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opinion is published in the Pacific Reporter. Readers
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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| ALBERT LEE ALLEN, | ) |
| ) Court of Appeals No. A-9343 | |
| Appellant, | ) Trial Court No. 3AN-03-6451 Civ |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2091 March 16, 2007 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Peter A. Michalski,
Judge.
Appearances: Daniel Lowery, Assistant Public
Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, 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.
In the early morning of June 15, 1994, Albert Lee Allen
was visited by Devron Labat and two female companions. The visit
was not friendly: Allen had been dating Labats long-time
girlfriend, Michelle Aquino, while Labat was in prison. Now that
Labat had been released from prison, he wanted to convince Allen
to stay away from Aquino.
After Labat explained his position to Allen, he left
Allens apartment and walked over to Allens truck. Allen could
see Labat kneeling by the truck, and he thought that Labat was
trying to disable the vehicle. Allen armed himself with a
butcher knife, crawled out of his apartment through a bedroom
window, and approached Labat. When Labat saw Allen coming, he
started to run away. Allen gave chase. Allen caught up to
Labat, stabbed him in the stomach, then banged Labats head on the
pavement and kicked him. Labat later died from the stab wound,
and Allen was indicted for first-degree murder.
Allen was tried three times for this crime. His first
trial ended in a hung jury. At his second trial, the jury found
him guilty, but this Court reversed Allens conviction on appeal.
See Allen v. State, 945 P.2d 1233, 1234-35 (Alaska App. 1997).
Allen was then tried a third time. This time, the jury convicted
him of the lesser offense of second-degree murder. Allen
appealed again, but this time we affirmed Allens conviction and
sentence. See Allen v. State, 51 P.3d 949, 952 (Alaska App.
2002), on rehearing 56 P.3d 683 (Alaska App. 2002).
Following our affirmance of Allens murder conviction,
he filed a petition for post-conviction relief. In this
petition, Allen argued (under various theories) that the two
attorneys who represented him at his third trial gave him
ineffective assistance of counsel. He also argued that the
procedure at his sentencing hearing violated his Sixth Amendment
right to jury trial as interpreted by the United States Supreme
Court in Blakely v. Washington.1
Superior Court Judge Peter A. Michalski ultimately
granted the States motion to dismiss Allens petition on the
pleadings. That is, Judge Michalski concluded that Allens
petition and supporting documents failed to present a prima facie
case for post-conviction relief.
Allen now appeals the superior courts dismissal of his
petition. However, he has abandoned all of his claims except
two.
Allens first remaining claim is that his trial
attorneys acted incompetently when they failed to call two
witnesses, Jim Snyder and Michelle Kary Arms, during the defense
case at Allens trial. According to Allen, these two witnesses
would have provided important testimony to support Allens own
testimony that he thought that Labat was armed with a gun, and
that he (Allen) was acting in self-defense when he chased Labat
and stabbed him. In this appeal, Allen does not assert that the
superior court should necessarily have granted his petition for
post-conviction relief. Rather, Allen makes the more limited
assertion that the superior court should not have dismissed his
petition on the pleadings i.e., without granting him a hearing
on these two claims.
Allens second remaining claim is that his sentencing
procedures violated Blakely.
For the reasons explained here, we conclude that Allens
petition failed to state a prima facie claim for post-conviction
relief on either theory. Thus, the superior court acted properly
when it dismissed Allens petition.
Allens claim of attorney incompetence, and a
description of the four affidavits filed with his
petition: the affidavits provided by his two trial
attorneys, by the investigator who worked for those
attorneys in preparing for Allens trial, and by the new
investigator who worked on Allens petition for post-
conviction relief
At his third trial, Allen was jointly
represented by two attorneys: Sidney Billingslea, the
attorney who had represented Allen at his previous two
trials, and Christine Schleuss, the attorney who had
successfully pursued Allens appeal after he was
convicted of first-degree murder at his second trial.
In his petition for post-conviction relief,
Allen asserted that Billingslea and Schleuss acted
incompetently by failing to present the testimony of
two potential defense witnesses, Jim Snyder and
Michelle Kary Arms.
In support of this claim, Allen presented the
affidavit of Public Defender Investigator Sue Hedge.
