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NOTICE
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
MERLE G. WILSON, )
) Court of Appeals No. A-10361
Appellant, ) Trial Court No. 1JU-03-451 CI
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) No. 2286 - December 17, 2010
)
Appeal from the Superior Court, First Judicial District, Juneau,
Michael A. Thompson, Judge.
Appearances: Colleen A. Libbey, Libbey Law Offices, LLC,
Anchorage, for the Appellant. W. H. Hawley, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Daniel S. Sullivan, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
COATS, Chief Judge.
Merle G. Wilson appeals from Superior Court Judge Michael A.
Thompson's dismissal of his application for post-conviction relief. In his application,
Wilson claimed that he entered a no-contest plea to assault in the second degree for an
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alleged assault on Judith MacDonald only after being assured by his attorney that a no-
contest plea could not be used against him by MacDonald in a trial for civil damages.
But when MacDonald later sued Wilson for damages, the court ruled that Wilson was
collaterally estopped from contesting the elements of the assault conviction.
Wilson filed an application for post-conviction relief, claiming that he had
received ineffective assistance of counsel in entering his plea, that he would not have
entered the no-contest plea if he had received accurate advice, and asking to withdraw
his plea. Judge Thompson ruled that Wilson's application failed to establish a prima
facie case and dismissed the application. Wilson appeals. We conclude that Wilson's
application was sufficient to establish a prima facie case. We accordingly reverse Judge
Thompson's dismissal of Wilson's application.
Factual and procedural background
Judge Thompson dismissed Wilson's application on the pleadings for
failure to set out a prima facie case. A court should dismiss an application for failure to
make a prima facie case only when the facts alleged in the application, if true, would not
entitle the applicant to relief.1 We therefore set out the facts in the light most favorable
to Wilson's claim.
Wilson was indicted for assaulting MacDonald based upon an incident that
occurred April 2, 2001. According to Wilson's affidavit, he expected MacDonald to sue
him civilly. Wilson stated that his attorney agreed that it was likely that MacDonald
would sue him for damages based upon the alleged assault. Wilson stated that his
attorney advised him "that a no-contest plea could not be used in a civil trial as proof of
1 DeJesus v. State, 897 P.2d 608, 617 (Alaska App. 1995); State v. Jones, 759 P.2d 558,
565 (Alaska App. 1988); Alaska R. Crim. P. 35.1(f)(1).
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Mrs. MacDonald's allegations." Wilson stated that based on this advice, he entered a no-
contest plea to assault in the second degree. Wilson stated that he did not believe he was
guilty of any criminal wrongdoing and that he would not have entered the no-contest
plea if he had understood that the plea would prejudice him in a later civil case.
Wilson pled no contest to assault in the second degree2 on November 5,
2001. Superior Court Judge Larry Weeks sentenced Wilson to four years with all but six
months suspended.
In March of 2003, MacDonald sued Wilson based upon the alleged assault.3
Wilson represented himself. Superior Court Judge Michael A. Thompson granted
summary judgment against Wilson. He concluded that Wilson's no-contest plea in his
criminal case collaterally estopped Wilson from contesting that he had assaulted
MacDonald.4 In a trial on damages, a jury awarded MacDonald $75,000 in damages and
$135,000 in punitive damages.5 In Wilson v. MacDonald, the Supreme Court upheld
Judge Thompson's ruling granting summary judgment against Wilson.6 In addressing
Wilson's argument that, when he pled no contest he was not aware that it would have
consequences in the later civil case, the Supreme Court stated that "[s]ince this is a
question as to the validity of the plea itself, it should be resolved through a motion for
post-conviction relief or an appeal in the criminal case."7
2 AS 11.41.210(a)(2).
3 Wilson v. MacDonald, 168 P.3d 887, 888 (Alaska 2007).
4 Id. at 888.
5 Id.
6 Id.
7 Id. at 889 (footnote omitted).
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Wilson filed an application for post-conviction relief. In the application,
Wilson asked the court to allow him to withdraw his plea. Wilson contended that his
plea should be withdrawn because it was not knowing and voluntary and because he
received ineffective assistance of counsel. These claims are based upon Wilson's
contention that his counsel misinformed him of the effect that a no-contest plea would
have on the civil litigation. He also contended that he should be allowed to withdraw his
plea because his counsel was ineffective in responding to prosecutorial misconduct.
Judge Thompson dismissed Wilson's application on December 10, 2008.
