Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Cole v. State (6/20/2003) ap-1883
Cole v. State (6/20/2003) ap-1883
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 JORGE COLE, )
) Court of Appeals No. A-
8169
Appellant, ) Trial Court No.
3AN-99-7095 CI
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1883 June 20,
2003] )
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Elaine M. Andrews,
Judge.
Appearances: Dan S. Bair, Anchorage, for
Appellant. Michael Sean McLaughlin,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
A jury found Joseph Jorge Cole guilty of first-degree
murder.1 The superior court imposed a 65-year sentence with 20
years suspended. We upheld Coles conviction on direct appeal.2
Cole pursued an application for post-conviction relief, claiming
that his trial attorney was incompetent in two ways: first,
because she did not retain a forensic pathologist to present
evidence on the cause of the victims death, and second, because
she did not advise him concerning the potential difference in his
parole eligibility if he was convicted of first-degree murder
instead of accepting a charge bargain from the State for a guilty
plea to second-degree murder3 with open sentencing.
The superior court dismissed Coles application for
failing to state a prima facie claim. We conclude that the
superior court did not abuse its discretion and therefore affirm.
Facts and proceedings
On October 20, 1995, Cole and another man, Allen Cole
(no relation), walked up, handguns drawn, to a car that was
stopped at a red light in Anchorage. Both men mistakenly
believed the car contained their intended victim. They opened
fire as they came alongside, firing more than a dozen shots into
the vehicle. Two of the shots hit Thomas Kusmider, a person
unknown to the men. A bullet from Coles gun struck Kusmider in
the shoulder and a bullet from Allen Coles gun struck Kusmider in
the chest. The driver of the car fled from the scene and rushed
Kusmider to the hospital. In spite of emergency treatment,
Kusmider bled to death.
The grand jury indicted the Coles for first-degree
murder. Allen Cole accepted the States charge bargain and
pleaded no contest to second-degree murder. Although Coles
attorney advised him to accept the same offer, Cole persisted in
his not guilty plea and the jury convicted him as charged.
Coles claim that his attorney was ineffective
because she did not present expert testimony
on the cause of death
Coles application alleges that his trial attorney
provided ineffective assistance of counsel because she did not
call a forensic pathologist to testify on the cause of Kusmiders
death. Cole supported his application with an affidavit from Dr.
Donald R. Rogers, a forensic pathologist. Cole contends that Dr.
Rogers opinion, as set out in his affidavit, supports his claim
that his attorney could have presented testimony that would show
that Kusmider would not have died had he only been wounded in the
shoulder that is, had he been struck by Coles bullet alone.
From this, Cole argues that he would have been able to show at
least a reasonable doubt whether he was guilty of first-degree
murder as a principal.
The State moved to dismiss this claim and argued that
Coles factual averments for this claim were deficient because Dr.
Rogers opinion was no more favorable than the evidence Coles
trial attorney brought out during cross-examination of the
forensic pathologist called by the State, Dr. Norman Thompson.
Superior Court Judge Elaine M. Andrews, who presided
over Coles jury trial, compared the assertions in Dr. Rogers
affidavit with Dr. Thompsons trial testimony concerning Kusmiders
cause of death. Judge Andrews found essentially no difference
between Dr. Rogers affidavit and Dr. Thompsons testimony. She
also found that Dr. Thompsons testimony appeared to be much more
persuasive on the theory Cole advanced than Dr. Rogers affidavit.
Judge Andrews noted that Coles trial attorney interviewed Dr.
Thompson before trial and elected not to call an expert. The
trial attorney reasoned that a pathologist would be unlikely to
opine that a significant gunshot wound did not legally contribute
to death by exsanguination. Because the facts in the application
showed that Coles trial attorney made a tactical choice about
calling a forensic pathologist and because Cole had not alleged
facts that established any prejudice, Judge Andrews dismissed
this claim.
A prima facie claim of ineffective assistance
of counsel must allege facts to show that the
trial attorneys conduct fell outside the
range of reasonable actions that might have
been taken by an attorney skilled in the
criminal law, and that there is a reasonable
doubt whether the incompetence contributed to
the conviction.4 Both Dr. Rogers and Dr.
Thompson agreed that Kusmiders shoulder wound
would not have been life-threatening on its
own, assuming timely medical care, and both
agreed that his chest injury was a lethal
wound. And, because Kusmider bled to death,
Dr. Rogers agreed with Dr. Thompson that the
shoulder injury that was directly caused by
Coles gunshot would have contributed to Mr.
