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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
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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
| TIMOTHY JUDE LABRAKE, | ) |
| ) Court of Appeals No. A-9189 | |
| Appellant, | ) Trial Court No. 4FA-03-1576 Civ |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2083 February 2, 2007 |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Niesje J.
Steinkruger, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Quinlan
Steiner, Public Defender, Anchorage, for the
Appellant. Diane L. Wendlandt, 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.
Timothy Jude LaBrake appeals the superior courts
dismissal of his petition for post-conviction relief. For the
reasons explained here, with one exception, we agree with the
superior court that LaBrake failed to present a prima facie case
for post-conviction relief and we therefore affirm the superior
courts dismissal of LaBrakes petition in all respects but one.
The one exception is that, for the reasons explained below, we
conclude that LaBrake presented a prima facie case that he is
entitled to reinstate his earlier sentence appeal.
Background facts and procedural history of this
litigation
In 1999, LaBrake was indicted on two counts
of second-degree sexual abuse of a minor,1 based on
allegations that he engaged in sexual contact with a
fourteen-year-old girl, J.M.. The State alleged that
this sexual abuse occurred after J.M.s parents allowed
LaBrake to take J.M. and her ten-year-old sister to a
mining camp outside of Manley Hot Springs.
Here is a summary of the States case, as
revealed by the record:
The parents of J.M. and her sister entrusted
LaBrake with the task of driving the two girls to
Manley Hot Springs. The plan was for the girls to
spend time at a mining claim that was owned by Larry
and Linda Cotton, who were long-time friends of the
family. (LaBrake was working a mining claim nearby.)
LaBrake took the girls to his own mining claim rather
than to the Cottons claim. When the Cottons heard
LaBrakes vehicle and came by his camp, LaBrake refused
to relinquish the girls to the Cottons. An altercation
ensued, and the Cottons ultimately contacted the
authorities.
Sometime later, while LaBrake and the girls
were spending the night in his camper, LaBrake engaged
in sexual contact with J.M.. When LaBrake was later
interviewed about this incident, he told investigators
that fourteen-year-old J.M. had come on to him and that
he had allowed himself to be seduced. LaBrake
acknowledged that he had touched J.M.s thigh and that
he might have rubbed her genitals; he was not sure.
LaBrake further stated that if J.M.s younger sister had
not awakened and interrupted this activity, he probably
would have had sexual intercourse with J.M..
When Larry Cotton was interviewed by the
troopers, he described how LaBrake told him that he had
placed his hand between J.M.s legs, that he had touched
the top of her breast, and that if J.M.s younger sister
had not awakened, he would not have stopped. LaBrake
also told Cotton that he was thinking about committing
suicide, and that he would have to go to jail for what
he had done with J.M..
At the grand jury hearing, J.M. testified
that LaBrake had touched her genitals, and J.M.s
younger sister testified that she had awakened to see
LaBrake messing with her sisters genitals and breasts.
In addition, Linda Cotton testified that LaBrake had
told her and her husband that he had touched J.M., and
that he knew it was wrong, but that he had only felt of
J.M. (as opposed to engaging in intercourse with her).
Second-degree sexual abuse of a minor is a
class B felony carrying a maximum term of imprisonment
of 10 years.2 LaBrake was a first felony offender.
Under Alaskas pre-2005 sentencing law, LaBrake would
not face a presumptive term of imprisonment if he was
convicted. Rather, he would be sentenced under former
AS 12.55.125(k)(2), which set a ceiling of 4 years to
serve (the presumptive term for a second felony
offender convicted of the same offense) unless the
State proved one or more of the aggravating factors
listed in AS 12.55.155(c) or extraordinary
circumstances as defined in AS 12.55.165.
(See Surrells v. State, __ P.3d __, Alaska
App. Opinion No. 2076 (December 8, 2006), 2006 WL
3530602; and Dayton v. State, 120 P.3d 1073, 1079-1081
(Alaska App. 2005) cases in which we fully analyzed
this sentencing statute.)
LaBrakes case was ultimately resolved with a
plea bargain. Under the terms of this plea agreement,
LaBrake pleaded no contest to one of the counts, and
the State dismissed the other. The parties agreed that
LaBrake would receive no more than 4 years to serve
(i.e., the ceiling set by AS 12.55.125(k)(2) in the
absence of aggravating factors or extraordinary
circumstances), although LaBrake agreed that the State
would be free to ask the superior court to impose
additional suspended imprisonment.
In advance of LaBrakes sentencing, the State
filed notice that it was proposing two aggravating
factors under AS 12.55.155(c). The first of these
aggravators was (c)(5): that LaBrake knew or should
have known that J.M. was a particularly vulnerable
victim. The second of these aggravators was
(c)(18)(B): that LaBrake was being sentenced for one
of the sexual felonies defined in AS 11.41.410 458,
and that he had engaged in other conduct prohibited by
AS 11.41.410 460 involving another victim to wit, his
own daughter.
This second aggravator was based on the fact
that LaBrake was investigated in 1985 by the police in
Sheridan, Wyoming on suspicion that he had sexually
abused his daughter. This investigation was commenced
after his daughter (who was not quite three years old
at the time) reported that LaBrake had put his pee-pee
on her pee-pee. Following this police investigation,
LaBrake left Wyoming for several years. He returned to
Wyoming in 1993. Four years later, in 1997, LaBrakes
daughter (who was now fourteen years old) began
spending weekends at his house. In 1998, the Wyoming
police received information that LaBrake had taken
suggestive photographs of his daughter while she was
wearing lingerie. The police searched LaBrakes bedroom
and seized a Polaroid camera and seventeen photographs.
In August 1999, after the Alaska State
Troopers received the report that LaBrake had sexually
abused J.M. at the mining claim, Trooper Susan
Acquistapace interviewed LaBrake about the Wyoming
allegations (as well as the Alaska allegations).
