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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: firstname.lastname@example.org IN THE COURT OF APPEALS OF THE STATE OF ALASKA
|TIMOTHY JUDE LABRAKE,||)|
|) Court of Appeals No. A-9189|
|Appellant,||) Trial Court No. 4FA-03-1576 Civ|
|) O P I N I O N|
|STATE OF ALASKA,||)|
|Appellee.||) No. 2083 February 2, 2007|
Appeal from the Superior Court, Fourth Judi cial District, Fairbanks, Niesje J. Steinkruger, Judge. Appearances: Marcia E. Holland, Assistant Public Defender, Fairbanks, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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. MANNHEIMER, Judge. Timothy Jude LaBrake appeals the superior courts dismissal of his petition for post-conviction relief. For the reasons explained here, with one exception, we agree with the superior court that LaBrake failed to present a prima facie case for post-conviction relief and we therefore affirm the superior courts dismissal of LaBrakes petition in all respects but one. The one exception is that, for the reasons explained below, we conclude that LaBrake presented a prima facie case that he is entitled to reinstate his earlier sentence appeal. Background facts and procedural history of this litigation In 1999, LaBrake was indicted on two counts of second-degree sexual abuse of a minor,1 based on allegations that he engaged in sexual contact with a fourteen-year-old girl, J.M.. The State alleged that this sexual abuse occurred after J.M.s parents allowed LaBrake to take J.M. and her ten-year-old sister to a mining camp outside of Manley Hot Springs. Here is a summary of the States case, as revealed by the record: The parents of J.M. and her sister entrusted LaBrake with the task of driving the two girls to Manley Hot Springs. The plan was for the girls to spend time at a mining claim that was owned by Larry and Linda Cotton, who were long-time friends of the family. (LaBrake was working a mining claim nearby.) LaBrake took the girls to his own mining claim rather than to the Cottons claim. When the Cottons heard LaBrakes vehicle and came by his camp, LaBrake refused to relinquish the girls to the Cottons. An altercation ensued, and the Cottons ultimately contacted the authorities. Sometime later, while LaBrake and the girls were spending the night in his camper, LaBrake engaged in sexual contact with J.M.. When LaBrake was later interviewed about this incident, he told investigators that fourteen-year-old J.M. had come on to him and that he had allowed himself to be seduced. LaBrake acknowledged that he had touched J.M.s thigh and that he might have rubbed her genitals; he was not sure. LaBrake further stated that if J.M.s younger sister had not awakened and interrupted this activity, he probably would have had sexual intercourse with J.M.. When Larry Cotton was interviewed by the troopers, he described how LaBrake told him that he had placed his hand between J.M.s legs, that he had touched the top of her breast, and that if J.M.s younger sister had not awakened, he would not have stopped. LaBrake also told Cotton that he was thinking about committing suicide, and that he would have to go to jail for what he had done with J.M.. At the grand jury hearing, J.M. testified that LaBrake had touched her genitals, and J.M.s younger sister testified that she had awakened to see LaBrake messing with her sisters genitals and breasts. In addition, Linda Cotton testified that LaBrake had told her and her husband that he had touched J.M., and that he knew it was wrong, but that he had only felt of J.M. (as opposed to engaging in intercourse with her). Second-degree sexual abuse of a minor is a class B felony carrying a maximum term of imprisonment of 10 years.2 LaBrake was a first felony offender. Under Alaskas pre-2005 sentencing law, LaBrake would not face a presumptive term of imprisonment if he was convicted. Rather, he would be sentenced under former AS 12.55.125(k)(2), which set a ceiling of 4 years to serve (the presumptive term for a second felony offender convicted of the same offense) unless the State proved one or more of the aggravating factors listed in AS 12.55.155(c) or extraordinary circumstances as defined in AS 12.55.165. (See Surrells v. State, __ P.3d __, Alaska App. Opinion No. 2076 (December 8, 2006), 2006 WL 3530602; and Dayton v. State, 120 P.3d 1073, 1079-1081 (Alaska App. 2005) cases in which we fully analyzed this sentencing statute.) LaBrakes case was ultimately resolved with a plea bargain. Under the terms of this plea agreement, LaBrake pleaded no contest to one of the counts, and the State dismissed the other. The parties agreed that LaBrake would receive no more than 4 years to serve (i.e., the ceiling set by AS 12.55.125(k)(2) in the absence of aggravating factors or extraordinary circumstances), although LaBrake agreed that the State would be free to ask the superior court to impose additional suspended imprisonment. In advance of LaBrakes sentencing, the State filed notice that it was proposing two aggravating factors under AS 12.55.155(c). The first of these aggravators was (c)(5): that LaBrake knew or should have known that J.M. was a particularly vulnerable victim. The second of these aggravators was (c)(18)(B): that LaBrake was being sentenced for one of the sexual felonies defined in AS 11.41.410 458, and that he had engaged in other conduct prohibited by AS 11.41.410 460 involving another victim to wit, his own daughter. This second aggravator was based on the fact that LaBrake was investigated in 1985 by the police in Sheridan, Wyoming on suspicion that he had sexually abused his daughter. This investigation was commenced after his daughter (who was not quite three years old at the time) reported that LaBrake had put his pee-pee on her pee-pee. Following this police investigation, LaBrake left Wyoming for several years. He returned to Wyoming in 1993. Four years later, in 1997, LaBrakes daughter (who was now fourteen years old) began spending weekends at his house. In 1998, the Wyoming police received information that LaBrake had taken suggestive photographs of his daughter while she was wearing lingerie. The police searched LaBrakes bedroom and seized a Polaroid camera and seventeen photographs. In August 1999, after the Alaska State Troopers received the report that LaBrake had sexually abused J.M. at the mining claim, Trooper Susan Acquistapace