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Garay v. State (8/30/2002) ap-1823
Garay v. State (8/30/2002) ap-1823
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
MANUEL JESUS GARAY, )
) Court of Appeals No.
A-7902
Appellant, )
Trial Court No. 3AN-98-10921 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1823 August 30, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, John R. Lohff,
Judge.
Appearances: Rex Lamont Butler, Anchorage,
for Appellant. Nancy R. Simel, 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.
In this case, a defense attorney failed to read all of
the material that had been disclosed to him by the State. As a
consequence, the defendant accepted a plea bargain entered a
plea of no contest to a reduced charge without full knowledge of
the evidence in the case. The overlooked evidence was
significant enough that it might reasonably have affected the
defense attorneys advice to the defendant or might reasonably
have affected the defendants decision to accept or reject the
plea bargain. For this reason, we hold that the defendant should
be allowed to withdraw his plea.
In late 1998, Manuel Jes£s Garay was indicted for first-
degree sexual assault. The Public Defender Agency was appointed
to represent him. In early February 1999, Assistant Public
Defender Craig S. Howard negotiated a plea agreement with the
State on Garays behalf. Under the terms of this agreement, Garay
would plead no contest to a reduced charge of second-degree
sexual assault.
Although Garay continued to assert his innocence,
Howard urged Garay to accept this agreement: the States case
appeared strong, and Garay faced a presumptive term of 25 years
imprisonment if he was convicted of first-degree sexual assault.
(Garay was a third felony offender.)1 On February 11th, Garay
ultimately decided to accept the agreement, and his change of
plea was calendared for February 17th. But in the meantime, the
district attorneys office received an additional police report
and witness interviews concerning Garays case.
The alleged victim of the sexual assault was a woman
named D.H.. The police had interviewed D.H.s daughter and one of
D.H.s former boyfriends. D.H.s daughter told the police that her
mother has a long history of falsely accusing people of ... rape
when she is drunk, that her mother often lied and/or hallucinated
when she drank or took drugs, and that her mother was vengeful
and not trustworthy. D.H.s former boyfriend told the police that
D.H. would drink to absolute oblivion and that she becomes
violent and sexually aggressive when she is drunk.
Assistant District Attorney Donald R. Kitchen read
these materials on February 10th or 11th. He was aware that
Garay was negotiating a plea bargain with the State, and he
understood the potential significance of this new information.
For this reason, Kitchen immediately sent copies of the police
report and the witness statements to Garays attorney so that the
defense attorney would have this information before Garay changed
his plea. The documents were received by the Public Defender
Agency on February 12th, but Garays attorney neglected to read
them. Five days later, on February 17th, Garay went to court and
entered his negotiated plea.
That summer, Garay obtained a new attorney. After the
new attorney discovered the police report and witness interviews
in the Public Defender Agencys file, Garay asked the superior
court to allow him to withdraw his plea. Garay argued that
Howards failure to read the police report and witness interviews
constituted ineffective assistance of counsel. The superior
court agreed with Garay that Mr. Howards failure to review the
[police report and witness statements] ... amounted to
ineffective assistance [of counsel], but the court concluded that
Garay had failed to show any resulting prejudice. For this
reason, the court refused to allow Garay to withdraw his plea.
Garay now appeals the superior courts decision.
A defendant is entitled to withdraw a previous plea of
guilty or no contest if the defendant proves that they received
ineffective assistance from the attorney who counseled them to
enter the plea.2 If an attorney is to competently represent a
criminal defendant during plea negotiations, the attorney must be
familiar with the facts of the case.3
This Court has acknowledged that a defense attorneys
investigation of the case need not be perfect or exhaustive:
[G]iven an unrestricted budget and freed of
any constraints as to probable materiality or
accountability, a lawyer might ... cheerfully
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.
State v. Jones, 759 P.2d 558, 572 (Alaska
App. 1988).4
But in Garays case, the issue is
not Howards failure to track down every
conceivable witness or hire experts to
subject the physical evidence to every
conceivable scientific analysis. Rather, the
issue is Howards failure to read documents
that were delivered to his in-basket. We
agree with the superior court that this
amounted to ineffective assistance of
counsel.
But Howards failure to read the
police report and the witness interviews
does not, standing alone, entitle Garay to
withdraw his plea. As explained by our
supreme court in Risher v. State, a claim of
ineffective assistance of counsel rests on
two assertions: first, the defendant must
prove that their attorney failed to give them
legal assistance within the range of
competence expected from criminal law
practitioners; and second, the defendant must
show that there is a reasonable possibility
that the attorneys lack of competence
affected the outcome of the proceedings
against the defendant.5
In Garays case, the superior court
refused to allow Garay to withdraw his plea
because the court concluded that Garay had
not been prejudiced by Howards neglect of his
case. Here, we part company with the
superior court.
