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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| ROLANDO VIZCARRA-MEDINA, | ) |
| ) Court of Appeals No. A-9655 | |
| Appellant, | ) Trial Court No. 3KO-05-360 Civ |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2192 November 14, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Kodiak, Joel H. Bolger, Judge.
Appearances: Beth G. L. Trimmer, Assistant
Public Advocate, and Joshua Fink, Public
Advocate, Anchorage, for the Appellant.
Diane L. Wendlandt, 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.
MANNHEIMER, Judge.
In this case, Rolando Vizcarra-Medina sought post-
conviction relief based on assertions that he had not understood
key aspects of his plea agreement with the State. The attorney
appointed to represent Vizcarra-Medina investigated these claims
and concluded that they could not be proved. That is, the
attorney concluded that, whatever Vizcarra-Medina might say in
support of these claims, Vizcarra-Medina could not establish by
clear and convincing evidence that he had not understood the
terms of the plea agreement, or that he had not voluntarily
agreed to these terms.
Based on this conclusion, the attorney filed a
certificate under Alaska Criminal Rule 35.1(e)(2)(C) i.e., a
certificate declaring that Vizcarra-Medina had no non-frivolous
claims for post-conviction relief, and asking the superior court
to dismiss Vizcarra-Medinas petition. See Griffin v. State, 18
P.3d 71, 75, 77 (Alaska App. 2001) (construing the requirements
of Rule 35.1(e)(2)). The superior court agreed with the
attorneys assessment and (after giving Vizcarra-Medina a chance
to respond) the court dismissed the petition for post-conviction
relief. Vizcarra-Medina now appeals.
We conclude that the superior court should not have
accepted the attorneys certificate.
As evidenced by the multiple letters filed by Vizcarra-
Medina in support of his petition, Vizcarra-Medina was willing to
assert under oath that he did not understand key terms of his
plea agreement with the State. Vizcarra-Medinas post-conviction
relief attorney may have reasonably concluded that the other
available evidence contradicted Vizcarra-Medinas assertion, and
that Vizcarra-Medinas claim could likely never be proved by clear
and convincing evidence (the standard of proof imposed by
AS 12.72.040). Nevertheless, the fact that Vizcarra-Medina was
willing to testify that he did not understand key aspects of his
plea agreement means that Vizcarra-Medinas claim for post-
conviction relief was not frivolous for purposes of Criminal Rule
35.1(e)(2)(C).
The claim was not frivolous because (1) Vizcarra-Medina
was ready to offer testimony under oath that he did not
understand key aspects of the plea agreement, and (2) it appears
that Vizcarra-Medina would be entitled to relief if despite the
contrary evidence the superior court believed his testimony.
It is true that, under Alaska Professional Conduct Rule
3.3(a)(4), an attorney is forbidden from offering evidence that
the attorney knows to be false. But Vizcarra-Medinas post-
conviction relief attorney has never asserted or even suggested
that he knew that Vizcarra-Medinas proposed testimony would
constitute perjury. Thus, even if the attorney reasonably
believed that the superior court would ultimately reject Vizcarra-
Medinas testimony, it was still the attorneys job to pursue
Vizcarra-Medinas claim for relief by presenting his testimony,
and then letting the superior court make the assessments of
credibility and testimonial accuracy.
Underlying facts
Rolando Vizcarra-Medina was charged with
first-degree theft for allegedly misappropriating
approximately $250,000 in insurance proceeds that,
according to the State, should have been paid to his
brothers widow and children.
This felony theft charge was ultimately
resolved by a plea agreement. Vizcarra-Medina pleaded
no contest to two counts of third-degree theft (a
misdemeanor: theft of between $50 and $500).1 The
State agreed that Vizcarra-Medina would receive a
suspended imposition of sentence on each count, with no
additional time to serve, and 1 years probation, on
condition that Vizcarra-Medina make restitution of
$60,000.
Eighteen months later, Vizcarra-Medina
(acting pro se) filed a petition for post-conviction
relief. The superior court appointed attorney Alan L.
Schmitt to represent Vizcarra-Medina in this matter.
Because Vizcarra-Medina pleaded no contest to
the two misdemeanor theft charges, Schmitt concluded
that Vizcarra-Medina would be entitled to post-
conviction relief only if he could establish grounds
for withdrawing his plea. Schmitt further concluded
that, because Vizcarra-Medina pleaded no contest as
part of a plea bargain, and because Vizcarra-Medina
received the bargained-for benefit of that plea, the
only plausible ground for withdrawing the plea would be
to establish that Vizcarra-Medina received ineffective
assistance of counsel in connection with that plea.
