Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Billy v. State (7/14/00) ap-1680
Billy v. State (7/14/00) ap-1680
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSEPH D. BILLY, )
) Court of Appeals No. A-7244
Appellant, ) Trial Court No. 4BE-96-204 Civ.
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1680 July 14, 2000]
)
Appeal from the Superior Court, Fourth Judicial
District, Bethel, Dale O. Curda, Judge.
Appearances: G. Blair McCune, Deputy Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. Kenneth M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Joseph D. Billy was convicted of sexually abusing a young
boy. We affirmed Billy's conviction on appeal. See Billy v. State,
Alaska App. Memorandum Opinion No. 3205 (August 2, 1995). Billy
then filed a petition for post-conviction relief, alleging that he
had received ineffective assistance of counsel at his trial. In
particular, Billy asserted that his attorney had incompetently
failed to object to certain testimony elicited by the prosecutor.
Superior Court Judge Dale O. Curda denied Billy's
petition. Judge Curda concluded that, even though Billy's trial
attorney might have made mistakes by failing to object to the
challenged testimony, the attorney's mistakes were not so egregious
as to fall below the minimum level of competence expected of
criminal law practitioners. As an additional reason for denying
relief, Judge Curda ruled that Billy had failed to establish any
reasonable possibility that the admission of the challenged
testimony affected the outcome of Billy's trial. Judge Curda noted
that Billy's petition "completely failed to address the issue of ...
prejudice". The judge conceded that, in some circumstances, the
introduction of particular inadmissible evidence might be
prejudicial on its face. But Judge Curda (who had presided over
Billy's trial) concluded that the challenged evidence in Billy's
case was not obviously prejudicial; thus, Billy had not carried his
burden of demonstrating a reasonable possibility of prejudice.
A criminal defendant who alleges ineffective assistance
of counsel must demonstrate both (1) that their attorney failed to
act with the minimum competency expected of criminal law
practitioners, and (2) that there is a reasonable possibility that
the attorney's lack of competency contributed to the result. [Fn.
1] As Judge Curda correctly noted, a defendant who alleges
ineffective assistance of counsel must do more than present "a mere
conclusory or speculative allegation of harm". [Fn. 2] Billy's
pleadings in the superior court mention the requirement of proving
prejudice, but Billy never argues this point other than to assert,
conclusorily, that the attorney's mistakes must have affected the
result. We agree with Judge Curda that Billy failed to satisfy his
burden of pleading on this issue.
After Judge Curda issued his decision (in particular, his
ruling that Billy had failed to adequately allege prejudice), Billy
did not ask Judge Curda for permission to file a supplemental
pleading to address the issue of prejudice. Instead, Billy filed
an appeal to this court. In this appeal, Billy asserts that his
superior court pleadings sufficiently addressed the issue of
prejudice because it was self-evident that the challenged testimony
could have affected the outcome of his trial. We do not agree.
Whether particular testimony may have affected the outcome
of a trial is a question that seldom provides its own self-evident
answer. Normally, to show prejudice, a defendant must discuss the
importance of the challenged testimony in relation to the litigation
strategies of the parties, the material issues of fact that were
disputed at trial, and the other evidence presented on those
disputed issues. Billy's superior court pleadings contained no such
discussion.
Because Billy failed to meet his burden of pleading the
"prejudice" component of his ineffective assistance of counsel claim,
Judge Curda could properly dismiss Billy's petition for post-
conviction relief. The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
See Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974); State
v. Jones, 759 P.2d 558, 575 (Alaska App. 1988).
Footnote 2:
State v. Jones, 759 P.2d at 573.
