NOTICE: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
FRANK STEFFENSEN, )
) Court of Appeals No. A-3947
Appellant, ) Trial Court No. 4FA-90-1201
Civ
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1246 - August 28, 1992]
________________________________)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Niesje J. Stein
kruger, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and John B.
Salemi, Public Defender, Anchorage, for Appel
lant. Cynthia L. Herren, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Frank Steffensen appeals from the superior court's
dismissal of his petition for post-conviction relief. We affirm.
On May 5, 1988, Steffensen was in the Cottage Bar in
Fairbanks. Fairbanks Police Officer L. C. Brown was dispatched
to the Cottage Bar to investigate a tip that another man, J.S.,
who was wanted on an outstanding warrant, was present in the bar.
When Officer Brown entered the bar, he approached Steffensen
because Steffensen, of all the people present in the bar, most
resembled the description of J.S.. Steffensen identified himself
as "Donald Felix" and produced an identification card with that
name. However, the picture on this ID card did not match
Steffensen. Brown asked Steffensen to step outside. Steffensen
refused.
At this time, another officer arrived to provide back-
up. This officer recognized Steffensen from a previous arrest.
The officers then ran a records check on Steffensen and
discovered that there was an outstanding $5000 bench warrant for
his arrest. Even though Steffensen continued to deny that his
name was Steffensen, the officers arrested him and took him
outside. Before placing him in the patrol car, the officers
searched Steffensen for weapons and found a bag of white powder,
United States currency, and items of drug paraphernalia (glass
vials, a glass pipe, and a needle). After Officer Brown
transported Steffensen to jail, he checked the rear seat of his
patrol car and found a paper "slip" containing white powder, an
item that had not been there before Steffensen's arrest.
Steffensen was charged with third-degree misconduct
involving a controlled substance (possession of cocaine with
intent to deliver). AS 11.71.030(a)(1). He eventually pleaded
no contest to a reduced charge of fourth-degree misconduct
involving a controlled substance (simple possession).
AS 11.71.040(a)(3)(A).
On July 12, 1990, Steffensen (now represented by the
Public Defender Agency) filed an application for post-conviction
relief under Alaska Criminal Rule 35.1. In this application,
Steffensen's new attorney asserted that Steffensen should be
allowed to withdraw his plea because his original attorney had
incompetently failed to seek suppression of the evidence against
him, even after Steffensen had urged the attorney to investigate
and pursue a suppression motion.
The State asked the superior court to dismiss Steffen
sen's petition because it did not contain an affidavit from
Steffensen's original attorney; the petition therefore failed to
comply with Criminal Rule 35.1(d) as interpreted in State v.
Jones, 759 P.2d 558 (Alaska App. 1988). Moreover, Steffensen's
petition did not contain an affidavit from Steffensen himself,
thus violating the requirement of Criminal Rule 35.1(d) that
"[f]acts within the personal knowledge of the applicant shall be
set forth separately from other allegations of facts and shall be
under oath."
Steffensen responded by supplying an affidavit from his
original attorney. This affidavit reads (in its entirety):
1. I was the attorney for [Steffensen]
in the above entitled action at the trial
level.
2. After reviewing the police reports
received in this matter, I determined that a
motion attacking the arrest was not appropri
ate.
3. It is my recollection that [the]
reduction of the charge in this matter was
the product of the weakness in the State's
case and [Steffensen's] willingness to [go to
trial on] the issue of possession with intent
to deliver. To my recollection, the
reduction in charge was not in any manner
related to the filing or not filing of a
motion with respect to the [initial] stop.
On November 18, 1990, Superior Court Judge Niesje J.
Steinkruger issued notice that she intended to dismiss
Steffensen's application. She concluded that Steffensen had
failed to assert sufficient facts to warrant the inference that
Steffensen's original attorney had acted incompetently when he
decided not to file a suppression motion.
Judge Steinkruger gave Steffensen 30 days to supplement
his application or to respond in some other manner to the
intended dismissal. This deadline was later extended to January
18, 1991. On that day, Steffensen filed an affidavit in which he
stated his own version of events.
In his affidavit, Steffensen asserted that it was
unreasonable for Officer Brown to have approached him in the bar
because he (Steffensen) was several inches shorter, eight years
older, and about 30 pounds lighter than the description of J.S.
that had been furnished to Brown. Steffensen conceded that, in
response to Brown's request, he had produced false identification
and then had refused to step outside the bar. However,
Steffensen contended that the police searched him (and discovered
the drugs he was carrying) before they found out that there was
an outstanding warrant for his arrest.
In this same affidavit, Steffensen asserted that he had
told his original attorney that he believed he had been illegally
arrested. In fact, the attorney's file contains several pages of
legal research notes which Steffensen apparently provided to his
attorney. These notes (appended to Steffensen's supplemental
application) are summaries of various state and federal cases
dealing with investigative stops and the legality of a police
officer's requiring another person to produce identification.