Why we conclude that Wilson's application established a prima
facie case to withdraw his plea
As we have previously stated, in determining whether Wilson established
a prima facie case, we are to look at the facts in the light most favorable to Wilson's
claim. After imposition of sentence, a defendant "must prove that withdrawal is
necessary to correct a manifest injustice."8 "Withdrawal is necessary to correct a
manifest injustice whenever it is demonstrated that ... [t]he defendant was denied
effective assistance of counsel ... ."9
Normally, in evaluating a claim that a defendant received ineffective
assistance of counsel, courts apply a strong presumption that counsel was competent and
presume that the trial counsel's actions were motivated by sound tactical
considerations.10 In order to establish a claim of ineffective assistance of counsel, a
8 Alaska R. Crim. P. 11(h)(3).
9 Alaska R. Crim. P. 11(h)(4)(A).
10 Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674
(1984); Jones, 759 P.2d at 569.
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defendant must rule out the possibility that counsel's decisions were made for a tactical
11
reason. But a claim that a defendant received ineffective assistance of counsel in
deciding whether or not to enter a plea to a criminal charge is different. This is because,
unlike most decisions, the decision whether or not to enter a guilty or no-contest plea is
ultimately a decision for the defendant to make.12
According to Wilson, he would not have entered a no-contest plea if he had
been aware that the plea would prejudice him in defending the civil case that he was sure
that MacDonald would file. Thus, Wilson alleged that his representation was ineffective
because his attorney gave him incorrect advice regarding the effect of a no-contest plea.
One of the reasons that Judge Thompson rejected this claim was on the
ground that the issue was collateral to the criminal case. He reasoned that Wilson hired
the attorney only to represent him in the criminal case. Wilson represented himself in
the civil case. Courts have drawn a distinction between direct and collateral
consequences of criminal convictions. For instance, in Tafoya v. State,13 the Alaska
Supreme Court ruled that a defense attorney's failure to inform Tafoya of the possibility
that he might face deportation was not ineffective assistance of counsel because
deportation was a collateral, rather than a direct, consequence of a conviction.14 But
Wilson raised a different claim in his application for post-conviction relief. He did not
11 Jones, 759 P.2d at 569.
12 Alaska R. Prof. Conduct 1.2(a); see Love v. State, 173 P.3d 435, 435-37 (Alaska App.
2007).
13 500 P.2d 247 (Alaska 1972).
14 Id. at 252; see also Peterson v. State, 988 P.2d 109, 115 (Alaska App. 1999) (holding
that sex offender registration is a collateral consequence to a conviction for a sex offense); see
generally 5 Wayne R. LaFave, Criminal Procedure § 21.4(d), at 171-73 (2d ed. 1999 & Supp.
2006).
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claim that his attorney neglected to advise him about the consequences that his no-
contest plea might have on a later civil case. Wilson alleged that both he and his attorney
were aware that MacDonald would file a civil case, that the civil case was of critical
importance to Wilson, that Wilson specifically asked for legal advice about the possible
consequences of the no-contest plea in the civil case, and that the attorney assured him
that the no-contest plea would not prejudice him in the civil case. Wilson contended that
this fell below the standard of care set out in Risher v. State,15 and that he would not have
entered the plea except for this advice.
Cases decided subsequent to Tafoya support Wilson's claim. In United
States v. Kwan,16 the defendant pled guilty to bank fraud after his attorney assured him
that deportation "was not a serious possibility."17 This advice was incorrect. Federal law
made Kwan's deportation almost certain.18 The Ninth Circuit stated that "where, as here,
counsel has not merely failed to inform, but has effectively misled, his client about the
immigration consequences of a conviction, counsel's performance is objectively
unreasonable under contemporary standards for attorney competence."19 In Padilla v.
Kentucky,20 Padilla pled to drug charges which made his deportation "virtually
mandatory."21 Padilla alleged that he would not have entered a guilty plea if he had not
15 523 P.2d 421 (Alaska 1974).
16 407 F.3d 1005 (9th Cir. 2005).
17 Id. at 1008.
18 Id. at 1009.
19 Id. at 1015.
20 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).
