BAKER v. STATE, A-10752 (Alaska App. 8-10-2011)
Court of Appeals No. A-10752.Court of Appeals of Alaska.
August 10, 2011.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge, Trial Court No. 3KN-04-777 CR.
David K. Allen, Attorney at Law, Sechelt, British Columbia, Canada, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
BOLGER, Judge.
Following two trials (the first of which ended in a mistrial), Fred A. Baker was convicted of felony driving under the influence and refusal to submit to a breath test. This court affirmed Baker’s convictions on direct appeal.[fn1] Baker then filed an applicationPage 2
for post-conviction relief, alleging that he received ineffective assistance from his appellate attorney. The superior court denied this application, and this court affirmed the superior court’s ruling.[fn2]
Baker then filed a second application for post-conviction relief — the present litigation — alleging that he received ineffective assistance from his first post-conviction relief attorney. The superior court dismissed this second application on the ground that it failed to state a prima facie claim for relief. Baker now appeals the superior court’s decision.
Baker’s current application for post-conviction relief arises from the fact that his first trial ended in a mistrial. The trial judge declared a mistrial at Baker’s request because the State failed to timely disclose evidence. After the judge declared the mistrial, Baker’s trial attorney moved to dismiss the charges against Baker on double jeopardy grounds. This motion was denied, and Baker was brought to trial a second time — where he was convicted.
When Baker pursued his direct appeal, his appellate attorney decided not to renew the double jeopardy argument.
After this court affirmed Baker’s convictions on direct appeal, Baker filed his first application for post-conviction relief, in which he argued that his appellate attorney was incompetent. But Baker did not argue that his appellate attorney was incompetent for failing to pursue the double jeopardy issue; rather, Baker alleged that his appellate attorney was incompetent for other reasons.
Now, in his second application for post-conviction relief, Baker alleges (1) that his appellate attorney was incompetent for failing to pursue the double jeopardyPage 3
issue in Baker’s direct appeal, and (2) that his first post-conviction relief attorney was incompetent for failing to argue, in the earlier post-conviction relief litigation, that Baker’s appellate attorney was incompetent for failing to pursue the double jeopardy issue.
In support of this second application for post-conviction relief, Baker obtained an affidavit from his first post-conviction relief attorney. The attorney swore that he had reviewed the issue that Baker raised in his application. The affidavit stated that a mistrial was declared in Baker’s DUI trial because a 911 audio recording was disclosed for the first time at trial. The trial judge granted the motion for mistrial at Baker’s request. The trial judge did not make any finding that the prosecutor had intentionally failed to disclose this evidence. Baker was convicted at a second trial after his motion to dismiss was denied.
The first post-conviction attorney stated that he believed that a mistrial granted at the request of the defendant would not bar a second prosecution without a finding that the prosecutor had intentionally provoked the mistrial to avoid an acquittal. Based on this conclusion, the attorney did not see any merit to Baker’s argument that the double jeopardy clause barred his second trial. The attorney decided not to pursue the double jeopardy issue after he reviewed the trial court proceedings and the relevant law.
On a motion to dismiss a post-conviction application, the trial court is required to presume that the allegations in the application are true and then decide whether these allegations would entitle the applicant to post-conviction relief.[fn3] But this presumption does not apply to an applicant’s allegations concerning the law, nor does the presumption apply to conclusory assertions concerning the ultimate facts to bePage 4
decided.[fn4] In particular, when an applicant alleges ineffective assistance of counsel, the application must affirmatively allege why the record would show a substantial flaw in the attorney’s evaluation of the case.[fn5]
Baker’s application involved a “layered” claim of ineffective assistance of counsel because Baker alleged that his first post-conviction relief attorney incompetently failed to pursue the incompetence of his appellate attorney.[fn6] Under these circumstances the application must allege the following elements in order to state a prima facie case. First, the application must allege that the applicant has been diligent in raising the claim of ineffective assistance of post-conviction counsel.[fn7] Second, the application must allege that the post-conviction attorney acted incompetently by failing to attack the competence of appellate counsel.[fn8] Third, the application must allege that the appellate counsel also rendered ineffective assistance by omitting a meritorious issue.[fn9] That is, the application must allege that the issue in question was significantly stronger than the issues that were raised in the appeal and that the appellate attorney had no valid tactical reason for failing to include this issue.[fn10] Finally, the application must allege that if the issue had beenPage 5
properly raised by appellate counsel, then there is a reasonable possibility that the defendant’s appeal would have been successful.[fn11]
In this case there is really no question about whether Baker was diligent in pursuing this claim. But his application has a serious challenge with the three other elements of a prima facie case. These elements raise a serious challenge because it appears that the first post-conviction attorney’s legal analysis was correct.
Double jeopardy normally does not preclude a retrial where a mistrial is declared at the defendant’s request.[fn12] Under current Alaska law, a second trial will be forbidden only if “it is clear that the prosecutor, motivated by a desire to avoid an acquittal in a case which is going badly, engages in purposeful misconduct which forces the court to declare a mistrial.”[fn13]
Baker’s application does not allege that his first post-conviction attorney was incorrect when he determined that the court had not made any findings that the prosecutor acted intentionally when he failed to disclose the 911 audiotape. And Baker’s application does not allege that the first post-conviction attorney was incorrect about his conclusion that, under these circumstances, a mistrial granted at the defendant’s request will not bar a second trial.
These omissions are fatal to Baker’s application. Since there appears to be no merit to the double jeopardy issue, Baker’s application fails to allege how Baker could have been successful on this issue if his appellate attorney had raised it in the first place.Page 6
In other words, the application fails to adequately allege how the appellate attorney rendered ineffective assistance of counsel. And since there was no merit to the double jeopardy issue, the application fails to allege how it was ineffective for the first post-conviction attorney to determine not to pursue this issue.
As noted above, in order to state a prima facie case, a second post-conviction application must affirmatively rebut the presumption of competence. In other words, the application must allege specific facts showing that the first post-conviction attorney’s investigation or strategy was so bad that no competent criminal law practitioner would have handled the case that way.[fn14] In this case, Baker failed to make these required allegations.
We therefore AFFIRM the superior court’s order dismissing the application for post-conviction relief.
[fn1] Baker v. State, 30 P.3d 118 (Alaska App. 2001). [fn2] Baker v. State, Mem. Op. J. No. 5045, 2006 WL 438687 (Alaska App. Feb. 22, 2006). [fn3] LaBrake v. State,152 P.3d 474, 480 (Alaska App. 2007). [fn4] Id. at 481. [fn5] Id. [fn6] See Grinols v. State,10 P.3d 600, 620 (Alaska App. 2000), aff’d, 74 P.3d 889 (Alaska 2003). [fn7] Id. at 619. [fn8] Id. [fn9] Id. at 619-20. [fn10] See Lindeman v. State,244 P.3d 1151, 1158 (Alaska App. 2011) (listing the elements for proof of the incompetence of appellate counsel). [fn11] See id.; Grinols, 10 P.3d at 620. [fn12] State v. Michel, 634 P.2d 383, 386 (Alaska App. 1981),overruled on other grounds by Kott v. State,678 P.2d 386, 390 (Alaska 1984). [fn13] Brandon v. State, 839 P.2d 400, 406 (Alaska App. 1992) (quoting Pruitt v. State,829 P.2d 1197 (Alaska App. 1992)). [fn14] See LaBrake, 152 P.3d at 480.Page 1