On this issue, Vizcarra-Medina told Schmitt
that he did not really understand what was happening at
the change-of-plea hearing. In particular, Vizcarra-
Medina asserted that he did not understand that he
would be required to pay $60,000 in restitution, and he
also asserted that he thought he would get to have a
trial on the theft charges after he completed his years
probation.
To investigate these claims, Schmitt obtained
an affidavit from Vizcarra-Medinas former attorney,
Darrel J. Gardner. Gardners affidavit stated, in
pertinent part:
I had many conversations [with the
Kodiak District Attorney] over the lengthy
period of time that [Vizcarra-Medinas] case
was pending. I also had numerous
conversations with Mr. Medina concerning the
various developments in his case. Prior to
the change of plea hearing, I spoke with Mr.
Medina and explained the states settlement
offer in detail. On the basis of Mr. Medinas
express desire to accept the proposal, we
requested a change of plea hearing. ...
Prior to [that] hearing, I went over the
details of the proposed settlement offer,
including the $60,000 restitution component.
Schmitt also listened to the audio
record of the change-of-plea hearing. As
reflected by the transcript of that hearing,
the basic terms of the plea agreement were
explained at the very beginning of the
hearing:
Mr. Gardner: Mr. Medinas going to be
pleading no contest to two counts of theft in
the third degree, both class A misdemeanors.
... Mr. Medina will receive an SIS on both
of [these] misdemeanors. Hell be put on
misdemeanor probation for a period of one
year. There is a restitution order to be
entered in the amount of $60,000, payable
half to his brother ...
Prosecutor: Actually, itll be payable
$20,000 to each of three children. And well
file a restitution notice giving [the court]
the names of those children. ... But it
will be $20,000 to each of ... the children
of Carlos Medina.
. . .
Mr. Gardner: ... [And because Mr.
Medina] has spent a significant amount of
time in jail already, ... there [will] be no
additional jail time imposed.
A few minutes later, the court addressed
Vizcarra-Medina personally:
The Court: Is this your voluntary
decision?
Vizcarra-Medina: Your Honor, actually,
... my lawyer explained explained to me all
the consequences you know, all the what
will happen next after this. And I believe,
you know, it will be for my to the best of
my it will be for the best of myself, and
that is what I believe, too that [it is]
good for me to accept this this decision.
After evaluating all of this
information, Schmitt concluded that Vizcarra-
Medina had no colorable argument for
withdrawing his plea.
Schmitt acknowledged that Vizcarra-
Medina may not have known the precise terms
of the plea agreement until shortly before
the change-of-plea hearing on June 14, 2004
and that Vizcarra-Medinas former attorney,
Gardner, may have violated his duty to keep
Vizcarra-Medina reasonably informed of the
progress of the plea negotiations. However,
Schmitt noted that Vizcarra-Medina had ample
opportunity [at the change-of-plea hearing]
to express any concerns or questions he may
have had about the [plea] agreement and that
Vizcarra-Medina did not question or object to
any of the terms of the agreement at that
hearing. Based on this, Schmitt concluded:
It is clear, [then], ... that Mr. Medina
accepted the recommendations [of his
attorney].
In other words, Schmitt concluded
that, despite Vizcarra-Medinas current
assertions on these matters, Vizcarra-Medina
had in fact understood and agreed to the
terms of the plea bargain and, thus, there
was no factual basis for withdrawing the
plea.
Superior Court Judge Joel H. Bolger
examined Schmitts certificate and concluded
that it met the requirements of Criminal Rule
35.1(e)(2)(C). Judge Bolger therefore
notified the parties that he intended to
dismiss Vizcarra-Medinas petition for post-
conviction relief.
In response, Vizcarra-Medina filed
a one-page opposition. In his response,
Vizcarra-Medina asserted that he was innocent
of any theft, and he further reiterated his
claim that he did not understand his change
of plea. However, he did not offer any
further details to support that assertion.
Approximately one month later,
based on Schmitts certificate, Judge Bolger
dismissed Vizcarra-Medinas petition for post-
conviction relief.
Why we conclude that the superior court should not have
accepted the attorneys certificate of no arguable merit
In this case, Vizcarra-Medina claimed that he
did not understand key provisions of the plea
agreement. Vizcarra-Medinas post-conviction relief
attorney, Schmitt, concluded that this claim was
effectively rebutted by the other evidence in the case
specifically, the competing account of events offered
by Vizcarra-Medinas former attorney, and the record of
the change-of-plea hearing itself. Because Schmitt
concluded that he could never prove Vizcarra-Medinas
assertions of fact by clear and convincing evidence, he
decided that Vizcarra-Medinas claim for relief was
frivolous. The superior court agreed.