interviewed LaBrake about the Wyoming allegations (as well as the Alaska allegations). According to Acquistapaces account of that interview, LaBrake admitted that he had fondled his daughter when she was a toddler, and that he had purchased lingerie for her when she was a teenager and had taken photographs of her wearing the lingerie. In other words, LaBrake apparently admitted that he engaged in conduct which, if performed in Alaska, would have constituted second-degree sexual abuse of a minor under AS 11.41.436(a)(3) and, potentially, exploitation of a minor under AS 11.41.455(a). LaBrakes defense attorney, Robert Noreen, did not file an opposition to these two proposed aggravating factors. (As indicated above, the presence or absence of these aggravators did not alter the superior courts sentencing authority in LaBrakes case. Even in the absence of aggravating factors, AS 12.55.125(k)(2) allowed the court to sentence LaBrake to any term of imprisonment up to the 10-year maximum for a class B felony, so long as the time to serve component of this sentence did not exceed 4 years. Ordinarily, the States proof of aggravators would have authorized the superior court to impose more than 4 years to serve, but LaBrakes plea bargain capped the time to serve component of his sentence at 4 years.) Superior Court Judge Niesje J. Steinkruger ultimately found both aggravators to be proved. Nevertheless, Judge Steinkruger adhered to the plea bargain and sentenced LaBrake to 5 years with 1 years suspended i.e., 3 years to serve. Following his sentencing, LaBrake obtained a new attorney, Thomas E. Fenton. Mr. Fenton filed a sentence appeal on LaBrakes behalf, arguing that LaBrakes sentence was excessive and also that the superior court should not have ordered LaBrake to undergo treatment for substance abuse as one of the conditions of his probation. However, Fenton died in July 2001, while LaBrakes appeal was still in the briefing stage. LaBrake was not notified of Fentons death, and no other attorney was appointed to assume responsibility for the appeal. Because no brief was ever filed on LaBrakes behalf, the Clerk of the Appellate Courts dismissed the appeal for want of prosecution. In October 2001, LaBrake heard (second-hand) that his appeal had been dismissed, and he wrote a letter to Judge Steinkruger. In December 2001, a new attorney, Marlin Smith, was assigned to represent LaBrake. Based on a series of letters that LaBrake wrote to Smith between September 2002 and March 2003, it appears that LaBrake and Smith discussed two different possibilities: (1) seeking to have LaBrakes sentence appeal reinstated, and/or (2) filing a petition for post-conviction relief, asking that LaBrake be allowed to withdraw his plea. In July 2003, LaBrake filed a petition for post-conviction relief in which he asked to withdraw his plea, or to be resentenced, or to be allowed to reinstate his appeal and amend his points on appeal. In response, the State filed a motion asking the superior court to dismiss LaBrakes petition. The State argued that some of LaBrakes claims were barred and that, with respect to the remainder, LaBrake had failed to present a prima facie case for relief. Attorney Marlin Smith filed an opposition to the States motion. In this opposition, Smith declared that LaBrakes primary claim was ineffective assistance of counsel. According to Smith, LaBrake received ineffective assistance from his first attorney, Robert Noreen, in two respects: with respect to the investigation and consultation that led to LaBrakes decision to accept the States plea bargain, and with respect to the litigation of the sentencing hearing. Smith also argued that LaBrake received ineffective assistance from his second attorney, Thomas Fenton, because, after LaBrake enlisted Fenton to file a motion asking the superior court to allow LaBrake to withdraw his plea, Fenton instead filed a sentence appeal which was later dismissed for non-prosecution after Fentons death. In May 2004, Judge Steinkruger notified the parties that, after reading the States motion to dismiss and LaBrakes response to that motion, she believed that LaBrakes petition failed to state a prima facie case for relief. Judge Steinkruger gave LaBrake twelve weeks to file an amended petition. LaBrake ultimately filed two supplements to his petition in which he expanded some of his arguments and provided new documentation relating to his claims of ineffective assistance of counsel. However, even after these new pleadings, Judge Steinkruger remained convinced that LaBrake had failed to present a prima facie case for post- conviction relief. In a nine-page written order, Judge Steinkruger analyzed LaBrakes claims and dismissed his petition. LaBrake now appeals the superior courts decision. Did the affidavits and documents filed in support of LaBrakes petition establish a prima facie case that he received ineffective assistance of counsel from his first attorney, Robert Noreen? LaBrake claims that his petition for post- conviction relief presented a prima facie case that he received ineffective assistance of counsel from Robert Noreen, the attorney who represented LaBrake following his indictment, who advised LaBrake to accept the States plea bargain, and who litigated LaBrakes case at sentencing. (a) LaBrakes assertions that Noreen failed to represent him competently during the time leading up to LaBrakes acceptance of the plea bargain In his petition, LaBrake claimed that Noreen did not adequately discuss the case with him and that Noreen failed to share with him the information in the States pre-trial disclosures. Thus, according to LaBrake, he could not intelligently decide whether to accept or reject the States proposed plea bargain. In fact, LaBrake claimed that his change of plea was coerced by counsel. In support of these claims, LaBrake filed an affidavit in which he asserted that Noreen had one short meeting with him about the case before he decided to accept the States proposed plea agreement. During this meeting, according to LaBrake, Noreen told [him] that it was ... Noreens belief that [LaBrake] would lose at trial, and he convinced [LaBrake] to plead no contest to one [count] in return for dismissal of the second [count]. In his affidavit, LaBrake stated that he believed that Noreen made no investigation of the facts of the case. In particular, LaBrake stated that he informed