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Vizcarra-Medina v. State (11/14/2008) ap-2192

Vizcarra-Medina v. State (11/14/2008) ap-2192

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


ROLANDO VIZCARRA-MEDINA, )
) Court of Appeals No. A-9655
Appellant, ) Trial Court No. 3KO-05-360 Civ
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2192 November 14, 2008
)
          Appeal  from the Superior Court,  Third  Judi
          cial District, Kodiak, Joel H. Bolger, Judge.

          Appearances:   Beth G. L. Trimmer,  Assistant
          Public  Advocate,  and  Joshua  Fink,  Public
          Advocate,   Anchorage,  for  the   Appellant.
          Diane   L.   Wendlandt,  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.

          MANNHEIMER, Judge.

          In  this  case,  Rolando Vizcarra-Medina  sought  post-
conviction  relief based on assertions that he had not understood
key  aspects of his plea agreement with the State.  The  attorney
appointed to represent Vizcarra-Medina investigated these  claims
and  concluded  that  they could not be  proved.   That  is,  the
attorney  concluded that, whatever Vizcarra-Medina might  say  in
support  of these claims, Vizcarra-Medina could not establish  by
clear  and  convincing evidence that he had  not  understood  the
terms  of  the  plea  agreement, or that he had  not  voluntarily
agreed to these terms.
          Based   on  this  conclusion,  the  attorney  filed   a
certificate  under  Alaska Criminal Rule 35.1(e)(2)(C)   i.e.,  a
certificate  declaring that Vizcarra-Medina had no  non-frivolous
claims for post-conviction relief, and asking the superior  court
to  dismiss Vizcarra-Medinas petition.  See Griffin v. State,  18
P.3d  71,  75, 77 (Alaska App. 2001) (construing the requirements
of   Rule  35.1(e)(2)).   The  superior  court  agreed  with  the
attorneys assessment and (after giving Vizcarra-Medina  a  chance
to  respond) the court dismissed the petition for post-conviction
relief.  Vizcarra-Medina now appeals.
          We  conclude  that the superior court should  not  have
accepted the attorneys certificate.
          As evidenced by the multiple letters filed by Vizcarra-
Medina in support of his petition, Vizcarra-Medina was willing to
assert  under  oath that he did not understand key terms  of  his
plea  agreement with the State.  Vizcarra-Medinas post-conviction
relief  attorney  may have reasonably concluded  that  the  other
available  evidence contradicted Vizcarra-Medinas assertion,  and
that Vizcarra-Medinas claim could likely never be proved by clear
and  convincing  evidence  (the  standard  of  proof  imposed  by
AS  12.72.040).  Nevertheless, the fact that Vizcarra-Medina  was
willing to testify that he did not understand key aspects of  his
plea  agreement  means  that  Vizcarra-Medinas  claim  for  post-
conviction relief was not frivolous for purposes of Criminal Rule
35.1(e)(2)(C).
          The claim was not frivolous because (1) Vizcarra-Medina
was  ready  to  offer  testimony  under  oath  that  he  did  not
understand key aspects of the plea agreement, and (2) it  appears
that Vizcarra-Medina would be entitled to relief if  despite  the
contrary evidence  the superior court believed his testimony.
          It is true that, under Alaska Professional Conduct Rule
3.3(a)(4),  an attorney is forbidden from offering evidence  that
the  attorney  knows  to  be false.  But  Vizcarra-Medinas  post-
conviction  relief attorney has never asserted or even  suggested
that  he  knew  that  Vizcarra-Medinas proposed  testimony  would
constitute  perjury.   Thus,  even  if  the  attorney  reasonably
believed that the superior court would ultimately reject Vizcarra-
Medinas  testimony,  it  was still the attorneys  job  to  pursue
Vizcarra-Medinas  claim for relief by presenting  his  testimony,
and  then  letting  the superior court make  the  assessments  of
credibility and testimonial accuracy.

