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State v. Zeciri (03/29/2002) ap-1797
State v. Zeciri (03/29/2002) ap-1797
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:
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E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-7712
Appellant, ) Trial Court No. 3AN-
94-9016 CI
)
v. )
O P I N I O N
)
ABIDIN ZECIRI, )
)
Appellee. ) [No. 1797 March
29, 2002]
)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Karen L. Hunt,
Judge.
Appearances: John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellant. Scott A. Sterling, Sterling &
DeArmond, P.C., Wasilla, for Appellee.
Before: Coats, Chief Judge, Stewart, Judge,
and Wolverton, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
STEWART, Judge.
COATS, Chief Judge, dissenting.
The superior court granted Abidin Zeciri's application
for post-conviction relief. However, it is not clear from the
court's order that the court applied the correct burden of proof.
Additionally, the order does not adequately address the elements
of a claim of ineffective assistance of counsel to allow this
court to review the superior court's decision on appeal.
Accordingly, we vacate the superior court's order and remand the
case for further proceedings.
A summary of the proceedings to date
In 1985, a jury convicted Zeciri of the first-degree
murder1 of his wife, Safije Zeciri. We affirmed his conviction
on direct appeal.2
In October of 1994, Zeciri filed an application for
post-conviction relief. Included in Zeciri's claims were his
allegations that his trial counsel provided ineffective
assistance by not using an interpreter (Zeciri's first language
is Albanian), and that his trial counsel denied him the right to
testify. The superior court summarily denied the application for
failing to plead a prima facie case. Zeciri appealed.
We reversed the superior court because we concluded
that a hearing was required on Zeciri's claim that he had been
denied the right to testify and on his interrelated claim that
his trial counsel provided ineffective assistance by failing to
use a translator.3
The superior court conducted an evidentiary hearing on
the application and recessed the hearing without issuing any
findings. Later, after the parties submitted proposed findings,
the court issued an order granting post-conviction relief. The
court concluded that Zeciri had established a claim of
ineffective assistance of counsel "based upon the failure of
counsel to utilize a translator or interpreter before and during
Mr. Zeciri's trial."
The burden of proof
Alaska Statute 12.72.040 and Alaska Criminal Rule
35.1(g) provide that an applicant bears the burden of proving all
factual assertions by clear and convincing evidence.
The superior court's order does not directly state the
standard of proof applied. However, in the one part of the
superior court's order the court found that Zeciri "more likely
than not misunderstood the nature of the state's case and
evidence against him[.]" (emphasis added). The highlighted
language applies the civil standard for preponderance of the
evidence, that an asserted proposition is probably true.4 But to
meet the clear and convincing evidence standard, the proponent
must "produce[ ] in the trier of fact a firm belief or conviction
about the existence of a fact to be proved."5 Because we cannot
confirm that the superior court applied the correct burden of
proof when it entered its findings, we vacate the court's order
and remand the case to allow the superior court to enter findings
under the clear and convincing evidence standard.
The elements of a claim of ineffective assistance of
counsel
In Risher v. State,6 the supreme court announced a two-
prong test to determine whether a client has been denied
effective assistance of counsel:
Before reversal will result, there must first
be a finding that counsel's conduct either
generally throughout the trial or in one or
more specific instances did not conform to
the standard of competence which we have
enunciated. Secondly, there must be a
showing that the lack of competency
contributed to the conviction. If the first
burden has been met, all that is required
additionally is to create a reasonable doubt
that the incompetence contributed to the
outcome.[7]
The court defined the standard of competence as follows:
Lawyers may display a wide spectrum of
ability and still have their performance fall
within the range of competence displayed by
one of ordinary training and skill in the
criminal law. It is only when the ability is
below the nadir of that range that we would
hold it to constitute a deprivation of
effective assistance of counsel. We are not
condoning the second-guessing of trial
counsel in making the myriad decisions
encountered in a criminal trial, for it is a
truism that hindsight furnishes 20-20 vision.
All that is required of counsel is that his
decisions, when viewed in the framework of
trial pressures, be within the range of
reasonable actions which might have been
taken by an attorney skilled in the criminal
law, regardless of the outcome of such
decisions.[8]
In addition, an applicant bears the burden to rebut the strong
presumption that counsel's actions were the product of "sound
tactical considerations."9
A court evaluating a claim of incompetence of counsel
must compare the performance of trial counsel with this standard
of competence; that is, the range of reasonable actions which
might be taken by an attorney with ordinary training and skill in
the criminal law.10 Whether an attorney has provided effective
assistance is not always self-evident and, like the civil
analogue of legal malpractice, frequently presents a question
that requires expert testimony to establish the standard of
care.11
But the order in question here lacks any discussion or
findings on the range of reasonable actions that might be taken
by an attorney skilled in criminal law when representing a client
whose first language is not English. Nor are there any specific
findings that address how Zeciri's trial attorney failed to meet
this standard of care by falling "below the nadir" of the range
of competence displayed by an attorney with ordinary training and
skill in the criminal law. Furthermore, the order lacks any
findings that delineate which facts rebut the presumption that
defense counsel's decisions were grounded in sound tactical
considerations. Thus, the order does not meet the standard of
Criminal Rule 35.1(g), which provides that the superior court
"shall make specific findings of fact, and state expressly its
conclusions of law, relating to each issue presented." Because
the order does not include specific findings of fact regarding
ineffective assistance of counsel, we vacate the order and remand
for further proceedings.
