Opinion
No. 5814
03-07-2012
THOMAS K. WARREN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Thomas K. Warren, Hudson, Colorado, in propria persona, Dan S. Bair, Assistant Public Advocate, and Rachel Levitt and Richard Allen, Public Advocates, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
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 precedent for any proposition of law.
Court of Appeals No. A-10506
Trial Court No. 3AN-02-12897 CI
t/w 3AN-87-2205 CR
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Douglas L. Blankenship, Judge.
Appearances: Thomas K. Warren, Hudson, Colorado, in propria persona, Dan S. Bair, Assistant Public Advocate, and Rachel Levitt and Richard Allen, Public Advocates, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
Thomas K. Warren appeals the dismissal of his application for post-conviction relief. He claims that the superior court erred when it granted the State's motion for summary judgment. He argues that there were material issues of fact suggesting that his trial attorney provided ineffective assistance of counsel. For the reasons set out here, we affirm the judgment of the superior court.
Background
In March 1987, Warren was arrested and charged with kidnapping, first-degree sexual assault, first-degree robbery, and first-degree burglary. The charges came after Warren unlawfully entered the home of an Anchorage woman, threatened her with a knife, and then, among other things, sexually assaulted her. During the invasion, Warren restrained the woman by binding her with cord or twine. Soon after Warren left the house, the victim freed herself and called police. Because Warren left a notebook in the woman's house, police were able to identify him as her attacker.
Police soon connected Warren with two other then-recent sexual assaults, and he ultimately became the suspect in a number of other unsolved sexual assaults.
Because Warren faced multiple serious charges, and because he had prior felony convictions, he risked a lengthy period of imprisonment. The maximum term of imprisonment for the kidnapping charge alone was 99 years. To minimize the risk of a lengthy prison term, Warren's trial attorney advised him to negotiate and enter a global plea agreement that resolved all the pending charges, as well as all of the known possible charges.
The State and Warren reached such an agreement before the matter was presented to the grand jury. Warren pleaded no contest to three counts of first-degree sexual assault, and to one count of escape. In exchange, the State dropped a number of charges, including the kidnapping and the robbery charges, and agreed that it would not charge Warren in connection with nine other sexual assaults. Warren's sentence was capped at 45 years to serve, although later the parties agreed to reduce the cap to 40 years to serve.
The escape charge arose while Warren was in custody for the March 1987 home invasion.
Discussion
Warren's efforts to obtain post-conviction relief in this case have been lengthy, and this particular application was his second. In it, he alleged that both his first post-conviction relief attorney and his trial attorney were incompetent. The only contested material issue in this application centered on the advice Warren's trial attorney gave him regarding the original kidnapping charge. Warren claimed that his trial attorney told him that conviction on the kidnapping charge was a certainty and that, once convicted, he faced 99 years of imprisonment. Warren asserted that he accepted the plea because of this advice. Now, seeking to withdraw his plea through his application for post-conviction relief, Warren contends that the original kidnapping charge failed to state a criminal offense at all. He bases this contention on our decision in Alam v. State. In Alam, we ruled that when a defendant restrains a victim to facilitate the commission of another offense, this restraint will not constitute a kidnapping if it is merely "incidental" to the commission of the other offense.
See Grinols v. State, 10 P.3d 600 (Alaska App. 2000) (allowing successive applications for post-conviction when the later application alleges that the defendant's first post-conviction relief attorney provided ineffective assistance of counsel).
776 P.2d 345 (Alaska App. 1989).
Id. at 349.
Superior Court Judge Michael L. Wolverton granted the State's motion for summary judgment and dismissed Warren's application for post-conviction relief. He found that the attorney had not been ineffective.
Our standard for reviewing this issue is as follows:
We review the grant of summary judgment de novo, reading the record in the light most favorable to the non-moving party and making all reasonable inferences in its favor. We will affirm a grant of summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. The party opposing summary judgment must set forth specific facts showing genuine issues and cannot rest on mere allegations. These facts must arise from admissible evidence. To determine whether the nonmoving party can produce admissible evidence creating a genuine factual dispute, we will consider the affidavits, depositions, admissions, answers to interrogatories and similar material.
Schug v. Moore, 233 P.3d 1114, 1116 (Alaska 2010) (quotation marks, footnotes, and original citation omitted).