Noreen that he (LaBrake) had a videotape displaying the physical layout of the camper where the offense was alleged to have occurred, and that this videotape showed that the offense could not have occurred as J.M. and her sister described it. LaBrake further stated that Noreen failed to provide [him] with the opportunity to meaningfully review the Grand Jury proceedings, and that Noreen sought no information from [LaBrake] ... to determine what defenses were available. Instead, LaBrake declared, Noreen bluntly told [him] that he [i.e., Noreen] thought that [LaBrake] was lying. Noreen filed an affidavit in which he disputed many of LaBrakes assertions. With regard to LaBrakes claims that Noreen had not worked much on the case, and that he had met with LaBrake only once or twice, Noreen asserted that he had numerous conferences with LaBrake and with members of LaBrakes family, and that he had sent several letters to LaBrake. Noreen added that his conferences with LaBrake were longer than with most clients. With regard to LaBrakes claim that Noreen had not supplied him with information about the case, Noreen stated that he supplied LaBrake with the States pre-trial disclosure (including grand jury), and that he discussed these materials with LaBrake. With respect to LaBrakes assertions that Noreen had failed to investigate potential defenses, and in particular the purportedly exculpatory videotape, Noreen answered that the crucial facts [of LaBrakes offense] were uncontested and that the States evidence included a handwritten letter of apology and endearment from Mr. LaBrake to the child. Noreen added that, during his investigation of the case, he received considerable, although not defense-helpful[,] input from several of Mr. LaBrakes family members. Noreen stated that when he told LaBrake that, in his opinion, LaBrake would lose if he went to trial, LaBrake was unwilling to hear this that LaBrake unrealistically minimized or rationalized every aspect of his involvement [in the offense], blaming the [victims] mother [and his] neighbors in the mining area. Noreen further declared that he discussed the States proposed plea agreement with LaBrake and that, after LaBrake decided to accept the plea agreement, he provided LaBrake with the States pre-sentence memorandum and discussed this memorandum with LaBrake. When, as in LaBrakes case, a defendant claims that their attorney gave them incompetent advice or made incompetent decisions, the defendant must show one of two things: either (1) that the attorneys choice of strategy or tactics was so bad that no competent criminal law practitioner would have handled these issues the same way;3 or (2) that the attorneys investigation and preparation of the case was so inadequate that the attorney had no competent basis for making decisions (with regard to the matters entrusted to the attorneys decision) or for rendering advice regarding the matters entrusted to the defendants decision.4 Moreover, because the State asked the superior court to dismiss LaBrakes petition based on the pleadings alone (i.e., without pre-trial discovery, and without a trial), the superior court was obliged to treat all of the well-pleaded assertions of fact in LaBrakes petition as true, and then decide whether these assertions of fact (if ultimately proved) would entitle LaBrake to post-conviction relief.5 Thus, even though Noreen (in his affidavit) controverted many of LaBrakes assertions of fact, this is irrelevant to the superior courts decision of the States motion for judgement on the pleadings. In deciding this motion, the superior court was obliged to presume that LaBrakes well-pleaded assertions of fact were true, notwithstanding Noreens competing affidavit. For example, LaBrake asserted (in his affidavit) that Noreen spoke with him only once before LaBrake decided to accept the States plea bargain, and that Noreen sought no information from [LaBrake] concerning potential defenses to the States allegations. Noreen responded (in his affidavit) that he spoke with LaBrake several times during this period and that they discussed LaBrakes view of the charges but that the crucial facts [of LaBrakes offense] were uncontested and that LaBrake unrealistically minimized or rationalized every aspect of his involvement [in the offense]. Although the record contains these competing versions of the underlying facts, the superior court was obliged to presume that LaBrakes statements were true. However, this presumption does not apply to LaBrakes statements concerning the law, or concerning mixed questions of law and fact (e.g., his assertions concerning the legal effect or categorization of the underlying occurrences), nor does the presumption apply to LaBrakes conclusory assertions concerning the ultimate facts to be decided. As explained in Wright and Millers Federal Practice and Procedure, a court deciding a motion for judgement on the pleadings need not assume the truth of the non-moving partys conclusions of law, nor the truth of the non-moving partys assertions concerning facts that are legally impossible, or the partys assertions concerning matters that would not be admissible in evidence. Moreover, the court need not assume the truth of assertions that are patently false or unfounded, based on the existing record or based on the courts own judicial notice.6 In addition, a court need not assume the truth of pro forma assertions of the ultimate facts to be proved when these assertions are not supported by specific details.7 Thus, for example, LaBrake asserted in his affidavit that Noreen coerced him into accepting the States proposed plea bargain. The superior court was not obliged to presume the truth of this conclusory assertion about the legal effect of Noreens conduct on LaBrakes state of mind.8 Likewise, the superior court was not obliged to presume the truth of LaBrakes conclusory assertion that Noreen failed to investigate the case. LaBrake did not claim to have first-hand knowledge that this was true; rather, this was LaBrakes conclusion or suspicion based on what he observed. The superior court did not have to treat this conclusion as true although the court did have to assume the truth of LaBrakes assertions concerning the events within his knowledge that led him to reach this conclusion. Returning, then, to the assertions in LaBrakes affidavit, Judge Steinkruger was obliged to assume that Noreen