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THE COURT OF APPEALS OF THE STATE OF ALASKA
ANDREW LOTT, )
) Court of Appeals No. A-3966
Appellant, ) Trial Court No. 4BE-S89-224CR
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1228 - June 12, 1992]
________________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District, Bethel,
Richard D. Savell, Judge.
Appearances: Andrew Haas, Assistant Public
Defender, Bethel, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Kenneth
M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Andrew Lott entered pleas of no contest to three
charges of assault in the second degree. Superior Court Judge
Richard D. Savell sentenced Lott to a total of ten years with one
year suspended. Lott thereafter filed a motion to withdraw his
no contest pleas, contending that his trial counsel had provided
him with ineffective representation. Following an evidentiary
hearing, Judge Savell denied Lott's motion, finding that Lott had
failed to demonstrate that his counsel acted ineffectively. Lott
challenges this ruling on appeal. We affirm.
Lott was indicted in April of 1989 for kidnapping,
first-degree assault, and two counts of second-degree assault.
The charges stemmed from a series of assaults Lott committed
against R.O., a woman with whom he lived in Tuluksak. Lott's
case came up for trial in Bethel in July of 1989. From the
record, it appears that Lott's counsel initially planned to
present a diminished capacity defense based on intoxication.
Following jury selection, however, counsel indicated that Lott
had decided to accept the state's offer of a plea agreement.
Lott entered pleas of no contest to three counts of second-degree
assault; in return, the state dismissed the charges of first-
degree assault and kidnapping, and agreed not to request
consecutive sentencing.
Before Lott entered his no contest pleas, his trial
counsel asked for a recess to discuss the plea agreement. During
the recess, counsel met with Lott and reviewed a four-page form
explaining the nature of the agreement, elements of and
applicable sentencing provisions for the offenses to which Lott
would be pleading, the meaning of a plea of no contest, and the
various procedural and substantive rights that Lott would
relinquish by entering such a plea. The form included language
indicating that Lott had discussed all of these matters fully
with his attorney, understood them, and had no remaining
questions. Upon completion of Lott's pre-plea meeting with his
attorney, Judge Savell reconvened court. Lott's attorney then
reviewed the form with Lott on the record, paragraph by
paragraph, eliciting Lott's assurance that he had discussed the
issues covered therein fully, understood them, and had no further
questions.
When Lott's counsel had completed his inquiry, Judge
Savell personally addressed Lott, separately conducting the pre-
plea inquiry mandated under Alaska R. Crim. P. 11(c)-(e). Lott
participated actively throughout this entire process, and at no
time did he exhibit any doubt, hesitancy, misunderstanding, or
confusion concerning his decision to plead no contest.
To provide a factual basis for the no contest pleas,
Lott's counsel stipulated to an offer of proof by the state.1
The state's offer of proof described three separate episodes
occurring on the night of March 30 and the morning of March 31,
1989. The first occurred at the home of Lott's parents in
Tuluksak. Lott, who had apparently been drinking, became angry
with R.O. He struck her with a glass object, which shattered and
embedded glass in R.O.'s scalp. Lott continued to attack R.O.,
kicking her, striking her legs with a fireplace poker, and
hitting her in the back with the blunt side of a large axe; this
last blow knocked R.O. down and partially incapacitated her.
The second episode of assault occurred later that
night. Despite her injuries, R.O. had managed to accompany Lott
to his own house. There, Lott began drinking more alcohol and
wanted R.O. to drink with him. When R.O., who had a history of
alcohol-induced seizures, refused to drink, Lott choked her with
a rope and with his hands; he later whipped R.O. with the rope.
Lott ultimately succeeded in pouring alcohol down R.O.'s throat.
R.O. later escaped the house after Lott fell asleep. She went to
a nearby house, and her neighbors took her in to provide her
shelter from Lott. Shortly thereafter, R.O. did in fact suffer
seizures; she stopped breathing and had to be resuscitated. A
health aide took R.O. to the village clinic, where arrangements
were made to evacuate her to the hospital in Bethel.
Lott's third assault began at around 9:00 a.m. on March
31. Lott entered the Tuluksak clinic, wakened R.O., and told her
to come with him. R.O. was fearful and did not resist; she
leaned on his shoulder for support and walked out to Lott's snow
machine. The health aide, intimidated by Lott's demeanor and
afraid of starting another violent incident, did not interfere.
