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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
|ALBERT LEE ALLEN,||)|
|) Court of Appeals No. A-9343|
|Appellant,||) Trial Court No. 3AN-03-6451 Civ|
|) 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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