Opinion
Court of Appeals No. A-9283.
June 13, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Richard D. Savell, Judge., Trial Court No. 4FA-00-1360 CI.
Fluer L. Roberts, Fairbanks, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Melvin G. Edwin was convicted of second-degree murder and received a 50-year term to serve. Edwin appealed his sentence, but we affirmed the superior court.
Edwin v. State, Alaska App. Memorandum Opinion and Judgment No. 3510 at 7 (Nov. 27, 1996), 1996 WL 685765 at *3.
Edwin filed an application for post-conviction relief that asserted several grounds, including his contentions that his constitutional rights to testify and to effective assistance of counsel were violated in the trial process. Superior Court Judge Richard D. Savell dismissed Edwin's application.
For the reasons expressed below, we affirm the superior court.
Background facts and proceedings
In January 1995, Edwin killed his longtime companion Patty Hyslop by shooting her in the head. Edwin turned the gun on himself and fired, but his suicide attempt failed. Edwin sustained serious injuries to his face and jaw; his verbal communication was greatly impaired. The State charged Edwin with first-degree murder, and following a jury trial, he was found guilty of the lesser offense of second-degree murder.
Id. at 2, 1996 WL 685765 at *1.
Id.
Id.
Before his trial, Edwin had multiple surgeries in an attempt to repair his face and jaw. Following a period of recovery, and after trial but before sentencing, Edwin was fitted with a prosthetic device, an obturator, that allowed Edwin to speak intelligibly.
More than four years after this court rejected Edwin's sentence appeal, Edwin filed a pro se application for post-conviction relief. He argued that (1) he had received ineffective assistance from his trial attorneys for various reasons, (2) he had involuntarily waived "known and unknown legal rights," (3) the trial court had erred by failing to sua sponte continue Edwin's trial until his ability to speak had been restored, and (4) his sentence was excessive.
The State moved to dismiss Edwin's application, arguing that it was time-barred and that some of his claims were also barred because they could have been asserted in a direct appeal. Judge Savell decided that Edwin's application was not time-barred because he had shown good cause for the delay in filing, but the judge concluded that Edwin's claim regarding the court's failure to sua sponte continue the trial so that he could be fitted with the obturator was barred because that issue could have been raised in a direct appeal. Finally, Judge Savell concluded that Edwin had failed to state a prima facie claim of ineffective assistance of counsel.
See AS 12.72.020(a)(2) (a)(3)(A).
On June 22, 2001, the court issued notice of its intent to dismiss the application unless these deficiencies were addressed in an amended application, due on August 9.
Edwin's attorney died in August 2001 before an amended application was filed. Some time later, Edwin filed a second application for post-conviction relief, claiming that his counsel on the first application was ineffective. Judge Savell granted the application and reopened Edwin's first application.
In 2004, Edwin's new attorney filed a supplemental application for post-conviction relief (based on the first application that was dismissed by Judge Savell). The application contained several claims: (1) Edwin was denied due process and effective assistance of counsel because his inability to verbally communicate rendered him unable to effectively consult with his attorneys and unable to effectively testify before the jury at trial; (2) Edwin's 50-year sentence violated equal protection because it exceeded the Page benchmark range of 20 to 30 years' imprisonment for first felony offenders convicted of second-degree murder; (3) the trial court erred in failing to sua sponte continue the trial; and (4) Edwin's attorneys provided ineffective assistance, both at trial and in handling his appeal.
Page v. State, 657 P.2d 850, 855 (Alaska App. 1983).
Edwin supported his application with his medical records and affidavits from himself and his attorneys. The State moved to dismiss the amended application.
In a written decision dismissing Edwin's application, Judge Savell ruled that Edwin's rights to testify, to participate in his trial, to confront the evidence against him, and to have assistance of counsel were not unconstitutionally burdened by his speech impairment before and during his trial. He also ruled that Edwin had not alleged a prima facie case that his counsel provided ineffective assistance under any of the theories set forth in his application for post-conviction relief. Finally, he rejected Edwin's claims regarding the court's failure to sua sponte continue the trial and the excessiveness of his sentence, because the former claim could have been brought in a direct appeal, and because the latter claim had already been settled by this court and thus could only be challenged by petitioning the Alaska Supreme Court.
Edwin appeals.
Discussion
Edwin first argues that the trial court applied the improper legal standard when reviewing his application for post-conviction relief. He contends that Judge Savell did not construe the facts in the light most favorable to him.
