Opinion
A-13483
06-29-2022
RISCHELE FORTHOFFER, f/k/a Rischele Huntington, Appellant, v. STATE OF ALASKA, Appellee.
Rischele Forthoffer, in propria persona, Anchorage, Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, Judge Trial Court No. 3PA-18-01800 CI
Rischele Forthoffer, in propria persona, Anchorage, Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
SUMMARY DISPOSITION
Rischele Forthoffer (formerly known as Rischele Huntington) agreed to plead guilty to one count of attempted second-degree sexual abuse of a minor in exchange for dismissal of numerous counts of first- and second-degree sexual abuse of a minor. At open sentencing, the court imposed 10 years with 6 years suspended. Forthoffer did not file an appeal.
AS 11.41.436(a)(3) & AS 11.31.100(a).
Approximately nineteen months after the judgment was entered, Forthoffer filed an application (and later amended applications) for post-conviction relief. Principally, Forthoffer sought to remove a statement from her presentence report asserting that she had performed fellatio on the victim. Forthoffer also argued that her attorney in the trial court provided ineffective assistance because, according to Forthoffer, he had "unilaterally decided not to appeal" her case without discussing the matter with her. The State moved to dismiss Forthoffer's application on multiple grounds.
Ultimately, the superior court dismissed Forthoffer's application as untimely because it was filed outside the eighteen-month statute of limitations. The court also concluded that, in any event, Forthoffer had failed to plead a prima facie case of ineffective assistance of counsel because she did not provide an affidavit from her former attorney or explain why one was unavailable. And the court ruled that any freestanding collateral attack on the language in the presentence report was barred because the claim could have been raised on direct appeal.
AS 12.72.020(a)(3)(A) (providing that, if a conviction is not appealed, an application for post-conviction relief must be filed within eighteen months of the entry of judgment).
See Allen v. State, 153 P.3d 1019, 1021-22 (Alaska App. 2007) ("When a petitioner for post-conviction relief contends that their trial attorney was incompetent in one or more respects, the petitioner is required to seek an affidavit from the trial attorney in which the attorney addresses the petitioner's contentions.").
See AS 12.72.020(a)(2).
In a motion for reconsideration, Forthoffer conceded that her application was time-barred but she nonetheless asked the superior court to reconsider her claims for post-conviction relief. The court denied Forthoffer's motion.
On appeal, Forthoffer does not dispute that her application was time-barred. Nor does she renew her challenge to her former attorney's performance. Rather, Forthoffer maintains that she is entitled to dispute the assertion in her presentence report that she performed fellatio on the victim.
But because Forthoffer's application was dismissed as untimely, the court had no authority to consider her claim on the merits. And even assuming the court had such authority, Forthoffer's challenge to her presentence report was barred by the terms of her plea agreement. As part of her plea agreement with the State, Forthoffer agreed that she would admit the facts as alleged in the police reports. Those reports show that as part of the police investigation, the victim made statements to the investigating officer that Forthoffer had performed oral sex on him. As the superior court explained when dismissing Forthoffer's application, in Alaska, there is no legal distinction between "oral sex" and "fellatio."
AS 12.72.020(d)(1).
See, e.g., Stephan v. State, 810 P.2d 564, 568 (Alaska App. 1991); Leply v. State, 807 P.2d 1095, 1097 (Alaska App. 1991); Murray v. State, 770 P.2d 1131, 1139 (Alaska App. 1989); see also AS 11.81.900(b)(62) (defining "sexual penetration").
Forthoffer argues that her plea agreement was ambiguous and that, as a result, the agreement must be strictly construed against the State. But at Forthoffer's sentencing hearing, the parties expressly agreed on the contours of the plea agreement, which the court accepted. Indeed, although Forthoffer's attorney filed a presentence motion to amend the factual narrative in the presentence report (including the reference to oral sex), the attorney acknowledged at the sentencing hearing that the plea agreement precluded Forthoffer from contesting the facts as alleged in the police reports (and repeated in the presentence report). Forthoffer's attorney therefore waived any direct challenge to the statement in the presentence report regarding oral sex. And Forthoffer never challenged her attorney's actions at sentencing as ineffective. Under these circumstances, Forthoffer is precluded from raising a free-standing challenge to the language in the presentence report in this post-conviction relief application.
See Willard v. State, 662 P.2d 971, 978 (Alaska App. 1983) ("[B]y expressly agreeing to consideration by the sentencing court of the information in the presentence report . . . [the defendant] waived his right to argue on appeal that this information could not be relied upon[.]").
For these reasons, we AFFIRM the superior court's order dismissing Forthoffer's application for post-conviction relief.