Warren's application for post conviction relief
As already explained, as a result of the 1987 home invasion, Warren was charged with kidnapping, first-degree sexual assault, first-degree robbery, and first-degree burglary. As described in the 1987 complaint, Warren committed the kidnapping when he restrained the victim "by binding [her] with cord" "with intent to sexually assault her[.]" In his second post-conviction application, Warren argued that under Alam, the complaint failed to set out a kidnapping offense, and that his attorney was ineffective for not realizing this.
Warren acknowledges that Alam was decided in 1989, approximately two years after his case was resolved, but he points out that Alam was based on the 1980 commentary to the criminal code, which was available to his attorney in 1987. See Commentary on the Alaska Revised Criminal Code, Senate Journal Supp. No. 44 at 5-6, 1980 Senate Journal, Vol. 2 (following p. 1436).
Warren's current application for relief proceeded to the discovery phase, and his trial attorney was deposed. Afterwards, Judge Wolverton, implicitly finding that there were no disputed material facts, granted the State's motion for summary disposition. Judge Wolverton found that "given what [the attorney] knew at the time, he was not ineffective in advising [Warren] that he had a poor defense to the kidnapping charge."
On appeal, Warren claims that he was entitled to a hearing because disputed questions of material fact regarding the trial attorney's representation remain. He asserts that disputes still remain as to (1) whether the attorney was completely unaware of the potential "incidental restraint" defense, and (2) whether he advised Warren that he "absolutely had no defense to the kidnapping charge," or if he instead said that Warren had a "poor kidnapping defense." He claims that Judge Wolverton erred when he granted the State's motion for summary judgment.
When a defendant claims that he has been prejudiced by ineffective assistance of counsel, he must show that his counsel did not perform "at least as well as a lawyer with ordinary training and skill in the criminal law." When counsel's performance is evaluated under the Risher test, there is a presumption of competence. As part of this presumption, it is presumed that "trial counsel's actions were motivated by sound tactical considerations." Reasonable tactical decisions are "virtually immune from subsequent challenge even if, in hindsight, better approaches could have been taken." "In the absence of evidence ruling out the possibility of a tactical reason to explain counsel's conduct, the presumption of competence remains unrebutted and operates to preclude a finding of ineffective assistance."
State v. Jones, 759 P.2d 558, 567 (Alaska App. 1988) (quoting Risher v. State, 523 P.2d 421, 424 (Alaska 1974) (original citation omitted)).
See Risher, 523 P.2d 421.
Jones, 759 P.2d at 568-69.
Id. at 569.
Alexander v. State, 838 P.2d 269, 273 (Alaska App. 1992).
Jones, 759 P.2d at 569.
Moreover, an attorney's specific act or omission can rarely be judged as per se incompetence. Instead, to determine an attorney's competence, an evaluating court needs to know the reasoning and information upon which the attorney chose to act. The attorney's performance is judged at the time it is made, not in hindsight.
Id.
Id.
Risher, 523 P.2d at 424.
Warren's claim
Warren's claim that his attorney was ineffective is based on Warren's evaluation of the attorney's performance on the kidnapping charge as it was drafted in the handwritten information. That document, filed on the day that Warren was arrested, charged Warren with four offenses, all stemming from the home invasion in March 1987. But this document did not mention any of the other cases that later became a material part of Warren's plea agreement. Nor did that document involve the many other cases where Warren was an uncharged suspect.
Among other things, the handwritten information charged Warren with kidnapping. The kidnapping count described in the handwritten information alleged that Warren restrained the victim "with [the] intent to sexually assault her by binding [her] with cord." But the presentence report, which was based on the police reports, showed that Warren restrained his victim after the sexual assault in order to facilitate either the robbery or his escape. In other words, according to the police reports, the facts in the initial charging document were inaccurate.
The record shows that Warren's attorney, with Warren's knowledge and permission, sought a global disposition of all the potential charges Warren faced, charges that involved serious criminal offenses. The attorney recalled telling Warren that he did not have a good defense to any of the charges against him. He said that Warren had used restraint in a number of the uncharged sexual assaults, and that the restraint in some of those cases went beyond the restraint necessary for committing a sexual assault. The attorney believed that a restraint defense was "debatable" in the March 1987 home invasion, and that in light of the multiple serious charges facing Warren, "debatable issues ... [would not] get you very far."
The attorney believed that if Warren had gone to trial, it was "very unlikely" that the jury would acquit him on all of these charges, in part because of the number of sexual assaults and other offenses he was charged with. The attorney also believed that Warren risked the 99-year maximum sentence for kidnapping. The attorney said that he advised Warren accordingly. Additionally, the record shows that the attorney had a basis for his concern that Warren was in jeopardy for multiple convictions — Warren had worked as a delivery driver for a company and had left a notebook containing his delivery schedule at the scene of the March 1987 home invasion. Because of this notebook, Warren was a suspect in all the sexual assaults that occurred close to the locations of his deliveries.
