Opinion
A-13290
11-24-2021
JOSEPH KAMEROFF, Appellant, v. STATE OF ALASKA, Appellee.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. RuthAnne Beach, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Fourth Judicial District, Trial Court No. 4AK-14-00156 CR Bethel, Nathaniel Peters, Judge.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
RuthAnne Beach, 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
Joseph Kameroff was indicted on four counts of second-degree sexual abuse of a minor after engaging in a sexual relationship with a fifteen-year-old girl. Kameroff also had five other open criminal cases at that time.
AS 11.41.436(a)(1).
Kameroff reached a global plea agreement with the State. Under the agreement, Kameroff would plead guilty to one consolidated count of attempted second-degree sexual abuse of a minor in this case, and the State would dismiss his other open cases. The parties agreed to a mitigating factor and to a sentence of 15 years with 5 years suspended (10 years to serve). A change of plea hearing was held in the superior court, at which Kameroff entered his guilty plea. The court set a separate sentencing hearing.
At the sentencing hearing in October 2017, Kameroff stated that he intended to move to withdraw his guilty plea. The superior court granted a continuance to allow Kameroff to file a motion to withdraw his plea. Multiple status hearings were subsequently held and conflict counsel was appointed to advise Kameroff. However, Kameroff did not file a motion to withdraw his plea.
At an April 2018 status hearing, Kameroff suggested that he no longer wished to withdraw his plea, but his new attorney asked for a continuance to allow her more time to meet with Kameroff. In July 2018, one of Kameroff's attorneys represented that he had spoken to Kameroff and that Kameroff had decided not to try to withdraw his plea in this case. The superior court indicated that it would be unwilling to grant more continuances and strongly encouraged Kameroff to make a final decision about his plea before the next hearing, set for September 2018.
At the sentencing hearing in September, Kameroff once again stated that he wished to file a motion to withdraw his guilty plea and his attorney requested another continuance to do so. The court denied the request for a continuance and proceeded with sentencing, imposing the agreed-upon sentence.
On appeal, Kameroff concedes that the superior court did not abuse its discretion in denying his request for another continuance. He also concedes that the superior court could not abuse its discretion with respect to a motion to withdraw his plea because there was no such motion before the court. Finally, he concedes that he cannot argue ineffective assistance of counsel on direct appeal.
See Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984) (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).
Instead, Kameroff argues that the court failed to ensure that his rights to due process and counsel were protected. According to Kameroff, the superior court should have asked his attorneys about their failure to file the motion to withdraw his plea. But Kameroff cites no authority to support his claim that the court was obliged to sua sponte undertake the inquiries he believes should have been made.
Kameroff also argues that requiring him to pursue plea withdrawal in a post-conviction relief action rather than in the criminal case is prejudicial because he must show "manifest injustice" and satisfy the Risher standard to show ineffective assistance of counsel, while pre-sentencing plea-withdrawal only requires a"fair and just reason." But Risher's prejudice prong requires Kameroff to show that he would have prevailed on a pre-sentence plea-withdrawal claim, and under this approach Kameroff's claim is analyzed using the pre-sentence "fair and just reason" plea-withdrawal standard. Moreover, to the extent that Kameroff's plea-withdrawal claim is predicated on ineffective assistance of counsel - and Kameroff's counsel at sentencing said that it was not - such a claim is evaluated under the same standard, whether litigated in a plea-withdrawal motion in the criminal case or in a post-conviction relief action. Ultimately, Kameroff acknowledges that "the post-conviction [relief] procedure would certainly be better-suited to develop the record," and we agree.
Risher v. State, 523 P.2d 421 (Alaska 1974); Alaska R. Crim. P. 11(h)(2)-(3).
See Lott v. State, 836 P.2d 371, 376-78 (Alaska App. 1992).
Accordingly, the judgment of the superior court is AFFIRMED.