Opinion
Court of Appeals No. A-10953 Trial Court No. 3AN-08-9032 CI No. 5867
08-01-2012
WILLIAM E. WILLETT, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Whitney Glover, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Philip R. Volland, Judge.
Appearances: Whitney Glover, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, 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.
William E. Willett pleaded no contest to a charge of first-degree murder. Superior Court Judge Philip R. Volland sentenced Willett to eighty-eight years of imprisonment. In this post-conviction relief action, Willett argues that his attorney provided ineffective assistance at his sentencing by failing to advance three specific arguments. Judge Volland dismissed the initial application for post-conviction relief. Willett appeals the dismissal. We affirm.
Factual and procedural background
In November 2005, William Willett pleaded no contest to a single charge of first-degree murder. Willett was represented at his change of plea hearing and at sentencing by Assistant Public Defender John Bernitz.
On February 24, 2006, Superior Court Judge Philip R. Volland sentenced Willett to eighty-eight years to serve. Willett appealed his sentence to this court; we rejected his claim that the sentence was excessive. The Alaska Supreme Court denied Willett's petition for hearing.
Willett v. State, Mem. Op. & J. No. 5205, 2007 WL 1098431, at *1 (Alaska App. Apr. 11, 2007).
In June 2008, Willett filed a pro se application for post-conviction relief. Willett was appointed counsel to represent him in pursuing his application for post-conviction relief. In the application Willett argued that Bernitz provided ineffective assistance at his sentencing. Judge Volland dismissed the application.
Why we uphold Judge Volland's decision
We will discuss, in turn, the three allegations that Willett raised in his application for post-conviction relief.
In his application, Willett first argued that Bernitz provided ineffective assistance of counsel in failing to argue that Willett's offense was mitigated because Willett "had been diagnosed as being bi-polar." Willett argued that "this failure was prejudicial ... because if the trial court had heard the evidence Mr. Willett would have received a sentence beneath eighty-eight years of active time."
In April of 2010, Bernitz filed an affidavit responding to Willett's allegation that Bernitz had been ineffective in failing to mention Willett's bi-polar diagnosis. In his affidavit, Bernitz stated that, "from a limited review of the file and my memory," he did not "mention to the sentencing judge that [Willett] was diagnosed [as] bi-polar." Bernitz stated that he did not have any memory that Willett had been diagnosed as bi-polar. He also asserted that he did not have a strategic reason for not arguing this. He stated that "If [Willett] was so diagnosed, then not mentioning it was simply a mistake."
In dismissing this claim, Judge Volland, who had also been the sentencing judge in Willett's case, pointed out that
The fact that Willett had been diagnosed as bi-polar was included in the presentence report, which the sentencing judge considered before sentencing Willett. Thus, even assuming that Bernitz erred in not arguing as a mitigating factor Willett's bi-polar disorder diagnosis, Willett has not shown how this error contributed to what he contends was an unduly harsh sentence. ... Willett is not constitutionally entitled to "error-free representation." (Citing Bryant v. State, 115 P.3d 1249, 1259 (Alaska App. 2005).)
We uphold Judge Volland's conclusion. In order to show that Bernitz provided ineffective assistance of counsel, Willett had to show that Bernitz handled this issue in a manner that no reasonably competent attorney would have handled it. Willett never provided anything other than a cursory allegation that an argument based on this psychiatric diagnosis would have aided him in sentencing. Willett provided no details to back up this assertion. Willett asks us to assume that a bi-polar diagnosis would have been favorable to him at sentencing. But a diagnosis of mental illness is not necessarily a favorable sentencing consideration. A diagnosis of mental illness could suggest to the court that a defendant is more dangerous or less capable of rehabilitation.
State v. Jones, 759 P.2d 558, 570 (Alaska App. 1988).
See, e.g., Hart v. State, 702 P.2d 651, 663-64 (Alaska App. 1985); Waggy v. State, Mem. Op. & J. No. 3779, 1998 WL 119457, at *6 (Alaska App. Mar. 18, 1998).
In his second allegation, Willett argues that Bernitz provided ineffective assistance of counsel by failing to argue at sentencing that Willett's offense was mitigated because Willett had been adversely affected by a recent change in medications at the time of the murder. In his affidavit responding to this claim, Bernitz stated that he had hired an expert to review whether Willett's change in medications would have impacted Willett's actions. The expert, whose report is in the record, concluded that the change in medications did not influence Willett's behavior on the night of the murder. Bernitz explained that, based upon this expert's evaluation, he did not advance this claim. In dismissing this allegation, Judge Volland concluded that Bernitz had made a reasonable tactical decision.
We uphold Judge Volland's decision dismissing this allegation. In order to prevail in an application for post-conviction relief, the applicant must overcome the strong presumption that his counsel has acted competently. When an attorney makes a tactical choice, the applicant must show that the choice was a tactic that no competent attorney would have pursued. The record in this case shows that Bernitz made a tactical choice, based upon his expert's opinion, to not argue that Willett's offense was mitigated because he was changing medications at the time of the murder. Willett did not present any evidence that this was an unreasonable tactic — that is, a tactic that no competent attorney would have pursued.
Jones, 759 P.2d at 569.
Id.
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In his third allegation, Willett argues that Bernitz provided ineffective assistance of counsel by failing to adequately argue at sentencing that Willett should be dealt with more leniently because he had attempted to kill himself by overdosing on drugs shortly after the murder. Willett argues that this suicide attempt mitigated his offense because it showed that Willett was "extremely unstable at the time that he committed the murder."
In his affidavit responding to this allegation, Bernitz stated that when he litigated a pretrial motion to suppress he presented evidence that Willett attempted to kill himself after the crime. Bernitz also stated that he had mentioned the suicide attempt in his sentencing brief and that "Judge Volland clearly knew that Willett had attempted to kill himself."
In dismissing this allegation, Judge Volland pointed out that Bernitz had "argued the significance of Willett's attempted suicide." He found that, although Bernitz had not argued this point in precisely the manner that Willett claimed it should have been argued, Bernitz had not been ineffective in presenting this matter. The record shows that Bernitz argued, both in his sentencing memorandum and at the sentencing hearing, that Willett's suicide attempt showed Willett had not planned the crime and was extremely remorseful.
We uphold Judge Volland's decision. The record supports the finding that Bernitz made a tactical decision regarding how to present this evidence at the sentencing hearing. There is no evidence to support a conclusion that Bernitz's tactic was unreasonable.
The judgment of the superior court is AFFIRMED.