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Olson v. State (9/12/2003) ap-1899
Olson v. State (9/12/2003) ap-1899
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
FRANK J. OLSON, )
) Court of Appeals No. A-
8379
Appellant, ) Trial
Court Nos. 3AN-99-7375 CI,
)
3AN-97-10221 CR
)
3AN-95-277 CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellees. )
[No. 1899 September 12, 2003]
)
Appeal from the District Court, Third Judi
cial District, Anchorage, Gregory J. Motyka,
Judge.
Appearances: Leslie Hiebert, Assistant
Public Advocate, and Brant McGee, Public
Advocate, Anchorage, for Appellant. Erin E.
White, Assistant District Attorney, Susan
Parkes, District Attorney, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellant.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
STEWART, Judge.
Frank J. Olson was convicted of violating a long-term
domestic violence protective order by coming within 300 feet of
the residence of Cay Jackson. Olson knew at the time he
approached Jacksons apartment building that the court had ordered
him not to do so. But he had never received notice of the
hearing on the petition for the protective order, and thus never
had an opportunity to contest the allegations of domestic
violence or the terms of the order. Olson filed an application
for post-conviction relief, claiming that this lack of notice was
a valid defense to the charge of violating the protective order,
and that his attorney provided ineffective assistance of counsel
by failing to file a motion to dismiss the case on this ground.
Because we conclude that Olsons claims have merit, we grant his
application for post-conviction relief and reverse his
conviction.
Facts and proceedings
On September 2, 1997, Master Andrew Brown held a
hearing on Larry Jacksons petition to the court for a long-term
domestic violence protective order against Olson. Jackson had
previously been Olsons third-party custodian; he was also the
father of Olsons former girlfriend, Melodie Jackson. Larry
Jackson alleged, among other things, that Olson had threatened to
kill him. Following that hearing, Master Brown issued a
protective order prohibiting Olson for six months from contacting
Larry Jackson or approaching his home, vehicle, or work place.
The order also barred Olson from coming within 300 feet the
apartment building of Larry Jacksons other daughter, Cay
Jackson.1 On December 19, 1997, a jury convicted Olson
of violating the long-term domestic violence protective order2 by
approaching Cay Jacksons residence. Two years after this
conviction, Olson brought an application for post-conviction
relief, claiming, among other things, that his conviction was
void because Master Brown had issued the long-term protective
order without giving him notice and an opportunity to be heard.
Olson claimed that his trial attorney was ineffective because he
never challenged his conviction on this ground, even though Olson
told his attorney before trial that he had received no notice of
the September 2, 1997, hearing.
District Court Judge Gregory J. Motyka denied Olsons
application for post-conviction relief, and Olson appealed to
this court.3 We upheld Judge Motykas decision on all but one of
Olsons claims: because the record was unclear as to whether
Olson had received notice of the September 2, 1997, hearing on
Jacksons petition for a long-term protective order, we directed
the district court to reconsider Olsons assertion that it lacked
personal jurisdiction over him when it issued the order.4
Generally, a judgment is void if the court that issued the
judgment lacked personal jurisdiction over the defendant or
otherwise acted in a manner inconsistent with due process of
law.5
Following an evidentiary hearing, Judge Motyka found
that Olson had never received notice of the hearing on Jacksons
petition for a long-term protective order. Judge Motyka then
addressed the question this court had posed when it remanded the
case: If Olson never received notice of the hearing, did he have
a valid defense to the charge of violating the long-term
protective order, even though he knew the terms of the order
before he violated it?6 And, if so, did he receive ineffective
assistance of counsel because his attorney did not file a motion
to dismiss the case on this ground?7
Judge Motyka concluded that Olson did not have a valid
claim and reaffirmed his dismissal of Olsons application for post-
conviction relief. He held that notice and an opportunity to be
heard were not constitutionally required in Olsons case because
Olson had no interest in harassing Jackson, and the State had a
strong countervailing interest in preventing domestic violence.
He also ruled, based on our decisions in Jacko v. State8 and
MacDonald v. State,9 that once Olson had received notice that the
protective order had been issued, he was obliged to comply with
the order until it was vacated by the court.
Following Judge Motykas ruling, the parties submitted
supplemental briefs.
Discussion
Was the long-term protective order issued against Olson
void?
The statute governing long-term domestic violence
protective orders,10 AS 18.66.100, requires a court receiving a
petition for a protective order to schedule a hearing and provide
at least 10 days notice to the respondent of the hearing and of
the respondents right to appear and be heard, either in person or
by an attorney.11 Following that hearing whether or not the
respondent appears the court may issue a long-term protective
order if it finds by a preponderance of the evidence that the
respondent committed domestic violence against the petitioner.12
The legislature has thus specified in the statute authorizing
long-term domestic violence protective orders what type of notice
is required for a court to assert personal jurisdiction over the
person who is to be bound by the order.
