From Casetext: Smarter Legal Research

Barry v. State

Court of Appeals of Alaska
Feb 3, 1984
675 P.2d 1292 (Alaska Ct. App. 1984)

Summary

holding that, because the trial record is ordinarily insufficient to allow an appellate court to resolve an ineffective assistance of counsel claim on direct appeal, ineffective assistance claims will generally only be addressed on appeal when the claims have been litigated in a new trial motion or in an application for post-conviction relief

Summary of this case from Carney v. State

Opinion

No. 7195.

February 3, 1984.

Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Gerald J. Van Hoomissen, J.

Charles R. Pengilly, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender, Anchorage, for appellant.

Charles M. Merriner, Asst. Atty. Gen., Anchorage, and Norman C. Gorsuch, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.


OPINION


Shawn Barry was found guilty of kidnapping, AS 11.41.300(a)(1)(C), and sexual assault in the first degree, AS 11.41.410(a)(1). Barry received concurrent terms of twenty years for kidnapping and twenty years with five years suspended for sexual assault. He appeals his conviction and sentence. He argues that his trial counsel provided him ineffective assistance (1) in permitting him to waive a jury trial and to proceed before Judge Van Hoomissen and (2) in her general handling of the trial. In addition, Barry argues that under the peculiar facts of this case, sexual assault in the first degree was a lesser-included offense of kidnapping, barring separate sentences. Finally, Barry contends that his sentence for sexual assault was excessive. We reject Barry's sentencing arguments. We conclude that Barry has failed to demonstrate ineffective assistance of counsel on the record presented to this court. Accordingly, we believe a remand is necessary on this issue.

On February 23, 1982, Shawn Barry was indicted on one count of kidnapping in violation of AS 11.41.300(a)(1)(C), and one count of sexual assault in violation of AS 11.41.410(a)(1). Prior to trial, a total of four bail hearings were conducted before Judge Van Hoomissen. At the bail hearings the state opposed the request for lowered bail by relying on information about previously alleged felony charges in Texas and Arizona. The state obtained an FBI "rap sheet" which indicated the defendant had been charged with a controlled substance violation and attempted murder in Texas, and aggravated assault, first-degree burglary, sexual assault and possession of narcotics for sale in Arizona. The state conceded at the first bail hearing before Judge Van Hoomissen that the Arizona charges had been dismissed.

Barry subsequently executed a written waiver of jury trial and the case was tried before Judge Van Hoomissen. The evidence presented at trial established that the victim, R.J., was the bartender at a tavern in Fairbanks. Just before closing on February 12, 1982, she noticed that she and Shawn Barry were alone in the bar. Barry indicated that he had lost his car keys and requested a ride home which R.J. agreed to furnish. They had driven a short distance when Barry told R.J. that he might have left his keys in the restroom at the tavern. They drove back and reentered the bar to look for the keys. At this point the trial testimony of R.J. and Barry began to diverge. R.J. testified that after an unsuccessful search for the keys they left the bar a second time in her vehicle and had almost arrived at Barry's residence when Barry threatened her with what she believed to be a handgun. Barry told her it was a nine millimeter and demanded that she return to the bar. Although she never saw a gun, she drove back to the bar where Barry repeatedly raped her. Barry testified that after they returned to the bar the first time to search for his keys, the couple engaged in consensual intercourse on the tavern floor. After a two-day trial, Judge Van Hoomissen found Barry guilty specifically accepting R.J.'s testimony and rejecting Barry's.

INEFFECTIVE ASSISTANCE OF COUNSEL

Barry questions counsel's competence on two grounds. First he contends that no responsible attorney would have permitted him to waive a jury trial in a case where the trial judge had prior notice of Barry's criminal record. Barry asserts that any trial judge would consciously or unconsciously rely on such evidence in evaluating the defendant's credibility. In addition, Barry contends that his counsel engaged in a number of actions which in retrospect do not appear to have advanced his defense.

In Risher v. State, 523 P.2d 421 (Alaska 1974), the Alaska Supreme Court considered the question of ineffective assistance of counsel and adopted the following test: "`Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client's interest, undeflected by conflicting considerations.'" 523 P.2d at 424 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974)). The court held that if a defendant can show both that his trial counsel failed this test and that the lack of competency contributed to the conviction, then the defendant is entitled to a new trial with new counsel. Id. at 425. The court went on to point out:

At times it may be necessary to remand for an evidentiary hearing on this issue. For example, if on appeal it is contended that trial counsel could have discovered helpful evidence, we might remand for a hearing on that issue. In most such cases, however, the necessity of an appeal and remand may be avoided by first applying at the trial court level for a new trial or moving for post-conviction relief.

