Opinion
Court of Appeals No. A-10080.
April 22, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, Patrick J. McKay, Judge, Trial Court No. 3AN-05-14471 Civ.
Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant.
Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Marlon Mack was tried by jury and convicted of first-degree murder for strangling his girlfriend. The superior court sentenced Mack to 99 years' imprisonment; in addition, the court exercised its authority under AS 12.55.115 and ordered that Mack would not be eligible to apply for discretionary parole until he served two-thirds of this sentence (as opposed to the normal one-third).
See former AS 33.16.100(d).
This Court affirmed both Mack's conviction and his sentence on direct appeal in Mack v. State, Alaska App. Memorandum Opinion No. 4871 (May 19, 2004); 2004 WL 1126281. Following our decision in Mack's direct appeal, Mack filed a petition for post-conviction relief. In this petition, Mack alleged that he had received incompetent advice from his attorney pertaining to a plea bargain proposed by the State (a plea bargain that Mack rejected).
Under the terms of the State's proposed plea bargain, Mack would have been allowed to plead guilty to the lesser offense of second-degree murder, and he would have been guaranteed no more than 35 years to serve. Both Mack's attorney, Assistant Public Advocate Leslie Hiebert, and Hiebert's supervisor at the Office of Public Advocacy urged Mack to accept the State's offer. Hiebert warned Mack that, because of his prior criminal record, he faced "a very stiff sentence" — a likely possibility of 99 years' imprisonment — if he went to trial and was convicted of first-degree murder. Despite this advice, Mack decided to reject the State's offer and proceed to trial.
In his petition for post-conviction relief, Mack contended that he would have accepted the State's offer if his attorney had informed him of the superior court's authority to restrict his eligibility for discretionary parole. Mack further contended that his attorney's failure to warn him about this aspect of the superior court's sentencing authority constituted ineffective assistance of counsel — i.e., that the attorney's conduct fell below the minimum level of competence expected of criminal law practitioners.
See Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974) (establishing the test for ineffective assistance of counsel in criminal cases under the Alaska Constitution).
When Hiebert filed an affidavit responding to Mack's claim, she stated that she could not recall discussing parole eligibility with Mack, and she conceded that she likely would not have talked to Mack about the superior court's authority to restrict his parole eligibility. But Hiebert asserted her "strong belief" that Mack would not have accepted the State's proposal even if she had discussed this point with Mack.
The superior court did not resolve this disputed issue of fact ( i.e., whether Mack's alleged ignorance of the superior court's authority to restrict his parole eligibility actually affected his decision whether to accept the State's proposed plea bargain). Instead, the superior court ruled that Hiebert's failure to expressly discuss this possibility with Mack did not fall below the minimum level of competence expected of defense attorneys. We agree.
We have previously addressed, and rejected, similar claims of ineffective assistance of counsel.
The defendant in Cole v. State, 72 P.3d 322 (Alaska App. 2003), was charged with first-degree murder, and he chose to go to trial rather than accept a plea bargain that called for him to plead guilty to second-degree murder (with open sentencing). After Cole was convicted of first-degree murder, he filed an application for post-conviction relief based on ineffective assistance of counsel, claiming that he would have accepted the plea bargain if his attorney had informed him that he would potentially be eligible for parole sooner if he was convicted of second-degree murder rather than first-degree murder. Cole, 72 P.3d at 324. This Court held that "an attorney is not required to advise a defendant about parole eligibility [or] to provide . . . an analysis of [the defendant's] potential for parole release". Id.
The defendant in Galvan v. State, Alaska App. Memorandum Opinion No. 4274 (September 20, 2000), 2000 WL 1350597, was indicted for first-degree murder but ultimately accepted a plea bargain under which she pleaded no contest to second-degree murder. At her sentencing for this reduced offense, Galvan received 75 years' imprisonment with 15 years suspended (60 years to serve), but the superior court also restricted Galvan's eligibility for parole: the court ordered that Galvan would not become eligible to apply for parole until she had served the first 30 years of her sentence. Id. at 4, 2000 WL 1350597 at *2.
After this Court upheld Galvan's conviction and sentence on direct appeal, she filed an application for post-conviction relief, seeking to withdraw her plea; Galvan claimed that she would not have accepted the plea bargain if her attorney had warned her of the superior court's authority to restrict her parole eligibility. Id. As this Court noted in our decision, the testimony on this issue revealed that Galvan's attorney "probably failed to advise Galvan that the sentencing judge might restrict her eligibility for discretionary parole", but the attorney did warn Galvan that she probably would not be granted parole even if she applied for it — because according to the attorney, "it was exceedingly rare for any person convicted of any crime of violence to get paroled". Id. at 8, 2000 WL 1350597 at *4. We also noted that, according to the testimony, "it was virtually unprecedented for Southeast Alaska superior court judges to exercise their authority to restrict parole eligibility." Id. at 9, 2000 WL 1350597 at *4.
Based on this record, we concluded that the defense attorney's failure to anticipate that the superior court might restrict Galvan's parole eligibility, and the defense attorney's concomitant failure to advise Galvan concerning this possibility, did not constitute ineffective assistance of counsel. Id. at 9, 2000 WL 1350597 at *5.
We reach the same conclusion in Mack's case. We take judicial notice that, under Alaska law, a sentencing judge must make special findings before exercising their authority under AS 12.55.115 to restrict a defendant's parole eligibility. We also take judicial notice that, at least among the criminal sentences appealed to this Court, the superior court's exercise of this authority is rare. In the nearly three decades that this Court has been in existence, we have issued only twenty-three opinions (including "unpublished" decisions) in which the superior court imposed a restriction on parole eligibility.
See Stern v. State, 827 P.2d 442, 450 (Alaska App. 1992).
We also note that, even though Mack's attorney did not expressly discuss the superior court's authority to restrict Mack's parole eligibility, she did warn Mack that, if he declined the State's proposed plea bargain, there was a good chance that he would spend the rest of his life in jail.
We do not say that a defense attorney is never obliged to discuss parole eligibility with a defendant. For instance, Mack's defense attorney might have had a duty to offer advice on this issue if Mack had told her that he had decided to reject the State's offer of 35 years to serve because, even if he went to trial, was convicted of first-degree murder, and received a sentence of 99 years, he would still be released on parole after serving a third of this sentence — i.e., 33 years. In other words, if the defense attorney had been clearly apprised that Mack's rejection of the plea bargain was premised on a mistaken or unrealistically optimistic appraisal of his chances to obtain discretionary parole, the attorney might have had a duty to offer clarifying advice.
But that is not the situation here. As we explained above, Mack's attorney urged him to accept the plea agreement, and she warned Mack that the alternative — going to trial and being convicted of first-degree murder — might mean that he would spend the rest of his life in prison. Moreover, nothing in the record suggests that Mack's appraisal of the State's offer hinged in any way on the assumption that he would receive normal eligibility for discretionary parole.
Accordingly, we conclude that the defense attorney's failure to explicitly warn Mack of the superior court's authority to restrict his parole eligibility did not constitute ineffective assistance of counsel; that is, it did not fall below the standard of competence expected of criminal law practitioners.
The judgement of the superior court is AFFIRMED.