrant may be vitiated when the supporting affidavits intentionally or recklessly misrepresent facts).
Tetlow's affidavit explained that he reviewed and researched all of the potential issues on appeal except for the change of venue issue, which Mock was working on. He reviewed the transcripts and other relevant documents. Tetlow concluded that the search warrant issue was the only issue that had any merit (not including the change of venue issue).
Both affidavits asserted that the attorneys discussed their analysis with Stavenjord. Mock's affidavit explained:
Mr. Tetlow and I then talked with Mr. Stavenjord. Mr. Stavenjord agreed to the issues we decided to raise on appeal. But he wanted us to raise a separate issue regarding the suppression of his personal diaries that were seized under the search warrant. Mr. Stavenjord wanted us to separately argue that he had a heightened privacy interest in his private diaries that was independently sufficient to defeat a search warrant. Both Mr. Tetlow and I told him that we did not believe this issue was meritorious. We told him that he had a strong argument with regard to the Malkin issue and, if this argument w ere successful, his diaries w ould be suppressed. W e also told him that because of page limitation and the strength of the two issues we were briefing, we were making a tactical decision not to raise the privacy issue he wanted us to raise.
The State moved to dismiss the amended application on the basis that Stavenjord did not provide the court with any legal authority to support his argument that an appellate attorney in a criminal matter is obliged to pursue the claims on appeal selected by the defendant. The State also asserted that Stavenjord had not pleaded any facts that showed that Mock's and Tetlow's tactical decision to pursue the change of venue issue and the Malkin issue was a choice that no competent attorney would make.
Stavenjord asserted that he had the ultimate authority as to which issues should have been briefed on appeal. Stavenjord's amended application and reply brief is best summarized in the superior court's order dismissing the application:
[Stavenjord] asserts, without any substantiation in the case law, that he has a constitutional right to appeal the verdict, that a key element of that right is the right to raise every point that a defendant feels is appropriate because a point not raised on appeal is waived, and so any attorney who declines to raise a point on appeal necessarily is incompetent.Discussion
Stavenjord renews his claim that he received ineffective assistance of counsel because his appellate attorneys did not pursue the claims that he told them to pursue. Stavenjord cites no authority for this proposition.
The Alaska Rules of Professional Conduct address the division of authority between an attorney and client in a criminal case. Rule of Professional Conduct 1.2(a) declares that in a criminal case, "the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, whether the client will testify, and whether to take an appeal." Because the rule specifies those decisions over which the client has the ultimate authority, it logically follows that the attorney has the ultimate authority to make the other tactical choices in the case.
See Simeon v. State, 90 P.3d 181, 184 (Alaska App. 2004).
Furthermore, in Tucker v. State, this Court ru led that an appellate attorney's decisions on what issues to address in an appeal are decisions within the scope of the attorney's authority. We relied, in part, on Jones v. Barnes, a United States Supreme Court case. In Jones, the Court considered the decision to forego weaker arguments and pursue more meritorious ones as a crucial part of appellate advocacy. The Court held that an appellate attorney representing an indigent defendant is not required to raise every colorable claim.
892 P.2d 832 (Alaska App. 1995).
Id. at 836 (citations omitted).
463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983).
Id. at 750-54, 103 S. Ct. at 3312-14.
The affidavits from Stavenjord's appellate attorneys show that the attorneys pursued the issues that they thought had the most merit. Stavenjord did not plead facts that show that the decision to pursue the issues the appellate attorneys selected was a tactical choice that no competent attorney would make. Therefore, Stavenjord's application did not allege a prima facie case. Accordingly, the superior court properly dismissed Stavenjord's application.
Conclusion
The judgment of the superior court is AFFIRMED.