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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-5041
Appellant, ) Trial Court No. 4FA-92-2077 Civ
)
v. ) O P I N I O N
)
FRANK STEFFENSEN, )
)
Appellee. ) [No. 1435 - September 15, 1995]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Mary E. Greene, Judge.
Appearances: Cynthia L. Herren, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage,
and Bruce M. Botelho, Attorney General, Juneau, for Appellant.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and John
B. Salemi, Public Defender, Anchorage, for Appellee.
Before: Bryner, Chief Judge, and Coats and Mannheimer,
Judges.
MANNHEIMER, Judge.
The State of Alaska appeals the superior court's
decision to grant post-conviction relief to Frank Steffensen. As
explained in more detail below, we remand this case to the
superior court for further proceedings.
In 1988, Steffensen was charged with third-degree
misconduct involving a controlled substance (possession of
cocaine), AS 11.71.030(a). The cocaine was discovered on
Steffensen's person after he was arrested on an outstanding bench
warrant. Steffensen ultimately pleaded no contest to the cocaine
charge. In his subsequent petition for post-conviction relief,
Steffensen claimed that he had received ineffective assistance of
counsel because his attorney did not seek suppression of the
cocaine by attacking the legality of Steffensen's arrest.
Superior Court Judge Mary E. Greene agreed with Steffensen that a
competent attorney would at least have researched such a motion.
Judge Greene further concluded that there was at least a
reasonable possibility that the suppression motion would have
been granted if it had been filed. Based on these findings,
Judge Greene ordered that Steffensen be allowed to withdraw his
plea.
We agree with Judge Greene that the theory of
suppression argued by Steffensen in his petition for post-
conviction relief was reasonably apparent from existing search-
and-seizure case law. However, a defense attorney's failure to
pursue a potentially dispositive motion is not always a sign of
incompetence. Depending on the circumstances of the case, an
attorney may have sound reasons not to pursue such a motion.
For example, during his testimony at the hearing in
this case, Steffensen's attorney suggested that he might have
knowingly refrained from filing the suppression motion because he
intended to negotiate a "package deal" that would resolve several
criminal charges pending against Steffensen, and because he felt
that the State would probably insist on the same negotiated
sentence regardless of whether he was successful in knocking out
any one charge. The defense attorney's testimony only suggests,
and does not establish, this possible explanation of his
inactivity. Nevertheless, if Steffensen's attorney had a valid
tactical reason for failing to pursue the suppression motion,
then his failure to pursue the motion would not constitute
ineffective assistance of counsel. Tucker v. State, 892 P.2d
832, 834 (Alaska App. 1995); Steffensen v. State, 837 P.2d 1123,
1126-27 (Alaska App. 1994).
Even assuming that the defense attorney had no valid
reason for failing to pursue the suppression motion, the question
remains whether Steffensen was prejudiced by his attorney's
inaction. On appeal, the State argues that Steffensen's arrest
was legal under the facts of this case and that the proposed
suppression motion would have been denied. Steffensen, for his
part, argues that his arrest was illegal and that the superior
court would have suppressed the evidence against him if the
proposed motion had been filed. Both parties' arguments are
premature; the superior court has never ruled on Steffensen's
proposed suppression motion. In her decision, Judge Greene did
not reach the merits of Steffensen's suppression motion; she
merely found that there was at least a reasonable possibility
that the motion would have been granted if it had been filed and
heard.
It is evident that the number of colorable suppression
motions (those that have some possibility of success) is greater
than the number of winning ones. Many colorable motions are
ultimately denied because, under the law and the facts of the
case, they turn out to be meritless. If criminal convictions
were overturned based merely on a showing that the defense
attorney inexcusably failed to file a colorable (but ultimately
meritless) motion, many convictions would be overturned for no
good reason. That is, a defendant is not prejudiced by a defense
attorney's failure to file a suppression motion if, after the
motion is fully heard, the court finds that the motion should be
denied.
Judge Greene's findings - (1) that Steffensen's
attorney failed to investigate a suppression motion, (2) that
this motion had at least a colorable chance of success, and (3)
that this motion would have been dispositive if granted - are not
a sufficient basis to allow Steffensen to withdraw his plea.
Under Risher v. State, 523 P.2d 421, 425 (Alaska 1974), even
after a defendant demonstrates that his or her attorney failed to
act competently, the defendant must additionally demonstrate that
there is at least a reasonable possibility that the attorney's
lack of competency contributed to the defendant's conviction.