Lott drove R.O. to his house. There, he assaulted her with a
variety of objects, including a screwdriver, scissors, and a
board. Lott stabbed R.O. with the screwdriver in each leg -- one
wound penetrating to the bone -- and evidently used scissors to
probe the wounds. Beating R.O. with a board, Lott broke one of
her knuckles, and caused fractures in one of her wrists, a
forearm, and an ankle. Lott also tore large quantities of hair
from R.O.'s scalp.
This final assault ended at about noon, with the
arrival of a trooper who had been summoned to Tuluksak after Lott
removed R.O. from the clinic. After approaching Lott's house,
knocking, and receiving no response, the trooper heard
whimpering. With the help of a village public safety officer,
the trooper broke down Lott's door to rescue R.O. He found her
inside on the bed in a fetal position, crying and incoherent.
Lott sat next to her. There was blood all around the room.
R.O. was evacuated to Bethel, where she was
hospitalized. The physician who examined her upon arrival
concluded that her wounds were potentially fatal and that she
might not have survived had she not been so young.
After finding that the state's offer of proof
established a sufficient factual basis, Judge Savell accepted
Lott's no contest pleas. On November 7, 1989, Judge Savell
sentenced Lott to three concurrent terms of ten years with one
year suspended.
Several months later, in March of 1990, Lott filed a
pro se motion to withdraw his plea. In support of the motion, he
submitted an affidavit asserting a number of grounds, including
ineffective representation by his trial counsel. The affidavit
set forth various conclusory assertions concerning the manner in
which his counsel had provided him with deficient representation,
including claims that Lott's counsel failed to file a suppression
motion challenging the validity of Lott's arrest and the
warrantless search of Lott's home, failed to challenge the
indictment, failed to have an investigator appointed, failed to
otherwise investigate the case, failed to advise Lott adequately
concerning his rights and the nature of the proceedings, and
failed to pursue a sentence appeal.
Lott later filed two additional affidavits: one, dated
March 27, 1990, requested discovery for purposes of the motion to
withdraw plea and asserted that Lott, himself, had received no
discovery to assist in his preparation for trial; the other,
dated April 13, 1990, set out a factual account of the alleged
incident in which Lott proclaimed his innocence. According to
Lott, R.O. sustained her injuries when Lott became involved in a
snowmobile accident on the night of March 30, with R.O. as his
passenger.
Judge Savell appointed substitute counsel to represent
Lott and ordered an evidentiary hearing on the motion to
withdraw.
At the evidentiary hearing, Lott's counsel sought to establish
the ineffective assistance of counsel claim by calling Lott and
his brother, David Lott. Lott's testimony was brief and general.
He indicated that he had been arrested in his home, apparently
without a warrant, by a trooper and a village public safety
officer; according to Lott, the officers contacted and
interviewed the victim, who was with Lott in the bedroom when he
was arrested, and they searched the residence. The record fails
to indicate what the scope of the search was, what evidence was
seized, or what significance it might have had.
Lott also testified that he had received a copy of his
police report about a month before trial and did not have a
chance to listen to the tape of the grand jury proceeding. Lott
claimed that his trial counsel did not have an investigator
appointed to the case. According to Lott, he asked his trial
counsel to come to Tuluksak to interview his mother and his
brother, David, who he claimed had been with him during the
portions of the night on which his crimes were allegedly
committed; Lott wanted David and his mother called as witnesses
at trial. Lott's counsel told him he would interview the
witnesses by telephone.2 Lott further claimed that he asked his
trial counsel to file a suppression motion and various other
motions, the nature of which Lott did not specify; Lott did not
believe his counsel had filed any such motions.
Lott testified additionally that he entered his no
contest plea because his trial counsel told him to, saying that
Lott would receive a fifty-year sentence if he did not. Lott
reiterated his belief that trial counsel had never contacted any
witnesses; from his testimony, however, it is not certain that he
formed this belief until some time after having been sentenced.
Lott said that, when he changed his plea, he believed that he
would not be allowed to call any witnesses in his own behalf.
Finally, Lott complained that his trial counsel provided him with
a copy of the presentence report only two days before sentencing,
spoke with him about it for only ten minutes, and did not explain
that Lott could challenge facts recited therein.3
David Lott also testified briefly in support of Lott's
ineffective assistance of counsel claim. When initially asked if
he remembered when Lott was arrested for assaulting R.O., David
replied, "Yeah, but I wasn't watching. Maybe when I went out
that day. . . ." David initially denied having a chance to see
Lott and R.O. that night, saying the he had to be with his kids.
