GOLDSBURY v. STATE, A-8642 (Alaska App. 4-27-2005)
Court of Appeals No. A-8642.Court of Appeals of Alaska.
April 27, 2005.
Appeal from the Superior Court, First Judicial District, Wrangell, Larry C. Zervos, Judge. Trial Court Nos. 1WR-02-00020 CI, 1WR-99-00002 CR.
Michael P. Heiser, Ketchikan, for Appellant.
W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
COATS, Chief Judge.
Charles L. Goldsbury entered no contest pleas to three counts of sexual abuse of a minor in the second degree,[fn1] a class B felony, as part of a plea bargain with the State. Goldsbury attempted to withdraw his plea, but Superior Court Judge Larry C. Zervos denied the motion. Judge Zervos sentenced Goldsbury to a composite term of 12 years with 4 years suspended. Goldsbury appealed to this court, arguing that Judge Zervos erred in refusing to allow him to withdraw his plea. We affirmed Judge Zervos’s ruling.[fn2]
Goldsbury then filed an application for post-conviction relief, arguing that his trial attorney had been ineffective in representing him and that the State had interfered with his right to confer privately with his attorney.
The State moved for judgment on the pleadings. Goldsbury filed an opposition and the State replied. Goldsbury and his trial attorney filed affidavits addressing Goldsbury’s claims. The State then filed a motion for summary judgment. In an extensive written decision, Judge Zervos rejected Goldsbury’s claims. Goldsbury appeals from this decision. We affirm.
Goldsbury’s claims of ineffective assistance of counsel — legal background
The right to assistance of counsel is secured by theSixth Amendment to the United States Constitution and Article I § 11 of the Alaska State Constitution.
To establish ineffective assistance of counsel, the courts apply the two-prong standard set out in Risher v.State.[fn3] First, the defendant must establish that trial counsel failed to provide reasonably competent assistance.[fn4] To establish ineffective assistance, the defendant must show a “level of performance that no reasonably competent attorney would provide.”[fn5] Under the second prong, the defendant must create a reasonable doubt as to whether counsel’s lack of competency contributed to the conviction.[fn6] Furthermore, the defendant has the burden of proving his counsel’s lack of competence by clear and convincing evidence and must rebut the strong presumption that the trial attorney’s actions were the product of sound tactical considerations.[fn7]
Goldsbury’s claims that his trial attorney did not perform an adequate investigation
Goldsbury asserts that his trial attorney was not available for a significant period during the investigative portion of Goldsbury’s case because she was absent from work July 1 through August 15, 1999. The trial was set for October 12, 1999. Due to this absence, Goldsbury claims that the attorney failed to properly investigate and consequently failed to produce exculpatory evidence that would have provided a proper defense. Specifically, Goldsbury claims that the attorney (1) failed to photograph an alleged crime scene, (2) failed to obtain school records of the victims, and (3) failed to provide Goldsbury with a copy of an affidavit of Officer Scott Chafin, the officer who investigated Goldsbury’s alleged offenses, that disclosed the fact that the officer had a sexual relationship with Goldsbury’s wife in 1995.
The attorney’s failure to photograph the crime scene
Goldsbury asserts that his trial attorney refused to visit Goldsbury’s bedroom and to photograph the room in order to prove that Count XI could not have taken place in that location. Count XI was based on a statement of B.L., who stated that Goldsbury sexually abused her on the floor of his bedroom when she was visiting his daughter, S.G., and spending the night. Goldsbury claimed that pictures of the room would show that, because of the size of the room and the clutter in the room, there was insufficient space for the alleged acts to have occurred as B.L. described them. Goldsbury claimed that his trial attorney was unprepared for trial because she did not photograph the crime scene, and he therefore felt compelled to enter into the plea agreement. Goldsbury claimed that his bedroom had been padlocked, that he had the only key for the padlock, and therefore the room was the same as it was when he was indicted.
In her affidavit, Goldsbury’s trial attorney stated, “I did not visit or take pictures of Mr. Goldsbury’s bedroom. Scenes such as houses or bedrooms change over the course of two years so that a photo of a crowded room in 1999 did not have particular probative value as to the state of the room in 1997.”
In denying the petition for post-conviction relief, Judge Zervos made the following three points: (1) Goldsbury did not plead no contest to Count XI, which was therefore dismissed, so the lack of pictures of the bedroom could not have led to Goldsbury’s convictions on the other three counts; (2) Goldsbury changed his plea at the very beginning of the trial. Had the case gone to trial, and if it became an issue, Goldsbury’s trial attorney would have had sufficient time to go to the scene and take pictures for the trial, and; (3) Goldsbury’s claim that the lack of photographs induced him into entering into the plea agreement was “dubious at best” because the evidence was merely impeaching, did not directly address the claim of abuse, and did not address any of the other counts or other victims’ statements.
