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Tall v State (05/11/2001) ap-1739
Tall v State (05/11/2001) ap-1739
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
ANDREW J. TALL, )
) Court of Appeals No. A-7566
Appellant, ) Trial Court No. 3AN-98-8037 CI
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. )
) [No. 1739 May 11, 2001]
Appeal from the Superior Court, Third Judicial
District, Anchorage, Peter A. Michalski, Judge.
Appearances: Gayle J. Brown, Anchorage, for
Appellant. John A. Scukanec, 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.
STEWART, Judge.
A jury convicted Andrew J. Tall on two counts of first-
degree sexual assault. [Fn. 1] We affirmed Tall's conviction on
direct appeal and remanded the case to the superior court for
further explanation of the sentence. [Fn. 2] Following remand, we
affirmed the sentence imposed by the superior court. [Fn. 3] In
July 1998, Tall filed an application for post-conviction relief.
The superior court appointed an attorney for Tall and by December
1998, Tall's attorney had filed her entry of appearance. In May
1999, Tall's attorney filed an affidavit stating that she had
reviewed Tall's application and would proceed on the grounds alleged
in the application. In July 1999, the State filed a motion to
dismiss, alleging that Tall's application did not state a prima
facie case for relief. Tall opposed the State's motion. In October
1999, Superior Court Judge Peter A. Michalski granted the State's
motion. Tall moved for reconsideration. Judge Michalski invited
a response from the State, and ultimately denied reconsideration.
Tall argues that Judge Michalski erred because he did not
give notice that he intended to grant the State's motion to dismiss.
Tall claims that under State v. Jones, [Fn. 4] the superior court
must give notice of its intent to dismiss the application and allow
the applicant sufficient time to amend or supplement the application
if the court determines that the applicant has not stated a prima
facie case for post-conviction relief. [Fn. 5]
Jones was decided before Criminal Rule 35.1 was amended
in 1995. [Fn. 6] The State argues that the current version of the
rule does not require advance notice if the trial court dismisses
an application in response to the State's motion for summary
disposition of the application. [Fn. 7] We believe that the change
in the rules is irrelevant because, under the facts of cases such
as this one, no advance notice of dismissal is required even under
the former version of the rule.
The former version of Alaska Criminal Rule 35.1(f)(2) and
(3) addressed summary disposition of post-conviction relief
applications. Former subparagraph (f)(2) provided:
When a court is satisfied, on the basis of
the application, the answer or motion, and the record, that the
applicant is not entitled to post-conviction relief and no purpose
would be served by any further proceedings, it may indicate to the
parties its intention to dismiss the application and its reasons for
so doing. The applicant shall be given an opportunity to reply to
the proposed dismissal. In light of the reply, or on default
thereof, the court may order the application dismissed or grant
leave to file an amended application or direct that the proceedings
otherwise continue. Disposition on the pleadings and record shall
not be made when a material issue of fact exists.
This paragraph called for advance notice of the court's
proposed dismissal of a post-conviction relief application. In
Hampton v. Huston, [Fn. 8] we interpreted this provision to be
mandatory. We held:
Where the [trial] court elects to consider
a [Rule 35] petition summarily, it must give advance warning of its
decision to the parties in a written order spelling out in some
detail its reasons for concluding that the petition warrants summary
disposition. Specifically, the applicant must be given an
opportunity to reply to the proposed dismissal before it becomes
final. The applicant cannot be expected to reply unless he knows
the court's reasons for its prospective decision.[ [Fn. 9]]
In Wood v. Endell, [Fn. 10] we reached the same conclusion when we
rejected the argument that advance notice of dismissal was
unnecessary if the application failed to set forth a prima facie
case of ineffective assistance. [Fn. 11]
As we recognized in Hampton, however, former Rule 35.1(f)
provided two alternate methods for summary disposition of an
application: disposition upon motion by a party or sua sponte
determination. [Fn. 12] Both Hampton and Wood addressed cases where
the trial court acted on its own initiative ordering summary
dismissal of the application. This is the situation addressed in
subparagraph (f)(2) of former Criminal Rule 35.1.
Neither Hampton nor Wood considered summary disposition
upon motion by a party, a circumstance addressed in subparagraph
(f)(3), which was unchanged by the 1995 amendments to the rule:
The court may grant a motion by either
party for summary disposition of the application when it appears
from the pleadings, depositions, answers to interrogatories, and
admissions and agreements of fact, together with any affidavits
submitted, that there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.
In contrast to subparagraph (f)(2), subparagraph (f)(3)
omits reference to advance notice of dismissal. This appears to be
an intentional omission. As indicated by the above-quoted passage
from Hampton, advance warning of dismissal prevents surprise,
permits a response to the proposed dismissal, and allows an
applicant the opportunity to amend or supplement the application.