Applying this standard to the facts of Steffensen's
case, we conclude that Risher requires proof that the proposed
suppression motion would have been granted and, additionally,
that there is at least a reasonable possibility that the outcome
of the trial court proceedings would have been different had the
evidence been suppressed. In Tucker, 892 P.2d at 834, this
court reviewed a similar post-conviction relief claim and
declared that the defendant had failed to establish grounds for
relief because he had "failed to establish that the warrantless
seizure of his clothing was unlawful" and because the defendant
had "similarly failed to create a reasonable doubt as to whether
suppression of the clothing would have altered the jury's
decision". In an analogous case, the United States Supreme Court
stated:
Where defense counsel's failure to litigate a
Fourth Amendment claim competently is the
principal allegation of ineffectiveness, the
defendant must ... prove that his Fourth
Amendment claim is meritorious and that there
is a reasonable probability that the verdict
would have been different absent the
excludable evidence[.]
Kimmelman v. Morrison, 477 U.S. 365, 375; 106 S.Ct. 2574, 2582;
91 L.Ed.2d 305 (1986).
In the quoted passage, the Supreme Court refers to a
"reasonable probability" that the verdict would have been
different. This phrasing comes from Strickland v. Washington,
466 U.S. 668, 694; 104 S.Ct. 2052, 2068; 80 L.Ed.2d 674 (1984).
In Alaska, under the Risher test, the question is whether there
is a "reasonable possibility" that suppression of the challenged
evidence would have led to a different result, because Risher
holds that it is the defendant's burden to create a reasonable
doubt concerning whether he or she was prejudiced by the trial
attorney's incompetence.
State courts are split concerning whether to require
proof that a defense attorney's incompetence had a "reasonable
probability" of affecting the verdict (the Strickland test) or a
"reasonable possibility" of affecting the verdict (the Risher
test). However, regardless of which standard of proof courts
apply, the courts unanimously agree that when a defendant asserts
ineffective assistance of counsel based on his or her attorney's
failure to challenge the government's evidence, the defendant
must show that the proposed challenge would have been successful
and then the defendant must show that the objectionable evidence
might have affected the verdict. See State v. Berryman, 875 P.2d
850, 855 & n.3 (Ariz. App. 1994), review denied (Ariz. 1994) (To
show ineffective assistance of counsel, the defendant must show
that the proposed suppression motion would have succeeded and
that, with the challenged evidence suppressed, there is a
reasonable possibility that the result at trial would have been
different.); State v. Kasten, 823 P.2d 91, 95-96 (Ariz. App.
1991), review denied (Ariz. 1991) (the defendant must show that
the suppression motion would have been granted); Huck v. State,
857 P.2d 634, 637-38 (Idaho App. 1993); State v. Richardson, 845
P.2d 819, 821-22 (N.M. App. 1992), cert. denied, 844 P.2d 130
(N.M. 1992); State v. Thompson, 848 P.2d 1317, 1321 (Wash. App.
1993). See also People v. Mattson, 789 P.2d 983, 1017 (Cal.
1990), cert. denied, 498 U.S. 1017, 111 S.Ct. 511, 112 L.Ed.2d
1110 (1991) ("A claim of ineffective assistance of counsel based
on a trial attorney's failure to make a motion or objection must
demonstrate not only the absence of a tactical reason for the
omission ... but also that the motion or objection would have
been meritorious[.]").1
Thus, two issues remain to be resolved in Steffensen's
post-conviction relief litigation: (1) whether Steffensen's
attorney had a valid tactical reason to refrain from pursuing the
proposed suppression motion; and (2) whether the proposed
suppression motion is, in fact, meritorious. (Under the facts of
this case, suppression of the cocaine obviously would affect the
outcome of the criminal proceeding against Steffensen.)
These two unresolved issues turn on questions of fact
that have not been fully litigated. We therefore remand this
case to the superior court.2
This case is REMANDED to the superior court for further
proceedings in light of this opinion. We do not retain
jurisdiction of this case.
_______________________________
1 The requirement that the merits of the proposed suppression motion be
demonstrated conclusively (rather than to some lesser degree of certainty)
appears grounded on the recognition that, once the facts are determined, a
suppression motion presents a question of law that is susceptible of a
conclusive answer. On the other hand, any ensuing assessment of how the
fact-finder would have viewed the case if the challenged evidence had not
been presented necessarily involves a weighing of probabilities.
2 See State v. Richardson, 845 P.2d 819, 823 (N.M. App. 1992), cert. denied,
844 P.2d 130 (N.M. 1992), holding that when a defendant's trial attorney
appears to have acted incompetently but the record does not resolve whether
the attorney had a justifiable tactical reason for the action/inaction, an
appellate court's proper course is to remand the case to the trial court
for a hearing on this issue. Compare the approach taken in In re Neely,
864 P.2d 474, 476 (Cal. 1993), where the California Supreme Court, after
determining that there were colorable grounds for the defendant's proposed
suppression motion, appointed a superior court judge to be a "referee"
(that is, a special master) and directed the referee to hold a hearing into
(1) the factual merit of the defendant's proposed suppression motion and
(2) the reasons why the defendant's trial attorney refrained from filing
the motion. After making these findings, the referee sent the case back to
the supreme court.
