Opinion
Court of Appeals No. A-9008.
December 20, 2006.
Appeal from the Superior Court, Third Judicial District, Anchorage, Dan A. Hensley, Judge, Trial Court No. 3AN-01-9729 CI.
G. Blair McCune, Anchorage, for the Appellant.
Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. MÁrquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Marcias Z. Reinhold killed her two-year-old foster child. For this homicide, Reinhold pleaded no contest to second-degree murder. Superior Court Judge Milton M. Souter imposed a 75-year sentence. This court upheld the sentence in Reinhold's direct sentence appeal.
AS 11.41.110(a)(2).
See Reinhold v. State, Alaska App. Memorandum Opinion and Judgment No. 4181 (Feb. 2, 2000), 2000 WL 124797.
Reinhold filed an application for post-conviction relief claiming that her attorney provided ineffective assistance of counsel at her sentencing. Superior Court Judge Dan A. Hensley dismissed Reinhold's application, finding that the record did not show that Reinhold's attorney made incompetent tactical choices when presenting Reinhold's case at sentencing. Because the record supports Judge Hensley's decision, we affirm the order dismissing Reinhold's application.
Background facts and proceedings
On December 15, 1997, Reinhold called 911 and asked the Anchorage Police Department for medical assistance for her two-year-old foster child, Janessa Aguirre. The police and paramedics responded. Aguirre was transported to the Providence Alaska Medical Center where she died the next morning.
Aguirre had sustained several serious injuries consistent with severe abuse. Dr. Norman Thompson, a forensic pathologist with the State Medical Examiner's office, concluded that Aguirre died of multiple blunt trauma injuries to her head. He also found evidence of several other injuries of varying age that showed Aguirre had been the victim of a pattern of non-accidental trauma.
Reinhold first told the police that Aguirre's injuries were accidental. However, Reinhold later recanted and admitted that she had injured Aguirre.
The grand jury indicted Reinhold for first-degree murder, second-degree murder, four counts of first-degree assault, and tampering with physical evidence. Reinhold reached a plea agreement with the State. In exchange for her plea of no contest to second-degree murder, the State agreed to dismiss the other charges against her. Reinhold also agreed that for purposes of sentencing, she would admit that she engaged in the conduct charged in the dismissed counts. Finally, she agreed to concede that aggravating factors ©)(2), ©)(5), ©)(10), and (c)(18)(a) applied by analogy to her sentencing for second-degree murder, even though second-degree murder is an unclassified felony to which presumptive sentencing and aggravating factors do not apply directly.
AS 11.41.100(a)(2).
AS 11.41.110(a)(2).
AS 11.41.200(a)(3).
AS 11.56.610(a)(1).
AS 12.55.155(c)(2) (defendant's conduct during the commission of the offense manifested deliberate cruelty to another person); AS 12.55.155(c)(5) (defendant knew or reasonably should have known that the victim was particularly vulnerable); AS 12.55.155(c)(10) (defendant's conduct constituting the offense was among the most serious within the definition of the offense); former AS 12.55.155(c)(18)(A) (the offense was a felony specified in AS 11.41 and "committed against . . . a member of the social unit comprised of those living together in the same dwelling as the defendant").
See Gregory v. State, 689 P.2d 508, 509 (Alaska App. 1984) (approving a judge's consideration of aggravating factors in a second-degree murder sentencing).
Reinhold was thirty-nine years old at sentencing and had no prior criminal history. Reinhold and her husband were in the process of adopting Aguirre when Reinhold killed her. Judge Souter imposed a 75-year term to serve.
After this court affirmed Reinhold's sentence, Reinhold filed an application for post-conviction relief alleging that her attorney provided ineffective assistance at sentencing. The court appointed an attorney for Reinhold and the attorney filed an amended application on Reinhold's behalf. Reinhold's trial attorney filed an affidavit.
The State filed a motion to dismiss the application. Reinhold then filed a correction and a supplement to the application. The State filed a combined "Answer and Motion for Summary Judgment on Corrected Amended Application for Post-Conviction Relief."
The superior court denied the motion to dismiss and took the State's motion for summary disposition under advisement. Several months after oral argument on the summary disposition motion, Judge Hensley granted the motion and dismissed Reinhold's application. This appeal follows.