met with LaBrake only once before LaBrake decided to accept the States plea bargain. But this, in itself, does not establish a prima facie case that Noreens advice to LaBrake (that LaBrake was likely to lose if he went to trial, and that LaBrake should accept the plea agreement) was incompetent or was based on an inadequate investigation of the case. LaBrake further asserted that Noreen failed to give him a meaningful opportunity to review the grand jury record before asking him to make a decision regarding the proposed plea bargain. But this assertion is problematic; LaBrake appears to be conceding that he had some opportunity to review the grand jury record, although he now believes that this opportunity was not meaningful. Judge Steinkruger was not obliged to accept LaBrakes conclusory characterization of the facts. Moreover (and more important), LaBrake failed to assert how or why a closer examination of the grand jury record would have revealed a substantial flaw in Noreens evaluation of the case or would have altered a competent attorneys advice as to whether LaBrake should accept or reject the States offer.9 LaBrake asserted that Noreen sought no information from [him] concerning potential defenses to the charges. This assertion is potentially at odds with LaBrakes further assertion that Noreen bluntly told [him] that he thought [LaBrake] was lying about the offense. It seems unlikely that Noreen would tell LaBrake that he thought LaBrake was lying unless the two men were discussing LaBrakes version of events. But even assuming the truth of LaBrakes assertion that Noreen never asked him about potential defenses, LaBrakes petition failed to offer any potential defenses that a competent attorney in Noreens position would have pursued. It is true that, according to LaBrakes affidavit, he told Noreen that he had a videotape of his camper which purportedly showed that the girls description of the inside of the camper was not accurate. But LaBrakes affidavit fails to describe how this purported inaccuracy in the girls description would have created a viable defense to the charges against LaBrake, or would have caused a competent attorney in Noreens position to recommend that LaBrake reject the States proposed plea agreement. LaBrakes pleadings do not rebut or controvert Noreens assertion that the crucial facts [of LaBrakes offense] were uncontested. LaBrake also asserted that Noreen never explained that LaBrake would be subject to the requirements of Alaskas sex offender registration law. But according to the States motion to dismiss LaBrakes petition, the requirement of sex offender registration was explained to LaBrake when he came to court to enter his plea, and the court gave LaBrake a copy of the notice informing him that he was obliged to register. LaBrake never asserted, either at the time he entered his plea or in his later petition for post-conviction relief, that he would not have accepted the States proposed plea agreement if he had known about this requirement. Turning to LaBrakes other assertions about the competency of Noreens representation during the period leading up to LaBrakes acceptance of the plea bargain, LaBrake asserted in his affidavit that Noreen was personally prejudiced against him. LaBrake based this assertion on the fact that Noreen had told him that he (Noreen) had a teenage daughter, and that he was personally strongly opposed to the sexual abuse of children. As explained above, the superior court was not obliged to assume the truth of LaBrakes conclusion that Noreen was prejudiced against him. Nevertheless, the court was obliged to assume the truth of LaBrakes assertions about what Noreen had said to him. The question, then, is whether the fact that Noreen had a teenage daughter, and the fact that he felt strongly about the sexual abuse of children, was sufficient to establish a prima facie case that Noreen had a conflict of interest which prevented him from competently representing LaBrake. The answer is no. Lawyers are trained and expected to represent people whose conduct may be questionable, and whose views on social and moral matters may differ significantly from the lawyers. Alaska Professional Conduct Rule 1.2(b) states that [a] lawyers representation of a client ... does not constitute an endorsement of the clients ... social or moral views or activities. The accompanying Comment clarifies the philosophy behind this rule: Legal representation should not be denied to a person whose cause is controversial or the subject of popular disapproval. By the same token, [a lawyers act of] representing a client does not constitute approval of the clients views or activities. Comment, Alaska Professional Conduct Rule 1.2, 4 (Independence from Clients Views or Activities). In our prior decisions, we have clarified that personal difficulties or animosity between a defense attorney and a defendant does not constitute a reason for removing the attorney from the case unless the attorney-client relationship has deteriorated to the point where the attorney is incapable of effective communication with the defendant or [the attorney is incapable of] objective decision-making about the case.10 Thus, although Noreen may have had strong personal feelings about the sexual abuse of children, and although Noreen may have believed that LaBrake was guilty of such a crime, this in itself would not constitute a prima facie reason for concluding that Noreen failed to represent LaBrake competently and diligently. LaBrakes affidavit contained one other assertion bearing on Noreens potentially conflicting interests. LaBrake asserted that Noreen mentioned that he was representing J.M. in unrelated litigation, and that even though Noreen assured LaBrake that this shouldnt present any conflict, Noreen never actually asked LaBrake whether he wished to object to this potentially conflicting representation. Although this issue was initially litigated in connection with the States motion for judgement on the pleadings, Judge Steinkrugers decision on this issue actually represented a grant of summary judgement because the litigation of this point went forward to pre-trial discovery. After LaBrake filed an affidavit asserting that Noreen had told him that he was representing J.M. in an unrelated case, Noreen filed a responding affidavit in which he declared that this was not true that he had not represented J.M. in any