According to Acquistapaces account of that interview,
LaBrake admitted that he had fondled his daughter when
she was a toddler, and that he had purchased lingerie
for her when she was a teenager and had taken
photographs of her wearing the lingerie. In other
words, LaBrake apparently admitted that he engaged in
conduct which, if performed in Alaska, would have
constituted second-degree sexual abuse of a minor under
AS 11.41.436(a)(3) and, potentially, exploitation of a
minor under AS 11.41.455(a).
LaBrakes defense attorney, Robert Noreen, did
not file an opposition to these two proposed
aggravating factors.
(As indicated above, the presence or absence
of these aggravators did not alter the superior courts
sentencing authority in LaBrakes case. Even in the
absence of aggravating factors, AS 12.55.125(k)(2)
allowed the court to sentence LaBrake to any term of
imprisonment up to the 10-year maximum for a class B
felony, so long as the time to serve component of this
sentence did not exceed 4 years. Ordinarily, the
States proof of aggravators would have authorized the
superior court to impose more than 4 years to serve,
but LaBrakes plea bargain capped the time to serve
component of his sentence at 4 years.)
Superior Court Judge Niesje J. Steinkruger
ultimately found both aggravators to be proved.
Nevertheless, Judge Steinkruger adhered to the plea
bargain and sentenced LaBrake to 5 years with 1 years
suspended i.e., 3 years to serve.
Following his sentencing, LaBrake obtained a
new attorney, Thomas E. Fenton. Mr. Fenton filed a
sentence appeal on LaBrakes behalf, arguing that
LaBrakes sentence was excessive and also that the
superior court should not have ordered LaBrake to
undergo treatment for substance abuse as one of the
conditions of his probation. However, Fenton died in
July 2001, while LaBrakes appeal was still in the
briefing stage. LaBrake was not notified of Fentons
death, and no other attorney was appointed to assume
responsibility for the appeal. Because no brief was
ever filed on LaBrakes behalf, the Clerk of the
Appellate Courts dismissed the appeal for want of
prosecution.
In October 2001, LaBrake heard (second-hand)
that his appeal had been dismissed, and he wrote a
letter to Judge Steinkruger. In December 2001, a new
attorney, Marlin Smith, was assigned to represent
LaBrake.
Based on a series of letters that LaBrake
wrote to Smith between September 2002 and March 2003,
it appears that LaBrake and Smith discussed two
different possibilities: (1) seeking to have LaBrakes
sentence appeal reinstated, and/or (2) filing a
petition for post-conviction relief, asking that
LaBrake be allowed to withdraw his plea.
In July 2003, LaBrake filed a petition for
post-conviction relief in which he asked to withdraw
his plea, or to be resentenced, or to be allowed to
reinstate his appeal and amend his points on appeal.
In response, the State filed a motion asking
the superior court to dismiss LaBrakes petition. The
State argued that some of LaBrakes claims were barred
and that, with respect to the remainder, LaBrake had
failed to present a prima facie case for relief.
Attorney Marlin Smith filed an opposition to
the States motion. In this opposition, Smith declared
that LaBrakes primary claim was ineffective assistance
of counsel. According to Smith, LaBrake received
ineffective assistance from his first attorney, Robert
Noreen, in two respects: with respect to the
investigation and consultation that led to LaBrakes
decision to accept the States plea bargain, and with
respect to the litigation of the sentencing hearing.
Smith also argued that LaBrake received ineffective
assistance from his second attorney, Thomas Fenton,
because, after LaBrake enlisted Fenton to file a motion
asking the superior court to allow LaBrake to withdraw
his plea, Fenton instead filed a sentence appeal which
was later dismissed for non-prosecution after Fentons
death.
In May 2004, Judge Steinkruger notified the
parties that, after reading the States motion to
dismiss and LaBrakes response to that motion, she
believed that LaBrakes petition failed to state a prima
facie case for relief. Judge Steinkruger gave LaBrake
twelve weeks to file an amended petition.
LaBrake ultimately filed two supplements to
his petition in which he expanded some of his arguments
and provided new documentation relating to his claims
of ineffective assistance of counsel.
However, even after these new pleadings,
Judge Steinkruger remained convinced that LaBrake had
failed to present a prima facie case for post-
conviction relief. In a nine-page written order, Judge
Steinkruger analyzed LaBrakes claims and dismissed his
petition.
LaBrake now appeals the superior courts
decision.
Did the affidavits and documents filed in support of
LaBrakes petition establish a prima facie case that he
received ineffective assistance of counsel from his
first attorney, Robert Noreen?
LaBrake claims that his petition for post-
conviction relief presented a prima facie case that he
received ineffective assistance of counsel from Robert
Noreen, the attorney who represented LaBrake following
his indictment, who advised LaBrake to accept the
States plea bargain, and who litigated LaBrakes case at
sentencing.
(a) LaBrakes assertions that Noreen failed to
represent him competently during the time leading up
to LaBrakes acceptance of the plea bargain
In his petition, LaBrake claimed that Noreen
did not adequately discuss the case with him and that
Noreen failed to share with him the information in the
States pre-trial disclosures. Thus, according to
LaBrake, he could not intelligently decide whether to
accept or reject the States proposed plea bargain. In
fact, LaBrake claimed that his change of plea was
coerced by counsel.
In support of these claims, LaBrake filed an
affidavit in which he asserted that Noreen had one
short meeting with him about the case before he decided
to accept the States proposed plea agreement. During
this meeting, according to LaBrake, Noreen told [him]
that it was ... Noreens belief that [LaBrake] would
lose at trial, and he convinced [LaBrake] to plead no
contest to one [count] in return for dismissal of the
second [count].