Second, Edwin argues that his constitutional rights were violated by being required to stand trial while he was incapable of oral communication. He argues he was denied the right to testify on his own behalf, and denied the assistance of counsel because he was unable to communicate effectively with his attorneys.
Third, Edwin argues that his trial counsel was ineffective because his attorneys failed to request a continuance, failed to investigate his medical condition, and failed to consult with Edwin and investigate his case.
We review the trial court's findings of fact and accept them unless they are clearly erroneous; we independently review its conclusions of law.
Tucker v. State, 892 P.2d 832, 834 (Alaska App. 1995).
Edwin argues that Judge Savell "misinterpreted the facts in favor of the state." He points out several factual findings in Judge Savell's written opinion and argues that Judge Savell improperly construed the facts in the light most favorable to the State.
When a trial court reviews whether a defendant's application for post-conviction relief states a prima facie case, the court must view all well-pleaded factual allegations in the light most favorable to the applicant.
LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007).
Edwin argues that the trial judge improperly found that Edwin's attorneys "assert by affidavit that Edwin's physicians were uncertain when surgery could be performed and the obturator constructed and fitted, but that it was unlikely to occur prior to trial." An affidavit from one of Edwin's trial attorneys states that the attorney "recall[s] being advised . . . that Mr. Edwin would be having no surgery or medical procedures until after his trial." Judge Savell's characterization of the attorney's affidavit does not improperly construe any fact in a light unfavorable to Edwin.
Edwin argues that Judge Savell improperly construed a note from Edwin's doctor, Dr. Wells. The note reads: "Talked [to] Public Defender — Surgeries will [be] deferred til after trial in Aug." Judge Savell found that the note did not support the assertion that the surgery was delayed in response to Edwin's attorneys' request. Judge Savell recognized his obligation to view the facts and allegations in the light most favorable to the petitioner, but he found that Edwin's factual assertions based on this note were unsupported because the note was not supported by an affidavit from Dr. Wells. Edwin's application could not rest on inadmissible hearsay.
See Id. at 481.
Edwin also argues that Judge Savell improperly found that reconstruction of Edwin's jaw was needed, and that "the delay of the fitting of the obturator may have been at [Edwin's] own request." The citations to the record that Edwin provides do not show any such factual findings, and we have not found any.
We are not convinced that Judge Savell viewed the record or any facts in the record in a light unfavorable to Edwin.
Edwin next argues that his constitutional rights were violated because he went to trial while he was not capable of intelligible speech. Because he was not capable of intelligible speech, Edwin claims he was effectively denied the right to testify on his own behalf, and denied the effective assistance of counsel because he was not able to effectively communicate with his attorneys. But these are claims that Edwin could have raised in a direct appeal from his conviction. Alaska Statute 12.72.020(a)(2) bars an applicant from seeking post-conviction relief on a claim that could have been raised in a direct appeal.
Even so, Judge Savell addressed these issues and ruled that Edwin was not entitled to relief because of his speech deficiency.
Judge Savell presided over Edwin's murder trial and his application for post-conviction relief. At trial, Edwin testified in writing, using an overhead projector during his testimony. Several of his written responses were quite detailed. Edwin's conclusory statement that his testimony was "pat and dry" does not establish a claim for relief.
See id.
Judge Savell compared Edwin's situation to cases dealing with defendants who are not fluent in English and who provide their testimony through a translator. While not a perfect analogy to Edwin's situation, these cases are useful reference points.
See, e.g., Shook v. Mississippi, 2000 WL 877008 (N.D. Miss. June 8, 2000), aff'd, 218 F.3d 1276 (5th Cir. 2001); Thongvanh v. State, 494 N.W.2d 679, 681-82 (Iowa 1993) (holding that a paragraph-by-paragraph translation was acceptable); Stubblefield v. Commonwealth, 392 S.E.2d 197 (Va.Ct.App. 1990).
Edwin distinguishes these cases by pointing out that the jury is able to observe a witness's tone and demeanor when the witness speaks in his or her own language, even if the testimony must then be translated. Because he wrote out his answers, Edwin argues that he was unable to convey his "emotions" and "state of mind" through his written testimony. Edwin claims this was such a disadvantage that it violates due process.
But Judge Savell presided at Edwin's trial. Judge Savell noted that Edwin was able to convey emotions when he testified through body language, vocalization, and written emphasis. He found that Edwin was never rushed or cut off, and that he frequently wrote long, detailed answers.