During her investigation of Allens potential
application for post-conviction relief, Hedge located
and then conducted telephone interviews of both Snyder
and Arms.
According to Hedges affidavit, Snyder
indicated to [Hedge] that he still remembered the
incident [when Allen killed Labat]. According to
Hedges account of her conversation with Snyder, Snyder
was convinced that Labat had a gun on him that night,
but that [Labat] had given [the gun] to [a woman
companion] in [a] truck just before Allen started
chasing him. Hedge also stated in her affidavit that
Snyder remembered Allen yelling things about the gun
all during the incident.
In another portion of her affidavit, Hedge
recounted her conversation with Arms. According to
Hedges affidavit, Arms said that she had been a witness
to a phone conversation between Allen and Labat that
occurred shortly before Labat came over to Allens
apartment. According to Hedges affidavit, Arms said
that she was in bed with Allen [at the time,] and could
hear Labat on the other end of the call. In her
affidavit, Hedge stated that Arms remembered Labat
saying [that] he was going to come over to [Allens]
door with a gun and blow his head off, and that Allen
was scared and upset over [this] threatening call.
With regard to the fact that Arms did not
appear as a witness at Allens trial, Arms explained to
Hedge that she knew that someone from the defense was
looking for her in regard to the case, but that they
didnt find her [because she was] in California at the
time.
When a petitioner for post-conviction relief
contends that their trial attorney was incompetent in
one or more respects, the petitioner is required to
seek an affidavit from the trial attorney in which the
attorney addresses the petitioners contentions.2
Allens petition for post-conviction relief contained
affidavits from both Billingslea and Schleuss, as well
as an affidavit from Richard J. Norgard, a defense
investigator who was working for the Office of Public
Advocacy at the time of Allens third trial and who
assisted Billingslea and Schleuss in their
investigation and preparation of the case.
Neither Billingslea nor Schleuss nor Norgard
disputed Allens assertions about what Snyder and Arms
would have said if called to the stand. Instead, in
their three affidavits, Billingslea, Schleuss, and
Norgard addressed the issue of why these two potential
witnesses were not presented at Allens trial.
With regard to Jim Snyder, Billingslea stated
that she was very interested in interviewing every
person on the street that night who witnessed the
incident between Mr. Allen and Mr. Labat, including Mr.
Snyder. However, Billingslea explained that [Snyder]
did not want to be interviewed by the police, and did
not stay at the scene.
Billingslea [thought that she] originally
pursued [Snyder] as a witness. However, after
presenting Allens defense at the first and second
trials without Snyders testimony, Billingslea was not
sure how aggressively [she and Schleuss] pursued him
[when they were preparing] for the third trial.
Billinglea added that if [Snyder] had [had] anything
helpful to offer as a witness, he would have been
called, but I cannot remember ... whether he had any
[helpful testimony] to offer.
In Schleusss affidavit, she agreed with her
co-counsel Billingslea that the defense team was
interested in interviewing Snyder and every [other]
person on the street that night who witnessed the
incident between Mr. Allen and Mr. Labat. Schleuss
stated that she want[ed] [their] investigator [i.e.,
Norgard] to find and interview all of these potential
witnesses.
However, according to Schleuss, even though
the defense team pursued [Snyder] as a potential
witness for the third trial, [they] didnt find him.
Like Billingslea, Schleuss noted that Snyder had not
cooperated with the police and did not stay at the
scene. However, Schleuss declared that the defense
team had not made a strategic decision to refrain from
calling Snyder because of his attitude or because of
the anticipated content of his testimony. Rather,
Schleuss said, we just didnt find him to interview him.
Schleusss account was corroborated by
Investigator Norgards affidavit. According to Norgard,
he tried to find and interview Mr. Snyder as a
potential witness for the third trial, but never
actually located him. Norgard stated that he tried to
locate Snyder us[ing] database searches and [by going]
to his last known address, but these efforts yielded
negative results.
With regard to Michelle Kary Arms,
Billingslea stated her in affidavit that she had known
that Arms was a potentially helpful witness that Arms
was listening in on the [phone] conversation [between
Allen and Labat] and could have corroborated Allens
testimony about the call and the threats [made by
Labat] in the call[,] as well as how the call
frightened Allen. But Billingslea [could] not remember
why [the defense team] chose not to call her as a
witness.