Judge Steinkruger found that, even thus supplemented,
Steffensen's petition for post-conviction relief still failed to
state a prima facie case of attorney incompetence. Noting that
State v. Jones establishes a presumption that an attorney has
acted competently, Judge Steinkruger ruled that Steffensen's
amended application failed to rebut the presumption that his
attorney had made a tactical decision not to pursue a suppression
motion:
[Steffensen's] application alleges facts
that, even if true, do not rule out the possi
bility that the trial counsel's failure to
file a motion to suppress evidence was a
sound tactical choice. Without knowing what
motivated the trial attorney, it is virtually
impossible for the court to determine whether
or not the attorney's action was tactical.
The appellate courts have [repeatedly
rejected] ineffective assistance of counsel
claims where, as here, the record failed to
contain allegations or proof to refute the
possibility that the challenged conduct of
trial counsel resulted from sound tactical
choice.
Steffensen filed a motion for reconsideration, arguing
that his attorney's failure to file a suppression motion could
not be considered "tactical" because (1) the defense attorney had
not obtained any concession from the State in exchange for not
filing the motion, and (2) there was no other logical reason to
refrain from filing a suppression motion, since the granting of
such a motion would have resolved the case in Steffensen's favor.
Judge Steinkruger reaffirmed her decision on March 19, 1991.
On appeal, Steffensen renews his argument that his
pleadings established a prima facie entitlement to post-convic
tion relief. He argues that, when his factual allegations are
read in the light most favorable to him, the post-conviction
relief petition shows that Steffensen's original attorney,
without apparent reason, failed to pursue a potentially
dispositive suppression motion even after Steffensen urged him to
do so.
Steffensen is correct that, in the initial stage of a
post-conviction relief proceeding, when the superior court
decides whether the defendant's petition states a prima facie
case for relief, the superior court is obliged to view the
factual allegations of the defendant's petition in the light most
favorable to the defendant. See State v. Jones, 759 P.2d at 565
(the superior court's determination under Criminal Rule 35.1(f)
is equivalent to a ruling on a motion under Civil Rule 12(c) for
judgement on the pleadings), and J & L Diversified Enterprises,
Inc. v. Anchorage, 736 P.2d 349, 351 (Alaska 1987) (an appellate
court reviewing a dismissal on the pleadings must accept as true
all well-pleaded allegations of fact contained in the appellant's
trial court pleadings). However, even when Steffensen's petition
is evaluated in this light, we agree with Judge Steinkruger that
the petition (as amended) still failed to state a claim upon
which relief could be granted.
Steffensen's primary argument is that, since there was
everything to gain and nothing to lose by filing a suppression
motion, his attorney must have been acting incompetently when he
decided not to file such a motion. This argument - that a
defense attorney is obliged to pursue every non-frivolous motion
- was squarely rejected in State v. Jones. There, this court
quoted with approval the following language from United States v.
DeCoster, 624 F.2d 196, 211 (D.C. Cir. 1976) (en banc):
[G]iven an unrestricted budget and freed
of any constraints as to probable materiality
or accountability, a lawyer might ... cheer
fully [log in] many hours looking for the
legal equivalent of a needle in a haystack.
... [A] millionaire might [retain] counsel
to leave not a single stone unturned.
However, a defendant is not entitled to
perfection but to basic fairness. In the
real world, expenditure of time and effort is
dependent on a reasonable indication of
materiality.
Jones, 759 P.2d at 572.
Steffensen's affidavit declares that the police
officers misrepresented the facts of the encounter at the Cottage
Bar; specifically, Steffensen disputes the officers' assertion
that they did not search Steffensen until after they discovered
that there was an outstanding warrant for his arrest. However,
Steffensen's affidavit does not assert that he ever communicated
this conflicting version of events to his attorney. In fact, in
both his petition to the superior court and in his brief to this
court, Steffensen faults his attorney for allegedly failing to
discuss the facts of the case with Steffensen before deciding to
forego a suppression motion. This allegation - that no
conversations took place between Steffensen and his attorney - is
likewise unsupported by either Steffensen's affidavit or his
attorney's affidavit; both affidavits are silent on this point.
To establish prima facie entitlement to post-conviction
relief, it was essential for Steffensen's pleadings to establish
either that he communicated his version of events to his attorney
or that his attorney refused him any reasonable opportunity to do
so. As this court noted in State v. Jones,
The reasonableness of counsel's actions
may be determined or substantially influenced
by the defendant's own statements or actions.
When a defendant has given counsel reason to
believe that pursuing certain investigations
would be fruitless or even harmful, counsel's
failure to pursue those investigations may
not later by challenged as unreasonable. In
short, inquiry into counsel's conversations
with the defendant may be critical to a
proper assessment of counsel's investigative
decisions, just as it may be critical to a
proper assessment of counsel's other
litigation decisions.