523 P.2d at 425 n. 20.

Practically speaking, an appellate court is almost never able to find ineffective assistance of counsel in the absence of an explanation in the record for counsel's actions. As the supreme court of California pointed out in People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859, 867 (1979), an evidentiary hearing is almost always a prerequisite to an effective assertion of ineffective assistance of counsel:

Otherwise, appellate courts would become engaged "in the perilous process of second-guessing." Reversals would be ordered unnecessarily in cases where there were, in fact, good reasons for the aspect of counsel's representation under attack. Indeed, such reasons might lead a new defense counsel on retrial to do exactly what the original counsel did, making manifest the waste of judicial resources caused by reversal on an incomplete record.

Where the record does not illuminate the basis for the challenged acts or omissions, a claim of ineffective assistance is more appropriately made in [an evidentiary hearing at the trial court level]. [T]here is an opportunity in an evidentiary hearing to have trial counsel fully describe his or her reasons for acting or failing to act in the manner complained of. For example, counsel may explain why certain defenses were or were not presented. Having afforded the trial attorney an opportunity to explain, courts are in a position to intelligently evaluate whether counsel's acts or omissions were within the range of reasonable competence. [Citations and footnote omitted.]

See also Comment, Ineffective Representation as a Basis for Relief from Conviction: Principles for Appellate Review, Colum.J.L. Soc.Probs. 1, 87-88 (1977). We agree with the California court's evaluation.

We recognize that no prior evidentiary hearing is necessary when "plain error" appears in the record. Alaska R.Crim.P. 47(b). We caution, however, that we will rarely find "plain error" where counsel may have had strategic reasons for engaging in the conduct in question. Bangs v. State, 663 P.2d 981, 984-86 (Alaska App. 1983).

In this case the issue of effective assistance of counsel cannot be decided on the record preserved. Barry's appeal is representative of an increasing number of direct appeals raising the issue of ineffective assistance of counsel on inadequate records. The issue was not presented to the trial court, and findings of fact and conclusions of law were not adopted regarding each of the defendant's complaints. We have concluded that such claims cannot be effectively reviewed for the first time on appeal. In the absence of plain error, we will henceforth require that the question of ineffective assistance of counsel be argued first to the trial judge either in a motion for a new trial or an application for post-conviction relief. We recognize, however, that Barry and others similarly situated may have omitted to present the issue to the trial court in reliance on Risher v. State, 523 P.2d 421, 425 n. 20 (Alaska 1974). Therefore we will only apply this new rule to appeals filed after the announcement of this decision. In appropriate cases presently pending on appeal we will remand the issue of ineffective assistance of counsel to the trial court to enable the parties to present their arguments and evidence. We therefore remand this case to the trial court for a hearing on Barry's claim of ineffective assistance of counsel.

In summary, henceforth we will not entertain claims of ineffective assistance of counsel on appeal unless the defendant has first moved for a new trial or sought post-conviction relief, supporting the claim with affidavits alleging facts which would establish a basis for relief. If defendant's affidavits establish a prima facie case of ineffective assistance of counsel, the state must then be given an opportunity to file counter affidavits; if material factual conflicts exist or the state requests an opportunity to cross-examine defendant's witnesses then an evidentiary hearing should be held. To the extent that Alaska Criminal Rule 33 places unreasonable time limitations on the presentation of this issue, the trial court should exercise its discretion pursuant to Criminal Rule 53 to provide reasonable time. See Davidson v. State, 642 P.2d 1383, 1389-90 (Alaska App. 1982).

BARRY'S SEPARATE CONVICTIONS AND SENTENCES FOR KIDNAPPING AND SEXUAL ASSAULT

In Count I of the indictment Shawn Barry was charged with unclassified felony kidnapping pursuant to AS 11.41.300(a)(1)(C), which makes it a crime to restrain a person with the intent to sexually assault her. In Count II of the indictment Barry was charged with sexual assault in violation of AS 11.41.410. Barry was convicted of both crimes and sentenced to concurrent prison terms of twenty years for the kidnapping and twenty years with five years suspended for the sexual assault. Barry recognizes that the supreme court has previously held that separate consecutive sentences for kidnapping and sexual assault did not violate the constitutional prohibition against double jeopardy. See State v. Occhipinti, 562 P.2d 348 (Alaska 1977). Barry argues, however, that changes in the elements of the crimes charged, resulting from the adoption of the revised code, render Occhipinti inapplicable.