     Underlying facts
     
               Rolando  Vizcarra-Medina  was  charged   with
     first-degree   theft  for  allegedly   misappropriating
     approximately  $250,000  in  insurance  proceeds  that,
     according  to the State, should have been paid  to  his
     brothers widow and children.
               This   felony  theft  charge  was  ultimately
     resolved by a plea agreement.  Vizcarra-Medina  pleaded
     no  contest  to  two  counts of third-degree  theft  (a
     misdemeanor:   theft of between $50  and  $500).1   The
     State  agreed  that  Vizcarra-Medina  would  receive  a
     suspended imposition of sentence on each count, with no
     additional  time  to serve, and 1 years  probation,  on
     condition  that  Vizcarra-Medina  make  restitution  of
     $60,000.
               Eighteen    months   later,   Vizcarra-Medina
     (acting  pro  se)  filed a petition for post-conviction
     relief.  The superior court appointed attorney Alan  L.
     Schmitt to represent Vizcarra-Medina in this matter.
          Because Vizcarra-Medina pleaded no contest to
the  two  misdemeanor theft charges, Schmitt  concluded
that   Vizcarra-Medina  would  be  entitled  to   post-
conviction  relief  only if he could establish  grounds
for  withdrawing  his plea.  Schmitt further  concluded
that,  because  Vizcarra-Medina pleaded no  contest  as
part  of  a  plea  bargain, and because Vizcarra-Medina
received  the bargained-for benefit of that  plea,  the
only plausible ground for withdrawing the plea would be
to  establish that Vizcarra-Medina received ineffective
assistance of counsel in connection with that plea.
          On  this  issue, Vizcarra-Medina told Schmitt
that he did not really understand what was happening at
the  change-of-plea hearing.  In particular,  Vizcarra-
Medina  asserted  that he did not  understand  that  he
would be required to pay $60,000 in restitution, and he
also  asserted that he thought he would get to  have  a
trial on the theft charges after he completed his years
probation.
          To investigate these claims, Schmitt obtained
an  affidavit  from Vizcarra-Medinas  former  attorney,
Darrel  J.  Gardner.   Gardners  affidavit  stated,  in
pertinent part:
     
          I   had  many  conversations  [with  the
     Kodiak  District Attorney] over  the  lengthy
     period  of time that [Vizcarra-Medinas]  case
     was    pending.    I   also   had    numerous
     conversations with Mr. Medina concerning  the
     various  developments in his case.  Prior  to
     the  change of plea hearing, I spoke with Mr.
     Medina  and  explained the states  settlement
     offer in detail.  On the basis of Mr. Medinas
     express  desire  to accept the  proposal,  we
     requested  a  change of  plea  hearing.   ...
     Prior  to  [that] hearing, I  went  over  the
     details  of  the  proposed settlement  offer,
     including the $60,000 restitution component.
     
          Schmitt also listened to the  audio
record  of  the change-of-plea  hearing.   As
reflected by the transcript of that  hearing,
the  basic  terms of the plea agreement  were
explained  at  the  very  beginning  of   the
hearing:

     Mr.  Gardner:  Mr. Medinas going  to  be
pleading no contest to two counts of theft in
the  third degree, both class A misdemeanors.
...   Mr. Medina will receive an SIS on  both
of  [these]  misdemeanors.  Hell  be  put  on
misdemeanor  probation for a  period  of  one
year.   There  is a restitution order  to  be
entered  in  the  amount of $60,000,  payable
half to his brother ...

     Prosecutor:  Actually, itll  be  payable
$20,000 to each of three children.  And  well
file  a restitution notice giving [the court]
the  names  of those children.  ...   But  it
will  be  $20,000 to each of ... the children
of Carlos Medina.
     .  .  .

     Mr.  Gardner:   ...   [And  because  Mr.
Medina]  has  spent a significant  amount  of
time in jail already, ... there [will] be  no
additional jail time imposed.

A  few  minutes  later, the  court  addressed
Vizcarra-Medina personally:

     The   Court:   Is  this  your  voluntary
decision?

     Vizcarra-Medina:  Your Honor,  actually,
...  my lawyer explained  explained to me all
the  consequences  you know,  all  the   what
will  happen next after this.  And I believe,
you  know, it will be for my  to the best  of
my   it  will be for the best of myself,  and
that  is  what I believe, too  that  [it  is]
good for me to accept this  this decision.

          After   evaluating  all   of   this
information, Schmitt concluded that Vizcarra-
Medina   had   no  colorable   argument   for
withdrawing his plea.
          Schmitt acknowledged that Vizcarra-
Medina  may not have known the precise  terms
of  the  plea agreement until shortly  before
the  change-of-plea hearing on June 14,  2004
and  that  Vizcarra-Medinas former  attorney,
Gardner, may have violated his duty  to  keep
Vizcarra-Medina  reasonably informed  of  the
progress  of the plea negotiations.  However,
Schmitt noted that Vizcarra-Medina had  ample
opportunity  [at the change-of-plea  hearing]
to  express any concerns or questions he  may
have had about the [plea] agreement  and that
Vizcarra-Medina did not question or object to
any  of  the terms of the agreement  at  that
hearing.   Based on this, Schmitt  concluded:
It  is  clear,  [then], ... that  Mr.  Medina
accepted   the   recommendations   [of    his
attorney].
          In  other  words, Schmitt concluded
that,    despite   Vizcarra-Medinas   current
assertions  on these matters, Vizcarra-Medina
had  in  fact  understood and agreed  to  the
terms  of the plea bargain  and, thus,  there
was  no  factual  basis for  withdrawing  the
plea.
          Superior Court Judge Joel H. Bolger
examined  Schmitts certificate and  concluded
that it met the requirements of Criminal Rule
35.1(e)(2)(C).    Judge   Bolger    therefore
notified  the  parties that  he  intended  to
dismiss  Vizcarra-Medinas petition for  post-
conviction relief.
          In  response, Vizcarra-Medina filed
a  one-page  opposition.   In  his  response,
Vizcarra-Medina asserted that he was innocent
of  any theft, and he further reiterated  his
claim  that he did not understand his  change
of  plea.   However,  he did  not  offer  any
further details to support that assertion.
          Approximately  one   month   later,
based  on Schmitts certificate, Judge  Bolger
dismissed Vizcarra-Medinas petition for post-
conviction relief.