When the State moves for summary disposition of a post-conviction
relief application, the State must give a "written statement of the
reasons in support of the motion" and a "memorandum of the legal
points and authorities upon which the [State] will rely." [Fn. 13]
Thus, the applicant receives both clear notice that dismissal has
been proposed and a statement of reasons for the proposed dismissal.
The applicant's right to respond to the motion provides an
opportunity to reply or file amended or supplemental pleadings. If
the court, under these circumstances, dismisses the application for
the reasons proposed by the State, the applicant cannot claim
surprise or lack of opportunity to cure defects in the original
application.
Former Criminal Rule 35.1 derives from the Uniform Post-
Conviction Procedure Act of 1966. [Fn. 14] Subparagraphs (f)(2) and
(f)(3) of the former rule track almost verbatim the language of the
Uniform Act, sec. 6(b) and (c). [Fn. 15] In Idaho, where the 1966
Uniform Act was also adopted, the Idaho Supreme Court, in State v.
Christensen, [Fn. 16] interpreted the notice requirement to
"govern[] only those situations where the trial court on its own
initiative determines to dismiss the [application]." [Fn. 17] In
reaching this conclusion, the court reasoned that, when dismissal
is based on a motion by the State, "the motion itself serves as
notice that summary dismissal is being sought." [Fn. 18]
We find Christensen persuasive and decline to read
Criminal Rule 35.1(f)(3) to require advance notice by the court of
its intent to dismiss a post-conviction relief application when the
court grants a dismissal in response to a motion by the State and
for the reasons advanced in that motion.
Here, the State moved to dismiss Tall's application. Tall
had a full and fair opportunity to respond (and did so), and the
court ordered dismissal for the reasons advanced by the State.
Under these circumstances, the superior court had no obligation to
provide Tall with additional notice of its intent to dismiss.
We now turn to an evaluation of the substance of Tall's
claims. Tall argues that the superior court erred by dismissing his
claim that he received ineffective assistance of counsel. Tall
argues that he was denied effective assistance of counsel because
his trial attorney presented a defense that had no scientific basis.
He claims that his only viable defense to the charges of first-
degree sexual assault was consent, given that the victim's DNA was
found on him.
In Risher v. State, [Fn. 19] the Alaska Supreme Court
adopted a two-prong test for evaluating claims of ineffective
assistance of counsel. [Fn. 20] First, the defendant must show that
his counsel's performance fell below the "range of competence
displayed by one of ordinary training and skill in the criminal
law." [Fn. 21] Second, the defendant must show that this
incompetence had an adverse impact on the case that contributed to
the defendant's conviction. [Fn. 22] The defendant has the burden
of proving his counsel's lack of competence by clear and convincing
evidence. [Fn. 23] This includes the burden to rebut the strong
presumption that the trial attorney's actions were the product of
"sound tactical considerations." [Fn. 24] Once the trial attorney's
incompetence has been established, and an actual impact on the case
has been shown, the defendant need only create a reasonable doubt
that the attorney's incompetence contributed to his conviction. [Fn.
25]
Tall asserts that his trial counsel's theory of the case
was not viable, and his investigation of that theory inadequate, but
he offers no affidavits or other evidence to rebut the presumption
that the defense theory was based on sound tactical considerations.
[Fn. 26] All that Tall provided was an affidavit from his post-
conviction relief attorney containing a hearsay declaration by his
trial attorney authorizing his post-conviction relief attorney to
state that "there were no errors that [the trial attorney] sees nor
that raise to the level of a meritorious claim."
In Peterson v. State, [Fn. 27] we stated as follows:
We have repeatedly held that a defendant
asserting ineffective assistance of counsel must provide the court
with an affidavit from the former attorney, addressing the various
claims of ineffective representation, or must explain why such an
affidavit can not be obtained.[ [Fn. 28]]
Tall did not provide an affidavit from his trial attorney, and the
hearsay statement of his trial attorney contained in the affidavit
provided by his post-conviction relief attorney did not address the
tactical considerations underlying the trial attorney's defense.
Because Tall did not provide an affidavit from his trial attorney
or an explanation of why one could not be provided, his application
did not establish a prima facie claim. Judge Michalski, therefore,
did not abuse his discretion by dismissing this claim.
Tall next argues that the superior court erred in
dismissing his claim that he had been denied his constitutional
right to decide whether to testify in his own defense. A
defendant's right to testify is "undeniably one of the most
fundamental rights constitutionally secured to a person accused of
committing a crime." [Fn. 29] The decision whether to testify lies
with the defendant, not the defendant's attorney. [Fn. 30] Under
LaVigne v. State, [Fn. 31] and Criminal Rule 27.1, before the
defense rests without presenting the defendant's testimony, the
trial judge must make sure that the defendant understands that the
choice whether or not to testify rests with the defendant, not with
trial counsel, and must inquire whether the defendant voluntarily
has waived that right. [Fn. 32]
The parties do not dispute that Judge Michalski conducted
this LaVigne inquiry. As Tall points out, he stated several times
that he declined to testify on his attorney's advice. But Judge
Michalski went on to ensure that Tall understood that the decision
was his alone and to inquire whether his decision was voluntary:
The Court: Is the is your choice one
that you make of your own free will?