Barry's argument is based largely upon AS 11.41.300(d), which provides an affirmative defense to an unclassified kidnapping charge when the defendant can prove by a preponderance of the evidence that he "voluntarily caused the release of the victim alive in a safe place before arrest, or within 24 hours after arrest, without having caused serious physical injury to the victim and without having [sexually assaulted the victim]." The successful assertion of this defense reduces the crime from an unclassified felony, punishable by a maximum term of ninety-nine years, AS 12.55.125(b), to a class A felony which subjects the defendant to a maximum term of twenty years, AS 12.55.125(c). Barry points out that this affirmative defense was unavailable to him because of his sexual assault conviction. Thus, he claims that sexual assault was a necessary element of his unclassified felony kidnapping conviction. Barry contends that Judge Van Hoomissen therefore erred in imposing a sentence on the assumption that Barry was subject to a maximum term of ninety-nine years for the kidnapping.

Barry relies on Tuckfield v. State, 621 P.2d 1350 (Alaska 1981), where the court held that sentences for both rape and a lesser-included offense, assault with intent to commit rape, could not be simultaneously imposed. Barry misconceives the effect of the Tuckfield holding, however, for there the court simply vacated the sentence for the lesser-included offense, leaving intact the sentence for the greater offense. A similar order in this case would still require Barry to serve his kidnapping sentence of twenty years.

It is not necessary for us to analyze Tuckfield further because we are satisfied that it has no application to the facts of this case. Whether to permit separate sentences for unclassified kidnapping and sexual assault is a question of legislative intent. Missouri v. Hunter, ___ U.S. ___, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). The legislature clearly did not intend to prevent simultaneous convictions for kidnapping as an unclassified offense and sexual assault. The affirmative defense was intended to encourage kidnappers to release their victims unharmed in the hope of obtaining a limited sentence. The mitigating factor is unavailable if the victim suffers either serious physical harm or sexual assault. R.J. was not released unharmed. Since the affirmative defense has no application to the facts of this case we need not consider it further.

WAS BARRY'S SEXUAL ASSAULT SENTENCE EXCESSIVE?

Barry additionally argues that his sentence of twenty years with five suspended for sexual assault was excessive. At the time of the offense, first-degree sexual assault was a class A felony, former AS 11.41.410(b), punishable by not more than twenty years, former AS 12.55.125(c). The presumptive terms for second and third felony offenders for class A felonies were ten years and fifteen years respectively. AS 12.55.125(c)(2), (3). If the first felony offender used a firearm or caused serious physical injury, the presumptive term was six years. Former AS 12.55.125(c)(1).

Presumptive sentencing provisions were inapplicable to Barry because he was a first offender and Judge Van Hoomissen could not determine whether a firearm had been used. We have examined the facts of this case and conclude that Judge Van Hoomissen was not clearly mistaken in imposing the sentences he did. Where a trial court imposes concurrent sentences for kidnapping and sexual assault, the two offenses cannot be considered in isolation but must be viewed together. Cf. Waters v. State, 483 P.2d 199, 202 (Alaska 1971) (sentences simultaneously imposed for sale of cocaine and armed robbery must be considered together in determining whether either is excessive.) When all the circumstances are considered we do not believe that Barry's total sentence of twenty years is clearly mistaken. See Williams v. State, 652 P.2d 478, 480 (Alaska App. 1982); Davis v. State, 635 P.2d 481, 488 (Alaska App. 1981).

The judgment and sentence of the superior court are AFFIRMED. The case is REMANDED to the superior court for further proceedings regarding Barry's claim of ineffective assistance of counsel.