He then said that he had seen them both that night at his house;
both were drinking. David said he did not recall walking with
Lott and R.O. to his house; he did remember that he walked with
them at some point that night, however, and that R.O. "was
behind, and, from there, she ran -- I don't know where she went."
David Lott apparently had little other knowledge of the
alleged incident, since he was not questioned further. Neither
at the evidentiary hearing nor on appeal has Lott's current
counsel made any effort to explain how David Lott's vague and
cryptic testimony might have been of material benefit to Lott or
how trial counsel's failure to interview David might have
resulted in actual prejudice to Lott's case. The relevance of
the testimony is not apparent from the record currently before
this court.
Although Lott initially contemplated calling his trial
counsel as a witness in support of the ineffective assistance of
counsel claim, he ultimately elected not to. The state also
declined to call trial counsel, or any other witnesses, in
response. Lott's motion for withdrawal of his plea was thus
submitted to Judge Savell based on Lott's testimony, the
testimony of his brother, and Lott's three previously submitted
pro se affidavits. Judge Savell concluded that Lott had failed
to meet his burden of establishing ineffective assistance of
counsel and had thus failed to establish manifest injustice
warranting withdrawal of his plea. Judge Savell stated, in
relevant part:
Is there a showing of ineffective assistance
of counsel? The case law, whether in a Rule
35.1 setting, Rule 11 setting, or a straight
appeal, is clear that there is a presumption
of competence, a presumption that decisions
were made for sound, tactical reasons, as a
matter of trial strategy. Absent those
situations where clear error, malpractice, or
ineffective lawyering is present--clear in
the sense that it doesn't take a witness to
identify it. Absent those situations, a
defendant must present an affidavit of
counsel in order to [make a] threshold
showing of ineffective assistance. An
affidavit saying what was wrong. . . . There
is no such show-ing in this case. There are
references in the record for a greater need
for investigation; . . . there are references
to allegedly illegal searches that should
have been explored or addressed. But, there
is no showing factually supporting the basis
for these sometimes vague complaints. Or,
that they meet the requirements necessary to
show manifest injustice and to permit a
withdrawal of the plea.
On appeal, Lott takes issue with Judge Savell's
finding. Lott argues that the judge was mistaken in concluding
that he should have presented an affidavit or testimony from his
trial counsel. Lott claims that he presented uncontroverted
evidence establishing that his trial attorney's conduct was
deficient. In Lott's view, it should be obvious that the actions
of his trial counsel were not based on any tactical decisions.
Lott argues that he thus met his burden of proving ineffective
assistance.
Lott acknowledges cases decided by this court holding
that a person claiming ineffective assistance of counsel must
normally present an affidavit or testimony from the allegedly
ineffective attorney, in order to establish the reasons for the
attorney's actions and to rule out the possibility that the
conduct was based on sound tactical choice. See, e.g., State v.
Jones, 759 P.2d 558, 569 (Alaska App. 1988); Barry v. State, 675
P.2d 1292 (Alaska App. 1984). Lott insists, however, that these
cases deal exclusively with procedural requirements for post-
conviction relief actions filed under Alaska R. Crim. P. 35.1 and
are inapplicable to ineffective assistance of counsel claims
raised under Criminal Rule 11, which governs motions to withdraw
pleas. Lott points out that Rule 11 does not specify any
particular procedure for proving a claim of ineffective
assistance of counsel. Lott goes on to argue that Judge Savell
should at least have given Lott advance notice of his intent to
follow the procedures specified in Criminal Rule 35.1, so that
Lott could have supplied the court with an affidavit or testimony
from his trial counsel.
Lott's argument is unpersuasive. Alaska R. Crim. P.
11(h)(1) allows a defendant to withdraw a plea of guilty or no
contest "whenever the defendant, upon a timely motion . . . ,
proves that withdrawal is necessary to correct manifest
injustice." Under subparagraph (ii)(aa) of the rule, manifest
injustice is established upon proof that "[t]he defendant was
denied the effective assistance of counsel." As we said in Smith
v. State, 717 P.2d 402, 404 (Alaska App. 1986), this provision
makes it "clear that a showing of ineffective assistance of
counsel will entitle the defendant to withdraw his plea, without
further inquiry into the issue of manifest injustice." In all
cases involving motions to withdraw pleas of guilty or no
contest, however, the defendant bears the burden of proving that
withdrawal is warranted. See, e.g., Morgan v. State, 582 P.2d
1017 (Alaska 1978); McClain v. State, 742 P.2d 269 (Alaska App.
