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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: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| RUPLE MARX SMITH, | ) |
| ) Court of Appeals No. A-9763 | |
| Appellant, | ) Trial Court No. 3KN-03-236 CI |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2171 June 6, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Kenai, Charles T. Huguelet,
Judge.
Appearances: Glenda Kerry, Assistant Public
Advocate, and Joshua P. Fink, Public
Advocate, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Ruple Marx Smith was convicted of kidnapping and raping
a fourteen-year-old girl.1 A key part of the evidence against
Smith at trial was incriminating admissions that he made to a
state trooper. Smith appealed to this court raising several
issues, including a contention that the admissions he made to the
state trooper had been obtained in violation of his Miranda2
rights. In a split decision, this court concluded that Smith was
in custody when the state trooper questioned him about the
kidnapping and sexual assault and that, because the state trooper
had not warned Smith of his Miranda rights during the custodial
interrogation, the State had obtained Smiths incriminating
admissions in violation of Miranda.3 We therefore concluded that
Smiths admissions had to be suppressed.4 We remanded the case to
the trial court to determine what other evidence needed to be
suppressed as a fruit of the interview.5 The trial court then
needed to decide whether Smith was entitled to a new trial.6
On remand, the trial court found that the error in
admitting Smiths statements was not harmless. We therefore
reversed Smiths convictions.7 The State petitioned for hearing.
The Alaska Supreme Court granted the petition. The supreme court
concluded that Smith was not in custody when he made the
incriminating admissions to the state trooper.8 The court
therefore held that Smiths statements had not been obtained in
violation of his Miranda rights. The court reversed our decision
and reinstated Smiths convictions.9
Smith then filed an application for post-conviction
relief. In that application Smith argued that, when the State
filed its petition for hearing in the Alaska Supreme Court on the
Miranda issue, Smiths appellate attorney provided ineffective
assistance of counsel. Specifically, Smith argued that his
appellate attorney was ineffective by failing to file a cross-
petition for hearing seeking discretionary review by the Alaska
Supreme Court of another legal issue that this court had decided
against Smith in his direct appeal: our affirmance of the trial
courts rejection of Smiths contention that the photo lineups that
the police presented to the victim were unduly suggestive and
tainted her identification of him.10
When a defendant claims that he has been prejudiced by
ineffective assistance of counsel, the defendant must show that
his counsel did not perform as well as a lawyer with ordinary
training and skill in the criminal law.11 In evaluating trial
counsels conduct, the court must apply a strong presumption of
competence.12 Further, the court must apply a presumption that
trial counsels actions were motivated by sound tactical
considerations.13
In the absence of evidence ruling out the
possibility of a tactical reason to explain
counsels conduct, the presumption of
competence remains unrebutted and operates to
preclude a finding of ineffective
assistance.[14]
If the record does not adequately reveal the basis for the
attorneys decision, then the accused has failed to establish a
case for post-conviction relief.15
In his affidavit, Smiths appellate attorney stated
that, due to the passage of time, he could not recall whether he
discussed the possibility of a cross-petition with Smith or
whether he had purposely failed to file a cross-petition with the
Alaska Supreme Court. The superior court dismissed the
application finding, in part, that Smith ha[d] failed to show
that [his appellate attorneys] decision was not tactical.
Assuming that the decision whether or not to take a
cross-petition for a hearing to the supreme court was a decision
for the attorney to make, the superior courts decision was
correct. Smith did not overcome the presumption that the
attorneys decision was not tactical. But some decisions are
committed to the client.16
In 1993, the Alaska Supreme Court promulgated the
Alaska Rules of Professional Conduct.17 Alaska Rule of
Professional Conduct 1.2(a) provides that:
In a criminal case, the lawyer shall abide by
the clients decision, after consultation with
the lawyer, as to a plea to be entered,
whether to waive jury trial, whether the
client will testify, and whether to take an
appeal.
In McLaughlin v. State,18 we interpreted Alaska Rule of
Professional Conduct 1.2(a) as it applies to pre-judgment
petitions for review. We held that the decision whether to seek
immediate appellate review of a trial courts non-appealable order
is a tactical decision that is entrusted to the defendants
attorney under Alaska law.19 Interpreting Alaska Rule of
Professional Conduct 1.2(a), we reasoned that the Alaska Supreme
Court meant exactly what it said in stating that the client had
the ultimate authority to decide whether to take an appeal.20
We also noted in McLaughlin that this court had
previously concluded, in Simeon v. State,21 that Alaska Rule of
Professional Conduct 1.2(a) left to the attorney all tactical
decisions that are not set out in the rule:
[Alaska Rule of Professional Conduct 1.2(a)]
specifies clearly those decisions over which
the client has the ultimate authority. Since
the rule limits the clients authority to
those decisions, it follows that the lawyer
has the ultimate authority to make other
decisions governing trial tactics.[22]
In reaching this decision, we pointed out that the decision
[w]hether to petition for review is generally
a complicated strategic and tactical decision
that is best left to the attorney. In
general, if a client is convicted, the
attorney can then challenge any ruling made
by the trial court. Allowing a client to
independently file a petition for review
would raise the distinct possibility that
such a procedure would cause the client to
undermine his counsels trial tactics and
would cause an undue burden on his attorney,
the courts, and the State.[23]
The key issue in this case is whether, after the client
has obtained a reversal of his conviction in the court of appeals
and the State has filed a petition for hearing in the Alaska
Supreme Court, the decision to file a cross-petition for hearing
on behalf of the defendant is a decision for the attorney or for
the client. We conclude that it is a decision for the attorney.
