Opinion
A-13318
04-13-2022
SHERRIE I. WILSON, Appellant, v. STATE OF ALASKA, Appellee.
Andrew Stebbins, Attorney at Law, under contract with the Public Defender Agency (opening brief), Renee McFarland, Assistant Public Defender (reply brief), and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Trial Court No. 3AN-11-08618 CI Third Judicial District, Anchorage, Michael L. Wolverton, Judge.
SUMMARY DISPOSITION
Andrew Stebbins, Attorney at Law, under contract with the Public Defender Agency (opening brief), Renee McFarland, Assistant Public Defender (reply brief), and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
Sherrie I. Wilson pleaded guilty, pursuant to a plea agreement, to second-degree murder. After she was sentenced, she filed an application for post-conviction relief seeking to withdraw her plea. Wilson alleged that her trial attorney did not explain the relevant law or facts, did not inform her of the consequences of her plea, and pressured her to plead guilty. Wilson also asserted that she was under the influence of "heavy doses of medication" that affected her ability to understand her attorney's explanations.
AS 11.41.110(a)(1) and/or (2).
The superior court held an evidentiary hearing at which Wilson, her trial attorney, and her trial attorney's supervisor testified. After the hearing, the court ruled that Wilson had failed to substantiate her claims of ineffective assistance of counsel, writing that "none of Ms. Wilson's claims and observations were born[e] out or supported by any of the evidence and testimony presented to the court." The superior court therefore denied her application for post-conviction relief.
Wilson now challenges that ruling on appeal. But the superior court's ruling is well-supported by the record. Wilson's attorney testified at length about his conversations with Wilson, and his testimony readily supports the conclusion that he acted competently throughout the plea bargaining process. Wilson's arguments to the contrary rely primarily on her own testimony, which the court was not required to credit. We therefore affirm the superior court's denial of Wilson's application.
Wilson also raises a new claim that she did not raise in the superior court: she argues that her plea colloquy was deficient under Alaska Criminal Rule 11, and that she should be allowed to withdraw her plea on that ground. Wilson acknowledges that this claim was not raised in her post-conviction relief proceedings, but she asks us to review it now for plain error.
As the State points out, we have previously suggested that a defendant cannot raise a claim of plain error in an appeal from the denial of post-conviction relief. But even assuming Wilson were entitled to pursue such a claim, she has failed to demonstrate plain error. The Alaska Supreme Court held in Lewis v. State that violations of Rule 11(c) are "reversible only if they affect substantial rights of the defendant." We explained in Lindoff v. State that this means that there must be a finding that the defendant was prejudiced by the violation - i.e., "(1) that the defendant was not otherwise aware of the information that the judge forgot or neglected to say, and (2) that the defendant would not have entered the guilty plea or the no contest plea if the defendant had been aware of this information." Because Wilson never raised this issue in the superior court, no such finding was ever made. Wilson has therefore failed to establish plain error.
See, e.g., Jenkins v. State, 2020 WL 3073852, at *3 (Alaska App. June 10, 2020) (unpublished); Sherwood v. State, 2012 WL 1889323, at *5 (Alaska App. May 23, 2012) (unpublished); Peters v. State, 2007 WL 2216610, at *2 (Alaska App. Aug. 1, 2007) (unpublished); see also Burton v. State, 180 P.3d 964, 975 (Alaska App. 2008) (holding that Burton had failed to preserve a claim raised for the first time on appeal from his post-continued...) conviction application, but not directly addressing whether Burton could have raised it as a claim of plain error).
Lewis v. State, 565 P.2d 846, 852 (Alaska 1977).
Lindoff v. State, 224 P.3d 152, 156 (Alaska App. 2010).
The judgment of the superior court is AFFIRMED.