We believe that this approach is flawed
because it rests on a misunderstanding of what
constitutes a frivolous claim for purposes of Criminal
Rule 35.1(e)(2)(C).
Here, Schmitt had admissible evidence (i.e.,
Vizcarra-Medinas testimony) to support the claim that
Vizcarra-Medina failed to understand, and failed to
agree to, key aspects of the plea agreement. It is
true that there was substantial competing evidence, and
it is also true that Vizcarra-Medina bore the burden of
proving his factual assertions by clear and convincing
evidence.2 Given these factors, Schmitt might
reasonably conclude that it was unlikely that a trier
of fact would credit Vizcarra-Medinas version of
events.
But even though the factual basis of a claim
for post-conviction relief may be weak or implausible
even so weak or implausible that the claim appears
virtually certain to fail this does not mean that the
claim is frivolous for purposes of Criminal Rule
35.1(e)(2)(C).
As we explained in Griffin v. State, 18 P.3d
71, 73 (Alaska App. 2001), and as the United States
Supreme Court explained in Smith v. Robbins, 528 U.S.
259, 279-282; 120 S.Ct. 746, 761-62; 145 L.Ed.2d 756
(2000), there is a crucial distinction between a claim
that has no merit, in the sense that the court will
likely rule against the claim, and a claim that is
frivolous, in the sense that no reasonable argument can
be made in favor of the claim.
Here, the validity of Vizcarra-Medinas claim
for plea withdrawal hinges on a question of witness
credibility the conflict between the competing
versions of events and conversations offered by
Vizcarra-Medina and his former attorney, Gardner.
True, the record of the change-of-plea hearing appears
to support Gardners version and to rebut Vizcarra-
Medinas version. But Vizcarra-Medina is apparently
prepared to offer his account under oath, and his
account (if believed) would entitle him to relief.
These two factors, in combination, mean that his claim
is not frivolous.
On this issue, there is a crucial difference
between trial court litigation and appellate
litigation.
After questions of historical fact have been
litigated and resolved by a judge in post-conviction
relief litigation, a litigant who wishes to challenge
the judges resolution of the competing testimony and
the judges assessment of witness credibility must
convince the appellate court that the judges findings
of fact are clearly erroneous.3 Given this standard of
review on appeal, it might well be that any appeal of
the judges factual findings would be frivolous.
But the situation is markedly different
before an evidentiary hearing has been held in the
trial court. True, the law allows the court to grant
summary judgement and thus end the post-conviction
relief litigation short of trial.4 But a judge has no
authority to grant summary judgement based on the
judges pre-trial assessments of witness credibility or
pre-trial assessments of the comparative strength of
the parties cases. Summary judgement is appropriate
only in those instances where, even if all of the non-
moving partys assertions of fact are true, the law
requires a decision in the other partys favor.5
This same principle governs an attorneys
decision to file a certificate of no arguable merit
under Criminal Rule 35.1(e)(2)(C). If the attorney
concludes that, given the governing law, the defendant
would not be entitled to relief even if all of the
defendants underlying assertions of fact were proved,
then the attorney can properly label the defendants
claim frivolous. But the attorneys primary duty is to
the defendant, and the defendant is constitutionally
entitled to the zealous assistance of counsel. Because
of this, unless the attorney knows that the defendant
intends to commit perjury, it is never proper for the
attorney to declare that a claim for post-conviction
relief is frivolous based on the attorneys assessment
of how the judge is likely to weigh the defendants
testimony when resolving the disputed factual issues in
the case.
As we stated in Johnson v. State, 77 P.3d 11,
13 (Alaska App. 2003), A claim is frivolous [only] if
there is no colorable argument that a zealous advocate
could advance in support of the claim. Here, the duty
of a zealous advocate was to allow Vizcarra-Medina to
take the stand and have his day in court even if the
advocate reasonably believed that there was little or
no chance that the superior court would credit Vizcarra-
Medinas testimony.
Conclusion
For the reasons explained here, Vizcarra-
Medinas attorney should not have filed a certificate of
no arguable merit under Criminal Rule 35.1(e)(2)(C),
and the superior court should not have dismissed
Vizcarra-Medinas petition for post-conviction relief
based on the attorneys certificate.
The judgement of the superior court is
VACATED, and the litigation of Vizcarra-Medinas
petition for post-conviction relief shall continue in
the superior court.
_______________________________
1 AS 11.46.140(a).
2 See AS 12.72.040.
3 Dolchok v. State, 639 P.2d 277, 282-83 (Alaska 1982);
Register v. State, 71 P.3d 337, 341-42 (Alaska App. 2003).
4 See Criminal Rule 35.1(f)(3).
5 Peterson v. State, 988 P.2d 109, 120 (Alaska App. 1999).
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