Schleuss, in her affidavit, added that she
[did] not remember making a strategic decision not to
call [Arms] as a witness. In fact, Schleuss [could not
personally] remember whether [the defense team was]
able to locate her. However, Schleuss stated that Mr.
Norgards notes [which were apparently still in the
defense file] indicate that we tried, but failed, to
locate her.
In Norgards affidavit (which is dated
approximately two weeks after Billingsleas and
Schleusss affidavits), Norgard corroborated what the
file notes indicated. Norgard stated that he knew that
Michelle Kary Arms was a potential witness, and that he
knew the subject matter of her potential testimony.
Norgard explained that he attempted to locate and
interview [Arms], but was unable to find her.
According to Norgard, he tried to locate [Arms] through
her mother[,] and with database searches, but these
efforts were not successful.
(We note that Investigator Hedges later
telephone conversation with Arms suggests that Norgards
efforts were partially successful that Arms did in
fact learn, at the time, that the defense team was
looking for her, but she chose not to contact them.)
The litigation of these allegations of attorney
incompetence, and the superior courts ruling that Allen
had failed to state a prima facie case for post-
conviction relief
In response to Allens petition for post-
conviction relief, the State filed a motion to dismiss
the petition for failing to state a prima facie case
for relief. With respect to the claims involving
Snyder and Arms, the State offered three main arguments
why Allens petition was deficient on its face.
First, the State noted that Allens petition
was not supported by affidavits from Snyder and Arms
themselves. Rather, the petition contained only the
affidavit of Investigator Hedge, who offered hearsay
accounts of what these two witnesses said during
telephone interviews. The State argued that this was
not sufficient.
Second, the State noted that even though
Hedge was apparently able to locate Snyder and Arms
during her investigation of the post-conviction relief
matter, the affidavits submitted by Allens two trial
attorneys and by their investigator (Norgard) showed
that the defense team had, in fact, tried to locate
Snyder and Arms at the time of Allens third trial, but
their efforts were unsuccessful. The State argued that
Allens petition was deficient because Allen offered
nothing to suggest that the defense teams efforts to
locate Snyder and Arms had been incompetent.
Finally, the State noted that Snyder had not
cooperated with the authorities and had left the scene
before he could be interviewed, and that Arms had not
come forward even after she apparently learned that the
defense team was looking for her. Based on this, the
State argued that there was no proof that Snyder and
Arms would have cooperated with the defense team even
if the defense had been successful in locating them.
Allens pleadings in the superior court do not
address the States first point (that the petition did
not include affidavits from Snyder and Arms themselves)
or the States third point (that there was no evidence
that Snyder and Arms would have cooperated with Allens
defense team even if they had been located in time for
Allens third trial).
With regard to the States second point (that
Allen had failed to offer any evidence that his defense
teams unsuccessful efforts to locate Snyder and Arms
had been incompetent), Allen answered with a single
conclusory sentence: The [defense teams] efforts to
locate [Snyder and Arms] were limited and minimal.
(This was simply a recapitulation of the
conclusory assertions contained in Allens petition:
The efforts to locate [these witnesses] were limited
and minimal. More efforts should have been made to
locate them.)
Allen then raised a point of his own. He
suggested that the affidavits filed by his two trial
attorneys (Billingslea and Schleuss) offered
potentially conflicting explanations of why Michelle
Arms was not called as a witness.
As explained above, Billingsleas affidavit
stated that [she could] not remember why [the defense
team] chose not to call [Arms] as a witness. Allen
argued that Billingsleas use of the word chose
suggested that she and Schleuss made a conscious
decision not to call Arms. Schleuss, on the other
hand, stated in her affidavit that she [did] not
remember making a strategic decision to refrain from
calling Arms as a witness at Allens trial. Rather,
Schleuss said, it appeared from Investigator Norgards
file notes that the defense team tried, but failed, to
locate [Arms].
(As further explained above, Norgards
affidavit corroborated Schleusss affidavit on this
point. Norgard stated that he was aware that Arms was
a potentially valuable defense witness, and that he
tried unsuccessfully to locate her, both by contacting
her mother and by searching databases.)