On remand, Judge Motyka found that Master Brown had
issued the long-term protective order directing Olson to stay
away from Cay Jacksons residence without giving Olson the prior
notice and opportunity to be heard mandated by statute. In light
of Judge Motykas finding, we conclude that the district court
never acquired personal jurisdiction over Olson, and the
protective order issued against him was void.13
Was Olson nevertheless required to obey the void
protective order?
Judge Motyka held that even if the protective order was
void, Olson could still be convicted of violating the order
because he had been served with a copy of the order and was aware
of its terms. He reasoned, based on our decisions in MacDonald
and Jacko, that Olson was obliged to comply with the void order
until it was vacated by the court.
In reaching this conclusion, Judge Motyka failed to
properly distinguish between short-term domestic violence
protective orders, which the legislature has authorized courts to
issue ex parte, and long-term protective orders, which the
legislature has declared may not be issued without giving the
respondent notice and an opportunity to be heard. We have upheld
convictions for violating short-term domestic violence protective
orders where the defendant knew of the order but was not properly
served,14 and where the order was later vacated by the court.15
But in those instances, the court had jurisdiction to issue the
order without prior notice to the defendant. We have never held
that a person must comply with an order that the legislature has
said may not be issued ex parte if that person had no notice or
opportunity to be heard before the order was issued.
The weight of authority is against adopting such a
doctrine. The well-settled rule in other jurisdictions is that a
person may collaterally attack a judgment as void on the ground
that the court issuing the judgment lacked jurisdiction over the
person or subject matter, or the authority to render the
particular judgment.16 Applying this rule, courts have reversed
convictions for criminal contempt of orders that were issued
without notice to the party charged with contempt.17 By analogy,
Olson could not be convicted for violating a protective order
that was issued by a court that had no jurisdiction to issue the
order.
In Jacko, we recognized that this general rule did not
apply in the case of temporary restraining orders. We ruled that
a person is obliged to obey a restraining order even an illegal
one until, through judicial process, the order is vacated or
reversed.18 We concluded that Jacko was required to obey the 20-
day protective order and could be convicted for violating the
order, even though the court ultimately held that it had no
authority to restrain Jacko because Jacko and the petitioner were
not household members.
But a short-term domestic violence protective order is
a temporary order issued to prevent an imminent threat of
domestic violence, and the legislature has authorized courts to
issue such protective orders ex parte. Because the orders are
temporary, and the need is urgent, we concluded in MacDonald that
notice of the order after it is issued suffices to protect the
respondents due process rights.19
Olsons case presents a different circumstance. The
long-term protective order issued against him was not an
emergency order aimed at averting an immediate threat of domestic
violence. The legislature has declared that courts may not issue
long-term protective orders without prior notice and an
opportunity to be heard. Therefore, the general rule that a
person may collaterally attack a judgment for lack of personal
jurisdiction applies. Olson may not be punished for failing to
comply with the protective order in this case because the court
did not take the statutorily mandated steps to acquire personal
jurisdiction over him.20 We therefore conclude that Olsons lack
of notice before the protective order was issued was a valid
defense to the charge of violating the order.
Did Olson receive ineffective assistance of counsel?
Because Olson raised this claim for the first time in
his application for post-conviction relief, he is only entitled
to post-conviction relief if he can show that his trial attorney
was ineffective for failing to raise this defense when Olson was
prosecuted.
In Risher v. State,21 the supreme court adopted a two-
prong test for evaluating claims of ineffective assistance of
counsel.22 First, defendants must show that their counsels
performance fell below the range of competence displayed by one
of ordinary training and skill in the criminal law.23 Second,
defendants must show that this lack of competency had an adverse
impact on the case that contributed to their convictions.24
Defendants have the burden of proving their counsels lack of
competency by clear and convincing evidence.25 This includes the
burden to rebut the strong presumption that the attorneys actions
stemmed from sound tactical considerations.26
Because Olson has established that the long-term
protective order was void and that he could not be convicted of
violating it, he has shown that his attorneys failure to raise
this claim affected the outcome of his trial. Olsons trial
attorney concedes that there was no strategic reason not to
attack the courts personal jurisdiction on this basis. Thus, the
only remaining question is whether an attorney of ordinary
training and skill would have challenged the courts jurisdiction
to convict Olson for violating the long-term order because it was
issued without prior notice or opportunity to be heard.