Warren admitted in his plea agreement that he had "read the police reports prepared in connection with the charges to which he ... plead[ed] guilty or no contest as well as the police reports prepared in connection with the various police investigations[,] the [ ] numbers of which appear[ed] [t]herein[,] and that he ha[d] fully discussed all of those cases and [the plea] ... agreement with [his attorney]." The record supports this admission — the attorney testified that he received the police reports and witness statements, reviewed these with Warren, and advised him based on them. And Warren also stated in his pleadings that the police reports set out facts that differed from those in the complaint.
Yet, despite all of this, Warren bases his claim of attorney incompetence solely on the handwritten charging document, which was inaccurate, and not on the facts of the case. Even assuming that Warren might arguably have a claim under Alam with regard to the handwritten information, is it no more than debatable that Alam would have applied had Warren been charged with restraint to aid him in flight after the commission of a felony. Likewise, it is unknown whether Alam would have applied had Warren been charged with kidnapping in any of the cases that the State agreed to not pursue.
See AS 11.41.300(a)(e); see also Yearty v. State, 805 P.2d 987, 995-96 (Alaska App. 1991).
Warren's attorney made his tactical decision to negotiate a global plea agreement based on far more facts and information than what was presented in the initial charging document. Because Warren did not address his attorney's performance in light of all the facts and information that were available to the attorney when he made his tactical decision, we conclude that Warren did not raise a material factual issue that his attorney's tactical decisions were unreasonable. "[R]easonable tactical decisions are virtually immune from subsequent challenge even if, in hindsight, better approaches could have been taken."
Alexander, 838 P.2d at 273.
Considering the record in the light most favorable to Warren, and making all reasonable inferences in his favor, there were no genuine issues of material fact requiring a hearing.
See Jones, 759 P.2d at 566.
Conclusion
We affirm the judgment of the superior court. MANNHEIMER, Judge, concurring.
I agree with my colleagues that the superior court correctly denied Warren's application for post-conviction relief, but my reasons for reaching this conclusion are somewhat different from the views expressed in the majority opinion.
As explained in the majority opinion, Warren was initially charged with sexual assault and kidnapping stemming from an episode that occurred in March 1987. Following Warren's arrest, the police connected him to two other recent sexual assaults, and Warren was being actively investigated in connection with nine other crimes that had been committed at or near Warren's delivery locations.
In other words, Warren was either charged with, or was facing potential charges for, more than a dozen serious crimes.
Warren's attorney negotiated a global resolution of these pending and potential charges. Under this plea agreement, Warren pleaded no contest to three counts of first-degree sexual assault and one count of escape; in exchange, the State dropped the remaining charges (including the kidnapping charge) and agreed not to pursue the other potential charges.
Warren's primary claim for post-conviction relief is that his attorney represented him incompetently during the plea negotiations.
Warren asserts that his attorney pressured him to accept the plea agreement by telling him that he would almost certainly be convicted of the kidnapping charge, which would subject Warren to a sentence of up to 99 years' imprisonment. (The sentencing range for kidnapping is (and was) 5 to 99 years. See AS 12.55.125(b).) Warren further asserts that the prospect of a 99-year sentence was so distressing to him that he felt compelled to accept the plea agreement, even though he otherwise would have rejected it.
This, in itself, would not be a proper ground for rescinding the plea agreement. However, Warren further argues that his attorney was incompetent for failing to see that the kidnapping charge was baseless and that, upon proper motion, this charge would certainly have been dismissed, because the facts of the March 1987 incident did not support a kidnapping charge.
Warren's argument is based on the doctrine that when a person commits an assaultive crime and, in the process, restrains the victim, this restraint will not support a separate conviction for kidnapping if the restraint is merely incidental to the underlying crime. This Court adopted this restricted reading of the kidnapping statute in Alam v. State, 776 P.2d 345, 347-350 (Alaska App. 1989). More recently, in Hurd v. State, 22 P.3d 12, 15-19 (Alaska App. 2001), we clarified the factors that should be taken into account when determining whether a restraint is "incidental" to the underlying crime.
