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NOTICE
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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
| TIERICE KNOX, | ) Court of Appeals No. A-8808 |
| ) Trial Court Nos. 3AN-01-11360 CI | |
| Appellant, | ) 3AN-99-09149 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2035 - March 10, 2006 |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, Larry D. Card, Judge.
Appearances: Valerie Leonard, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellant.
Michael Sean McLaughlin, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and David W. M rquez,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Tierice Knox was charged with six counts of misconduct
involving a controlled substance in the third degree, a class B
felony, for selling crack cocaine.1 Knox entered into a plea
bargain in which he agreed to enter a no contest plea to a
consolidated count of misconduct involving a controlled substance
in the third degree. Knox was a third-felony offender, and faced
a 6-year presumptive term. As part of the plea bargain, Knox
agreed to the presumptive sentence. Superior Court Judge Larry
D. Card accepted the plea agreement and sentenced Knox to the
presumptive 6-year sentence.
Knox later filed an application for post-conviction
relief seeking to withdraw his plea based on two separate claims
that he had received ineffective assistance of counsel. Knox
claimed that one of his trial attorneys was ineffective in the
way he litigated a motion to suppress the evidence. Knox also
claimed that a different attorney who represented him in entering
his plea misinformed him about the nature of the sentence he
would receive. Knox claimed that this attorney told him that
after the judge imposed the bargained-for 6-year presumptive
sentence, he would actually serve only 4 years of imprisonment
because of good-time credit and then would be released with no
further obligation to the State. Knox claimed that he later
discovered that, after serving 4 years, he would be subject to
mandatory parole for the remainder of his sentence. Knox
contended that he would not have entered into the plea bargain
had he known that he would be subject to mandatory parole.
Judge Card dismissed Knoxs application for post-
conviction relief. On appeal, we conclude that Knox did not
establish a prima facie case that he received ineffective
assistance in litigating the motion to suppress. But we conclude
that Knox presented a prima facie case that his other attorney
did not properly advise him of the nature of his sentence and
that this advice affected his decision to enter his plea.
Factual and procedural background
On October 2, 1999, Tierice Knox was charged with six
counts of misconduct involving a controlled substance in the
third degree.2 The charges arose out of a series of alleged
drug sales occurring over a three-day period in late September
and early October 1999. The indictment alleged that Knox sold
crack cocaine to undercover Anchorage Police Officer Mark LaPorte
on six separate occasions.
On April 14, 2000, Knoxs trial attorney filed a motion
to dismiss two of the six counts. That motion claimed that the
police lacked probable cause or reasonable suspicion to stop
Knoxs car and arrest him following a drug sale. Following an
evidentiary hearing, Judge Card denied the suppression motion.
In his application for post-conviction relief, Knox
contends that his attorney was ineffective in pursuing the
suppression motion. He argues that his attorney did not raise
the best arguments in litigating the motion. When we evaluate a
claim that a defendants counsel provided ineffective assistance,
we apply a strong presumption that the attorney acted
competently.3 When the defendants attorney makes a tactical
decision, the choice will be subject to challenge only if the
tactic itself is shown to be unreasonable that is, a tactic
that no reasonably competent attorney would have adopted under
the circumstances.4
In the present case, Knox obtained an affidavit from
his trial attorney. In that affidavit, the attorney stated that
his decisions in pursuing the suppression motion were tactical.
In his order dismissing Knoxs application for post-conviction
relief, Judge Card concluded that Knoxs allegations in his
application did not overcome the presumption of competence or
show that his attorneys decisions were anything other than
tactical. We agree with Judge Cards conclusion.
Knoxs allegation that his other attorney
misinformed him about the nature of his
sentence
A different attorney represented Knox when he entered
his plea to the consolidated count of misconduct involving a
controlled substance in the third degree, a class B felony. Knox
was a third-felony offender, and therefore faced a presumptive
term of 6 years of imprisonment. The State and Knox agreed to
the 6-year term. According to Knox, his attorney advised him
that he would serve a flat time sentence without probation or
parole supervision. But, under Alaska law, because Knoxs
sentence was more than 2 years of imprisonment, when he was
released because of good-time credit, he would serve the
remainder of his 6-year sentence on mandatory parole.5 Knox
contended that, had he been aware that he would be subject to
mandatory parole, he would not have entered into the plea
agreement with the State.
In her affidavits and in a deposition, Knoxs attorney
conceded that she was unaware that Knox would be subject to
mandatory parole supervision after he was released because of
good-time credit. She stated that she told Knox that his 6-year
presumptive sentence, with accumulated good time, would mean that
he would actually serve 4 years of imprisonment. She told Knox
he would serve four years period. No probation. In her
affidavit, she represented I can unequivocally state that I
affirmatively represented to Mr. Knox that he would be completely
done with his flat time sentence after he served four years.
She also stated that she subjectively felt that her parole advice
to Mr. Knox might have influenced him to proceed with his change
of plea because Mr. Knox had continued to strongly believe that
he had a triable case despite her assessment to the contrary.
In his application, Knox is making a post-sentence
claim to withdraw his plea. In order to withdraw his plea, Knox
must prove that withdrawal is necessary to correct a manifest
injustice.6 One way for Knox to establish that manifest
injustice has occurred is for him to demonstrate that he received
ineffective assistance of counsel.7 In deciding whether to
dismiss a claim in an application for post-conviction relief, a
court must accept as true all of the allegations in the
application and inquire whether those facts, if proved, would
entitle the applicant to the relief sought.8
If we accept all of Knoxs allegations as true, we
conclude that he established a prima facie case that he received
ineffective assistance of counsel about the nature of the
sentence he would receive if he entered into the plea bargain,
and that he would not have entered into the plea bargain had he
received accurate advice. We accordingly conclude that Judge
Card erred in dismissing this claim. We remand the case for
further proceedings on Knoxs application for post-conviction
relief.
REMANDED.
_______________________________
1 AS 11.71.030(a)(1).
2 AS 11.71.030(a)(1).
3 State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
4 Id. at 569-70 (citations omitted).
5 See AS 33.16.010(c); AS 33.20.030; AS 33.20.040(a). See
also Hill v. State, 22 P.3d 24, 26 (Alaska App. 2001) (for
prisoners sentenced to serve more than 2 years, good-time credit
does not constitute complete forgiveness of jail time; rather,
good time credit converts time that would otherwise be spent in
prison to time that will be spent on parole); Hampel v. State,
911 P.2d 517, 520 (Alaska App. 1996).
6 Alaska Crim. R. 11(h)(3).
7 Alaska Crim. R. 11(h)(4)(A).
8 Hampel, 911 P.2d at 524 (citations omitted).
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