Summaries of

Barry v. State

Court of Appeals of Alaska
Feb 3, 1984
675 P.2d 1292 (Alaska Ct. App. 1984)

holding that, because the trial record is ordinarily insufficient to allow an appellate court to resolve an ineffective assistance of counsel claim on direct appeal, ineffective assistance claims will generally only be addressed on appeal when the claims have been litigated in a new trial motion or in an application for post-conviction relief

Summary of this case from Carney v. State

holding that, because the trial record is ordinarily insufficient to allow an appellate court to resolve an ineffective assistance of counsel claim on direct appeal, ineffective assistance claims will generally only be addressed on appeal when the claims have been litigated in a new trial motion or in an application for post-conviction relief

Summary of this case from Lee v. State

holding that, because the trial record is ordinarily insufficient to allow an appellate court to resolve an ineffective assistance of counsel claim on direct appeal, ineffective assistance claims will generally only be addressed on appeal when the claims have been litigated in a new trial motion or in an application for post-conviction relief

Summary of this case from Thompson v. Cordle

holding that in the criminal context, absent plain error, ineffective assistance of counsel claims must first be brought to the trial judge as a motion for a new trial or an application for post-conviction relief

Summary of this case from Penn P. v. State, Dep't of Health & Soc. Servs.

holding that, except where the error is “plain,” claims of ineffective assistance of counsel must be brought “either in a motion for new trial or an application for post-conviction relief”

Summary of this case from Foondle v. O'Brien

holding that, because the trial record is ordinarily insufficient to allow an appellate court to resolve an ineffective assistance of counsel claim on direct appeal, ineffective assistance claims will generally only be addressed on appeal when the claims have been litigated in a new trial motion or in an application for post-conviction relief

Summary of this case from Mack v. State

approving a composite sentence of twenty years for kidnapping and sexual assault in the first degree

Summary of this case from Williams v. State

recognizing that the trial record itself is ordinarily insufficient to allow an appellate court to resolve an ineffective assistance of counsel claim on direct appeal, and holding that ineffective assistance claims will generally only be addressed on appeal when they have either been litigated in a new trial motion or an application for post-conviction relief

Summary of this case from Kameroff v. State

stating that plain error is rarely found where counsel may have had strategic reasons for conduct

Summary of this case from Raphael v. State

explaining that ineffective assistance of counsel claims must "ordinarily be litigated in post-conviction relief proceedings rather than raised as claims of plain error on direct appeal" because "the record of the trial proceedings will seldom conclusively establish incompetent representation"

Summary of this case from The Estate of Nordlund v. State

explaining that ineffective assistance of counsel claims must "ordinarily be litigated in post-conviction relief proceedings rather than raised as claims of plain error on direct appeal" because "the record of the trial proceedings will seldom conclusively establish incompetent representation"

Summary of this case from Kuzma v. Municipality of Anchorage

noting that ineffective assistance of counsel claims generally cannot be effectively reviewed on direct appeal

Summary of this case from Sackett v. State

noting that ineffective assistance claims "must ordinarily be litigated in post-conviction relief proceedings" because "the record of the trial proceedings will seldom conclusively establish incompetent representation"

Summary of this case from State v. Carlson

explaining that because an evidentiary hearing is almost always a prerequisite to an effective assertion of ineffective assistance of counsel, appellate courts are almost never the appropriate forum to raise such a claim

Summary of this case from Henry v. State

In Barry, the defendant received concurrent sentences of twenty years for marginal kidnapping and twenty years with five suspended for sexual assault.

Summary of this case from Garrison v. State

In Barry v. State, 675 P.2d 1292 (Alaska App. 1984), we observed that in appeals raising the issue of ineffective assistance of counsel, the trial record will seldom conclusively establish incompetent representation, because it will rarely provide an explanation for the course of conduct that is challenged as deficient.

Summary of this case from State v. Jones

In Barry we concluded that in fairness to the parties, appeals filed prior to publication of our decision would be handled by a remand to the trial court to permit defendants to raise their ineffective assistance of counsel claims.

Summary of this case from Hernandez v. State

interpreting the revised criminal code to permit simultaneous convictions for unclassified felony kidnapping and sexual assault

Summary of this case from Tookak v. State
Case details for

Barry v. State

Case Details

Full title:SHAWN BARRY, APPELLANT, v. STATE OF ALASKA, APPELLEE

Court:Court of Appeals of Alaska

Date published: Feb 3, 1984

Citations

675 P.2d 1292 (Alaska Ct. App. 1984)

Citing Cases

State v. Jones

We will consider the procedural issues first. In Barry v. State, 675 P.2d 1292 (Alaska App. 1984), we…

Yearty v. State

However, this court has previously recognized that kidnapping and sexual assault convictions arising from the…