Given the facts of the March 1987 sexual assault, and given this Court's decisions in Alam and Hurd, one might reasonably argue that this March 1987 incident would not support a separate kidnapping conviction. During that incident, Warren either bound his victim with a cord before he sexually assaulted her (to facilitate the sexual assault), or else he bound his victim with a cord after he sexually assaulted her (to facilitate his escape). Under either version, a separate kidnapping conviction would arguably be inconsistent with this Court's decisions in Alam and, especially, Hurd.
I therefore wish to dissociate myself from any suggestion in the majority opinion that Alaska law might condone a separate kidnapping conviction for a defendant who perpetrates a sexual assault, robbery, or other assaultive crime, and then ties up the victim (but leaves them in safety in the same premises) to facilitate the defendant's escape.
That issue is properly left undecided — because there is no need to reach this issue to resolve Warren's case.
As Warren admits, his plea bargain was negotiated before this Court issued our decision in Alam. And as Warren implicitly concedes, he can not attack the competence of his attorney's performance based on his attorney's ignorance of a legal doctrine that had not yet been adopted by this Court.
To circumvent this problem, Warren argues that any competent attorney would have known about the "incidental restraint" limitation on the kidnapping statute even before this Court issued our decision in Alam. To support this argument, Warren relies on a 1985 decision of this Court, Braaten v. State, 705 P.2d 1311 (Alaska App. 1985).
The defendant in Braaten was not convicted (or even charged with) kidnapping; rather, he was convicted of sexual assault. On appeal, Braaten raised several claims relating to the evidence presented at his trial; he also challenged the superior court's finding of two aggravating factors during the sentencing proceedings, as well as the overall length of his sentence.
The members of this Court unanimously rejected Braaten's attacks on his conviction, but the Court was sharply divided with regard to Braaten's sentencing claims. Because of this division, the Braaten decision contains three separate opinions: the lead opinion, plus two separate concurrences from the other two members of the Court. Facially, none of these three opinions deals with the issue of how the kidnapping statute should be interpreted — since Braaten was not charged with, or convicted of, kidnapping. But in Judge Singleton's lengthy concurrence, in the section dealing with whether Braaten's offense should be considered "among the most serious" for sentencing purposes, Judge Singleton included two sentences and a footnote (footnote 4) in which he asserted that Braaten's restraint of his victim would not constitute the more serious crime of kidnapping because the restraint was merely incidental to the sexual assault. See Braaten, 705 P.2d at 1326 & n. 4.
Based on this portion of Judge Singleton's concurring opinion, Warren asserts that any competent criminal defense attorney in this state would have understood that the kidnapping charge against Warren was unsupportable.
It is true that Judge Singleton's views on this matter were later vindicated in Alam and Hurd. But Alam and Hurd were cases where the scope of the kidnapping statute was directly litigated. Braaten (as I have explained) was not. I reject the notion that, in order for an attorney to perform competently in this state, the attorney must be aware of every legal viewpoint discussed in passing by an individual member of this Court in a concurring or dissenting opinion.
Obviously, it is better for the health of the law if judges and attorneys read and consider all of the concurring and dissenting opinions that accompany an appellate court's decision. These individual opinions often help to clarify the meaning and scope of the court's decision of the case.
Indeed, because of this Court's internal procedures for assigning cases, there are times when the lead opinion is written by one member of this Court and a concurring opinion is issued by the other two members of the Court. In such instances, the two-judge concurring opinion actually represents the decision of the Court for purposes of establishing legal precedent.
Among the published decisions of this Court, there are nine instances where the Court's decision on one or more points is contained, not in the lead opinion, but rather in a joint concurrence issued by two members of the Court. See Pears v. State, 672 P.2d 903 (Alaska App. 1983); McCracken v. State, 685 P.2d 1275 (Alaska App. 1984); Vandiver v. State, 726 P.2d 195 (Alaska App. 1986); State v. Echols, 793 P.2d 1066 (Alaska App. 1990); State v. Lewis, 809 P.2d 925 (Alaska App. 1991); Samson v. State, 919 P.2d 171 (Alaska App. 1996); Flanigan v. State, 3 P.3d 372 (Alaska App. 2000); State v. Yi, 85 P.3d 469 (Alaska App. 2004); Garner v. State, 266 P.3d 1045 (Alaska App. 2011).
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But the issue here is whether attorneys should be deemed incompetent if they fail to apprise themselves of every legal assertion contained in non-binding individual concurrences and dissents. I conclude that the answer is "no".
Accordingly, even if Warren's application for post-conviction relief is viewed in the light most favorable to him, he failed to present a prima facie case that his attorney's advice to him during the plea-negotiation process was incompetent. And for this reason, the superior court correctly dismissed Warren's application.