In his affidavit, LaBrake stated that he
believed that Noreen made no investigation of the facts
of the case. In particular, LaBrake stated that he
informed Noreen that he (LaBrake) had a videotape
displaying the physical layout of the camper where the
offense was alleged to have occurred, and that this
videotape showed that the offense could not have
occurred as J.M. and her sister described it.
LaBrake further stated that Noreen failed to
provide [him] with the opportunity to meaningfully
review the Grand Jury proceedings, and that Noreen
sought no information from [LaBrake] ... to determine
what defenses were available. Instead, LaBrake
declared, Noreen bluntly told [him] that he [i.e.,
Noreen] thought that [LaBrake] was lying.
Noreen filed an affidavit in which he
disputed many of LaBrakes assertions. With regard to
LaBrakes claims that Noreen had not worked much on the
case, and that he had met with LaBrake only once or
twice, Noreen asserted that he had numerous conferences
with LaBrake and with members of LaBrakes family, and
that he had sent several letters to LaBrake. Noreen
added that his conferences with LaBrake were longer
than with most clients.
With regard to LaBrakes claim that Noreen had
not supplied him with information about the case,
Noreen stated that he supplied LaBrake with the States
pre-trial disclosure (including grand jury), and that
he discussed these materials with LaBrake.
With respect to LaBrakes assertions that
Noreen had failed to investigate potential defenses,
and in particular the purportedly exculpatory
videotape, Noreen answered that the crucial facts [of
LaBrakes offense] were uncontested and that the States
evidence included a handwritten letter of apology and
endearment from Mr. LaBrake to the child. Noreen added
that, during his investigation of the case, he received
considerable, although not defense-helpful[,] input
from several of Mr. LaBrakes family members.
Noreen stated that when he told LaBrake that,
in his opinion, LaBrake would lose if he went to trial,
LaBrake was unwilling to hear this that LaBrake
unrealistically minimized or rationalized every aspect
of his involvement [in the offense], blaming the
[victims] mother [and his] neighbors in the mining
area.
Noreen further declared that he discussed the
States proposed plea agreement with LaBrake and that,
after LaBrake decided to accept the plea agreement, he
provided LaBrake with the States pre-sentence
memorandum and discussed this memorandum with LaBrake.
When, as in LaBrakes case, a defendant claims
that their attorney gave them incompetent advice or
made incompetent decisions, the defendant must show one
of two things: either (1) that the attorneys choice of
strategy or tactics was so bad that no competent
criminal law practitioner would have handled these
issues the same way;3 or (2) that the attorneys
investigation and preparation of the case was so
inadequate that the attorney had no competent basis for
making decisions (with regard to the matters entrusted
to the attorneys decision) or for rendering advice
regarding the matters entrusted to the defendants
decision.4
Moreover, because the State asked the
superior court to dismiss LaBrakes petition based on
the pleadings alone (i.e., without pre-trial discovery,
and without a trial), the superior court was obliged to
treat all of the well-pleaded assertions of fact in
LaBrakes petition as true, and then decide whether
these assertions of fact (if ultimately proved) would
entitle LaBrake to post-conviction relief.5
Thus, even though Noreen (in his affidavit)
controverted many of LaBrakes assertions of fact, this
is irrelevant to the superior courts decision of the
States motion for judgement on the pleadings. In
deciding this motion, the superior court was obliged to
presume that LaBrakes well-pleaded assertions of fact
were true, notwithstanding Noreens competing affidavit.
For example, LaBrake asserted (in his
affidavit) that Noreen spoke with him only once before
LaBrake decided to accept the States plea bargain, and
that Noreen sought no information from [LaBrake]
concerning potential defenses to the States
allegations. Noreen responded (in his affidavit) that
he spoke with LaBrake several times during this period
and that they discussed LaBrakes view of the charges
but that the crucial facts [of LaBrakes offense] were
uncontested and that LaBrake unrealistically minimized
or rationalized every aspect of his involvement [in the
offense]. Although the record contains these competing
versions of the underlying facts, the superior court
was obliged to presume that LaBrakes statements were
true.
However, this presumption does not apply to
LaBrakes statements concerning the law, or concerning
mixed questions of law and fact (e.g., his assertions
concerning the legal effect or categorization of the
underlying occurrences), nor does the presumption apply
to LaBrakes conclusory assertions concerning the
ultimate facts to be decided.
As explained in Wright and Millers Federal
Practice and Procedure, a court deciding a motion for
judgement on the pleadings need not assume the truth of
the non-moving partys conclusions of law, nor the truth
of the non-moving partys assertions concerning facts
that are legally impossible, or the partys assertions
concerning matters that would not be admissible in
evidence. Moreover, the court need not assume the
truth of assertions that are patently false or
unfounded, based on the existing record or based on the
courts own judicial notice.6 In addition, a court need
not assume the truth of pro forma assertions of the
ultimate facts to be proved when these assertions are
not supported by specific details.7
Thus, for example, LaBrake asserted in his
affidavit that Noreen coerced him into accepting the
States proposed plea bargain. The superior court was
not obliged to presume the truth of this conclusory
assertion about the legal effect of Noreens conduct on
LaBrakes state of mind.8
Likewise, the superior court was not obliged
to presume the truth of LaBrakes conclusory assertion
that Noreen failed to investigate the case. LaBrake
did not claim to have first-hand knowledge that this
was true; rather, this was LaBrakes conclusion or
suspicion based on what he observed. The superior
court did not have to treat this conclusion as true
although the court did have to assume the truth of
LaBrakes assertions concerning the events within his
knowledge that led him to reach this conclusion.
Returning, then, to the assertions in
LaBrakes affidavit, Judge Steinkruger was obliged to
assume that Noreen met with LaBrake only once before
LaBrake decided to accept the States plea bargain. But
this, in itself, does not establish a prima facie case
that Noreens advice to LaBrake (that LaBrake was likely
to lose if he went to trial, and that LaBrake should
accept the plea agreement) was incompetent or was based
on an inadequate investigation of the case.