1987). Hence, a defendant claiming manifest injustice for
withdrawal of a plea under Rule 11(h)(1)(ii)(aa) bears the burden
of proving ineffective assistance of counsel.
In Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974),
the Alaska Supreme Court, construing the Alaska Constitution,
adopted a twofold standard for ineffective assistance of counsel.
Under the Risher test the defendant is required to prove, first,
that trial counsel's performance fell below the minimal level of
competency -- that counsel failed to perform at least as well as
a lawyer with ordinary training and skill in criminal law;
second, the defendant is required to show prejudice by creating a
reasonable doubt that counsel's incompetence contributed to the
outcome.
The Risher standard mirrors the standard for
ineffective assistance of counsel adopted by the United States
Supreme Court under the federal constitution, except, as to the
prejudice requirement, the federal standard requires the
defendant to do more than raise a reasonable doubt; instead, the
defendant must prove a reasonable probability of prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
This court elaborated on the Risher and Strickland
tests in State v. Jones, 759 P.2d at 567-70. We said, in
relevant part:
An informed decision on the issue of
competence can be made only with full
knowledge of the reasoning and information
upon which counsel chose to act. In evaluat
ing trial counsel's conduct, the court must
apply a strong presumption of competence.
Strickland, 466 U.S. at 689. See also Cronic
[United States v. Cronic, 466 U.S. 648
(1984)], 466 U.S. at 658. An integral
component of the presumption of competence is
the further presumption that trial counsel's
actions were motivated by sound tactical
considerations. The duty of rebutting this
presumption is part and parcel of the
accused's burden of proof: "[T]he defendant
must overcome the presumption that, under the
circumstances, the challenged action 'might
be considered sound trial strategy.'"
Strickland, 466 U.S. at 689 (citation
omitted). 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.
. . . .
In this connection, if it appears that
counsel's actions were undertaken for
tactical or strategic reasons, they will be
virtually immune from subsequent challenge,
even if, in hindsight, the tactic or strategy
appears to have been mistaken or
unproductive. . . . [W]hen a tactical choice
has in fact been made, even if it was made by
an attorney who was not fully informed as to
available options, the choice will be subject
to challenge only if the tactic itself is
shown to be unreasonable -- that is, a tactic
that no reasonably competent attorney would
have adopted under the circumstances.
Id. at 569-70.
Lott mistakenly reasons that our holding in Jones is
inapplicable to his case, because Jones was a post-conviction
relief action filed under Criminal Rule 35.1, rather than a
motion to withdraw a plea filed under Rule 11. Although Jones
did extensively discuss the procedural requirements for
establishing post-conviction claims under Criminal Rule 35.1, see
Jones, 759 P.2d at 565-67, the decision gave separate
consideration to the substantive requirements for proving an
ineffective assistance of counsel claim under the Risher test,
regardless of the procedural context in which the claim is
raised. Id. at 570-72. The passages from Jones that we have
quoted above are from the portion of our opinion addressing
substantive issues common to all claims of ineffective assistance
of counsel arising in criminal cases, not from the portion
discussing procedural issues unique to claims raised under
Criminal Rule 35.1.4
In ruling on Lott's motion to withdraw, Judge Savell
correctly recognized that the principles discussed in these
passages apply in any case in which the defendant bears the
burden of proving ineffective assistance under the Risher test,
regardless of whether the case involves a Rule 11 motion to
withdraw a plea, a Rule 35.1 application for post-conviction
relief, or a direct appeal. Since Lott's claim of manifest
injustice under Rule 11 was predicated on his allegation of
ineffective assistance of counsel -- an allegation that he was
required to prove -- these principles applied to his case.5
Applying these principles, we think it apparent that
the vague and conclusory allegations of incompetence contained in
the affidavits Lott filed in support of his motion, coupled with
the sketchy and abbreviated testimony he presented at the
evidentiary hearing, fall far short of providing the type of
evidentiary context necessary to overcome the strong presumptions
that his trial counsel performed competently and that his actions
were motivated by sound tactical considerations. Lott's
complaints against his trial counsel do not involve conduct so
plainly and unmistakably incompetent as to be per se ineffective;
yet Lott has failed to present any evidence whatsoever to provide
insight into the specific circumstances under which his counsel
acted or the underlying motivations for his conduct. To find
ineffective assistance of counsel on this evidentiary record
would require a presumption of incompetence rather than a
presumption of competence. We find no error in Judge Savell's
decision that Lott failed to meet his burden of proving
ineffective assistance of counsel, and that he consequently
failed to establish manifest injustice warranting withdrawal of
his pleas.
