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Simeon v. State (04/30/2004) ap-1930
Simeon v. State (04/30/2004) ap-1930
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
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STANLEY J. SIMEON, )
) Court of Appeals No.
A-8378
Appellant, )
Trial Court No. 4BE-00-262 CI
)
v. ) O P I N I O
N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1930 - April 30, 2004]
)
Appeal from the Superior Court, Fourth Judi
cial District, Bethel, Fred J. Torrisi,
Judge.
Appearances: Linda Wilson, Assistant Public
Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Timothy
W. Terrell, 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.
COATS, Chief Judge.
This case raises the question of whether the lawyer or
the defendant has the authority to decide whether to request a
jury instruction on a lesser included offense. We conclude that
the Alaska Rules of Professional Conduct establish that it is the
lawyers decision.
Factual and procedural background
Stanley J. Simeon was convicted of sexual assault in
the first degree.1 Simeon appealed his conviction to this court,
arguing that it was plain error for the superior court to fail to
provide the jury with instructions on the lesser included
offenses of sexual assault in the second degree and assault in
the fourth degree. We rejected Simeons argument and affirmed his
conviction.2 Simeon then filed an application for post-
conviction relief alleging that his trial counsel provided
ineffective assistance of counsel because she did not request
lesser included instructions on assault.
In response to Simeons application, Simeons trial
attorney filed an affidavit in which she stated that she had
discussed with Simeon whether to ask for instructions on lesser
included offenses, that she could not remember why she decided
not to request lesser included instructions, and that she
believed that her failure to request lesser included instructions
was a mistake:
I did not request lesser included
instructions for Mr. Simeons trial. I
remember discussing this matter with Mr.
Simeon. I remember wanting his input on this
issue and getting his opinion. I do not
remember the reason we decided not to request
lesser included instructions. It is
generally my practice to give considerable
deference to the clients wishes when deciding
whether or not to request lesser included
instructions, but I do not have a present
memory about why I did not request them in
this case. I feel my failure to request
lesser included instructions was a mistake.
At the least, I should have requested a
lesser included of simple assault, because
there was testimony at trial about a tussle
or wrestling or horseplay on Stanleys part,
which the complaining witness perceived as a
threat.
Superior Court Judge Fred J. Torrisi conducted an
evidentiary hearing on Simeons application. Simeon testified at
the evidentiary hearing. According to Simeon, his trial counsel
told him that the evidence against him was weak and therefore she
was not going to ask for a lesser included offense. He testified
that his trial attorney did not explain to him how lesser
included offenses worked that the jury would have the
opportunity to convict him of a lesser offense.
Following the evidentiary hearing, Judge Torrisi
dismissed Simeons application for post-conviction relief, finding
that Simeon had not proven by clear and convincing evidence that
his trial counsel had provided ineffective assistance by failing
to request jury instructions on lesser included offenses. Judge
Torrisi found that both the attorney and Simeon recalled talking
about lesser included offenses, although Simeon seemed confused
about exactly what was said. He stated that [i]t was clear from
Mr. Simeons testimony that both he and his attorney believed the
case against him was weak, the victims testimony [was]
inconsistent and the chances of acquittal were high. Judge
Torrisi referred to the fact that he had conducted the trial and
had reviewed the evidence presented at the trial when he ruled on
Simeons motion for judgment of acquittal or for a new trial.
Judge Torrisi stated that the case had been a difficult
prosecution for the State and pointed out that the first trial
had ended in a hung jury. He concluded that under these
circumstances, not asking for lesser included instructions was
within the range of actions that a reasonable attorney might have
taken. He concluded that Simeon had not overcome the presumption
that his trial counsel had made a reasonable tactical decision
when she decided not to request lesser included offense
instructions. He therefore dismissed the application for post-
conviction relief.
The decision to request lesser included
offenses is a decision controlled by the
attorney
Simeon contends that he, not his lawyer, should have
made the decision whether to seek jury instructions on lesser
included offenses. He contends that the law requires that such
decisions be made by the client, not the lawyer, and that his
lawyer therefore acted incompetently when she made this decision
herself.
Simeon cites Standard 4-5.2 of the American Bar
Associations Standards for Criminal Justice, The Defense
Function, which discusses the allocation of decision-making
authority between the lawyer and the client in a criminal case.
The text of Standard 4-5.2 does not, itself, support Simeons
position. This standard states that a defense lawyer should make
most of the decisions about how to litigate the case, with only a
few decisions reserved for the client: (1) what plea to enter,
(2) whether to accept a plea agreement, (3) whether to waive
trial by jury, (4) whether to testify, and (5) whether to appeal.