LaBrake further asserted that Noreen failed
to give him a meaningful opportunity to review the
grand jury record before asking him to make a decision
regarding the proposed plea bargain. But this
assertion is problematic; LaBrake appears to be
conceding that he had some opportunity to review the
grand jury record, although he now believes that this
opportunity was not meaningful. Judge Steinkruger was
not obliged to accept LaBrakes conclusory
characterization of the facts.
Moreover (and more important), LaBrake failed
to assert how or why a closer examination of the grand
jury record would have revealed a substantial flaw in
Noreens evaluation of the case or would have altered a
competent attorneys advice as to whether LaBrake should
accept or reject the States offer.9
LaBrake asserted that Noreen sought no
information from [him] concerning potential defenses to
the charges. This assertion is potentially at odds
with LaBrakes further assertion that Noreen bluntly
told [him] that he thought [LaBrake] was lying about
the offense. It seems unlikely that Noreen would tell
LaBrake that he thought LaBrake was lying unless the
two men were discussing LaBrakes version of events.
But even assuming the truth of LaBrakes
assertion that Noreen never asked him about potential
defenses, LaBrakes petition failed to offer any
potential defenses that a competent attorney in Noreens
position would have pursued.
It is true that, according to LaBrakes
affidavit, he told Noreen that he had a videotape of
his camper which purportedly showed that the girls
description of the inside of the camper was not
accurate. But LaBrakes affidavit fails to describe how
this purported inaccuracy in the girls description
would have created a viable defense to the charges
against LaBrake, or would have caused a competent
attorney in Noreens position to recommend that LaBrake
reject the States proposed plea agreement. LaBrakes
pleadings do not rebut or controvert Noreens assertion
that the crucial facts [of LaBrakes offense] were
uncontested.
LaBrake also asserted that Noreen never
explained that LaBrake would be subject to the
requirements of Alaskas sex offender registration law.
But according to the States motion to dismiss LaBrakes
petition, the requirement of sex offender registration
was explained to LaBrake when he came to court to enter
his plea, and the court gave LaBrake a copy of the
notice informing him that he was obliged to register.
LaBrake never asserted, either at the time he entered
his plea or in his later petition for post-conviction
relief, that he would not have accepted the States
proposed plea agreement if he had known about this
requirement.
Turning to LaBrakes other assertions about
the competency of Noreens representation during the
period leading up to LaBrakes acceptance of the plea
bargain, LaBrake asserted in his affidavit that Noreen
was personally prejudiced against him. LaBrake based
this assertion on the fact that Noreen had told him
that he (Noreen) had a teenage daughter, and that he
was personally strongly opposed to the sexual abuse of
children.
As explained above, the superior court was
not obliged to assume the truth of LaBrakes conclusion
that Noreen was prejudiced against him. Nevertheless,
the court was obliged to assume the truth of LaBrakes
assertions about what Noreen had said to him. The
question, then, is whether the fact that Noreen had a
teenage daughter, and the fact that he felt strongly
about the sexual abuse of children, was sufficient to
establish a prima facie case that Noreen had a conflict
of interest which prevented him from competently
representing LaBrake.
The answer is no. Lawyers are trained and
expected to represent people whose conduct may be
questionable, and whose views on social and moral
matters may differ significantly from the lawyers.
Alaska Professional Conduct Rule 1.2(b)
states that [a] lawyers representation of a client ...
does not constitute an endorsement of the clients ...
social or moral views or activities. The accompanying
Comment clarifies the philosophy behind this rule:
Legal representation should not be
denied to a person whose cause is
controversial or the subject of popular
disapproval. By the same token, [a lawyers
act of] representing a client does not
constitute approval of the clients views or
activities.
Comment, Alaska Professional Conduct Rule
1.2, 4 (Independence from Clients Views or
Activities).
In our prior decisions, we have
clarified that personal difficulties or
animosity between a defense attorney and a
defendant does not constitute a reason for
removing the attorney from the case unless
the attorney-client relationship has
deteriorated to the point where the attorney
is incapable of effective communication with
the defendant or [the attorney is incapable
of] objective decision-making about the
case.10 Thus, although Noreen may have had
strong personal feelings about the sexual
abuse of children, and although Noreen may
have believed that LaBrake was guilty of such
a crime, this in itself would not constitute
a prima facie reason for concluding that
Noreen failed to represent LaBrake
competently and diligently.
LaBrakes affidavit contained one
other assertion bearing on Noreens
potentially conflicting interests. LaBrake
asserted that Noreen mentioned that he was
representing J.M. in unrelated litigation,
and that even though Noreen assured LaBrake
that this shouldnt present any conflict,
Noreen never actually asked LaBrake whether
he wished to object to this potentially
conflicting representation.
Although this issue was initially
litigated in connection with the States
motion for judgement on the pleadings, Judge
Steinkrugers decision on this issue actually
represented a grant of summary judgement
because the litigation of this point went
forward to pre-trial discovery.
After LaBrake filed an affidavit
asserting that Noreen had told him that he
was representing J.M. in an unrelated case,
Noreen filed a responding affidavit in which
he declared that this was not true that he
had not represented J.M. in any child-in-need-
of-aid case.
After Noreen filed his affidavit,
LaBrakes attorney filed a motion asking Judge
Steinkruger to examine, in camera, the
records of certain juvenile proceedings.
LaBrakes attorney acknowledged that Noreen
might not have represented J.M. in a child-in-
need-of-aid case, but LaBrakes attorney
asserted that J.M. had been both a
perpetrator and a witness in a vehicle theft
case that was litigated in juvenile court
around the time that Noreen was appointed to
represent LaBrake. LaBrakes attorney asked
Judge Steinkruger to examine the courts
confidential records to find out which lawyer
was appointed to represent J.M..