The order denying Lott's motion to withdraw his pleas
is AFFIRMED.
_______________________________
1. Lott's change of plea hearing occurred while the jury
that had been selected for his trial was waiting for the trial to
begin. At the change of plea hearing, the state asked to
supplement its offer of proof by presenting various witnesses who
had been subpoenaed for trial and were standing by. Judge Savell
agreed to allow the state to perpetuate the testimony of these
witnesses, but indicated that they should be presented after
Lott's no contest pleas had been entered and after the jury had
been excused. The record on appeal does not reflect what
witnesses, if any, subsequently testified.
2. It is unclear from the record whether trial counsel
ever actually interviewed these prospective witnesses. At the
eviden-tiary hearing, Lott's counsel asked Lott if his trial
counsel ever spoke with his mother or David Lott; Lott responded
that his trial counsel said that he never did. Judge Savell
struck this testi-mony, however, when the state objected to it on
grounds of hearsay. In subsequent testimony, Lott reiterated his
personal belief that his trial counsel never interviewed any
witnesses, but he provided no further basis to support this
allegation. David Lott, though later called as a witness at the
hearing, was never asked if he had spoken with Lott's trial
counsel. Neither Lott's mother nor his trial counsel testified
or submitted affidavits.
3. We note that the presentence report is not in the
appellate record; the record provides no indication as to what
disputed facts the report contained, what facts Lott could have
challenged, how he might have challenged them, or whether they
were significant for sentencing purposes.
4. Indeed, the quoted passages from Jones occurred in a
portion of the opinion that was specifically headed "SUBSTANTIVE
ISSUES," State v. Jones, 759 P.2d 558, 567 (Alaska App. 1988);
the preceding portion of the opinion was specifically headed
"PROCEDURAL ISSUES." Id. at 565.
5. Lott's claim that Judge Savell erred procedurally is
mistaken in two other respects. Initially, Lott suggests that,
because his evidence on the issue of ineffective assistance of
counsel was uncontradicted, the trial court was in effect bound
to accept it. It is true that, for purposes of determining
whether a claim of ineffective assistance of counsel may be
rejected summarily, without affording the defendant an
opportunity for an evidentiary hearing, the court must
provisionally accept as true any facts asserted by the defendant.
See, e.g., Jones, 759 P.2d at 565-66 (discussing motions for
judgment on the pleadings and for summary judgment in cases filed
under Criminal Rule 35.1). By contrast, in the present case,
Judge Savell granted Lott a full evidentiary hearing on his
claim. Having conducted a full hearing, Judge Savell was no
longer bound to accept Lott's assertions as provisionally true;
rather, at this stage, the judge was required to undertake a full
and final resolution of the factual and legal issues presented.
In performing this task, Judge Savell was responsible for
deciding issues of credibility. For this reason, if the judge
found Lott's testimony incredible or unpersuasive, he was
authorized to reject it, even if it was uncontroverted by other
evidence.
Lott also suggests that Judge Savell could not properly
dismiss Lott's case without prior notice of his intent to do so
and without affording Lott the opportunity to present additional
evidence. This claim, however, hinges on Lott's mistaken
assumption that Judge Savell held Lott to procedural standards
specified in Criminal Rule 35.1. Lott apparently relies in this
regard on Criminal Rule 35.1(f)(2), empowering the court to
dismiss a facially insufficient post-conviction relief action sua
sponte, provided that the applicant is given advance notice of
the court's intent to dismiss and an opportunity to correct the
defects in the application. See, e.g., Hampton v. Huston, 653
P.2d 1058 (Alaska App. 1982). Our holding that the principles of
Jones applied in Lott's case were substantive principles relating
to all ineffective assistance of counsel claims, rather than
procedural principles unique to post-conviction relief actions,
largely disposes of this argument. However, we note that even if
the trial court had held Lott to the procedural requirements of
Rule 35.1 in this case, advance notice of dismissal would not
have been required under Rule 35.1(f)(2). Here, the court did
not dismiss Lott's motion sua sponte, based on a deficiency in
Lott's pleadings. Instead, the court denied Lott's motion on its
merits after affording him a full opportunity to present evidence
to establish his claim.