Allen argued (in his opposition to the States
motion to dismiss) that because Billingsleas and
Schleusss explanations were potentially inconsistent,
he was entitled to an evidentiary hearing to
investigate and resolve this potential inconsistency.
After receiving these two pleadings (as well
as a reply filed by the State), Judge Michalski granted
the States motion to dismiss Allens petition.
With regard to Jim Snyder, Judge Michalski
found that Allens trial attorneys had made a conscious
decision not to call him because [Snyder] would have
offered testimony adverse to Allens interests.
(This finding is clearly erroneous. Neither
of Allens trial attorneys, nor their investigator, ever
suggested that they knew what Snyders testimony would
be, or that they concluded that this testimony would
have hurt Allens interests. Instead, Billingslea and
Schleuss stated that they did not know what Snyders
testimony would be (because he had not given a
statement to the authorities), but that they were
nevertheless interested in interviewing him (because he
had witnessed the incident). In addition, both
Schleuss and Norgard stated that they tried to locate
Snyder, but they could not find him.)
With regard to Michelle Kary Arms, Judge
Michalski found that, although Billingslea and Schleuss
offered different statements about why Arms was not
called as a witness, neither attorneys statement
presented a prima facie case of attorney incompetence.
Judge Michalski noted that Billingslea stated that she
could not remember why Arms was not called as a defense
witness, while Schleuss stated that, although she could
not remember specifically, it appeared that the reason
for not calling Arms as a defense witness was the fact
that she could not be located. Judge Michalski ruled
that neither of these attorneys statements would
support a finding of attorney incompetence.
Why we uphold the superior courts dismissal of Allens
petition
In his order dismissing Allens petition,
Judge Michalski did not discuss the States first ground
for dismissal: the fact that Allen did not obtain
personal affidavits from either Snyder or Arms, but
relied instead on Investigator Hedges hearsay accounts
of what those two witnesses would say. But although
this ground for dismissal is not discussed in Judge
Michalskis order, it is a valid objection to Allens
petition.
Alaska Criminal Rule 35.1(d) states (in
pertinent part) that [a]ffidavits, records, or other
evidence supporting [the petitioners] allegations shall
be attached to the application [for post-conviction
relief,] or the application shall recite why they are
not attached. And in State v. Jones, this Court
elucidated the scope of this requirement in cases where
a petitioners claim of attorney incompetence rests on
the attorneys failure to present witnesses who would
allegedly have given testimony favorable to the
defense. In such cases, the petitioner has a duty to
allege and prove ... what would have been said by [the]
potential witnesses who were not called in other
words, a duty to produce evidence to show ... that
[these] potential witnesses would actually have given
favorable testimony. Jones, 759 P.2d at 573-74.
Here, Allen offered the affidavit of his
investigator, Sue Hedge, who held telephone interviews
with the two proposed witnesses (Snyder and Arms) and
who then summarized what these two witnesses told her.
Ostensibly, this affidavit might have been sufficient
to meet Allens burden. But in our past decisions, we
have indicated that the affidavits must come from the
witnesses themselves, so that the court can see that
the allegedly favorable testimony would actually be
admissible.
For instance, in Howell v. State, 758 P.2d
103 (Alaska App. 1988), we upheld the summary dismissal
of a petition for post-conviction relief in which the
defendant argued that his trial attorney had
incompetently failed to call certain witnesses. Our
decision was based, in part, on the fact that the
defendant failed to submit any affidavits from [these]
witnesses. Id. at 105 n. 1.
We discussed this point more explicitly in
two unpublished decisions from 1993: Rhames v. State,
Alaska App. Memorandum Opinion No. 2664 (April 7,
1993), 1993 WL 13156663; and Elson v. State, Alaska
App. Memorandum Opinion No. 2739 (July 28, 1993), 1993
WL 13156823. Both Rhames and Elson contain the
following explanation of the affidavit requirement:
[W]hen a defendant asserts that his or her
trial attorney failed to present important
evidence (either because of incompetent trial
tactics or because the attorney failed to
competently investigate the case), the
defendant must furnish the court with
affidavits, depositions, or reports of the
witnesses who stand ready to provide this
evidence or, failing this, the defendant
must explain to the court why the witnesses
statements are unobtainable.
Rhames, 1993 WL 13156663 at *1; Elson, 1993
WL 13156823 at *15.