It deserves noting that ordinarily, in the absence of
express findings, we would view the record in the light most
favorable to Zeciri.12 But, because we are not certain that the
court applied the appropriate burden of proof on the findings
entered, we are not willing to view the record in that light.
When reconsidering Zeciri's application on remand, the
superior court should enter findings on the standard of
competence for an attorney of ordinary training and skill in
criminal law when representing a client whose first language is
not English, findings describing the trial attorney's
representation, findings on how the trial attorney's
representation fell below the nadir of the standard of
competence, and findings that delineate which facts rebut the
presumption that Ziciri's trial attorney's conduct was grounded
in sound tactical considerations.
If this case cannot be considered by the judge who was
originally assigned to the case (who is now retired), the
superior court judge assigned may proceed in whatever fashion
would promote resolution of the pending issues, including
conducting a hearing de novo.
Conclusion
The judgment of the superior court is VACATED and the
case is REMANDED for further proceedings in light of this
opinion. We do not retain jurisdiction.
COATS, Chief Judge, dissenting.
Zeciris claim, stripped to its essence, was that he did
not have a sufficient grasp of the English language to
meaningfully participate in his trial and to exercise his
decision whether or not to testify. He claimed that his counsel
was ineffective for proceeding to trial without an interpreter.
The evidence on Zeciris ability to function in English
and how this affected his ability to understand the proceedings
and to exercise his decision to testify was sharply conflicting.
Following the hearing, Superior Court Judge Karen L. Hunt
concluded that Zeciri had met his burden to show that his counsel
had been ineffective in failing to provide an interpreter for
Zeciri. She concluded that Zeciri had not been able to
adequately understand the proceedings at his trial, to
participate in his defense, and to exercise his right to testify.
Although the evidence was conflicting, on appeal we examined the
evidence before the trial court in the light most favorable to
the prevailing party. Applying this standard, Judge Hunts
findings are supported by the record.
Alaska Statute 12.72.040 and Alaska Criminal Rule
35.1(g) explicitly require an applicant for post-conviction
relief to prove all factual assertions by clear and convincing
evidence. Judge Hunts findings are silent on what standard she
applied in granting Zeciris application.
Normally the outcome of this appeal at this stage would
be clear we would remand to Judge Hunt to insure that she
applied the correct standard. But in this case, that is not
possible. It is at this point where I part company with my
colleagues. Judge Hunt has retired. The presiding judge of the
superior court has informed us that Judge Hunt is not available
to reconsider cases. This case involved several days of
testimony and, if remanded, would have to be completely redone
by another judge. From my review of the record, it appears that
another judge could easily reach a different decision given the
evidence presented at the evidentiary hearing. This causes me to
reconsider whether we should remand the case.
The statute and criminal rule clearly establish that
Zeciri had the burden of proving his factual allegations by clear
and convincing evidence. Judge Hunt is an experienced judge and
it seems very likely that she was aware of the burden of proof
required. Furthermore, the record shows that the state
constantly pointed this out to Judge Hunt. Particularly in its
final argument, the state pointed out again and again that Zeciri
was required to prove his case by clear and convincing evidence.
Zeciri never challenged this in his argument. In fact, it does
not appear Zeciri argued in the trial court for a lesser standard
of proof. And in her findings, although she does not set out the
burden of proof she is applying, Judge Hunt clearly concludes
that Zeciri simply did not have an adequate command of the
English language to go to trial without an interpreter and that
this had a substantial impact on his right to testify. I
conclude that, if the case could be remanded back to her, Judge
Hunt would still grant Zeciris application. It seems highly
unlikely that, given the clarity of the law and the states
constant and uncontradicted emphasis on the clear and convincing
standard of proof, she applied a different standard of proof. In
all probability, she did not mention the burden of proof because
the case did not turn on it.
Because we do not have the option of remanding this
case back to Judge Hunt to clarify her findings and because I
have a high degree of certainty that either Judge Hunt applied
the correct burden of proof or her decision did not turn on the
burden of proof, I would affirm her decision granting Zeciris
application for post-conviction relief.
_______________________________
* Sitting by assignment made pursuant to article IV, section
16 of the Alaska Constitution.
1 AS 11.41.100(a)(1).
2 See Zeciri v. State, 779 P.2d 795, 801 (Alaska App. 1989).
3 See Zeciri v. State, Memorandum Opinion and Judgment No.
3708, at 4 (Alaska App., November 26, 1997).
4 See Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964); Alaska
Civil Pattern Jury Instruction 2.04 (defining preponderance of
the evidence as follows: "Something is more likely than not true
if you believe that the chance that it is true is even the
slightest bit greater than the chance that it is not true.").
5 Buster v. Gale, 866 P.2d 837, 844 (Alaska 1994) (quoting
Castellano v. Bitkower, 346 N.W.2d 249, 253 (Neb. 1984)).
6 523 P.2d 421 (Alaska 1974).
7 Id. at 425.
8 Id. at 424.
9 State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
10 See Risher v. State, 523 P.2d at 424.
11 See Drake v. Wickwire, 795 P.2d 195, 196-97 (Alaska 1990);
see also Shaw v. State, Dept. of Admin., Pub. Defender Agency,
816 P.2d 1358, 1361 (Alaska 1991).
12 Id.