Judge Zervos’s findings are supported by the record. Goldsbury’s trial attorney gave a tactical reason for not visiting or taking pictures of Goldsbury’s bedroom. She believed it would not be productive to examine the bedroom long after the events in question. Goldsbury has not rebutted the strong presumption of attorney competence — that no competent attorney would have made this tactical decision. Furthermore, as Judge Zervos pointed out, Goldsbury did not show any possibility of prejudice. Count XI was dismissed as part of the plea bargain.
Goldsbury’s claim that his trial attorney failed to obtain school records of the alleged victims
Goldsbury asserts that his trial attorney was ineffective because she did not obtain school records of the victims. In his affidavit, Goldsbury states, “I believed the children’s school records would have shown that they were not in Wrangell at the time of the alleged sexual assaults.” He asserts that his trial attorney refused to obtain the school records. Goldsbury’s trial attorney admits that she did not obtain the school records. She stated that it was possible that the school records might have been useful, but that she did not know of any specific help that they would have provided.
In denying the application for post-conviction relief, Judge Zervos agreed that it was possible that the school records might have been helpful to Goldsbury. But Judge Zervos emphasized the fact that Goldsbury had simply not met his burden of proof of showing that the school records actually had any value.
Judge Zervos’s finding is supported by the record. First, Goldsbury has not shown that any competent counsel would have obtained the school records. Furthermore, Goldsbury has not established that the school records had any value. Goldsbury never obtained the school records and therefore did not show that the school records would have been any use to him. It is not sufficient in an application for post-conviction relief for the applicant to rely on a speculative allegation of harm.[fn8]
Goldsbury’s claim that his trial attorney failed to provide him with Officer Scott Chafin’s affidavit
Goldsbury claims that his trial attorney failed to provide him with a copy of Officer Scott Chafin’s affidavit. Chafin was a police officer with the Wrangell Police Department who was assigned to investigate Goldsbury’s case. According to Chafin’s affidavit, he and Goldsbury’s wife, Debra Goldsbury, had been friends for several years. He stated that although their relationship was not a romantic one, during the summer of 1995, he did have a sexual relationship with her on one occasion.
Goldsbury claims that if he had known of the affidavit, he would have insisted on going to trial rather than accepting the plea agreement. He claims he would have questioned Officer Chafin to show that he was biased against him.
In her affidavit, Goldsbury’s trial attorney stated that Goldsbury had alerted her to Officer Chafin’s relationship with his wife, and therefore she had filed a motion which required Officer Chafin to file the affidavit. She stated that Goldsbury knew the contents of the affidavit and that she thought he read it prior to trial. But she did not remember giving Goldsbury a copy of the affidavit.
In his affidavit in response to his attorney’s affidavit, Goldsbury admitted that he was aware of the contents of the affidavit prior to trial and that he had asked the attorney to bring out this matter at trial. But Goldsbury claimed the attorney stated that this information would not be admissible because to bring out this matter “would be an invasion of privacy.”
In a later affidavit, Goldsbury claimed that he only suspected that his wife had a sexual affair with the investigating officer. He claimed that he did not know that there was any way that he could prove this relationship. He claimed that if he had known of the existence of the affidavit, he would have insisted on going to trial and on “pursuing a line of questioning to show that [Officer] Chafin was prejudiced and biased against me.”
In his order dismissing Goldsbury’s application for post-conviction relief, Judge Zervos concluded that Goldsbury had not shown that his trial attorney was ineffective in how she handled Officer Chafin’s affidavit and the information which she obtained from it. Judge Zervos pointed out that “[t]he relationship between Mr. Goldsbury’s wife and Officer Chafin does not seem to have anything to do with the statements of the victims. And it is the statements of the victims that constitute the primary evidence against Mr. Goldsbury.”
Judge Zervos’s findings are supported by the record. Goldsbury has not shown that no competent attorney would have handled the information in Officer Chafin’s affidavit in the way that Goldsbury’s attorney did. Therefore, we agree with Judge Zervos that Goldsbury did not establish that his attorney was ineffective.
Goldsbury’s trial attorney’s handling of the plea negotiations
During the jury selection portion of Goldsbury’s trial, the State made the plea bargain offer which Goldsbury ultimately accepted when the State made its offer. Goldsbury’s trial attorney told him that she thought the offer was favorable and urged him to carefully consider it. The attorney told Goldsbury that, in her opinion, it was unlikely that Goldsbury would win on all counts at trial. The attorney told him that she was particularly concerned with the count that alleged an unclassified felony. Goldsbury asserts that he felt he “had no recourse but to accept the offer” since he believed his attorney would not diligently represent his interests at trial. Goldsbury admits that the attorney was under an ethical duty to convey the offer to him, but he alleges that the manner in which the offer was conveyed indicated the attorney was not prepared for trial and was not prepared to vigorously defend him.
