Opinion
A-13363
02-23-2022
CHRISTOPHER SCHOLES, Appellant, v. STATE OF ALASKA, Appellee.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, for the Appellant, Anchorage. Nancy R. Simel, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, First Judicial District, Trial Court No. 1JU-12-00937 CI, Juneau, Philip M. Pallenberg, Judge.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, for the Appellant, Anchorage.
Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
SUMMARY DISPOSITION
Christopher Scholes appeals the dismissal of his application for postconviction relief. We previously explained the underlying facts in Scholes's direct appeal. In brief, Scholes pleaded guilty, pursuant to a plea agreement, to first-degree sexual assault, second-degree sexual abuse of a minor, and kidnapping after a December 1 2008 incident where he grabbed a fifteen-year-old girl as she was walking near a middle school, took her to his house, and sexually assaulted her multiple times.
Scholes v. State, 274 P.3d 496, 497 (Alaska App. 2012).
Id.; AS 11.41.410(a)(1), AS 11.41.436(a)(1), and AS 11.41.300(a)(1)(C), respectively.
The plea agreement left sentencing open to the court, with 30 years and 1 day determined as the minimum composite term of incarceration. Scholes was also ineligible for discretionary parole in connection with the sexual felony convictions unless he was referred to the state-wide three-judge sentencing panel. The sentencing court denied Scholes's request for referral to the three-judge sentencing panel and sentenced Scholes to 70 years and 1 day, with 30 years suspended (40 years and 1 day to serve).
Scholes, 274 P.3d at 500 (explaining sentencing minimums).
AS 33.16.090(a)(1)(D), (b)(2); Luckart v. State, 314 P.3d 1226, 1234 (Alaska App. 2013) (holding that AS 12.55.175(c) gives the three-judge panel authority to expand a defendant's eligibility for discretionary parole).
Scholes filed an application for post-conviction relief claiming that his trial counsel provided ineffective assistance in connection with his guilty plea and sentencing. Specifically, he claimed, inter alia, that his attorney failed to: (1) fully inform him of the barriers to being referred to the three-judge sentencing panel; and (2) argue that his ineligibility for discretionary parole was manifestly unjust and warranted referral to the three-judge sentencing panel. The superior court ruled that Scholes had failed to present a, prima facie case of ineffective assistance of counsel as to both claims and granted the State's motion to dismiss Scholes's application. Scholes now appeals.
We review de novo whether an application for post-conviction relief states aprima facie case. To establish aprima facie claim of ineffective assistance of counsel, Scholes was required to allege facts establishing that his trial attorney was incompetent 2 and that this caused him prejudice. As to prejudice, we note that Scholes seeks resentencing (rather than withdrawal of his guilty plea), which means that he was required to allege facts establishing that, but for counsel's deficient performance, there is a reasonable possibility he would have received a more lenient sentence. Scholes has failed to meet this burden.
David v. State, 372 P.3d 265, 269 (Alaska App. 2016).
See Ahvakana v. State, 475 P.3d 1118, 1122 (Alaska App. 2020) (citing Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974)).
See Hoeck v. Anchorage, 698 P.2d 666, 668 (Alaska App. 1985) (holding that defendant's claim of ineffective assistance of counsel failed as a matter of law because counsel's errors did not affect the sentence imposed).
With respect to Scholes's claim that his attorney failed to fully inform him of the barriers to being referred to the three-judge panel, Scholes has never explained why, if he had been better informed, the sentencing court would have been more likely to refer his case to a three-judge panel, or to otherwise impose a more lenient sentence.
With respect to Scholes's claim that his attorney failed to argue that his ineligibility for discretionary parole was manifestly unjust, Scholes offers no explanation as to how such an argument would have affected the court's sentencing decision. Indeed, the record suggests the contrary. At sentencing, the trial judge sua sponte acknowledged that Scholes was ineligible for discretionary parole on the sexual felony convictions and nonetheless concluded that there was no manifest injustice in sentencing Scholes within the presumptive ranges for those offenses. The same judge decided Scholes's postconviction relief action, and stated that "Scholes has alleged no facts from which the court could find that any further argument would have changed the outcome."
Accordingly, we AFFIRM the order of the superior court dismissing Scholes's amended post-conviction relief application for failing to state a, prima facie claim of ineffective assistance of counsel. 3