Opinion
A-13297
08-11-2021
JAIME HERNANDEZ, Appellant, v. STATE OF ALASKA, Appellee.
Owen Shortell, Law Office of Owen Shortell, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde Ed Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage Trial Court No. 3AN-16-07681 CI, Michael L. Wolverton, Judge.
Owen Shortell, Law Office of Owen Shortell, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Clyde "Ed" Sniffen Jr., Acting Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
SUMMARY DISPOSITION
Jaime Hernandez was convicted, pursuant to a plea agreement, of two counts of third-degree assault and one count of fourth-degree assault. His judgment became final in 1999. After serving his active term of imprisonment for these offenses, Hernandez was extradited to Idaho to serve time for a probation violation. On June 5, 2000, Hernandez, who is not a United States citizen, was served with a notice to appear for a deportation hearing. After the hearing, he was deported to Mexico. Hernandez subsequently returned to the United States.
AS 11.41.220(a)(1)(B), AS 11.41.220(a)(1)(A), and AS 11.41.230(a)(1), respectively.
In 2016, Hernandez filed a pro se application for post-conviction relief in Alaska. In the application, Hernandez alleged that his trial attorney provided him with ineffective assistance of counsel because the attorney did not warn him of the immigration consequences of entering into the plea agreement.
At the time he filed his application, Hernandez was incarcerated in West Virginia.
See Padilla v. Kentucky, 559 U.S. 356, 374 (2010) (holding that counsel engaged in deficient performance by failing to advise the defendant that his plea of guilty made him subject to automatic deportation).
The State moved to dismiss Hernandez's application, arguing, inter alia, that the application was untimely and that Hernandez failed to show any prejudice stemming from the alleged incompetence of his attorney. The superior court ultimately dismissed the application, finding that Hernandez's application failed to state a prima facie claim of ineffective assistance of counsel. Hernandez now appeals.
Although the parties had engaged in some discovery by the time the court entered its order, the order evaluated only the adequacy of the pleadings.
As an initial matter, we note that AS 12.72.020(a)(3)(A) prohibits the court from considering an application for post-conviction relief if the application is filed more than eighteen months after the entry of a final judgment. As the State points out, Hernandez did not file his application until almost seventeen years after the judgment in this case became final and almost six years after the United States Supreme Court issued Padilla v. Kentucky, the opinion establishing that it is incompetent for an attorney to fail to advise a defendant of the immigration consequences of a guilty plea.
At the time Hernandez's judgment became final, the deadline for filing a post-conviction relief application for a non-appealed conviction was two years after the entry of the judgment of conviction. Former AS 12.72.020 (1999). In 2008, the legislature shortened the deadline to eighteen months. SLA 2008, ch. 75, § 26 (enacting the current version of AS 12.72.020).
Padilla, 559 U.S. 356.
In his application for post-conviction relief, Hernandez asserted that it was his "convictions [from] Alaska that held sway at [his] deportation hearing," but he made no effort to explain his delay in waiting until six years after the issuance of Padilla v. Kentucky to file an application for post-conviction relief. Under these circumstances, we question whether Hernandez's application was timely.
But the superior court did not dismiss Hernandez's application as untimely. Rather, the superior court ultimately dismissed Hernandez's application based on its finding that the application failed to set forth a prima facie claim for relief. This ruling is well-supported by the record.
When reviewing the summary dismissal of an application for post-conviction relief, we accept as true the facts contained in the pleadings and any supporting affidavits. We then independently evaluate the adequacy of the application and its supporting affidavits.
LaBrake v. State, 152 P.3d 474, 480 (Alaska App. 2007).
David v. State, 372 P.3d 265, 269 (Alaska App. 2016).
To establish a prima facie claim for ineffective assistance of counsel, an applicant must set out facts that, if true, would establish: (1) that the defense attorney's performance fell below that of a minimally competent criminal law practitioner; and (2) that there was a reasonable possibility that the attorney's deficient performance contributed to the conviction - i.e., that the applicant was prejudiced by the defense attorney's incompetence. Accordingly, an applicant seeking relief from a plea agreement must show that there is a reasonable possibility that the attorney's incompetent representation affected the applicant's decision to accept the negotiated plea agreement.
Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974); Burton v. State, 180 P.3d 964, 968 (Alaska App. 2008).
See Garay v. State, 53 P.3d 626, 628-29 (Alaska App. 2002) ("[T]he question is whether there is a reasonable possibility that this new information would have affected . . . [the applicant's] evaluation of his situation and his decision to accept or reject the State's offer.").
In the present case, the superior court found that Hernandez had failed to allege such facts. In particular, the superior court's order noted that "Hernandez has not stated that he would have rejected a guilty plea and demanded a trial if he had been properly advised on the immigration consequences of a guilty plea." For this reason, the court concluded that Hernandez "has not shown prejudice."
This finding is supported by the record. Hernandez did not allege that his attorney's incompetent representation impacted his decision to enter a guilty plea, nor did he allege that he would have made a different choice had he received different advice or counsel. In other words, Hernandez did not allege facts that, if true, would show a reasonable possibility that the outcome would have been different. We accordingly conclude that the superior court did not err in dismissing Hernandez's application.
We wish to note one additional issue. Hernandez cursorily claims in his reply brief that the superior court erred by failing to give him: (1) notice of its intent to dismiss his application, and (2) an opportunity to correct his failure "to specifically attest that he would have refused the plea." But this Court has held that the superior court is not required to provide the applicant with notice of its intent to dismiss when the court dismisses an application on the grounds put forward in a motion to dismiss. Instead, when the State files a motion to dismiss, this provides the applicant with notice of the application's deficiencies in the same manner as would a notice of intent to dismiss.As a result, if the superior court "dismisses the application for the reasons proposed by the State, the applicant cannot claim surprise or lack of opportunity to cure defects in the original application."
Tall v. State, 25 P.3d 704, 707 (Alaska App. 2001), abrogated on other grounds by David v. State, 372 P.3d 265 (Alaska App. 2016).
Id.
Id.
For these reasons, we AFFIRM the judgment of the superior court.