Discussion
Reinhold argues that Judge Hensley erred when he concluded she had not received ineffective assistance of counsel and dismissed her application for post-conviction relief. She argues her trial counsel was ineffective at sentencing because he failed to dispute medical evidence that led the judge to conclude Janessa Aguirre had been tortured before she died.
Whether an attorney provides effective assistance of counsel in a criminal case is a mixed question of fact and law. Because this appeal comes after a dismissal by summary disposition (preventing Reinhold the opportunity for an evidentiary hearing), the court must provisionally accept as true any well-pleaded facts asserted by the defendant. We review a grant of summary disposition, an issue of law, de novo.
State v. Simpson, 946 P.2d 890, 892 (Alaska App. 1997).
Lott v. State, 836 P.2d 371, 377 n. 5 (Alaska App. 1992) (citing State v. Jones, 759 P.2d 558, 565-66 (Alaska App. 1988)).
Tucker v. State, 892 P.2d 832, 834 (Alaska App. 1995).
In Risher v. State, the Alaska Supreme Court established a two-prong test for analyzing a claim of ineffective assistance of counsel. The first prong, also known as the "performance" prong, requires the applicant to show that trial counsel failed to "perform at least as well as a lawyer w ith ordinary training and skill in the criminal law." The standard for ineffective assistance is "minimal competence"; the applicant must show "a level of performance that no reasonably competent attorney would provide."
523 P.2d 421 (Alaska 1974).
Id. at 424-25.
Id. at 424 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974)).
Jones, 759 P.2d at 568.
The applicant must prove "not that his trial counsel could have done things better, but that no competent attorney would have done things as badly as his trial counsel did." The accused must overcome the strong presumption that the trial attorney's performance was competent and that counsel's actions were motivated by sound tactical considerations. Moreover, "if it appears that counsel's actions were undertaken for tactical or strategic reasons, they will be virtually immune from subsequent challenge, even if, in hindsight, the tactic or strategy appears to have been mistaken or unproductive." To rebut this presumption, an applicant must present evidence that rules out the possibility of a tactical reason to explain counsel's actions.
Tucker, 892 P.2d at 835.
Jones, 759 P.2d at 569.
Id.
Id.
Under the second prong, known as the "prejudice" prong, an applicant must show that the lack of competent performance contributed to the outcome of the case. If an applicant fails to show that counsel's performance was incompetent, the court need not consider the prejudice prong.
Risher, 523 P.2d at 425.
Larson v. State, 614 P.2d 776, 780 (Alaska 1980).
Reinhold claims that her trial attorney was ineffective at sentencing because the attorney failed to make competent use of the opinion of Dr. Janice Ophoven, a pathologist retained by the defense to assist in evaluating the case. Reinhold advances several potential uses of Ophoven's opinion. Reinhold claims that if Smith had used Dr. Ophoven's analysis as she now suggests, Judge Souter would not have found that the nature of the offense was "shocking," "ghastly," or "horrible," and would have imposed a less severe sentence.
But Reinhold's trial attorney stated both in his affidavit and in his deposition that his decision not to call Ophoven at sentencing was a tactical choice. The record shows that the attorney elected to emphasize Reinhold's personal history and prospects for rehabilitation. He presented several witnesses to support these points. Although the State asked Judge Souter to find that Reinhold was a worst offender and impose the maximum 99-year term, and Judge Souter recognized he could make that finding and impose the maximum sentence, Judge Souter found that it was clear to him that he was "not looking at the worst kind of person here."
Judge Hensley concluded that Reinhold had not presented any reason to doubt that the attorney's tactical choice to emphasize Reinhold's positive attributes at sentencing without attacking the medical evidence was reasonable, successful, and competent.
When an attorney makes a tactical choice, an applicant claiming ineffective assistance of counsel must plead facts that demonstrate that the tactic was unreasonable, that is, that the tactic was one that no competent attorney would use. The evidence before Judge Hensley showed that Reinhold's trial attorney made the tactical choice to emphasize her positive qualities and minimize the discussion of Aguirre's injuries all in an effort to avoid a maximum sentence. Although Reinhold suggested several ways that her trial attorney might have used Ophoven's opinion, she did not present evidence that no competent attorney would use the tactics chosen by her attorney. Accordingly, we affirm the superior court's decision dismissing Reinhold's application.
See State v. Laraby, 842 P.2d 1275, 1279 (Alaska App. 1992); Jones, 759 P.2d at 569-70.
Conclusion
The judgment of the superior court is AFFIRMED.