The facts of this case illustrate the complexity of the
decision about whether to file a cross-petition for hearing with
the Alaska Supreme Court. At the time that counsel was making a
decision whether to file a cross-petition, Smith had already
obtained a reversal of his conviction. Specifically, as a result
of our decision, Smith had obtained the suppression of possibly
the most critical evidence against him, his admissions. Under
these circumstances, it is reasonable to infer that Smiths
counsel would not want the Alaska Supreme Court to grant a
petition for hearing, thereby placing in jeopardy his favorable
result in this court. Counsel might well have reasoned that his
best course of action would be to suggest to the Alaska Supreme
Court that the decision reached by this court was correct and
that there was no reason for the supreme court to exercise its
discretionary jurisdiction. Counsel might well have reasoned
that urging the Alaska Supreme Court to grant review on an
additional issue in which this court had ruled against Smith
would make it more likely that the supreme court might grant
discretionary review.
Furthermore, Smiths counsel could well have concluded
that the issue in which Smith argues that his counsel should have
filed a cross-petition whether the victims identification of him
was tainted by a series of suggestive photo lineups was not a
strong issue. The trial court had determined that the photo
lineup procedure was not unduly suggestive, and we upheld the
trial courts finding on appeal.24 Moreover, we noted that, even
if the trial courts finding that the photo lineup had not been
unduly suggestive was incorrect, the error did not taint the
victims identification of Smith because the victim had observed
her assailant three times before the attack.25
Counsel could well have concluded that this was an
issue upon which he had little chance to prevail and one that
would have detracted from his ability to argue the key issue in
the case that Smiths admissions had been properly suppressed.
If the Alaska Supreme Court granted review and held that Smiths
admissions were admissible, Smiths convictions would stand. But
if Smith prevailed in suppressing his admissions and obtained a
new trial, a trial attorney might want to introduce evidence of
the purportedly suggestive photo lineups to illustrate why the
victim might have been mistaken in her identification of Smith.
The purpose of the prior discussion is not to speculate
about the actual tactics of Smiths appellate attorney. The
purpose is to show the complexity of these tactical decisions. It
illustrates why we conclude under the facts of this case i.e.,
in circumstances where the State has already filed a petition for
hearing that the decision whether to file a cross-petition with
the Alaska Supreme Court is a decision committed to the defense
attorney under Alaska law.
This decision seems consistent with decisions in which
courts have held that, although the defendant has the right to
determine whether or not to appeal, the tactical decision of what
arguments to raise on appeal are decisions for the attorney.26
These decisions rest on the conclusion that the attorney is best
suited to make the tactical decision about what issues to raise,
and they recognize that experienced attorneys winnow[] out weaker
arguments on appeal.27 The decision that Smiths appellate
counsel had to decide in determining whether to file a cross-
petition for hearing is remarkably similar to the decision that
counsel has to make in deciding which issues to raise on appeal
would raising this additional issue help or hinder the client?
We accordingly conclude that the decision whether to
file a cross-petition for hearing with the Alaska Supreme Court
was a tactical decision for Smiths attorney to decide. Because
Smith did not show that his attorney made an unreasonable
tactical decision, we conclude that the trial court did not err
in dismissing Smiths application for post-conviction relief. We
express no opinion on a defense attorneys duty to file a petition
for hearing at the defendants request in other cases.
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.41.300(a)(1)(C) and AS 11.41.410(a)(1),
respectively.
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966).
3 Smith v. State, Alaska App. Memorandum Opinion and
Judgment No. 4074 at 17 (lead opinion), 25 (Coats, C.J.,
concurring) (July 14, 1999), 1999 WL 494991 at *9 (lead opinion),
*13 (Coats, C.J., concurring), revd, 38 P.3d 1149, 1161 (Alaska
2002).
4 Id.
5 Id. at 24, 1999 WL 494991 at *12.
6 Id.
7 See Smith, 38 P.3d at 1152.
8 Id. at 1161.
9 Id.
10 Smith, Memorandum Opinion and Judgment No. 4047 at 20-
21, 1999 WL 494991 at *11.
11 State v. Jones, 759 P.2d 558, 567 (Alaska App. 1988)
(quoting Risher v. State, 523 P.2d 421, 424 (Alaska 1974)).
12 Id. at 569 (citing Strickland v. Washington, 466 U.S.
668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984); United
States v. Cronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 2046, 80 L.
Ed. 2d 657 (1984)).
13 Id.
14 Id.
15 Steffensen v. State, 837 P.2d 1123, 1127 (Alaska App.
1992) (citing Jones, 759 P.2d at 569).
16 See, e.g., Faretta v. California, 422 U.S. 806, 807, 95
S. Ct. 2525, 2527, 45 L. Ed. 2d 562 (1975); Alaska R. Prof.
Conduct 1.2(a).
17 Alaska Supreme Court Order No. 1123 (eff. July 15,
1993).
18 173 P.3d 1014 (Alaska App. 2007).
19 Id. at 1014.
20 Id. at 1016.
21 90 P.3d 181 (Alaska App. 2004).
22 McLaughlin, 173 P.3d at 1015 (alteration in original)
(quoting Simeon, 90 P.3d at 184).
23 Id. at 1016-17.
24 Smith, Memorandum Opinion and Judgment No. 4074 at 20-
21, 1999 WL 494991 at *10-11.
25 Id. at 21, 1999 WL 494991 at *11.
26 See, e.g., Jones v. Barnes, 463 U.S. 745, 751-54, 103
S. Ct. 3308, 3312-14, 77 L. Ed. 2d 987 (1983); Coffman v. State,
172 P.3d 804, 812 (Alaska App. 2007); Tucker v. State, 892 P.2d
832, 836 (Alaska App. 1995) (citations omitted).
27 Barnes, 463 U.S. at 751, 103 S. Ct. at 3313.
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