SMITH
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Kenai, Charles T. Huguelet, Judge.
Appearances: Nancy Driscoll Stroup, Law Office of Nancy Driscoll Stroup, Palmer, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and E. Smith, Superior Court Judge .
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge SMITH.
Brian L. Haws was convicted of thirteen felonies involving burglary, theft, and forging checks. He filed an application for post-conviction relief alleging ineffective assistance of both his trial and appellate counsel. The superior court dismissed the application, ruling that Haws failed to establish that his attorneys were incompetent. We affirm on the additional ground that Haws has not proved that he suffered any prejudice.
Factual and procedural background
Most of the relevant facts of the criminal case underlying this appeal are outlined in this Court's unpublished decision affirming Haws's convictions on direct appeal. In summary, state troopers responded to a burglary report in September 2005. When they arrived at the scene, they were provided with a description of the suspects; they concluded that one of the suspects described to them was Chris Parker. The troopers also noticed that Brian Haws's car was stuck at the scene.
Haws v. State, Mem. Op. & J. No. 5415, 2008 WL 5352418 (Alaska App. Dec. 24, 2008).
Haws, 2008 WL 5352418, at *1.
Troopers proceeded to Parker's residence and contacted Parker, who told them that Haws and Zena Andrew were upstairs. The troopers asked for permission to enter Parker's home to look for items from the burglary, and Parker consented. Parker identified bags in the common area of the house that had been transported to Parker's house from Haws's car at the scene of the burglary. The bags were seized and taken to trooper headquarters. Later, a search warrant was obtained, and the bags were searched. The search "revealed property stolen in numerous burglaries, drug paraphernalia, 15.1 grams of methamphetamine, more than seventy oxycodone pills, an electric scale with methamphetamine residue, receipts for items purchased with stolen credit cards, and documents and a hubcap connected to Haws's vehicle." Based on this evidence, Haws was charged with thirteen felony offenses in two separate indictments.
Id.
Prior to trial, Haws filed a motion challenging the seizure of the bags as a violation of his Fourth Amendment rights. Haws argued that, as an overnight guest in Parker's home, he had standing to challenge the seizure. Haws also challenged the joinder of the two indictments. The trial judge upheld the seizure and the joinder. With respect to the suppression motion, the court held that, regardless of Haws's standing to contest the seizure, the seizure was legal because Parker consented to the trooper entry and, once inside, the troopers developed probable cause to seize the bags because of evidence connecting them to the burglary. This Court affirmed the trial court.
Id. at *1-6.
Haws's co-defendant, Andrew, was also convicted, and she appealed. This Court determined that there was insufficient evidence to support Andrew's conviction for second-degree theft — specifically, that there was insufficient evidence to establish that the value of the stolen property was $500 or more. This court did find, however, that the evidence established third-degree theft, which requires the stolen property to be valued at $50 or more.
Andrew v. State, 237 P.3d 1027, 1049 (Alaska App. 2010).
Id.
Haws then filed this petition for post-conviction relief, alleging that he received ineffective assistance of counsel from both his trial and appellate attorneys. He alleged a number of areas where his attorneys were ineffective, focusing primarily on the suppression issue and the joinder issue at both the trial and appellate levels. Haws did not file any affidavits from his appellate or trial attorneys because they refused to give him affidavits. No evidentiary hearing was held, because the attorney who litigated Haws's post-conviction relief application informed the trial court that there were no factual issues to be resolved. The trial court issued a written order denying Haws's application.
Haws failed to prove ineffective assistance of counsel
Haws argues that both his trial attorney and his appellate attorney were ineffective. He claims that his trial attorney should have renewed the suppression motion based on evidence developed at his trial, and that the attorney should have argued that joinder of the two indictments prejudiced him. He faults his appellate attorney for failing to provide this Court with a transcript of the suppression and joinder hearings, and for failing to challenge the sufficiency of the evidence regarding the value of the items that were stolen (the issue on which Andrew, his co-defendant, prevailed on appeal).
Haws argues that his trial attorney was ineffective for failing to object until mid-trial to the delayed execution of the search warrant, and for failing to cite any legal authority to support that claim. He also argues that his appellate attorney was ineffective in challenging the trial court's ruling on the automobile search. These claims are mentioned, but not argued, in Haws's brief, and so have been abandoned. See Cleveland v. State, 241 P.3d 504, 507 (Alaska App. 2010).