Tall: Under the advice of my
attorney, yes.
The Court: Yes, but you understand
that it's your choice?
Tall: Yes, your Honor.
The Court: It's the wise man who
listens to his attorney, but on the other hand, it is your choice.
Tall: Yes, your Honor.
The Court: Yeah. There's an old
saying about if you know, a person who represents themselves has
a fool for a client, but, you know, you have to decide that. It's
not something that your attorney decides for you. The rec they
make recommendations. Are you satisfied with your decision?
Tall: Yes, your Honor, I
am.
In Mute v. State, [Fn. 33] the defendant asserted that,
even though he waived his right to testify at trial, his decision
was not truly voluntary because it was motivated by his mistrust of
his attorney and was the product of an irreparable breakdown in the
attorney-client relationship. [Fn. 34] This court held that a
defendant's reasons for declining to testify "are not proper
concerns under LaVigne." [Fn. 35] The critical inquiry is whether
the defendant understood that he had the legal right to decide
whether to testify. [Fn. 36]
The record before us establishes that the superior court
conducted the inquiry required by LaVigne and Criminal Rule 27.1.
Tall does not assert that he did not understand that he had this
right; nor does the record support a conclusion that his decision
not to testify was involuntary. Accordingly, Judge Michalski did
not abuse his discretion by dismissing this claim.
Conclusion
The judgment of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.41.410(a)(1).
Footnote 2:
See Tall v. State, Memorandum Opinion & Judgment No. 3665
(Alaska App., September 24, 1997).
Footnote 3:
See Tall v. State, Memorandum Opinion & Judgment No. 4020
(Alaska App., March 24, 1999).
Footnote 4:
759 P.2d 558 (Alaska App. 1988).
Footnote 5:
See id. at 565.
Footnote 6:
Ch. 79, sec.sec. 32-39, SLA 1995.
Footnote 7:
See Alaska R. Crim. P. 35.1(f)(2)-(3).
Footnote 8:
653 P.2d 1058 (Alaska App. 1982).
Footnote 9:
Id. at 1060.
Footnote 10:
702 P.2d 248 (Alaska App. 1985).
Footnote 11:
See id. at 249 (noting that advance notice of the court's
summary disposition was necessary to allow the applicant to cure any
defect).
Footnote 12:
See Hampton, 653 P.2d at 1060.
Footnote 13:
Alaska R. Crim. P. 42(b)(2).
Footnote 14:
See Brown v. State, 803 P.2d 887, 889 (Alaska App. 1990).
Footnote 15:
See 11A U.L.A. 267, 344 (1995).
Footnote 16:
632 P.2d 676 (Idaho 1981).
Footnote 17:
Id. at 677.
Footnote 18:
Id.; but cf. Baruth v. Gardner, 715 P.2d 369, 371-72 (Idaho
App. 1986) (applying Christensen but indicating that a court must
still give advance notice "if the dismissal is based on grounds
different from those presented in the motion for dismissal").
Footnote 19:
523 P.2d 421 (Alaska 1974).
Footnote 20:
See id. at 424-25.
Footnote 21:
Id. at 424.
Footnote 22:
See Jones, 759 P.2d at 573; Risher, 523 P.2d at 424-25.
Footnote 23:
See AS 12.72.040; Alaska R. Crim. P. 35.1(g).
Footnote 24:
Jones, 759 P.2d at 569.
Footnote 25:
See Jones, 759 P.2d at 573; Risher, 523 P.2d at 425;.
Footnote 26:
See Condon v. State, 498 P.2d 276, 285 (Alaska 1972) (noting
the general rule that an attorney's choice of defense theory is not
subject to a claim of denial of effective assistance of counsel).
Footnote 27:
988 P.2d 109 (Alaska App. 1999).
Footnote 28:
Id. at 113 (citing Steffensen v. State, 837 P.2d 1123, 1126-27
(Alaska App. 1992) and Jones, 759 P.2d at 570).
Footnote 29:
Knix v. State, 922 P.2d 913, 918 (Alaska App. 1996).
Footnote 30:
See LaVigne v. State, 812 P.2d 217, 219 (Alaska 1991).
Footnote 31:
812 P.2d 217.
Footnote 32:
See Mute v. State, 954 P.2d 1384, 1386 (Alaska App. 1998).
Footnote 33:
954 P.2d 1384.
Footnote 34:
See id. at 1386.
Footnote 35:
Id. at 1388.
Footnote 36:
See id.
