Opinion
Court of Appeals No. A-9443.
January 30, 2008.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Robert B. Downes, Judge, Trial Court No. 4FA-04-2491 Civ.
David K. Allen, Assistant Public Advocate, Fairbanks, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant. W. H. Hawley, 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 Stewart, Judges.
MEMORANDUM OPINION
John Raeney Walsh appeals the superior court's dismissal of his petition for post-conviction relief. (For the facts of Walsh's underlying criminal convictions, see Walsh v. State, 134 P.3d 366 (Alaska App. 2006).) In his petition for post-conviction relief, Walsh alleged that his trial attorney represented him incompetently in ten different ways. Superior Court Judge Robert B. Downes dismissed Walsh's petition because he concluded that none of Walsh's allegations were supported by a prima facie case for relief.
On appeal, Walsh argues that a few of his claims should not have been dismissed.
Walsh asserts that he presented a prima facie case that his trial attorney failed to obtain or investigate potentially exculpatory evidence: a surveillance tape from the store where Walsh was apprehended, the clothing that Walsh was wearing when he was arrested, and a vehicle key that allegedly was in Walsh's pocket when he was arrested. Walsh's argument fails for several reasons.
First, although Walsh obtained an affidavit from his trial attorney, Walsh failed to ask his trial attorney to respond to these allegations of overlooked evidence, and (consequently) the attorney's affidavit does not discuss these matters. This, by itself, is fatal to Walsh's claim — for when a petitioner for post-conviction relief alleges that their trial attorney was incompetent in one or more respects, the petitioner "is required to seek an affidavit from the trial attorney in which the attorney addresses the petitioner's contentions." Allen v. State, 153 P.3d 1019, 1021-22 (Alaska App. 2007).
Second, factual allegations in a petition for post-conviction relief must be supported by an offer of admissible evidence — for example, court records or affidavits from people who have first-hand knowledge of the facts at issue. Allen, 153 P.3d at 1024-25. Here, Walsh's petition contains only conclusory assertions that the evidence in question would have been exculpatory. Walsh's petition for post-conviction relief was supported by only two documents — the trial attorney's affidavit and Walsh's own affidavit — and neither of these affidavits describes how the evidence in question would have created or supported a viable defense to the charges against Walsh. This, too, is fatal to Walsh's claim. In LaBrake v. State, 152 P.3d 474, 481-82 (Alaska App. 2007), we held that a court is not required to presume the truth of a defendant's unexplained, conclusory assertions of attorney incompetence. And see State v. Savo, 108 P.3d 903, 911-12 (Alaska App. 2005), and State v. Jones, 759 P.2d 558, 573-74 (Alaska App. 1988), where we held that when a petitioner for post-conviction relief criticizes their trial attorney's failure to pursue avenues of investigation, it is the petitioner's burden to produce evidence to show that the suggested investigation would in fact have yielded exculpatory evidence.
We further note that, even though Walsh submitted his own affidavit in support of the petition for post-conviction relief, and even though Walsh seemingly had first-hand knowledge of the clothes that he was wearing and the contents of his pockets at the time of his arrest, Walsh's affidavit fails to provide any details concerning these items or any explanation of why Walsh believed that these items had exculpatory significance. Instead, Walsh's affidavit is short and conclusory:
I [John Walsh] am the petitioner in the proceedings captioned above. I have read the allegations of the Amended Petition for Post-Conviction Relief filed by my attorney on May 3, 2005. Those allegations are true to the best of my knowledge, memory[,] and belief.
Under Alaska Criminal Rule 35.1(d), when a defendant applies for post-conviction relief, "[f]acts within the personal knowledge of the applicant shall be set out separately from other allegations of facts and shall be under oath." A cursory affidavit such as the one Walsh submitted in this case is not sufficient to satisfy a defendant's obligation under Rule 35.1(d) to separately describe and explain the matters within their personal knowledge.
Walsh's next claim is that his trial attorney should have interviewed Walsh's wife — who, according to Walsh, would have provided exculpatory testimony. Walsh's wife is now deceased, so this excused Walsh from having to produce her affidavit. However, again, Walsh failed to ask his trial attorney to respond to this allegation, and the attorney's affidavit does not discuss this issue. Thus, Walsh's claim was properly dismissed.
Walsh's final claim is that his trial attorney represented him incompetently at sentencing.