After the State announced that it
had no objection to Judge Steinkrugers
examining the pertinent files, Judge
Steinkruger conducted the requested in camera
review and then issued an order describing
her findings. The judge listed seven
different childrens proceedings files and
told the parties that she had obtained (and
examined) copies of each of them. Judge
Steinkruger then listed all of the attorneys
who had been appointed to represent either a
child or a parent in those seven legal
proceedings. Noreen was not among these
attorneys. Judge Steinkruger told the
parties that she had also examined these
seven files for attorneys who appeared as
guardians ad litem by appointment through the
Office of Public Advocacy. Again, Noreen was
not among those attorneys.
Judge Steinkruger concluded her
order by stating: If [either] party, through
counsel, wishes to review these [copies of
the] files before the court shreds them[,]
they shall file a motion within ten days of
the distribution date of this order. Neither
party responded to the judges offer, and
neither party filed further pleadings
relating to this issue.
Because of the way this issue was
handled, Judge Steinkruger did not
technically grant a judgement on the
pleadings when she resolved this issue
against LaBrake. Rather, this particular
issue (alone among the many issues that
LaBrake raised) went forward to the discovery
process, and the parties apparently stopped
litigating only after they concluded that the
pertinent facts had been fully developed.
Judge Steinkrugers ruling was therefore akin
to a grant of summary judgement.
After Judge Steinkruger reviewed
the court files at LaBrakes request, and
after she found that, contrary to LaBrakes
suspicions, Noreen had had no involvement in
these legal proceedings, and after LaBrake
failed to seek any further discovery from
Noreen or from the court, Judge Steinkruger
could properly conclude that the State was
entitled to judgement on this particular
claim.
For these reasons, we uphold Judge
Steinkrugers dismissal of LaBrakes various
claims that he received ineffective
assistance of counsel from Noreen during the
time leading up to LaBrakes acceptance of the
States plea bargain.
(b) LaBrakes assertions that Noreen failed to
represent him competently in preparation for, and
at, his sentencing
LaBrake also claimed that, in various ways,
Noreen was incompetent in his handling of the
sentencing proceedings.
In his affidavit, LaBrake asserted that he
never saw a copy of the States sentencing memorandum
until after he was convicted and sentenced; LaBrake
asserted that this memorandum was shown to him only
during the preparation of his petition for post-
conviction relief. Although Noreen declared (in his
responding affidavit) that he had provided LaBrake with
a copy of this document, Judge Steinkruger was obliged
to assume the truth of LaBrakes assertion.
But even assuming that LaBrake never received
a copy of this document until after he was sentenced,
LaBrake failed to rebut Noreens assertion that he
discussed the contents of the States pre-sentencing
memorandum with LaBrake. Moreover, LaBrakes affidavit
contains no assertion that earlier possession of the
document might have altered the defense strategy at the
sentencing hearing, or might have altered the outcome
of that hearing.
Next, LaBrake asserted that Noreen failed to
explain that if the State proved aggravating factors at
the sentencing hearing, this could substantially
increase [LaBrakes] exposure to actual time
incarcerated. This contention is demonstrably
meritless. If Noreen failed to explain that
aggravating factors might increase LaBrakes time to
serve, this is because it was untrue. The plea
agreement established a 4-year cap on the time to serve
component of LaBrakes sentence the same limitation
imposed by the governing sentencing statute, former AS
12.55.125(k)(2), in the absence of aggravating factors.
Thus, the States proof of aggravating factors could not
increase [LaBrakes] exposure to actual time
incarcerated.
LaBrake further claimed that Noreen acted
without his authorization when he conceded the States
proposed aggravator (c)(5) (that LaBrake knew or should
have known that J.M. was a particularly vulnerable
victim). In addition, LaBrake asserted that the facts
did not support this aggravator, and that even if the
facts supported this aggravator, the superior court was
prohibited from increasing LaBrakes sentence in
reliance on this aggravator because it overlapped with
the elements of the offense.11
The fact that Noreen conceded aggravator
(c)(5) without LaBrakes express authorization would
only make a difference if, as a matter of law, the
concession of aggravating factors is not a tactical
decision for the defense attorney to make, but is
instead a decision reserved to the defendant
personally.
The division of authority between an attorney
and client is addressed in Alaska Professional Conduct
Rule 1.2(a). As we explained in Simeon v. State, 90
P.3d 181 (Alaska App. 2004), this rule declares that,
in a criminal case, the client has the final authority
to decide what plea to enter, whether to waive jury
trial, whether to testify, and whether to take an
appeal. Id. at 184. We then concluded: 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 ... .
Id.
Our decision in Simeon strongly suggests that
Noreen could decide to concede aggravator (c)(5)
without LaBrakes express authorization. LaBrakes
petition does not address Simeon or provide any other
legal authority on this point. Accordingly, Judge
Steinkruger could properly dismiss this claim.
With regard to LaBrakes assertion that the
facts did not support this aggravator, we note that it
is not enough for LaBrake to assert that aggravator
(c)(5) might reasonably have been disputed. LaBrakes
underlying claim is incompetence of counsel. Thus,
LaBrake was obliged to show that no competent attorney
would have decided to concede aggravator (c)(5), given
the facts of the case and given the fact (as explained
above) that, because of the plea agreement, proof of
this aggravator would not increase LaBrakes sentencing
exposure.
As Noreen explained in his affidavit, LaBrake
was charged with taking two young girls to his mining
camp where ... the ... children had no ability to
leave, and that LaBrake then resisted their removal
when confronted by [the Cottons].