21 Id. at 1478.
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received incorrect advice from his attorney. The Supreme Court of Kentucky denied
Padilla's post-conviction relief application, concluding that deportation was a collateral
consequence of the conviction and therefore "neither counsel's failure to advise [Padilla]
about the possibility of removal, nor counsel's incorrect advice, could provide a basis for
relief."22 The United States Supreme Court reversed, holding that Padilla's contentions,
if proven, would establish that he received ineffective assistance of counsel in entering
his plea.23
In Padilla, the Supreme Court did not consider whether a distinction
between direct and collateral consequences was generally appropriate, because "of the
unique nature of deportation."24 The court also refrained from distinguishing between
failing to advise and providing incorrect advice, instead simply finding that Padilla's
counsel had provided assistance that fell below the requisite standard of care.25 Given
these cases, we conclude that Wilson's claims, if proven, would establish that he received
ineffective assistance of counsel.
In rejecting Wilson's application, Judge Thompson also relied upon an
observation that, at the time Wilson's attorney advised him in 2001, the law was unclear
about the effect of a no-contest plea on civil litigation. Judge Thompson pointed out that
in Burcina v. Ketchikan,26 decided in 1995, the court held that "a civil plaintiff [was]
collaterally estopped from relitigating any element of a criminal charge to which he has
22 Id.
23 Id. at 1483.
24 Id. at 1481.
25 Id. at 1483-84.
26 902 P.2d 817 (Alaska 1995).
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pled [no contest]."27 It was not until 2006, in Lamb v. Anderson,28 well after Wilson's
attorney advised him, that the Supreme Court extended the rule to collaterally estop
defendants in civil cases.
In support of his claim of ineffective assistance of counsel, Wilson filed a
letter from an attorney experienced in defending criminal cases, Sydney K. Billingslea.
Ms. Billingslea stated in her letter that, in her opinion, Wilson's attorney's failure to
accurately advise Wilson in 2001that a no-contest plea would offer him no protection in
a civil suit, and "would in fact serve to admit the facts of the charge as surely as a guilty
plea," would amount to ineffective assistance of counsel.
At oral argument on appeal, the attorney for the State pointed out that Ms.
Billingslea's opinion was set out in a letter, not an affidavit. But the State never raised
any objection in the trial court to the fact that Ms. Billingslea's opinion was not
submitted in affidavit form. Under these circumstances, we conclude that the trial court
was required to consider Ms. Billingslea's opinion in deciding whether to dismiss the
application for post-conviction relief or, in the alternative, to give Wilson an opportunity
to remedy any deficiency before ruling.29
Ms. Billingslea's report supports the contention that after the decision in
Burcina, when a criminal defendant asked an attorney about the effect of a no-contest
plea on civil litigation, a competent attorney would have foreseen that the no-contest plea
would collaterally estop the criminal defendant from denying that he committed the
assault in civil litigation. We note that, when MacDonald did sue Wilson, Judge
27 Id. at 822 (emphasis added).
28 147 P.3d 736, 742-43 (Alaska 2006).
29 Turnbull v. LaRose, 702 P.2d 1331, 1335 (Alaska 1985); Kvasnikoff v. Weaver Bros.
Inc., 405 P.2d 781, 784 (Alaska 1965).
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Thompson - relying on Burcina and before the Supreme Court decided Lamb - held
that MacDonald was entitled to summary judgment against Wilson based upon Wilson's
no-contest plea. We accordingly conclude that Wilson established a prima facie case that
he received ineffective assistance of counsel in entering his plea.
Wilson's remaining claims were correctly dismissed for failure to
make a prima facie case
Wilson separately contended in his application that his plea must be
withdrawn because his attorney provided ineffective assistance by failing to respond to
prosecutorial misconduct at the grand jury proceeding. Wilson argued that the failure
to move for dismissal of the indictment constituted ineffective assistance. Wilson
separately contended that his plea must be withdrawn because of the prosecutorial
misconduct. Wilson's application was insufficient to provide a prima facie case of these
claims. He presented no evidence that would rebut the presumption that the attorney
made competent tactical decisions in addressing these matters.30 We therefore conclude
that Judge Thompson did not err in dismissing these contentions.
Conclusion
We conclude that Wilson established a prima facie case that he received
ineffective assistance of counsel in entering his plea. We accordingly conclude that
Judge Thompson erred in dismissing Wilson's application for post-conviction relief on
the pleadings for failure to state a prima facie case.
The judgment of the superior court is REVERSED. The case is
REMANDED for further proceedings on Wilson's application for post-conviction relief.
30 See Jones, 759 P.2d at 569; Gaona v. State, 630 P.2d 534, 538 (Alaska App. 1981).
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