By requiring the defendant to
present affidavits from the people who could
actually give the proposed testimony in a
court proceeding, we are following the rule
that applies to the litigation of motions for
summary judgement in other civil cases.
When motions for summary judgement
are litigated, the ultimate question is
whether the case presents any triable i.e.,
genuinely disputed issues of material fact.3
In such litigation, the parties normally rely
on affidavits, depositions, admissions,
answers to interrogatories, and similar
evidentiary material that is produced outside
of court hearings.4 Nevertheless, [i]f the
parties choose to submit affidavits, [the
affidavits] must be based upon personal
knowledge, [must] set forth facts that would
be admissible evidence at trial[,] and [must]
affirmatively show that the affiant is
competent to testify to the matters stated.
French v. Jadon, Inc., 911 P.2d 20, 24
(Alaska 1996); Alaska Civil Rule 56(e).5 In
other words, hearsay statements that would be
inadmissible at trial can not be employed to
support or defend a motion for summary
judgement. French, 911 P.2d at 24.
(But see Adkins v. Nabors Alaska
Drilling, Inc., 609 P.2d 15, 22 (Alaska
1980), holding that a court may consider a
hearsay affidavit if no party objects.)
When the State asked the superior
court to dismiss Allens petition for post-
conviction relief, the State noted that Allen
had not produced an affidavit from either
Snyder or Arms, and that Allen was instead
relying solely on Hedges affidavit to prove,
through hearsay, the testimony that Snyder
and Arms allegedly would have given if called
to the stand at Allens trial. This was a
potentially fatal flaw in Allens petition and
supporting documents. And when Allen filed
his opposition to the States motion to
dismiss, he offered no response on this
point. He did not ask for more time to
procure the personal affidavits of Snyder and
Arms, nor did he offer an explanation of why
he could not obtain their personal
affidavits.
Morever, Allens case readily
illustrates the need for the kind of
requirements codified in Civil Rule 56(e) and
reiterated in French. To prove the
importance of Jim Snyders testimony, Allen
offered the affidavit of his investigator,
Sue Hedge an affidavit which offered a
second-hand account of what Snyder
purportedly would say if called to the stand.
But even taking Hedges account of her
conversation with Snyder at face value, it is
not clear that Snyder had any admissible
testimony to offer.
According to Hedges affidavit,
Snyder was convinced that Labat had a gun on
him that night, but that [Labat] had given
[the gun] to [a female companion] in [a]
truck just before Allen started chasing him.
But Hedge does not describe why or how Snyder
became convinced of these things. Snyders
conclusions on these matters may not have
been based on personal observation. Hedge
also stated in her affidavit that Snyder
remembered Allen yelling things about the gun
all during the incident. But again,
depending on the circumstances, Snyders
testimony about Allens out-of-court
statements might have been objectionable
hearsay.
We take this opportunity to clearly
state the requirement that a defendant
seeking post-conviction relief must supply
supporting affidavits from people who could
testify to the pertinent information if
called to the stand or, alternatively, the
defendant must explain why such affidavits
can not be obtained.
Because our prior decisions or,
more precisely, our prior published decisions
have not expressly stated this requirement,
we would not uphold the superior courts
dismissal of Allens petition on this ground
alone. Rather, if we believed that the only
deficiency in Allens petition was the fact
that he did not offer the personal affidavits
of Snyder and Arms, we would vacate the
superior courts order and allow Allen another
opportunity to procure the required
affidavits (or to offer an explanation as to
why the affidavits could not be procured).
However, we agree with the superior court
that Allens petition had other deficiencies.
As the State points out in its
brief, Allens complaints about his attorneys
failure to call Snyder and Arms to the stand
at Allens third trial are ultimately grounded
on the assertion that his attorneys failed to
make reasonable efforts to procure these two
witnesses. Allens complaints come to naught
if his trial attorneys were unable, despite
reasonable efforts, to locate Snyder and
Arms.
Moreover, what constitutes a
reasonable effort to find a witness hinges on
the circumstances. As this Court noted in
State v. Jones,
[G]iven an unrestricted budget and freed of
any constraints as to probable materiality or
accountability, a lawyer might ... cheerfully
log[] many hours looking for the legal
equivalent of a needle in a haystack. ...
