Opinion
Court of Appeals No. A-10094.
December 31, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge, Trial Court No. 3AN-06-8971 Civ.
Herbert A. Viergutz, Anchorage, for the Appellant.
Tamara E. de Lucia (brief) and Ann Black (oral argument), Assistant Attorneys 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
Gerald Alvin Mahle Sr. appeals the superior court's dismissal of his petition for post-conviction relief. In this petition, Mahle claimed that he received ineffective assistance of counsel from the two attorneys who previously represented him in a drug case. In particular, Mahle argued that his pre-trial attorney and his trial attorney incompetently failed to pursue a claim (1) that all of the evidence against Mahle was illegally obtained, and (2) that, as a result, the indictment against Mahle should have been dismissed.
The primary evidence against Mahle was the testimony of two informants to whom Mahle sold a controlled substance, plus the controlled substance itself. Mahle's drug sale to one of these informants was recorded pursuant to a Glass warrant.
See State v. Glass, 583 P.2d 872 (Alaska 1978) (holding that, under the Alaska Constitution, the police must obtain a warrant before engaging in the electronic monitoring and/or recording of conversations between criminal suspects and undercover officers or informants).
Mahle's trial attorney made a motion to suppress, arguing that the Glass warrant had been issued improperly. The trial judge, Superior Court Judge Stephanie E. Joannides, agreed. Judge Joannides issued an order suppressing "all evidence obtained pursuant to [the Glass] warrant".
When Mahle was apprised of this order, he interpreted it to mean that the judge had suppressed all evidence of his drug sale. Mahle was mistaken. The remedy for an improper Glass warrant is suppression of the electronic recording (and any testimony describing the content of the recording), but not suppression of the informant's testimony, and not suppression of the physical evidence. The scope of suppression is limited because, even though a Glass warrant is a prerequisite to any electronic monitoring or recording, the police do not need a warrant to send an informant or an undercover officer to engage in a drug transaction with a suspect.
See Jones v. State, 646 P.2d 243, 246-47 (Alaska App. 1982).
Wrongly convinced that the judge had suppressed all of the evidence, Mahle pressed his attorney to file a motion to dismiss the indictment (on the basis that all evidence of Mahle's crime had been suppressed). The attorney refused. When Mahle persisted in trying to file his own pro se motion to dismiss the indictment, the attorney responded with a motion asking Judge Joannides to clarify her ruling — in particular, to clarify that the scope of the suppression was limited to the electronic recording of the drug transaction. In response, Judge Joannides issued an order clarifying that her previous suppression order applied only to the electronic monitoring and recording.
In his petition for post-conviction relief (and now on appeal), Mahle argues that no competent defense attorney would have sought clarification of the suppression order if there was any possibility that the order could be interpreted as suppressing all evidence in the case. And under the same reasoning, Mahle argues that no competent defense attorney would have refused to file Mahle's proposed motion to dismiss the indictment (on the chance that Judge Joannides's order might be interpreted as suppressing all evidence of Mahle's drug sale).
We have examined the record of the post-conviction relief proceedings. Based on that record, the superior court could justifiably conclude that Mahle had failed to prove that his attorney acted incompetently.
First, the record suggests that Mahle's own actions more or less forced his attorney to file the motion for clarification. After Mahle read and misinterpreted Judge Joannides's suppression order, Mahle pressed the attorney to seek dismissal of the indictment. The attorney refused — apparently because he concluded that he could not file such a motion in good faith. Mahle persisted, to the point of attempting to file his own pro se motion to dismiss the indictment — prompting the trial judge to direct Mahle's attorney to confer with Mahle and formulate their strategy in concert.
Only then did Mahle's attorney file the motion for clarification of the judge's earlier suppression order. The apparent purpose of this motion for clarification was to have Judge Joannides corroborate the attorney's interpretation of the judge's previous order, and the attorney's view of the pertinent law — thus explaining to Mahle why the attorney had decided not to pursue Mahle's proposed motion to dismiss the indictment.
Under these circumstances, the attorney acted competently in asking the judge to clarify her order.
Second, if Mahle's attorney had acted according to Mahle's wishes and had filed the proposed motion to dismiss the indictment, one of two things likely would have happened: either (1) the prosecuting attorney would have pointed out that, under Alaska law, the remedy for an improper Glass warrant is suppression of the electronic recording only, or — if the prosecutor failed to cite this case law — (2) Mahle's attorney would have been bound by the Rules of Professional Conduct to apprise the judge of this adverse authority. See Professional Conduct Rule 3.3(a)(3); Tyler v. State, 47 P.3d 1095, 1104-07 (Alaska App. 2001).
In either case, the pertinent law would have been brought to the court's attention, and the proposed motion to dismiss the indictment would have been denied.
At oral argument, Mahle raised a new argument: that regardless of the outcome of the proposed motion to dismiss the indictment, the attorney was obliged to withdraw because there was an intractable disagreement between attorney and client regarding litigation tactics. (In other words, Mahle wanted to file a motion to dismiss the indictment, and the attorney did not want to file this motion.)
This type of disagreement does not require an attorney to withdraw from representing a client. Under Professional Conduct Rule 1.2(a), it is the attorney's role to decide such tactical matters. Although an attorney should certainly listen when a client expresses a desire to file additional motions, it is ultimately the attorney's decision whether to do so. Thus, Mahle's attorney was not obliged to honor his client's desire to adopt different litigation tactics, nor was the attorney obliged to withdraw when Mahle persisted in disagreeing with his attorney's litigation tactics.
See McLaughlin v. State, 173 P.3d 1014, 1015-17 (Alaska App. 2007); Simeon v. State, 90 P.3d 181, 184 (Alaska App. 2004).
Mahle next argues that he is entitled to post-conviction relief because the evidence against him was obtained in violation of the federal wiretap statute, 18 U.S.C. § 2515 ester. Mahle can not seek post-conviction relief on this claim directly — because AS 12.72.020(a)(1) declares that a petition for post-conviction relief can not be premised on "[a] claim . . . based on the admission or exclusion of evidence at trial". Nevertheless, Mahle is still entitled to argue that his prior attorneys were incompetent for failing to pursue this suppression claim.
But as we explained in Bachlet v. State, 941 P.2d 200, 208 (Alaska App. 1997), the federal wiretap statute applies only to situations where the police engage in electronic monitoring and/or recording of a conversation when no participant to the conversation has consented to the monitoring and/or recording. In Mahle's case, the police informant was aware of, and consented to, the electronic monitoring. Thus, there was no merit to Mahle's claim that the electronic monitoring in his case violated the federal wiretap statute. Accordingly, Mahle's attorneys could competently decide not to pursue Mahle's proposed suppression motion.
For these reasons, the judgement of the superior court is AFFIRMED.