child-in-need- of-aid case. After Noreen filed his affidavit, LaBrakes attorney filed a motion asking Judge Steinkruger to examine, in camera, the records of certain juvenile proceedings. LaBrakes attorney acknowledged that Noreen might not have represented J.M. in a child-in- need-of-aid case, but LaBrakes attorney asserted that J.M. had been both a perpetrator and a witness in a vehicle theft case that was litigated in juvenile court around the time that Noreen was appointed to represent LaBrake. LaBrakes attorney asked Judge Steinkruger to examine the courts confidential records to find out which lawyer was appointed to represent J.M.. After the State announced that it had no objection to Judge Steinkrugers examining the pertinent files, Judge Steinkruger conducted the requested in camera review and then issued an order describing her findings. The judge listed seven different childrens proceedings files and told the parties that she had obtained (and examined) copies of each of them. Judge Steinkruger then listed all of the attorneys who had been appointed to represent either a child or a parent in those seven legal proceedings. Noreen was not among these attorneys. Judge Steinkruger told the parties that she had also examined these seven files for attorneys who appeared as guardians ad litem by appointment through the Office of Public Advocacy. Again, Noreen was not among those attorneys. Judge Steinkruger concluded her order by stating: If [either] party, through counsel, wishes to review these [copies of the] files before the court shreds them[,] they shall file a motion within ten days of the distribution date of this order. Neither party responded to the judges offer, and neither party filed further pleadings relating to this issue. Because of the way this issue was handled, Judge Steinkruger did not technically grant a judgement on the pleadings when she resolved this issue against LaBrake. Rather, this particular issue (alone among the many issues that LaBrake raised) went forward to the discovery process, and the parties apparently stopped litigating only after they concluded that the pertinent facts had been fully developed. Judge Steinkrugers ruling was therefore akin to a grant of summary judgement. After Judge Steinkruger reviewed the court files at LaBrakes request, and after she found that, contrary to LaBrakes suspicions, Noreen had had no involvement in these legal proceedings, and after LaBrake failed to seek any further discovery from Noreen or from the court, Judge Steinkruger could properly conclude that the State was entitled to judgement on this particular claim. For these reasons, we uphold Judge Steinkrugers dismissal of LaBrakes various claims that he received ineffective assistance of counsel from Noreen during the time leading up to LaBrakes acceptance of the States plea bargain. (b) LaBrakes assertions that Noreen failed to represent him competently in preparation for, and at, his sentencing LaBrake also claimed that, in various ways, Noreen was incompetent in his handling of the sentencing proceedings. In his affidavit, LaBrake asserted that he never saw a copy of the States sentencing memorandum until after he was convicted and sentenced; LaBrake asserted that this memorandum was shown to him only during the preparation of his petition for post- conviction relief. Although Noreen declared (in his responding affidavit) that he had provided LaBrake with a copy of this document, Judge Steinkruger was obliged to assume the truth of LaBrakes assertion. But even assuming that LaBrake never received a copy of this document until after he was sentenced, LaBrake failed to rebut Noreens assertion that he discussed the contents of the States pre-sentencing memorandum with LaBrake. Moreover, LaBrakes affidavit contains no assertion that earlier possession of the document might have altered the defense strategy at the sentencing hearing, or might have altered the outcome of that hearing. Next, LaBrake asserted that Noreen failed to explain that if the State proved aggravating factors at the sentencing hearing, this could substantially increase [LaBrakes] exposure to actual time incarcerated. This contention is demonstrably meritless. If Noreen failed to explain that aggravating factors might increase LaBrakes time to serve, this is because it was untrue. The plea agreement established a 4-year cap on the time to serve component of LaBrakes sentence the same limitation imposed by the governing sentencing statute, former AS 12.55.125(k)(2), in the absence of aggravating factors. Thus, the States proof of aggravating factors could not increase [LaBrakes] exposure to actual time incarcerated. LaBrake further claimed that Noreen acted without his authorization when he conceded the States proposed aggravator (c)(5) (that LaBrake knew or should have known that J.M. was a particularly vulnerable victim). In addition, LaBrake asserted that the facts did not support this aggravator, and that even if the facts supported this aggravator, the superior court was prohibited from increasing LaBrakes sentence in reliance on this aggravator because it overlapped with the elements of the offense.11 The fact that Noreen conceded aggravator (c)(5) without LaBrakes express authorization would only make a difference if, as a matter of law, the concession of aggravating factors is not a tactical decision for the defense attorney to make, but is instead a decision reserved to the defendant personally. The division of authority between an attorney and client is addressed in Alaska Professional Conduct Rule 1.2(a). As we explained in Simeon v. State, 90 P.3d 181 (Alaska App. 2004), this rule declares that, in a criminal case, the client has the final authority to decide what plea to enter, whether to waive jury trial, whether to testify, and whether to take an appeal. Id. at 184. We then concluded: 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 ... . Id. Our decision in Simeon strongly suggests that Noreen could decide to concede aggravator (c)(5) without LaBrakes express authorization. LaBrakes petition does not address Simeon or provide any other legal authority on this point. Accordingly, Judge Steinkruger could properly dismiss this claim. With regard to LaBrakes assertion that the facts did not support this aggravator, we note that it is not enough for LaBrake to assert that aggravator (c)(5) might reasonably have