Under Risher v. State, in order to prove ineffective assistance of counsel, Haws must demonstrate that his attorney's performance fell below that of a lawyer with ordinary training and skill in the criminal law, and that he suffered prejudice as a result of that incompetent performance. To show that his appellate attorney was incompetent for failing to raise specific claims on appeal, Haws must show:
523 P.2d 421 (Alaska 1974).
Id. at 424-25.
(1) that the proposed additional issue is significantly stronger than the issues that were raised in the appeal; (2) that the appellate attorney had no valid tactical reason for failing to include this particular issue; and (3) that, if the proposed issue had been included, there is a reasonable possibility that the outcome of the appeal would have been different.
There is a strong presumption that an attorney acted competently, and the defendant carries the burden to rebut that presumption.
State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
Haws failed to meet these standards. We note at the outset that Haws failed to present any evidence regarding the reasons underlying the choices that his trial and appellate attorneys made. Absent this information, it was impossible for the superior court to evaluate whether those choices were competent; thus, the court could reasonably conclude that Haws did not meet his burden of proof as to the first prong of the Risher test.
Nor did Haws demonstrate that he suffered any prejudice. Haws argues that his trial attorney should have used evidence brought out at trial to renew the suppression motion, because that evidence showed that he was not trespassing in Parker's house. In his suppression motion, Haws contested that he was a trespasser to establish his standing to challenge the seizure of the bags in Parker's home. He also argued that, as a co-occupant of the home, he had an expectation of privacy in the bags. But the trial judge's ruling was not predicated on Haws's status as a trespasser or guest in the house. The court found that Parker had consented to the troopers' entry into his home, and that Parker told the troopers that the bags in the common area of the house had come from Haws's car — thereby providing the troopers with probable cause to seize the bags because they might contain evidence of the burglary.
Haws, 2008 WL 5352418, at *2.
Haws also asserts that he was prejudiced by his trial attorney's failure to claim that joinder of the two indictments was overly prejudicial, because his appellate attorney was forced to challenge the joinder as a matter of plain error. But this Court's discussion of the joinder issue makes clear that, even if the trial attorney had properly preserved this claim, this Court would have found that the indictments were properly joined and that joinder had not subjected Haws to unfair prejudice.
Id. at *5.
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Turning to the performance of Haws's appellate attorney, Haws failed to demonstrate that the attorney's failure to designate a transcript of the suppression hearing prejudiced him in any manner. Specifically, Haws failed to demonstrate how a transcript might have altered this Court's resolution of the suppression issue, given that this Court reached the merits of the claim based on the court log notes and the electronic record.
With regard to the appellate attorney's failure to attack the sufficiency of the evidence supporting Haws's second-degree theft conviction, it is true that this Court reversed Zena Andrew's corresponding second-degree theft conviction for lack of evidence. But this does not mean that Haws's attorney was necessarily incompetent for failing to raise this issue.
Haws stood convicted of twelve other felonies, and he did not receive any additional time to serve on the second-degree theft charge; his sentence on this charge ran concurrently with his sentence on other burglary and theft charges. Thus, even if Haws had been able to reduce his second-degree theft conviction to a third-degree theft conviction, the benefit to him would have been fairly insignificant. A competent appellate attorney might have seen this issue but might have chosen to focus on other claims which, if successful, would have brought more benefit to Haws.
Moreover, even if Haws's appellate attorney did not consciously reject an attack on the sufficiency of the evidence, Haws still had to prove that his appellate attorney was incompetent — which, in this context, means that Haws had to show that no competent defense attorney would have failed to perceive that the State's proof of the second-degree theft charge was inadequate.
This Court's reduction of Andrew's conviction to third-degree theft was premised on the fact that the State failed to introduce any evidence of the value of a pair of stolen walrus tusks. But the prosecutor at Haws's trial — and the twelve jurors who found him guilty — apparently believed that it was self-evident that the tusks were worth more than $500. Thus, Haws had to show that it would have been incompetent for his appellate attorney to reach the same conclusion.
It is true that this Court ultimately concluded that the value of the walrus tusks was not self-evident. But this does not mean that no reasonable attorney could have concluded otherwise. Haws did not offer any affidavits from other defense attorneys (or any other evidence) to support his assertion that any competent attorney would have seen the flaw in the State's evidence and pursued this issue on appeal. He relied simply on the fact that this Court ultimately found the evidence to be insufficient. Given these circumstances, the superior court correctly concluded that this was not enough to prove that Haws's appellate attorney was incompetent.
Conclusion
The superior court's denial of the post-conviction relief application is AFFIRMED.