[A] millionaire might ... retain[] counsel to
leave not a single stone unturned. However,
a defendant is not entitled to perfection[,]
but to basic fairness. In the real [world],
expenditure of time and effort is dependent
on a reasonable indication of materiality.
759 P.2d at 572.6
Here, Billingslea and Schleuss were aware that Michelle
Kary Arms had overheard the telephone conversation between Allen
and Labat, and that she was therefore a potentially important
defense witness (assuming that she was willing to corroborate
Allens account of that conversation). Thus, one might expect
Billingslea and Schleuss to make significant efforts to locate
Arms. On the other hand, there was no way to tell whether Jim
Snyder had anything helpful to say. He had refused to cooperate
with the authorities, and he had not given a statement.
Billingslea and Schleuss knew that Snyder had witnessed the
altercation in the street, but so had other people. As the two
attorneys prepared for Allens third trial, they might reasonably
have concluded that their time and resources would be better
spent on tasks other than extensive efforts to track down Snyder.
In the end, Billingsleas and Schleusss investigator,
Norgard, did in fact make attempts to locate both Michelle Arms
and Jim Snyder although these attempts were unsuccessful.
The fact that Norgards efforts to find Arms and Snyder
did not bear fruit does not mean that his efforts were
incompetent. It is true that Allens new investigator, Hedge, was
able to locate both people although this was years later and, at
least with respect to Snyder, Hedge may have had a significantly
different motivation to find him. But the ultimate question is
whether Allen presented a prima facie case that Billingslea and
Schleuss acted incompetently when they asked Norgard to find Arms
and Snyder, or whether Norgards ensuing attempts to locate these
witnesses were so inadequate under the circumstances that they
demonstrated incompetency.
In his affidavit, Norgard explained that he contacted
Armss mother, that he went to Snyders last known address, and
that he searched for both Arms and Snyder in databases
(presumably, computerized databases). When the State (in its
motion to dismiss Allens petition) asserted that Allen had failed
to present any evidence that these efforts were unreasonable or
incompetent, Allen did not suggest how Norgard might have done
better either by proposing alternative methods that Norgard
might have employed, or by explaining how Hedge had been able to
locate the two witnesses. Instead, Allen responded by repeating
the conclusory sentence he had offered in his petition: The
[defense teams] efforts to locate [Snyder and Arms] were limited
and minimal.
This was not sufficient. To present a triable issue as
to whether the defense team might have acted incompetently in
their efforts to locate Arms and Snyder, Allen was obliged to
present some evidence that these efforts were so unlikely to
succeed, or were so inadequate in light of Allens need for these
witnesses, that no competent attorney would have been satisfied
by these efforts. Allen presented no such evidence.
In his brief, Allen argues that Billingsleas affidavit
suggests a different scenario: that, instead of looking for
Michelle Kary Arms, the defense team simply reached a strategic
decision not to present her testimony. Based on this
interpretation of Billingsleas affidavit, Allen contends that he
was entitled to an evidentiary hearing to sort out whether the
defense team actually looked for Arms in the first place.
But Billingsleas affidavit does not support Allens
suggested interpretation. In her affidavit, Billingslea conceded
that she had known that Arms was a potentially helpful witness
for the defense, and she then stated that she [could] not
remember why [the defense team] chose not to call [Arms] as a
witness. This statement that Billingslea could not remember why
the defense team decided to go to trial without Arms as a witness
does not contradict the information in Schleusss and Norgards
affidavits: that the reason the defense team did not call Arms
as a witness was that they could not find her.
As Judge Michalski noted in his decision, a trial
attorneys inability to remember the reason for a decision or
action does not provide a ground for concluding that the decision
or action was incompetent. Because the defendant bears the
burden of affirmatively demonstrating the attorneys incompetence,
a lack of evidence concerning the reason for the attorneys
decision or action generally means that the defendant has failed
to make a case for post-conviction relief.
See Jones, 759 P.2d at 574 n. 8: If the record ... is
silent with regard to an issue and the witnesses are unable to
remember, the state has not failed to substantiate its case; to
the contrary, the prisoner has failed in his collateral attack on
the judgment of conviction.7 See also Parker v. State, 779 P.2d
1245, 1248 (Alaska App. 1989): In effect, Parker [takes] the
position that, absent an affirmative explanation for his trial
counsels election to forego presenting character witnesses, his
trial counsels performance should be deemed incompetent. This
position misallocates the applicable burden of proof and [it] has
been squarely rejected.
