Opinion
Court of Appeals No. A-11190 No. 6161
03-18-2015
RALPH TRINIDAD, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Whitney G. Glover, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and 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. 4FA-08-1581 CI
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge. Appearances: Whitney G. Glover, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Ralph Trinidad appeals the superior court's denial of his petition for post-conviction relief. In his petition for post-conviction relief, Trinidad asserted that the attorney who represented him in his direct appeal of his criminal case incompetently failed to raise a particular claim on appeal. The superior court concluded that Trinidad's attorney acted competently when she chose not to pursue this claim. For the reasons explained in this opinion, we agree with the superior court.
Underlying facts
In late October 2003, the Fairbanks police found Ralph Trinidad in a bar. Trinidad was not supposed to be there: he was on parole, and his conditions of parole prohibited him from drinking alcoholic beverages and from being on the premises of any establishment where alcohol was served. The police contacted Trinidad's parole officer, and the parole officer directed the police to detain Trinidad and administer a portable breath test to him. When the officers were ready to initiate the test, Trinidad stated, "I already know I'm going to jail." He then ran from the officers, clutching a plastic bag, and entered the men's restroom.
The officers followed Trinidad into the restroom. Trinidad fought vigorously with the officers, even after he was handcuffed. While lying on the floor, Trinidad pushed his pants down, defecated, and began flicking feces at the officers. Eventually, the officers subdued Trinidad. During an ensuing search of Trinidad's person, the police discovered a large amount of cash and approximately six grams of cocaine.
Based on this encounter with the police, Trinidad was convicted of fourth-degree controlled substance misconduct (possession of cocaine), resisting arrest, and second-degree harassment (for flicking feces at the officers).
Trinidad appealed his convictions to this Court, arguing that the superior court should have suppressed all of the evidence that the police obtained during his arrest and ensuing search. More specifically, Trinidad raised three contentions on appeal: (1) that his parole conditions were unconstitutional, (2) that the police lacked the authority to detain him at his parole officer's behest unless the parole officer was also physically present, and (3) that the police did not have probable cause to arrest him.
We rejected each of these contentions, and we affirmed Trinidad's convictions. Trinidad v. State, unpublished, 2006 WL 2089388 at *2-3 (Alaska App. 2006).
In April 2008, Trinidad initiated post-conviction relief proceedings in the superior court. He argued that the attorney who represented him in his direct appeal was incompetent for failing to attack Trinidad's harassment conviction for "[in]sufficient evidence".
Although Trinidad characterized his argument as a sufficiency of the evidence claim, his real argument was that, as a matter of law, there is a "police officer exception" to the harassment statute.
The pertinent clause of the harassment statute, AS 11.61.120(a)(1), declares that it is a crime to insult, taunt, or challenge another person "in a manner likely to provoke an immediate violent response". In his petition for post-conviction relief, Trinidad argued that it is legally impossible to commit the crime of harassment against a police officer because "[a] police officer is not lawfully entitled to react violently in retaliation to harassing conduct". And based on this contention, Trinidad asserted that his appellate attorney was incompetent for failing to seek reversal of his harassment conviction on this theory.
The superior court rejected this argument and denied Trinidad's petition for post-conviction relief. Trinidad now appeals the superior court's decision.
Why we agree with the superior court that Trinidad failed to establish entitlement to post-conviction relief
Trinidad's claim for post-conviction relief is based on the assertion that the attorney who handled his direct appeal was incompetent in her selection of issues to raise on appeal. In Coffman v. State, 172 P.3d 804 (Alaska App. 2007), this Court described the legal test that applies to this type of claim:
To establish a prima facie case that an appellate counsel's choice of issues was incompetent, the defendant must establish (1) that the proposed additional issue is significantly stronger than the issues that were raised in the appeal; (2) that the appellate attorney had no valid tactical reason for failing to include this particular issue; and (3) that, if the proposed issue had been included, there is a reasonable possibility that the outcome of the appeal would have been different.Id. at 813. (Quoted and applied in Lindeman v. State, 244 P.3d 1151, 1158 (Alaska App. 2011)).
Trinidad fails to meet the first part of this test — the requirement that his proposed issue be "significantly stronger than the issues ... raised in the [direct] appeal".
As we explained above, Trinidad contends that he could not be guilty of harassment because, as a legal matter, police officers are required to remain in control of themselves even when provoked. Thus, according to Trinidad, there is no act a person might perform which (in the words of the harassment statute) would be "likely to provoke an immediate violent response" from a police officer.
But the court decisions that Trinidad cites for this proposition are both First Amendment cases: Anniskette v. State, 489 P.2d 1012 (Alaska 1971), and Crawford v. Kemp, 139 P.3d 1249 (Alaska 2006). In these two cases, our supreme court relied on the principle that "[a] policeman's special powers and training, and his constant exposure to ... [indelicate] speech[,] ... leave him less free to react as quickly as [a] private citizen [might] to a purely verbal assault". Anniskette, 489 P.2d at 1015; Crawford, 139 P.3d at 1257.
But Trinidad did not commit "a purely verbal assault". Trinidad assaulted the officers with feces. This is a different kind of provocation from coarse, taunting, or insulting words — both in the emotional reaction it was likely to provoke, and in the danger of infection that it presented to the officers.
Conceivably, an attorney might argue that the principle enunciated in Anniskette and Crawford should be extended, by analogy, to physical assaults as well. But such a claim would be no more than debatable. And because the claim is no more than debatable, Trinidad can not show that his former appellate attorney acted incompetently when she failed to raise this claim in Trinidad's direct appeal.
See Johnson v. State, 486 P.2d 379, 381 (Alaska 1971) (rejecting a claim that the defendant's attorney was incompetent for failing to raise a particular search and seizure claim, when the purported violation of the Fourth Amendment was "highly debatable"). See also Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005) ("To be 'plain error', an error must be so obvious that any competent judge or attorney would have recognized it. If a claim of error is reasonably debatable — if reasonable judges could differ on what the law requires — then a claim of plain error fails.").
We therefore agree with the superior court that Trinidad failed to establish a basis for post-conviction relief.
Conclusion
The judgement of the superior court is AFFIRMED.