Kusmiders death. Therefore, Judge Andrews
ruling that Coles application did not allege
a prima facie case of prejudice was not an
abuse of discretion. Coles claim
that his attorney was ineffective because she
did not advise him of potential parole
considerations
Next, Cole argues that he established a prima facie
claim when he alleged that his attorney was incompetent because,
although she advised him to accept the offered charge bargain,
she did not advise him that he might be eligible for parole
sooner if he accepted. Judge Andrews granted the States motion
to dismiss this claim, reasoning that Coles counsel was not
required to advise Cole of his potential for parole when advising
him on the advantages and disadvantages of the States charge
bargain.
In Hampel v. State,5 the defendant accepted a plea
bargain in which he would plead guilty to first-degree murder in
return for a guarantee of no more than a 60-year sentence.6 The
trial court sentenced Hampel to serve 60 years with 20 years
suspended.7 Hampel pursued post-conviction relief claiming, in
part, that he was unaware that he would not receive good time
credit against the 20-year mandatory minimum sentence for first-
degree murder. Hampel claimed that this lack of awareness
rendered his plea involuntary.8 We rejected Hampels claim
because it was based on his unilateral subjective belief about
parole eligibility (i.e., his belief was not influenced by advice
or promises from his attorney or a promise from the court).9
A court is not required to advise defendants on the
potential for parole release, even when the court is asking
defendants whether they understand their rights during a change
of plea hearing.10 Here, Cole argues that his attorney was
incompetent because she did not advise him about parole
eligibility. But Cole has not cited any persuasive authority in
support of this assertion. Cole concedes he was informed of the
minimum and maximum penalties that applied in his case. And Cole
does not aver that his attorney provided him with any misleading
advice about the offered charge bargain or the consequences of
his desire to reject the charge bargain and go to trial on first-
degree murder.
We conclude that an attorney is not required to advise
a defendant about parole eligibility when the defendant is
offered a charge bargain with open sentencing. We agree with
Judge Andrews conclusion that Coles attorney was not required to
provide Cole with an analysis of his potential for parole release
when she recommended that he accept the charge bargain.
Conclusion
The judgment of the superior court is AFFIRMED.
MANNHEIMER, Judge, concurring.
I agree with my colleagues that Cole failed to show
that he was prejudiced by his trial attorneys failure to call Dr.
Rogers to testify about the cause of death. However, I reach
this result for a different reason.
Cole and his accomplice, both armed with firearms,
stood outside their victims car and fired over a dozen bullets
into it. Ballistics analysis revealed that a bullet from Coles
gun wounded the victim in the shoulder, while a bullet from his
accomplices gun wounded the victim in the chest. The victim
later died from the loss of blood caused by these wounds.
At trial, Cole tried to convince the jury that he
should not be convicted of first-degree murder as a principal by
arguing that the bleeding caused by the shoulder wound had not
contributed in a significant way to the victims death. To this
purpose, Coles attorney cross-examined the States pathologist,
Dr. Thompson, to suggest that the shoulder wound was largely
insignificant. Now, Cole asserts that his attorney should also
have introduced the testimony of Dr. Rogers to bolster this
point.
But even if the jury believed that the shoulder wound
did not contribute in any significant way to the victims death,
Cole would still be guilty of first-degree murder. The crime of
first-degree murder requires proof of the defendants intent to
kill. Thus, when the jury found Cole guilty of first-degree
murder, they necessarily found that when Cole participated in the
armed assault on the occupants of the car, he acted with the
intent to kill. And, because Cole participated equally in this
assault (working together with his accomplice to fire more than
a dozen bullets into the vehicle), Cole was accountable under
AS 11.16.110(2) for the conduct of his accomplice that is, for
the gunshots fired by his accomplice. Thus, even if none of
Coles bullets had struck the victim, Cole would still be properly
convicted of first-degree murder. See Riley v. State, 60 P.3d
204 (Alaska App. 2002); Knutson v. State, 736 P.2d 775, 780
(Alaska App. 1987).
For this reason, I conclude that Coles trial attorneys
decision to refrain from calling Dr. Rogers could not have
affected the outcome of the trial.
_______________________________
1 AS 11.41.100(a).
2 Cole v. State, Alaska App. Memorandum Opinion and
Judgment No. 3845, 1998 WL 395224 (July 15, 1998).
3 AS 11.41.110(a).
4 Risher v. State, 523 P.2d 421, 424-25 (Alaska
1974).
5 911 P.2d 517 (Alaska App. 1996).
6 Id. at 519.
7 Id.
8 Id. at 524.
9 Id. at 525.
10 See Morgan v. State, 582 P.2d 1017, 1027
(Alaska 1978).