been disputed. LaBrakes underlying claim is incompetence of counsel. Thus, LaBrake was obliged to show that no competent attorney would have decided to concede aggravator (c)(5), given the facts of the case and given the fact (as explained above) that, because of the plea agreement, proof of this aggravator would not increase LaBrakes sentencing exposure. As Noreen explained in his affidavit, LaBrake was charged with taking two young girls to his mining camp where ... the ... children had no ability to leave, and that LaBrake then resisted their removal when confronted by [the Cottons]. At the sentencing hearing, when Judge Steinkruger asked Noreen if the defense was contesting aggravator (c)(5), Noreen answered no although he gave a slightly different rationale for conceding this aggravator: Defense Attorney: No. My client was [and] Im stating this more for the record, then my client was aware that the two [children] were inappropriately cared for by their mother. ... [H]e recognizes that, because [they were in their] minority, and [given the] lack of parental supervision, it did make them vulnerable. Judge Steinkruger then found aggravator (c)(5), based in part on the rationale explained in Noreens post-conviction relief affidavit i.e., the fact that LaBrakes act of taking J.M. to his mining camp (where she and her sister were alone with LaBrake) made J.M. more vulnerable to being sexually abused. Throughout this discussion, LaBrake never objected or interjected any other comment in response to the statements made by Noreen or Judge Steinkruger. However, toward the end of the hearing, when Judge Steinkruger was making her sentencing comments, she again mentioned that LaBrake had taken J.M. and her sister to his mining camp. At this point, LaBrake (speaking to the judge directly) objected. Here is the pertinent colloquy: The Court: It is of great concern [to me] that Mr. LaBrake lacks the insight that if a 36-year-old man takes two young teenage girls and keeps them at a remote site, that that is not a good situation when he knows that he had ... LaBrake: Thats not a true statement, Your Honor. I never objected to it [before] because I was just going along, because I knew I was wrong with what I did. But theres evidence that you keep referring to, and that [the prosecutor] keeps referring to, thats not true. Ive let it go [up until now] because I did do wrong. But I did not hold [the girls] by force [at the mining camp]. ... [There] were two camps sitting right next to each other, not two miles away from each other. Its physical [fact]; anybody can go up and look at it ... . The Court: So youre saying [that] it was up to [the girls] to leave? LaBrake: The Cottons [i.e., the family friends at the nearby mining camp] did not want those girls; they called them white trash. Im in the middle of a family feud. As well as me doing wrong, theres a family feud going on. Those two families do not like each other; they hate each others guts. And, now, its gotten all twisted around ... and Im caught in the middle of it. ... Theres a lot of lies ... that Ive let go. But I did not take [the girls] and force them to be right there. I did not do that. The Court: There may not have been physical force, but the Court finds that Mr. LaBrake exerted his authority [over the girls]. Given this record, and given the fact that proof of aggravator (c)(5) would not affect Judge Steinkrugers sentencing authority, LaBrake failed to present a prima facie case that no competent attorney in Noreens position would have conceded aggravator (c)(5). Finally, LaBrake asserts that, even if the facts supported this aggravator, Judge Steinkruger was prohibited from increasing LaBrakes sentence in reliance on this aggravator because it overlapped with the elements of the offense. But LaBrake does not explain why he believes this. If Judge Steinkruger had found that J.M. was particularly vulnerable based solely on the fact that J.M. was fourteen years old, LaBrake might have a colorable claim that this aggravator was implicit in the elements of his crime (engaging in sexual contact with a person between the ages of thirteen and sixteen). But, as just explained, Judge Steinkruger relied on the fact that LaBrake took J.M. to his mining camp, where she was isolated from the help of other adults. This circumstance does not overlap with the elements of LaBrakes offense. Thus, Noreen was not incompetent when he failed to argue that the law prohibited the State from proposing this aggravator. LaBrake also asserted that, at the sentencing hearing, Noreen acted incompetently by failing to oppose the States hearsay evidence supporting aggravator (c)(18)(B) i.e., the allegation that LaBrake had previously engaged in improper sexual conduct with his own daughter in Wyoming. According to LaBrakes affidavit, LaBrake kept trying to tell [Noreen that this alleged sexual abuse] didnt happen that he had a perfect alibi because he was on distant military maneuvers at the time. And, with respect to the allegation that LaBrake had taken sexually suggestive photographs of his daughter, LaBrake asserted that this allegation was false. According to LaBrake, there was apparently a misunderstanding about some photos taken by [his daughters] boyfriend and photos of [his] daughter taken by [himself]. In his responding affidavit, Noreen stated that LaBrake never informed him of the purported perfect alibi defense to the sexual abuse allegation. Instead, Noreen declared, [t]here was no evidence to contradict [this] aggravator. Noreen conceded that the State of Wyoming failed to pursue criminal charges against LaBrake, but Noreen asserted that this was because LaBrake [left] the jurisdiction after being confronted with substantial allegations [of criminal conduct]. Noreens account in particular, his assertion that he made a tactical decision not to contest aggravator (c)(18)(B), and a tactical decision not to require the State to present live testimony in support of this aggravator is corroborated by the record of LaBrakes sentencing hearing. Toward the beginning of that hearing, when Judge Steinkruger asked Noreen if LaBrake was contesting the States proposed aggravators, Noreen responded There is some factual data that we disagree with[:] ... minor issues that my client has brought out regarding ... the allegation that ... he encouraged [his daughter] to have sex with ... her