At the sentencing hearing, when Judge
Steinkruger asked Noreen if the defense was contesting
aggravator (c)(5), Noreen answered no although he gave
a slightly different rationale for conceding this
aggravator:
Defense Attorney: No. My client was
[and] Im stating this more for the record,
then my client was aware that the two
[children] were inappropriately cared for by
their mother. ... [H]e recognizes that,
because [they were in their] minority, and
[given the] lack of parental supervision, it
did make them vulnerable.
Judge Steinkruger then found aggravator
(c)(5), based in part on the rationale
explained in Noreens post-conviction relief
affidavit i.e., the fact that LaBrakes act
of taking J.M. to his mining camp (where she
and her sister were alone with LaBrake) made
J.M. more vulnerable to being sexually
abused.
Throughout this discussion, LaBrake
never objected or interjected any other
comment in response to the statements made by
Noreen or Judge Steinkruger. However, toward
the end of the hearing, when Judge
Steinkruger was making her sentencing
comments, she again mentioned that LaBrake
had taken J.M. and her sister to his mining
camp. At this point, LaBrake (speaking to
the judge directly) objected. Here is the
pertinent colloquy:
The Court: It is of great concern [to
me] that Mr. LaBrake lacks the insight that
if a 36-year-old man takes two young teenage
girls and keeps them at a remote site, that
that is not a good situation when he knows
that he had ...
LaBrake: Thats not a true statement,
Your Honor. I never objected to it [before]
because I was just going along, because I
knew I was wrong with what I did. But theres
evidence that you keep referring to, and that
[the prosecutor] keeps referring to, thats
not true. Ive let it go [up until now]
because I did do wrong. But I did not hold
[the girls] by force [at the mining camp].
...
[There] were two camps sitting right
next to each other, not two miles away from
each other. Its physical [fact]; anybody can
go up and look at it ... .
The Court: So youre saying [that] it
was up to [the girls] to leave?
LaBrake: The Cottons [i.e., the family
friends at the nearby mining camp] did not
want those girls; they called them white
trash. Im in the middle of a family feud.
As well as me doing wrong, theres a family
feud going on. Those two families do not
like each other; they hate each others guts.
And, now, its gotten all twisted around ...
and Im caught in the middle of it. ...
Theres a lot of lies ... that Ive let go.
But I did not take [the girls] and force them
to be right there. I did not do that.
The Court: There may not have been
physical force, but the Court finds that Mr.
LaBrake exerted his authority [over the
girls].
Given this record, and given the
fact that proof of aggravator (c)(5) would
not affect Judge Steinkrugers sentencing
authority, LaBrake failed to present a prima
facie case that no competent attorney in
Noreens position would have conceded
aggravator (c)(5).
Finally, LaBrake asserts that, even
if the facts supported this aggravator, Judge
Steinkruger was prohibited from increasing
LaBrakes sentence in reliance on this
aggravator because it overlapped with the
elements of the offense. But LaBrake does
not explain why he believes this.
If Judge Steinkruger had found that
J.M. was particularly vulnerable based solely
on the fact that J.M. was fourteen years old,
LaBrake might have a colorable claim that
this aggravator was implicit in the elements
of his crime (engaging in sexual contact with
a person between the ages of thirteen and
sixteen). But, as just explained, Judge
Steinkruger relied on the fact that LaBrake
took J.M. to his mining camp, where she was
isolated from the help of other adults. This
circumstance does not overlap with the
elements of LaBrakes offense. Thus, Noreen
was not incompetent when he failed to argue
that the law prohibited the State from
proposing this aggravator.
LaBrake also asserted that, at the
sentencing hearing, Noreen acted
incompetently by failing to oppose the States
hearsay evidence supporting aggravator
(c)(18)(B) i.e., the allegation that LaBrake
had previously engaged in improper sexual
conduct with his own daughter in Wyoming.
According to LaBrakes affidavit,
LaBrake kept trying to tell [Noreen that this
alleged sexual abuse] didnt happen that he
had a perfect alibi because he was on distant
military maneuvers at the time. And, with
respect to the allegation that LaBrake had
taken sexually suggestive photographs of his
daughter, LaBrake asserted that this
allegation was false. According to LaBrake,
there was apparently a misunderstanding about
some photos taken by [his daughters]
boyfriend and photos of [his] daughter taken
by [himself].
In his responding affidavit, Noreen
stated that LaBrake never informed him of the
purported perfect alibi defense to the sexual
abuse allegation. Instead, Noreen declared,
[t]here was no evidence to contradict [this]
aggravator. Noreen conceded that the State
of Wyoming failed to pursue criminal charges
against LaBrake, but Noreen asserted that
this was because LaBrake [left] the
jurisdiction after being confronted with
substantial allegations [of criminal
conduct].
Noreens account in particular, his
assertion that he made a tactical decision
not to contest aggravator (c)(18)(B), and a
tactical decision not to require the State to
present live testimony in support of this
aggravator is corroborated by the record of
LaBrakes sentencing hearing.
Toward the beginning of that
hearing, when Judge Steinkruger asked Noreen
if LaBrake was contesting the States proposed
aggravators, Noreen responded There is some
factual data that we disagree with[:] ...
minor issues that my client has brought out
regarding ... the allegation that ... he
encouraged [his daughter] to have sex with
... her boyfriend.
Judge Steinkruger pointed out that
LaBrake had never offered a testimonial
denial of aggravator (c)(18)(B) and that, as
a result, the State was not prepared to
present live witnesses regarding these
allegations.12 The judge then asked Noreen
if LaBrake was now willing to offer the
required testimonial denial:
The Court: Heres the choice: [Either]
I will rely on whats in the pre-sentence
report in determining the sentence [or, if]
there are [disputed] issues in [that report]
which you think bear upon the sentence, ... I
will allow you to [offer] a late testimonial
denial and [then] grant ... the State a
continuance in order to [prepare live
testimony to] meet that [testimonial denial],
if thats how you wish to proceed.