But Simeon relies on the commentary to the 1980 version
of Standard 4-5.2. This 1980 commentary does indeed suggest that
the client should make the decision whether to ask for jury
instructions on lesser included offenses:
It is also important in a jury trial for the
defense lawyer to consult fully with the
accused about any lesser included offenses
the trial court may be willing to submit to
the jury. Indeed, because this decision is
so important as well as so similar to the
defendants decision about the charges to
which to plead, the defendant should be the
one to decide whether to seek submission to
the jury of lesser included offenses.[3]
But according to the ABA standards, the commentary is
only intended as a guide to interpretation. It is the text of
each standard that is authoritative.4 Moreover, in 1993, the
ABA revised the commentary to eliminate the language that Simeon
relies on. The commentary to ABA Standard 4-5.2 now only
states: It is also important in a jury trial for defense counsel
to consult fully with the accused about any lesser included
offenses the trial court may be willing to submit to the jury.5
Simeon also relies on court decisions which support his
position that the decision whether to request lesser included
offense instructions is a decision which ultimately should be
made by the defendant in a criminal case.6 But these courts
appear to be a minority, and they rely on the pre-1993 ABA
commentary without addressing or acknowledging the current
commentary. Various other courts have concluded that the
decision whether to request lesser included offenses is a
decision for the lawyer.7
More importantly, however, the Alaska Supreme Court
decided this issue when it promulgated the Alaska Rules of
Professional Conduct in 1993. Alaska Rule of Professional
Conduct 1.2(a) provides that:
In a criminal case, the lawyer shall abide by
the clients decision, after consultation with
the lawyer, as to a plea to be entered,
whether to waive jury trial, whether the
client will testify, and whether to take an
appeal.
The rule specifies clearly those decisions over which the client
has the ultimate authority. Since the rule limits the clients
authority to those decisions, it follows that the lawyer has the
ultimate authority to make other decisions governing trial
tactics including whether to request lesser included offenses.
Simeons lawyer was not ineffective for
failing to request instructions on lesser
included offenses.
Simeon claims that, even if it was proper for his
attorney to make the decision against requesting lesser included
offenses, that decision constituted ineffective assistance of
counsel. But the law presumes that an attorney has acted
competently and that the attorneys tactical decisions were
sound.8 The attorneys reasonable tactical decisions are
virtually immune from subsequent challenge even if, in hindsight,
better approaches could have been taken.9 Where an attorney
makes a tactical choice, the defendant must demonstrate that the
tactic was unreasonable that is, a tactic that no competent
attorney would use.10
In the present case, it appears undisputed that Simeons
trial attorney made a tactical choice not to request a lesser
included offense instruction. Simeon did not present any
evidence that the tactic was unreasonable. It is true that
Simeons attorney stated that she felt that her failure to request
a lesser included offense instruction was a mistake. But this
statement only tends to show that with hindsight, and an
unfavorable verdict, the attorney wished that she would have
requested a lesser included offense instruction. The attorneys
statement does not tend to establish that her decision to refuse
to request a lesser included offense instruction was an
unreasonable tactic. Furthermore, as the supreme court pointed
out in Dolchok v. State,11 a defense counsels negative evaluation
of her own performance may be more a reflection of her dedication
to her representation of the client, and remorse at a
disappointing result, than it is an objective assessment of her
representation.12 Accordingly, we conclude that Judge Torrisi
did not err in finding that Simeons application was deficient
because he had not presented any evidence that his attorneys
tactic of refusing to request a lesser included offense
instruction was unreasonable. Judge Torrisi therefore did not
err in dismissing Simeons application for post-conviction relief.
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.41.410(a)(1).
2 Simeon v. State, Alaska App. Memorandum Opinion and
Judgment No. 4440 at 2-3 (Aug. 29, 2001), 2001 WL 987225 at *1-2.
3 ABA Standards for Criminal Justice 4-5.2 Commentary at
4.68 (2d ed. 1980).
4 ABA Standards for Criminal Justice 4-1.1 & 4-1.1
Commentary (3d ed. 1993); see also ABA Model Rules of
Professional conduct, Preamble 14, 21 (2003).
5 ABA Standards for Criminal Justice 4-5.2 Commentary at
202 (3d ed. 1993).
6 See, e.g., People v. Brocksmith, 642 N.E.2d 1230, 1232-33
(Ill. 1994); State v. Boeglin, 731 P.2d 943, 945 (N.M. 1987);
State v. Lafferty, 749 P.2d 1239, 1248-49 (Utah 1988); In re
Trombly, 627 A.2d 855, 856-57 (Vt. 1993).
7 See, e.g., Van Alstine v. State, 426 S.E.2d 360, 362-64
(Ga. 1993); State v. Sheppard, 890 P.2d 754, 758 (Mont. 1995);
Mathre v. State, 619 N.W.2d 627, 629-31 (N.D. 2000); State v.
Edwards, 694 N.E.2d 534, 536-38 (Ohio Ct. App. 1997); State v.
Eckert, 553 N.W.2d 539, 544 (Wis. Ct. App. 1996).
8 Newby v. State, 967 P.2d 1008, 1016 (Alaska App. 1998).
9 Alexander v. State, 838 P.2d 269, 273 (Alaska App. 1992).
10 State v. Laraby, 842 P.2d 1275, 1279 (Alaska App.
1992).
11 639 P.2d 277 (Alaska 1982).
12 Id. at 295.