boyfriend. Judge Steinkruger pointed out that LaBrake had never offered a testimonial denial of aggravator (c)(18)(B) and that, as a result, the State was not prepared to present live witnesses regarding these allegations.12 The judge then asked Noreen if LaBrake was now willing to offer the required testimonial denial: The Court: Heres the choice: [Either] I will rely on whats in the pre-sentence report in determining the sentence [or, if] there are [disputed] issues in [that report] which you think bear upon the sentence, ... I will allow you to [offer] a late testimonial denial and [then] grant ... the State a continuance in order to [prepare live testimony to] meet that [testimonial denial], if thats how you wish to proceed. Defense Attorney: I dont [wish to proceed in that manner], because ... theres evidence involving [LaBrakes] most recent involvement with his daughter, [evidence] that he is in accord with, that justif[ies] [the aggravator] being considered. The Court: All right. Later in the hearing, when Judge Steinkruger asked Noreen to state the defense position on aggravator (c)(18)(B), Noreen told the judge: Defense Attorney: Heres the factual basis that [my client] does not dispute: ... he was under investigation [in Wyoming] and [he] understands that he had some type of parental control over his teenage, but underage, daughter ... in a context where he took photographs of her in lingerie. And that is an inappropriate [thing] for a father to do. LaBrake made no comment in response to any of Noreens statements on this issue. Judge Steinkruger then found that aggravator (c)(18)(B) was proved. In his post-conviction affidavit, Noreen acknowledged that LaBrake wanted him to force LaBrakes daughter to take the stand at the sentencing hearing with regard to the States allegations of sexual impropriety apparently by having LaBrake enter a testimonial denial of the allegations, which would then prevent the State from relying on hearsay to support the allegations. Noreen concluded, however, that this course of action would work to Mr. LaBrakes detriment, and that [it] lacked merit. (As explained above, the record shows that the Wyoming police searched LaBrakes house and found photographs of LaBrakes daughter wearing lingerie. And, after LaBrake came to the attention of the Alaska authorities, the state troopers interviewed LaBrake about the Wyoming allegations. According to the trooper account of that interview, LaBrake admitted that he had fondled his daughter when she was a toddler, and that he had purchased lingerie for her when she was a teenager and had taken photographs of her wearing the lingerie.) On the disputed factual issue of whether LaBrake told Noreen about his asserted alibi defense to the allegations of sexual misconduct in Wyoming, Judge Steinkruger was obliged to accept LaBrakes statement as true. However, the question is whether a competent attorney, after hearing LaBrake assert this alibi, and after hearing LaBrake assert that the photographs were a misunderstanding, could still reasonably conclude that it would be better not to have LaBrake take the stand to contest aggravator (c)(18)(B). LaBrakes assertion that he had not engaged in sexual misconduct with his daughter (either by sexual contact or by taking sexually suggestive photographs) was contradicted by LaBrakes own statements to the Alaska State Troopers, and it was also apparently contradicted by physical evidence in the possession of the Wyoming police. Moreover, as explained above, the proof of this aggravating factor would not affect LaBrakes sentencing exposure. We conclude that even if LaBrake was willing to take the stand to controvert these allegations, a competent attorney could nevertheless decide that it would be better to concede aggravator (c)(18)(B) rather than have LaBrake enter a testimonial denial of this aggravator. Thus, LaBrakes petition failed to present a prima facie case that Noreen represented him incompetently at sentencing with regard to this issue. (c) Summary and conclusion with regard to LaBrakes assertions that Noreen failed to represent him competently We have now examined all of LaBrakes claims against Noreen. With regard to LaBrakes claim that Noreen labored under a conflict of interest because he allegedly represented J.M. in another legal proceeding, we conclude that Judge Steinkruger properly granted summary judgement to the State after further investigation of this claim demonstrated that it had no substance. And with respect to all of LaBrakes other claims against Noreen, we agree with Judge Steinkruger that LaBrakes petition and supporting documentation failed to present a prima facie case of attorney incompetence. Accordingly, we uphold Judge Steinkrugers dismissal of LaBrakes claims against Noreen. We now turn to LaBrakes claims that he received ineffective assistance of counsel from his next attorney, Thomas Fenton. Did the affidavits and documents filed in support of LaBrakes petition establish a prima facie case that he received ineffective assistance of counsel from his second attorney, Thomas Fenton? As explained above, LaBrake claimed in his petition that he asked Thomas Fenton to file a motion asking the superior court to allow LaBrake to withdraw his plea, but that Fenton filed a sentence appeal instead. In LaBrakes supporting affidavit, he describes the episode this way: I told Mr. Fenton that I wanted to move to withdraw my plea[, and I explained] why, [but] Mr. Fenton talked me out of seeking to withdraw the plea and convinced me to file [a sentence] appeal instead. In his petition, LaBrake asserted that Fenton acted incompetently by talking him out of filing a motion to withdraw his plea, and filing a sentence appeal instead. LaBrakes memorandum in support of his petition states: Without ineffective assistance of counsel by Mr. Fenton, Mr. LaBrake could have had a motion to withdraw [his plea] filed and pursued rather than having to now pursue post conviction relief. But, as explained above, the superior court was not obliged to accept this conclusory assertion as true. And LaBrake provided no facts to support this assertion of attorney incompetence. In fact, the record suggests the opposite. The record contains a letter that Fenton wrote to LaBrake on June 8, 2000. In this letter, Fenton informed LaBrake that he had received LaBrakes court file and that he was reviewing the file for potential