Defense Attorney: I dont [wish to
proceed in that manner], because ... theres
evidence involving [LaBrakes] most recent
involvement with his daughter, [evidence]
that he is in accord with, that justif[ies]
[the aggravator] being considered.
The Court: All right.
Later in the hearing, when Judge
Steinkruger asked Noreen to state the defense
position on aggravator (c)(18)(B), Noreen
told the judge:
Defense Attorney: Heres the factual
basis that [my client] does not dispute: ...
he was under investigation [in Wyoming] and
[he] understands that he had some type of
parental control over his teenage, but
underage, daughter ... in a context where he
took photographs of her in lingerie. And
that is an inappropriate [thing] for a father
to do.
LaBrake made no comment in response to any of Noreens statements
on this issue. Judge Steinkruger then found that
aggravator (c)(18)(B) was proved.
In his post-conviction affidavit, Noreen acknowledged
that LaBrake wanted him to force LaBrakes daughter to
take the stand at the sentencing hearing with regard to
the States allegations of sexual impropriety
apparently by having LaBrake enter a testimonial denial
of the allegations, which would then prevent the State
from relying on hearsay to support the allegations.
Noreen concluded, however, that this course of action
would work to Mr. LaBrakes detriment, and that [it]
lacked merit.
(As explained above, the record shows that the Wyoming
police searched LaBrakes house and found photographs of LaBrakes
daughter wearing lingerie. And, after LaBrake came to the
attention of the Alaska authorities, the state troopers
interviewed LaBrake about the Wyoming allegations. According to
the trooper account of that interview, LaBrake admitted that he
had fondled his daughter when she was a toddler, and that he had
purchased lingerie for her when she was a teenager and had taken
photographs of her wearing the lingerie.)
On the disputed factual issue of whether LaBrake told
Noreen about his asserted alibi defense to the allegations of
sexual misconduct in Wyoming, Judge Steinkruger was obliged to
accept LaBrakes statement as true. However, the question is
whether a competent attorney, after hearing LaBrake assert this
alibi, and after hearing LaBrake assert that the photographs were
a misunderstanding, could still reasonably conclude that it would
be better not to have LaBrake take the stand to contest
aggravator (c)(18)(B).
LaBrakes assertion that he had not engaged in sexual
misconduct with his daughter (either by sexual contact or by
taking sexually suggestive photographs) was contradicted by
LaBrakes own statements to the Alaska State Troopers, and it was
also apparently contradicted by physical evidence in the
possession of the Wyoming police. Moreover, as explained above,
the proof of this aggravating factor would not affect LaBrakes
sentencing exposure.
We conclude that even if LaBrake was willing to take
the stand to controvert these allegations, a competent attorney
could nevertheless decide that it would be better to concede
aggravator (c)(18)(B) rather than have LaBrake enter a
testimonial denial of this aggravator. Thus, LaBrakes petition
failed to present a prima facie case that Noreen represented him
incompetently at sentencing with regard to this issue.
(c) Summary and conclusion with regard to LaBrakes
assertions that Noreen failed to represent him
competently
We have now examined all of LaBrakes claims
against Noreen. With regard to LaBrakes claim that
Noreen labored under a conflict of interest because he
allegedly represented J.M. in another legal proceeding,
we conclude that Judge Steinkruger properly granted
summary judgement to the State after further
investigation of this claim demonstrated that it had no
substance. And with respect to all of LaBrakes other
claims against Noreen, we agree with Judge Steinkruger
that LaBrakes petition and supporting documentation
failed to present a prima facie case of attorney
incompetence.
Accordingly, we uphold Judge Steinkrugers
dismissal of LaBrakes claims against Noreen. We now
turn to LaBrakes claims that he received ineffective
assistance of counsel from his next attorney, Thomas
Fenton.
Did the affidavits and documents filed in support of
LaBrakes petition establish a prima facie case that he
received ineffective assistance of counsel from his
second attorney, Thomas Fenton?
As explained above, LaBrake claimed in his
petition that he asked Thomas Fenton to file a motion
asking the superior court to allow LaBrake to withdraw
his plea, but that Fenton filed a sentence appeal
instead. In LaBrakes supporting affidavit, he
describes the episode this way: I told Mr. Fenton that
I wanted to move to withdraw my plea[, and I explained]
why, [but] Mr. Fenton talked me out of seeking to
withdraw the plea and convinced me to file [a sentence]
appeal instead.
In his petition, LaBrake asserted that Fenton
acted incompetently by talking him out of filing a
motion to withdraw his plea, and filing a sentence
appeal instead. LaBrakes memorandum in support of his
petition states: Without ineffective assistance of
counsel by Mr. Fenton, Mr. LaBrake could have had a
motion to withdraw [his plea] filed and pursued rather
than having to now pursue post conviction relief.
But, as explained above, the superior court
was not obliged to accept this conclusory assertion as
true. And LaBrake provided no facts to support this
assertion of attorney incompetence. In fact, the
record suggests the opposite.
The record contains a letter that Fenton
wrote to LaBrake on June 8, 2000. In this letter,
Fenton informed LaBrake that he had received LaBrakes
court file and that he was reviewing the file for
potential appeal points. Fenton also told LaBrake:
Normally[,] when a person enters a plea of no
contest or guilty, there are no points to
appeal except in unusual circumstances. As I
understand it, you want to appeal your
sentence as being excessive. I also
understand that you want to appeal the
probation condition that requires you to
complete a substance abuse evaluation. Are
there any other points in your mind? Please
let me know.
Two months later, Fenton wrote a follow-up
letter to LaBrake:
This is in reference to your telephone
message of August 4, 2000.