Under these circumstances, Judge Savell properly dismissed this claim. Edwin does not cite authority to support the contention that a person is denied due process because they have a speech impediment and must use nonstandard communication. People often lack the ability to speak for various reasons. Furthermore, Judge Savell found that Edwin testified effectively and that his demeanor, expression (both vocal and facial), and body language were apparent to the jury. We find that Edwin was not entitled to post-conviction relief due to the fact that he testified before he had regained the ability to speak.
Similarly, Edwin has not shown that he was so unable to communicate with his attorneys that he was denied effective assistance of counsel. One of his attorneys stated that the reason they chose the written method of testimony during trial was they had found Edwin very capable of communicating effectively in writing during their representation. Edwin's bald assertions that full communication was not allowed between himself and his lawyers are not sufficient to support a claim that his right to counsel was denied.
See LaBrake, 152 P.3d at 481.
We next turn to Edwin's claims that he received ineffective assistance of counsel. Under the two-prong test established by the Alaska Supreme Court, an applicant must first show that his attorney did not perform at least as well as a lawyer with ordinary training and skill in criminal law. Under the second prong, the applicant must show a reasonable possibility that the lack of competent performance contributed to the outcome of the accused's case. This standard of competence is violated only if the applicant can prove that no competent attorney would have performed as badly as his trial counsel.
Risher v. State, 523 P.2d 421, 424 (Alaska 1974) (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974)).
Id. at 425.
Tucker, 892 P.2d at 835.
The applicant must overcome a strong presumption that the trial attorney's performance was competent and that the trial attorney's actions were motivated by sound tactical considerations. In order to rebut this presumption, the applicant must rule out the possibility of a tactical reason to explain counsel's actions. This presumption is very difficult to overcome: "[I]f it appears that counsel's actions were undertaken for tactical or strategic reasons, they will be virtually immune from subsequent challenge, even if, in hindsight, the tactic or strategy appears to have been mistaken or unproductive."
State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
Id.
Id.
Edwin identifies two aspects of his attorneys' representation that he claims constitute ineffective assistance: the attorneys' failure to seek a continuance of trial until Edwin was able to communicate vocally and the attorneys' failure to consult with Edwin and investigate his case.
Edwin points to no facts or reasonable inferences that support a finding that his attorneys knew or should have known that he would have been able to have the surgery within a shorter time. One attorney's affidavit stated that she was "unable to determine when Mr. Edwin might undergo further surgery" to enable him to communicate verbally. Although Edwin contends that the note attributed to Dr. Wells (stating that "[s]urgeries will [be] deferred til after trial in Aug") could be read to indicate that his attorneys requested the surgery be delayed, Judge Savell properly ruled that this note was inadmissible hearsay in the absence of an affidavit from Dr. Wells confirming that the attorneys wanted the surgery performed later.
The record shows that Edwin's trial attorneys analyzed Edwin's situation and decided that Edwin could communicate well in writing. After discussing the issue amongst themselves and with other lawyers in their office, the attorneys decided to proceed with Edwin writing answers during his testimony. Thus, the record showed that the attorneys' decision to proceed was tactical. Because the attorneys made a tactical decision, Edwin was obliged to produce evidence that no reasonably competent attorney would have adopted this tactic under the circumstances. Edwin has not identified any evidence on this point.
Id.
Furthermore, Edwin does not address whether a continuance would have been granted had his attorneys requested it.
Id. See State v. Steffensen, 902 P.2d 340, 343 (A laska App. 1995).
Next, Edwin contends that his attorneys did not spend sufficient time with him preparing the case so that the attorneys "underst[ood] his wishes and the defenses available." He also contends that it was ineffective assistance for the attorneys not to have preserved the writings he produced during their meetings and not to have kept detailed notes for the file about their contacts with Edwin. Edwin did not have the attorneys address these specific points in their affidavits, so Edwin's application on this claim is deficient because an application must include an affidavit from trial counsel addressing the attorney's alleged deficiency. Nor has Edwin explained how he was prejudiced by these alleged inadequacies or shown that no competent attorney would have performed as badly as his attorneys.
See Peterson v. State, 988 P.2d 109, 113-14 (Alaska App. 1999); Jones, 759 P.2d at 570.
Edwin argues that he wanted his trial counsel to "call other witnesses to set the scene, develop the character of some witnesses and explain the situation that confronted me." But he does not identify these witnesses, what testimony they would have provided, or how these unidentified witnesses would have "show[n] the jury the entire picture and led to a different conclusion."
We conclude that Judge Savell could properly find that Edwin failed to support his claim that his attorneys provided ineffective assistance of counsel.
Conclusion
The judgment of the superior court is AFFIRMED.