The affidavits of Schleuss and Norgard explain that
they went forward without Armss testimony because they could not
find her. Billingsleas affidavit states that she does not
remember why they chose to go forward without Armss testimony.
There is no contradiction here. Moreover, regardless of whether
one looks to Schleusss and Norgards explanation or,
alternatively, Billingsleas inability to recall the explanation,
neither account presents a prima facie case of attorney
incompetence.
For these reasons, we conclude that Judge Michalski was
correct when he ruled that Allens petition failed to state a
prima facie case of attorney incompetence.
Allens Blakely claim
As explained toward the beginning of this
opinion, Allen was convicted of second-degree murder.
This offense is not governed by presumptive sentencing.
Instead, under AS 12.55.125(b)(2) (the version in
effect at the time of Allens offense), the superior
court was authorized to sentence Allen to any term of
imprisonment between 5 and 99 years.
However, in Page v. State, 657 P.2d 850
(Alaska App. 1983), this Court established a benchmark
sentencing range for second-degree murder: after
examining the second-degree murder sentences that had
previously been reviewed by the Alaska Supreme Court
and by this Court, we concluded that a typical first
felony offender convicted of a typical second-degree
murder should receive a sentence of between 20 and 30
years to serve. Id., 657 P.2d at 855.
The legal effect of the Page benchmark range
is that sentencing judges who wish to impose more than
30 years to serve for the crime of second-degree murder
must explain why they view the defendant as having a
worse background than that of a typical first felony
offender, or why they view the defendants crime as
worse than a typical second-degree murder. But as we
explained in Page, the benchmark sentencing range can
only be a guide, not a rule because the legislature
did not make second-degree murder subject to
presumptive sentencing; instead, the legislature
elected to retain indeterminate sentencing for this
offense.8
For this reason, the Page rule does not
require any particular finding to justify a sentence
above the benchmark range. Rather, as we have
repeatedly explained (indeed, as we explained in our
decision of Allens second appeal), a sentencing judge
can exceed the 20- to 30-year Page benchmark range for
any sound reason.9
Invoking the Supreme Courts decision in
Blakely, Allen argues that even though the Page
sentencing rule is only a benchmark, a defendant being
sentenced for second-degree murder is entitled to a
jury trial on any fact that the sentencing judge relies
on when deciding to impose a sentence of imprisonment
above the 20- to 30-year benchmark range. We rejected
this same argument in Carlson v. State, 128 P.3d 197,
208-211 (Alaska App. 2006). Our decision in Carlson
controls our resolution of Allens claim.
Conclusion
For the reasons explained here, we agree with
the superior court that Allens petition for post-
conviction relief failed to state a prima facie case
for relief, either under the theory that Allens trial
attorneys acted incompetently when they failed to call
Jim Snyder and Michelle Kary Arms as witnesses at
Allens third trial, or under the theory that the
procedures at Allens sentencing violated his right to
jury trial under the Sixth Amendment as interpreted in
Blakely v. Washington.
The judgement of the superior court is
AFFIRMED.
_______________________________
1542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
2See Steffensen v. State, 837 P.2d 1123, 1126-27 (Alaska
App. 1992); State v. Jones, 759 P.2d 558, 570 (Alaska App.
1988).
3French v. Jadon, Inc., 911 P.2d 20, 24 (Alaska 1996).
4Id.
5And see Williford v. L.J. Carr Investments, Inc., 783 P.2d
235, 238 n. 8 (Alaska 1989).
6Quoting United States v. DeCoster, 624 F.2d 196, 211 (D.C.
Cir. 1976) (en banc).
7Quoting Merrill v. State, 457 P.2d 231, 234 (Alaska 1969).
8Page, 657 P.2d at 855.
9Allen v. State, 51 P.3d 949, 960 (Alaska App. 2002); Brown
v. State, 973 P.2d 1158, 1162 (Alaska App. 1999); Williams
v. State, 809 P.2d 931, 933-34 (Alaska App. 1991).
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