In the underlying criminal case, Walsh was convicted of one class C felony — first-degree vehicle theft — and five misdemeanors: driving under the influence, refusal to submit to a chemical test, leaving the scene of an accident, resisting arrest, and driving while his license was suspended.
Walsh v. State, 134 P.3d at 368.
The offense of first-degree vehicle theft carries a maximum term of 5 years' imprisonment, and (as a second felony offender) Walsh faced a 2-year presumptive term for that offense. However, Walsh conceded that three of the aggravating factors listed in AS 12.55.155(c) applied to his case: (c)(6) — that Walsh's conduct created a risk of imminent physical injury to three or more persons; (c)(8) — that Walsh's prior criminal history included repeated instances of assaultive behavior; and (c)(21) — that Walsh had a history of repeated instances of conduct similar to the offense for which he was being sentenced. Based on these three aggravators, plus the fact that Walsh had forty-five prior criminal convictions and a life-long problem with alcohol, the prosecutor asked the superior court to impose consecutive sentences totaling 8 years to serve.
AS 11.46.360(c) (first-degree vehicle theft is a class C felony); AS 12.55.125(e) (the maximum term of imprisonment for a class C felony is 5 years); and Walsh, 134 P.3d at 371 (Walsh was a second felony offender).
Walsh, 134 P.3d at 371.
Id., 134 P.3d at 372.
Walsh's attorney conceded that Walsh should receive a composite sentence of more than 5 years to serve (the maximum term for his most serious offense), but the attorney argued that 8 years was excessive. He suggested that 6 years to serve was an appropriate sentence.
After hearing the two attorneys' arguments, the superior court imposed an even more lenient sentence: a composite term of 10 years with 4 years and 310 days suspended — that is, 5 years and 55 days to serve.
Id., 134 P.3d at 368.
In his petition for post-conviction relief, and now in his brief to this Court, Walsh argues that his attorney was incompetent for conceding that Walsh should receive more than 5 years to serve. W alsh relies on Neal v. State, 628 P.2d 19, 21 (Alaska 1981), where the Alaska Supreme Court held that a defendant should not receive a composite term of imprisonment exceeding the maximum term for the defendant's single most serious offense unless the sentencing judge affirmatively finds that such a sentence is needed to protect the public. Walsh argues that his attorney was incompetent for conceding (implicitly) that a sentence of more than 5 years to serve was needed to protect the public.
This claim fails for two reasons.
First, Walsh failed to present any evidence to suggest that his trial attorney's tactics at sentencing were so misguided as to constitute incompetence. Walsh was required to present some good reason to believe that no competent defense attorney would have decided to ask the superior court to impose a composite 6 years to serve under the facts of this case. But Walsh merely suggests that, if his attorney had argued for a sentence of less than 5 years to serve, there is some chance that the superior court would have been convinced to impose a lesser sentence. That is not the issue. Rather, the issue is whether, despite the seriousness of Walsh's current offenses and his lengthy criminal record (comprising almost four dozen prior convictions), no competent attorney would have chosen to concede the Neal issue and argue for a composite sentence slightly greater than 5 years. On this issue, Walsh's petition failed to present a prima facie case.
Second, Walsh's claim is moot. When this Court decided Walsh's direct appeal, we remanded Walsh's case to the superior court for re-sentencing — because the superior court erroneously sentenced W alsh to 1 year with 245 days suspended (120 days to serve) for the offense of leaving the scene of an accident, when the maximum sentence for this offense is 90 days imprisonment. At Walsh's re-sentencing, he was represented by a new attorney, and this new attorney suggested that the superior court reduce Walsh's composite sentence below the 5-year Neal ceiling. The superior court agreed and reduced Walsh's sentence for leaving the scene of an accident to 90 days with 55 suspended (35 days to serve) — a reduction of 85 days to serve. This left Walsh with a composite term of less than 5 years to serve — specifically, 4 years and 335 days.
Walsh, 134 P.3d at 372-73.
Because Walsh was given a new attorney and a new opportunity to argue his sentence, and because Walsh has now received the sentence that he claims he should have received in the first place ( i.e., a sentence of less than 5 years to serve), his claim that he was incompetently represented at his original sentencing is now moot.
For all of these reasons, the judgement of the superior court is AFFIRMED.