Goldsbury’s attorney confirmed that she discussed the offer with Goldsbury and urged him to carefully consider it. She confirmed that she told Goldsbury it was unlikely he could win on all of the counts at trial and that she was concerned about the unclassified felony, which she concluded would be difficult to prevail on. She stated that Goldsbury was under tremendous pressure to make a difficult decision. But she stated that the decision whether to accept the plea bargain was Goldsbury’s, and that she was prepared to continue with the trial if he wanted to reject the plea bargain.
Judge Zervos found that Goldsbury did not establish that his attorney was ineffective. He noted that, as Goldsbury conceded, the attorney was required to convey the plea bargain offer to Goldsbury. He also concluded that the attorney was required to give Goldsbury her best advice about his chances at trial. He concluded that Goldsbury had not shown that his attorney had been ineffective in conveying the offer to Goldsbury and in the advice that she gave him.
We agree with Judge Zervos’s decision. The Alaska Rules of Professional Conduct provide that a lawyer shall keep a client reasonably informed about the status of a matter undertaken on the client’s behalf and shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions.[fn9] The commentary to Rule 1.4 provides that “[a] lawyer who receives from opposing counsel an offer of settlement . . . or a proffered plea bargain in a criminal case should promptly inform the client of its substance unless prior discussions with the client have left it clear that the proposal will be unacceptable.” The record establishes that Goldsbury’s trial attorney advised Goldsbury about whether or not to accept the plea agreement and Goldsbury ultimately made the decision to accept the plea agreement. Goldsbury has not shown that his attorney was ineffective.
Furthermore, this court extensively reviewed the circumstances of Goldsbury’s acceptance of the plea offer in deciding Goldsbury’s appeal.[fn10] Alaska Statute 12.72.020(a)(2) provides that a claim may not be brought in an application for post-conviction relief if “the claim was, or could have been but was not, raised in a direct appeal from the proceeding that resulted in the conviction[.]” Goldsbury’s claim that his attorney gave him improper advice or that he was unduly pressured into agreeing to the plea agreement was a claim that we rejected in Goldsbury’s appeal. To the extent that Goldsbury has raised new arguments concerning his acceptance of the plea bargain, those were arguments that should have been advanced in the earlier appeal.
Goldsbury’s claim that he was not able to adequately communicate with his attorney
Goldsbury’s attorney lives and works in Sitka. Goldsbury was incarcerated at the Ketchikan Correctional Center. Goldsbury asserts that the majority of his communication with his attorney was via telephone. He claims that the conversations were not private because both jail staff and inmates were able to overhear the conversations. Therefore, Goldsbury claims that he was not able to effectively communicate with his attorney which resulted in ineffective representation.
In denying the petition for post-conviction relief, Judge Zervos relied on AS 12.72.020(a)(2). This statute provides that “[a] claim may not be brought under AS 12.72.010 or the Alaska Rules of Criminal Procedure if . . . the claim was, or could have been but was not, raised in a direct appeal from the proceeding that resulted in the conviction.” Judge Zervos pointed out that to the extent that Goldsbury had a problem with adequately communicating with his attorney, this was an issue which was relevant to Goldsbury’s motion to withdraw his plea. To the extent that Goldsbury had been prejudiced by the inability to communicate with his attorney, this would be a ground which Goldsbury could have and should have raised in the motion to withdraw his plea. Judge Zervos concluded that Goldsbury was therefore barred from raising the issue in his application for post-conviction relief. We agree with Judge Zervos’s decision. Goldsbury’s claim that he was unable to effectively communicate with his counsel could have been brought as part of his motion to withdraw his plea and raised in his appeal of that issue. We accordingly conclude that Judge Zervos did not err in concluding that AS 12.72.020(a)(2) precluded Goldsbury from raising this issue in a post-conviction relief application.
Conclusion
We conclude that Judge Zervos did not err in dismissing Goldsbury’s application for post-conviction relief.
The judgment of the superior court is AFFIRMED.
[fn1] AS 11.41.436(a)(2). [fn2] See Goldsbury v. State, Alaska App. Memorandum Opinion and Judgment No. 4453 (Sept. 19, 2001), 2001 WL 1090622. [fn3] Risher v. State, 523 P.2d 421 (Alaska 1974). [fn4] Id. at 424. [fn5] State v. Jones, 759 P.2d 558, 568 (Alaska App. 1988). [fn6] Risher, 523 P.2d at 424-25; see also Larson v. State,614 P.2d 776, 780 (Alaska 1980) (“Larson must first show that his lawyer’s skill in these two instances fell below that of a lawyer with ordinary training and skill in the criminal law, and second, that this defective performance contributed in some way to this conviction.”); Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). [fn7] Risher, 523 P.2d at 424-25. [fn8] Alexander v. State, 838 P.2d 269, 274 (Alaska App. 1992). [fn9] Alaska Rules of Professional Conduct Rule 1.4(a) and (b). [fn10] Goldsbury, Alaska App. Memorandum Opinion and Judgment No. 4453, 2001 WL 1090622.