We can use as a point on appeal the fact
that you objected to the use of the Wyoming
crime [i.e., LaBrakes alleged improprieties
with his daughter] in your sentencing. I
have ordered a copy of the hearing and[,] if
the objection appears [in the record], we can
ask the [appellate] court to amend the points
on appeal[,] and the court normally grants
[such a request].
Neither of these letters, nor any
other portion of the record, supports
LaBrakes assertion that he asked Fenton to
file a motion for plea withdrawal, or that
Fenton advised LaBrake against that course.
Moreover, even assuming that LaBrake asked
Fenton to draft and file a motion to withdraw
his plea, and that Fenton did indeed advise
LaBrake not to pursue such a motion, LaBrake
failed to present a prima facie case that
this advice was incompetent. As Judge
Steinkruger noted in her decision, LaBrake
failed to present a prima facie case that he
could establish the manifest injustice
required for a post-sentencing plea
withdrawal.13
In any event, LaBrake does not
advance this claim in his brief to this
Court. Rather, LaBrake presents a different
claim on appeal: that Fenton acted
incompetently by failing to either file
LaBrakes sentence appeal brief or, knowing
that he was seriously ill, make arrangements
to have another attorney assume
responsibility for LaBrakes sentence appeal.
The material facts underlying this
claim are not in dispute: Fenton was
seriously ill, and near death, in the summer
of 2001. He did not file LaBrakes sentence
appeal brief, nor did he arrange for another
attorney to assume responsibility for
LaBrakes appeal and, as a consequence, the
appeal was dismissed for non-prosecution.
It is true, as we described
earlier, that when Judge Steinkruger found
out what had happened, she set about finding
a new attorney for LaBrake who would move to
reinstate the appeal. For reasons that are
not explained in the record, LaBrakes new
attorney Marlin Smith did not pursue the
simple expedient of asking this Court to
reinstate the appeal. Rather, Smith inserted
this issue into LaBrakes petition for post-
conviction relief.
Smith may have chosen to handle the
matter this way because he perceived that the
sentence appeal issue would be moot if
LaBrake succeeded in his efforts to withdraw
his plea. In any event, LaBrakes petition
for post-conviction relief clearly presented
a prima facie case for reinstating his
sentence appeal. Accordingly, we reverse the
superior courts dismissal of this claim.
Conclusion
We uphold the superior courts decision in all
respects but one: LaBrake presented a prima facie
case that he should be allowed to reinstitute his
sentence appeal. With respect to that claim, the
judgement of the superior court is REVERSED, and
LaBrakes case is remanded to the superior court
for further proceedings on that claim. In all
other respects, the judgement of the superior
court is AFFIRMED.
_______________________________
1AS 11.41.436(a)(5).
2AS 11.41.436(b); AS 12.55.125(d).
3See Risher v. State, 523 P.2d 421, 424 (Alaska 1974)
(holding that the test for ineffective assistance of counsel
in criminal cases is whether the attorneys conduct fell
below the minimal range of competence required of an
attorney who has ordinary training and skill in the criminal
law).
4See State v. Jones, 759 P.2d 558, 570-71 (Alaska App. 1988)
(recognizing that an attorneys investigation of a case may
be so incompetent as to exclude the possibility that the
attorneys decisions were the fruit of sound tactical
choice).
5J & L Diversified Enterprises, Inc. v. Anchorage, 736 P.2d
349, 351 (Alaska 1987) (an appellate court reviewing a
dismissal on the pleadings must accept as true all
well-pleaded allegations of fact contained in the appellants
trial court pleadings); Steffensen v. State, 837 P.2d 1123,
1125-26 (Alaska App. 1992) ([W]hen the superior court
decides whether the defendants petition states a prima facie
case for relief, the superior court is obliged to view the
factual allegations of the defendants petition in the light
most favorable to the defendant.); Jones, 759 P.2d at 565
(the superior courts ruling on a motion for judgement on the
pleadings under Criminal Rule 35.1(f) is equivalent to a
ruling on a motion under Civil Rule 12(c) for judgement on
the pleadings).
6Charles Alan Wright and Arthur R. Miller, Federal Practice
and Procedure (3rd edition, 2004), 1368, Vol. 5C, pp. 243-
45.
7Id., 1368, Vol. 5C, p. 255.
8See Kohen v. H. S. Crocker Co., 260 F.2d 790, 792 (5th Cir.
1958) (rejecting the argument that the court was obliged to
presume the truth of the non-moving partys claims that the
other partys actions constituted compulsion, coercion, or
duress).
9See Steffensen v. State, 837 P.2d 1123, 1127 (Alaska App.
1992) (Steffensen ... faults his attorney for failing to
review the grand jury record ... . However, Steffensen does
not indicate how such a review ... would have yielded
pertinent information.).
10Walsh v. State, 134 P.3d 366, 371 (Alaska App. 2006),
citing Mute v. State, 954 P.2d 1384, 1385-86 (Alaska App.
1998); Gardner v. State, Alaska App. Memorandum Opinion and
Judgment No. 5064 at 9-11 (March 29, 2006), 2006 WL 829758
at *4-6 (Mannheimer, J., concurring); Wayne R. LaFave,
Jerold H. Israel, and Nancy J. King, Criminal Procedure (2nd
ed.1999), 11.4(b), Vol. 3, p. 554.
11See AS 12.55.155(e).
12See Evans v. State, 23 P.3d 650, 652 (Alaska App. 2001);
Hamilton v. State, 771 P.2d 1358, 1362-63 (Alaska App.
1989) (holding that a sentencing judge can rely on
out-of-court statements described in the pre-sentence
report for proof of the matters asserted unless the
defendant offers a testimonial denial of those matters
and submits to cross-examination, in which case the
State must support its assertions with live testimony).
13See Alaska Criminal Rule 11(h)(3).
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