Jones, 759 P.2d at 569, quoting Strickland v. Washington, 466
U.S. 668, 691; 104 S.Ct. 2052, 2066; 80 L.Ed.2d 674 (1984).
Moreover, even if Steffensen's affidavit had
affirmatively asserted that he told his attorney about his
differing version of the events at the Cottage Bar, the fact
remains that the trial attorney's affidavit does not address this
crucial point. It appears that Steffensen never confronted his
attorney with this allegation when he asked the attorney to
provide an affidavit for the post-conviction relief application.
Thus, Steffensen's petition remains deficient.
This is not to say that a defendant whose attorney is
not completely forthcoming must therefore face dismissal of a
post-conviction relief action. A defendant can satisfy the
requirements of State v. Jones either by supplying an affidavit
from the attorney or by showing that the attorney will not supply
a comprehensive affidavit. Jones, 759 P.2d at 570. But
Steffensen offered the superior court no explanation of why his
trial attorney's affidavit failed to address this crucial issue
of fact.
Steffensen asserts that his trial attorney admitted
that the only reason he failed to file a suppression motion was
that the time for filing such a motion had expired. This is a
mischaracterization of the record. Steffensen's affidavit
asserts that, "shortly after the omnibus hearing", he spoke to
his attorney "about the need to address the propriety of the
search of [his] person by Officers Brown and Colleta". At that
time, according to Steffensen, his attorney responded that "the
time for the filing of motions was over." This, however, is not
equivalent to an assertion that the attorney had never given the
matter any thought before. Indeed, when Steffensen's application
is considered in its entirety, the application establishes that
Steffensen's attorney actively considered filing a suppression
motion but then concluded that he should not. The attorney kept
Steffensen's legal research notes in his file, and his affidavit
states that, after reviewing the police reports, he affirmatively
decided that filing a suppression motion would not be "appropri
ate".
It was Steffensen's burden to clarify the facts underly
ing his claim of attorney incompetence. Even viewed in the light
most favorable to Steffensen, his petition does not establish
that his attorney's reason for failing to file the suppression
motion was that the attorney completely overlooked or
unreasonably failed to investigate the potential motion until it
was too late to do anything about it. The petition was therefore
subject to dismissal under Criminal Rule 35.1(f)(2).
Steffensen also faults his attorney for failing to
review the grand jury record or to independently investigate the
circumstances of the encounter at the Cottage Bar before deciding
not to file a suppression motion. However, Steffensen does not
indicate how such a review or such an investigation would have
yielded pertinent information.
In summary, an attorney's strategic decisions -
including which potential defenses to pursue and whether to
object to or seek suppression of the evidence offered by the
government - generally rest on considerations that are not
directly addressed in open court. Post-conviction relief
litigation allows a defendant to delve into the bases for his or
her attorney's decisions in order to show that the attorney's
decisions fell below the range of competency expected of criminal
law practitioners. But, as this court has repeatedly stated, the
burden of proving incompetence rests on the defendant. When the
record does not adequately reveal the basis for the attorney's
decision, the defendant has failed to establish a case for post-
conviction relief. State v. Jones, 759 P.2d at 569.
As Judge Steinkruger found, Steffensen's pleadings
offer no firm explanation of why Steffensen's attorney made the
challenged decision. Under State v. Jones, the superior court
was obliged to presume that the attorney's decision was a
competent one. Steffensen asked the superior court, and now asks
this court, to assume that there could have been no valid reason
for his attorney not to file the suppression motion. But
Steffensen cannot obtain post-conviction relief by asking the
court to speculate one way or the other about the motives or
reasoning that prompted Steffensen's attorney to refrain from
filing a suppression motion.
Under Criminal Rule 35.1, to survive summary dismissal,
it was Steffensen's burden to present the superior court with
specific allegations to establish the factual background of his
attorney's decision and the attorney's purported reasons for that
decision. It was also Steffensen's burden to convince the
superior court that, under the facts of the case, there was a
reasonable possibility that the attorney's reasons for not filing
the motion were completely invalid - that no competent attorney
skilled in criminal law would have failed to file the contem
plated suppression motion. Steffensen's pleadings, even read in
the light most favorable to Steffensen, fail to meet these
burdens.
For these reasons, we uphold the superior court's
dismissal of Steffensen's application for post-conviction relief.
However, given the considerable confusion that seems to exist
concerning the pleading requirements imposed by Jones, and given
the clarifications contained in this opinion, we believe that
Steffensen should not be barred by the provisions of Criminal
Rule 35.1(h) if he wishes to renew his application for post-
conviction relief by submitting additional affidavits on the
issues of fact discussed here.
The judgement of the superior court is AFFIRMED.