appeal points. Fenton also told LaBrake: Normally[,] when a person enters a plea of no contest or guilty, there are no points to appeal except in unusual circumstances. As I understand it, you want to appeal your sentence as being excessive. I also understand that you want to appeal the probation condition that requires you to complete a substance abuse evaluation. Are there any other points in your mind? Please let me know. Two months later, Fenton wrote a follow-up letter to LaBrake: This is in reference to your telephone message of August 4, 2000. We can use as a point on appeal the fact that you objected to the use of the Wyoming crime [i.e., LaBrakes alleged improprieties with his daughter] in your sentencing. I have ordered a copy of the hearing and[,] if the objection appears [in the record], we can ask the [appellate] court to amend the points on appeal[,] and the court normally grants [such a request]. Neither of these letters, nor any other portion of the record, supports LaBrakes assertion that he asked Fenton to file a motion for plea withdrawal, or that Fenton advised LaBrake against that course. Moreover, even assuming that LaBrake asked Fenton to draft and file a motion to withdraw his plea, and that Fenton did indeed advise LaBrake not to pursue such a motion, LaBrake failed to present a prima facie case that this advice was incompetent. As Judge Steinkruger noted in her decision, LaBrake failed to present a prima facie case that he could establish the manifest injustice required for a post-sentencing plea withdrawal.13 In any event, LaBrake does not advance this claim in his brief to this Court. Rather, LaBrake presents a different claim on appeal: that Fenton acted incompetently by failing to either file LaBrakes sentence appeal brief or, knowing that he was seriously ill, make arrangements to have another attorney assume responsibility for LaBrakes sentence appeal. The material facts underlying this claim are not in dispute: Fenton was seriously ill, and near death, in the summer of 2001. He did not file LaBrakes sentence appeal brief, nor did he arrange for another attorney to assume responsibility for LaBrakes appeal and, as a consequence, the appeal was dismissed for non-prosecution. It is true, as we described earlier, that when Judge Steinkruger found out what had happened, she set about finding a new attorney for LaBrake who would move to reinstate the appeal. For reasons that are not explained in the record, LaBrakes new attorney Marlin Smith did not pursue the simple expedient of asking this Court to reinstate the appeal. Rather, Smith inserted this issue into LaBrakes petition for post- conviction relief. Smith may have chosen to handle the matter this way because he perceived that the sentence appeal issue would be moot if LaBrake succeeded in his efforts to withdraw his plea. In any event, LaBrakes petition for post-conviction relief clearly presented a prima facie case for reinstating his sentence appeal. Accordingly, we reverse the superior courts dismissal of this claim. Conclusion We uphold the superior courts decision in all respects but one: LaBrake presented a prima facie case that he should be allowed to reinstitute his sentence appeal. With respect to that claim, the judgement of the superior court is REVERSED, and LaBrakes case is remanded to the superior court for further proceedings on that claim. In all other respects, the judgement of the superior court is AFFIRMED. _______________________________ 1AS 11.41.436(a)(5). 2AS 11.41.436(b); AS 12.55.125(d). 3See Risher v. State, 523 P.2d 421, 424 (Alaska 1974) (holding that the test for ineffective assistance of counsel in criminal cases is whether the attorneys conduct fell below the minimal range of competence required of an attorney who has ordinary training and skill in the criminal law). 4See State v. Jones, 759 P.2d 558, 570-71 (Alaska App. 1988) (recognizing that an attorneys investigation of a case may be so incompetent as to exclude the possibility that the attorneys decisions were the fruit of sound tactical choice). 5J & L Diversified Enterprises, Inc. v. Anchorage, 736 P.2d 349, 351 (Alaska 1987) (an appellate court reviewing a dismissal on the pleadings must accept as true all well-pleaded allegations of fact contained in the appellants trial court pleadings); Steffensen v. State, 837 P.2d 1123, 1125-26 (Alaska App. 1992) ([W]hen the superior court decides whether the defendants petition states a prima facie case for relief, the superior court is obliged to view the factual allegations of the defendants petition in the light most favorable to the defendant.); Jones, 759 P.2d at 565 (the superior courts ruling on a motion for judgement on the pleadings under Criminal Rule 35.1(f) is equivalent to a ruling on a motion under Civil Rule 12(c) for judgement on the pleadings). 6Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure (3rd edition, 2004), 1368, Vol. 5C, pp. 243- 45. 7Id., 1368, Vol. 5C, p. 255. 8See Kohen v. H. S. Crocker Co., 260 F.2d 790, 792 (5th Cir. 1958) (rejecting the argument that the court was obliged to presume the truth of the non-moving partys claims that the other partys actions constituted compulsion, coercion, or duress). 9See Steffensen v. State, 837 P.2d 1123, 1127 (Alaska App. 1992) (Steffensen ... faults his attorney for failing to review the grand jury record ... . However, Steffensen does not indicate how such a review ... would have yielded pertinent information.). 10Walsh v. State, 134 P.3d 366, 371 (Alaska App. 2006), citing Mute v. State, 954 P.2d 1384, 1385-86 (Alaska App. 1998); Gardner v. State, Alaska App. Memorandum Opinion and Judgment No. 5064 at 9-11 (March 29, 2006), 2006 WL 829758 at *4-6 (Mannheimer, J., concurring); Wayne R. LaFave, Jerold H. Israel, and Nancy J. King, Criminal Procedure (2nd ed.1999), 11.4(b), Vol. 3, p. 554. 11See AS 12.55.155(e). 12See Evans v. State, 23 P.3d 650, 652 (Alaska App. 2001); Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App. 1989) (holding that a sentencing judge can rely on out-of-court statements described in the pre-sentence report for proof of the matters asserted unless the defendant offers a testimonial denial of those matters and submits to cross-examination, in which case the State must support its assertions with live testimony). 13See Alaska Criminal Rule 11(h)(3).
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