It is true that, even without the
additional material, there were ways for a
defense attorney to attack D.H.s credibility.
As the superior court noted in its decision,
D.H. had a history of criminal charges
relating to assault, domestic violence, and
theft or dishonesty, and it was also apparent
[that she] had an enormous alcohol problem.
But the police report and the witness
statements were no mere rehash of this
information. According to D.H.s daughter and
D.H.s former boyfriend, D.H. had a history of
lying, of sexual aggression, and of falsely
accusing men of rape when she was drunk.
This information both the alleged facts and
their source constituted a new and
significant potential avenue of defense for
Garay.
The issue is not whether this new
information would have led to Garays
acquittal if he had gone to trial. Nor is
the issue whether Garay might still have
decided to accept the States offer even after
he was apprised of this new information.
Instead, the issue is whether there is a
reasonable possibility that this information
would have affected Garays decision to accept
or reject the plea bargain. We clarified
this point of law in Arnold v. State, another
case in which a defendant sought to withdraw
a plea based on proof that their attorney had
failed to adequately investigate the case
before counseling the defendant to plead
guilty:
Had [the defense attorney] fully
understood the facts and the applicable law,
he may still have advised Arnold to plead no
contest. He may not have found anything in
the police reports that would have enabled
him to challenge the indictment or obtain a
more favorable disposition. Indeed, had he
looked at the reports and listened to the
grand jury testimony, he might have concluded
that his clients decision to plead no contest
was the only realistic course of action. The
point is that [the defense attorney] was
obligated to do more than he did[,]
regardless of the outcome. Without a fuller
understanding of the facts and law, [the
attorney] could not meaningfully advise
Arnold regarding the case against him.
Without such meaningful advice, Arnold could
not give an informed consent to a plea of no
contest. Consequently, we conclude that the
two prongs of the Risher test are satisfied.
The first prong, ineffective performance, is
established by [the defense attorneys]
failure to adequately inform himself
regarding the relevant facts and the law.
Arnolds resulting inability to knowingly and
intelligently evaluate his situation and
enter an informed plea establishes prejudice
and therefore satisfies the second prong.
Arnold, 685 P.2d 1261, 1267 (Alaska App.
1984).
We reach the same conclusion in
Garays case. The information in the police
report and the witness interviews was a
significant addition to the information
available to the defense. It is possible
that some of this new information may
ultimately turn out to be inadmissible at
trial. It is also possible that, even now,
Garay may ultimately decide that it is better
to enter a negotiated plea than to risk being
convicted of first-degree sexual assault at
trial. But, as we clarified in Arnold, the
question is whether there is a reasonable
possibility that this new information would
have affected Howards advice to Garay or
Garays evaluation of his situation and his
decision to accept or reject the States
offer.
According to Howard, Garay always
maintained that he was innocent of the
charges, and one of the primary reasons Garay
accepted the plea bargain was to avoid
risking the 25-year presumptive term that
would await him if he went to trial and was
convicted of first-degree sexual assault.
The new information in the police report and
accompanying witness interviews augmented the
defense case significantly. Under these
circumstances, there is at least a reasonable
possibility that this new information would
have altered Howards advice to Garay or would
have affected Garays decision to accept or
reject the plea bargain. We therefore find
that Garay proved both prongs of the Risher
test and that he therefore established the
manifest injustice that is required under
Alaska Criminal Rule 11(h)(2) to allow him to
withdraw his plea.
The decision of the superior court
is REVERSED. The superior court is directed
to allow Garay to withdraw his plea.
Proceedings will then recommence on the
original indictment.
_______________________________
1 See AS 12.55.125(i)(4).
2 See Alaska Criminal Rule 11(h)(2) (Before sentencing, the
trial court shall allow a defendant to withdraw a plea whenever
the defendant, upon timely motion, proves that withdrawal is
necessary to correct manifest injustice.) and Alaska Criminal
Rule 11(h)(4)(A) (defining manifest injustice as including
instances where [t]he defendant was denied the effective
assistance of counsel).
3 See Arnold v. State, 685 P.2d 1261, 1265 (Alaska App.
1984).
4 Quoting United States v. DeCoster, 624 F.2d 196, 211 (D.C.
Cir. 1976) (en banc).
5 Risher, 523 P.2d 421, 424-25 (Alaska 1974).