As noted earlier, AS 18.66.100(b) requires the court to
schedule a hearing and provide at least 10 days notice to the
respondent of the hearing and of the respondents right to appear
and be heard whenever a petition for a protective order is filed.
This statutory language should have alerted Olsons attorney that
any order issued without notice would be void. Olsons trial
attorney acknowledged in his affidavit that Olson told him before
trial that he had received no notice of the hearing at which the
long-term order was issued. The State does not contest this
assertion. Although the long-term order contradicted Olsons
claim a box was checked on the order indicating that Olson had
received notice a transcript of the hearing reveals no
discussion of whether Olson had received notice, and there is no
return of service in the record. Given these circumstances, we
conclude that an attorney of ordinary competence would have
challenged the courts jurisdiction to issue the long-term
protective order without the notice and opportunity to be heard
mandated by statute. We therefore conclude that Olsons trial
attorney provided ineffective assistance of counsel.
Conclusion
For the foregoing reasons, we REVERSE the judgment of
the district court. Olson is entitled to post-conviction relief,
and that relief is reversal of his conviction.
_______________________________
1 Olson was apparently ordered to stay away from Cay
Jacksons residence based on Larry Jacksons testimony that Olson
had made threats at that location.
2 AS 11.56.740(a).
3 Olson v. State, Alaska App. Memorandum Opinion and
Judgment No. 4442, 2001 WL 1007464 (September 5, 2001).
4 Id. at 8, 2001 WL 1007464 at *4.
5 See Aguchak v. Montgomery Ward Co., Inc., 520 P.2d 1352,
1354 (Alaska 1974); Holt v. Powell, 420 P.2d 468, 471 (Alaska
1966).
6 Olson, Memorandum Opinion and Judgment No. 4442 at 8, WL
1007464 at *4.
7 Id. at 5, 11-23, 2001 WL 1007464 at *3, 6.
8 981 P.2d 1075 (Alaska App. 1999).
9 997 P.2d 1187 (Alaska App. 2000).
10 AS 18.66.100(b)-(c) authorize courts to prohibit the
respondent indefinitely from committing or threatening to commit
domestic violence; other provisions of a long-term protective
order, for example those barring the respondent from approaching
the petitioners residence, are effective for six months unless
the court dissolves them earlier at the request of either party;
AS 18.66.110(a)-(b) authorize emergency and ex parte protective
orders, which expire, respectively, in 72 hours or 20 days,
unless the court dissolves them earlier.
11 AS 18.66.100(b).
12 Id.
13 See Holt, 420 P.2d at 471; see also Aguchak, 520 P.2d
at 1354; Smith v. Smith, 571 P.2d 1045, 1048 (Ariz. App. 1977);
Lee v. Placer Title Co., 33 Cal. Rptr. 2d 572, 575 (Cal. App.
1994); Faulkner v. Kirkes, 276 P.2d 264, 265 (Okla. 1954);
Farrington v. Swenson, 210 N.W.2d 82, 85 (N.D. 1973); American
Family Mut. Ins. Co. v. Royal Ins. Co. of America, 481 N.W.2d
629, 632-33 (Wis. 1992); cf. State, Dept of Corrections v. Kila,
Inc., 884 P.2d 661, 661-62 (Alaska 1994); see generally 62B Am.
Jur.2d, Process 4 at 748-49 (1990).
14 See MacDonald, 997 P.2d at 1189-90.
15 See Jacko, 981 P.2d at 1077-78.
16 See Annotation, Right to Punish for Contempt for
Failure to Obey Court Order or Decree Either Beyond Power or
Jurisdiction of Court or Merely Erroneous, 12 A.L.R.2d 1059, 1067
(1950), and Later Case Service (1997).
17 See, e.g., Smith v. People, 29 P. 924, 926-27 (Colo.
App. 1892); Williams v. Koelsch, 180 P.2d 237, 240 (Idaho 1947);
Sinquefield v. Valentine, 133 So. 210, 211 (Miss. 1931); People
ex rel. Sandnes v. Sheriff of Kings County, 299 N.Y.S. 9, 13-14
(1937); Ex parte Renfro, 273 S.W. 813, 814 (Texas 1925).
18 Jacko, 981 P.2d at 1078.
19 See MacDonald, 997 P.2d at 1189-90.
20 See generally 12 A.L.R. 2d 1059 2, 3, at 1067 and
19, at 1090-91.
21 523 P.2d 421 (Alaska 1974).
22 Id. at 424-25.
23 Id. at 424.
24 State v. Jones, 759 P.2d 558, 573 (Alaska App. 1988);
Risher, 523 P.2d at 424-25.
25 AS 12.72.040; Alaska R. Crim. P. 35.1(g).
26 Jones, 759 P.2d at 569.