Why we conclude that the superior court should not have
accepted the attorneys certificate of no arguable merit

          In this case, Vizcarra-Medina claimed that he
did   not   understand  key  provisions  of  the   plea
agreement.   Vizcarra-Medinas  post-conviction   relief
attorney,  Schmitt,  concluded  that  this  claim   was
effectively rebutted by the other evidence in the  case
specifically,  the competing account of events  offered
by  Vizcarra-Medinas former attorney, and the record of
the  change-of-plea  hearing itself.   Because  Schmitt
concluded  that  he could never prove  Vizcarra-Medinas
assertions of fact by clear and convincing evidence, he
decided  that  Vizcarra-Medinas claim  for  relief  was
frivolous.  The superior court agreed.
          We  believe  that  this  approach  is  flawed
because   it  rests  on  a  misunderstanding  of   what
constitutes a frivolous claim for purposes of  Criminal
Rule 35.1(e)(2)(C).
          Here,  Schmitt had admissible evidence (i.e.,
Vizcarra-Medinas testimony) to support the  claim  that
Vizcarra-Medina  failed to understand,  and  failed  to
agree  to,  key aspects of the plea agreement.   It  is
true that there was substantial competing evidence, and
it is also true that Vizcarra-Medina bore the burden of
proving  his factual assertions by clear and convincing
evidence.2    Given   these  factors,   Schmitt   might
reasonably conclude that it was unlikely that  a  trier
of   fact  would  credit  Vizcarra-Medinas  version  of
events.
          But  even though the factual basis of a claim
for  post-conviction relief may be weak or  implausible
even  so  weak  or implausible that the  claim  appears
virtually certain to fail  this does not mean that  the
claim  is  frivolous  for  purposes  of  Criminal  Rule
35.1(e)(2)(C).
          As  we explained in Griffin v. State, 18 P.3d
71,  73  (Alaska App. 2001), and as the  United  States
Supreme  Court explained in Smith v. Robbins, 528  U.S.
259,  279-282; 120 S.Ct. 746, 761-62; 145  L.Ed.2d  756
(2000), there is a crucial distinction between a  claim
that  has  no merit, in the sense that the  court  will
likely  rule  against the claim, and a  claim  that  is
frivolous, in the sense that no reasonable argument can
be made in favor of the claim.
          Here,  the validity of Vizcarra-Medinas claim
for  plea  withdrawal hinges on a question  of  witness
credibility    the  conflict  between   the   competing
versions   of  events  and  conversations  offered   by
Vizcarra-Medina  and  his  former  attorney,   Gardner.
True,  the record of the change-of-plea hearing appears
to  support  Gardners version and  to  rebut  Vizcarra-
Medinas  version.   But Vizcarra-Medina  is  apparently
prepared  to  offer  his account under  oath,  and  his
account  (if  believed) would entitle  him  to  relief.
These  two factors, in combination, mean that his claim
is not frivolous.
          On  this issue, there is a crucial difference
between    trial   court   litigation   and   appellate
litigation.
          After questions of historical fact have  been
litigated  and  resolved by a judge in  post-conviction
relief  litigation, a litigant who wishes to  challenge
the  judges  resolution of the competing testimony  and
the  judges  assessment  of  witness  credibility  must
convince  the appellate court that the judges  findings
of fact are clearly erroneous.3  Given this standard of
review  on appeal, it might well be that any appeal  of
the judges factual findings would be frivolous.
          But   the  situation  is  markedly  different
before  an  evidentiary hearing has been  held  in  the
trial  court.  True, the law allows the court to  grant
summary  judgement  and  thus end  the  post-conviction
relief litigation short of trial.4  But a judge has  no
authority  to  grant  summary judgement  based  on  the
judges pre-trial assessments of witness credibility  or
pre-trial  assessments of the comparative  strength  of
the  parties  cases.  Summary judgement is  appropriate
          only in those instances where, even if all of the non-
moving  partys  assertions of fact are  true,  the  law
requires a decision in the other partys favor.5
          This  same  principle  governs  an  attorneys
decision  to  file a certificate of no  arguable  merit
under  Criminal  Rule 35.1(e)(2)(C).  If  the  attorney
concludes  that, given the governing law, the defendant
would  not  be entitled to relief even if  all  of  the
defendants  underlying assertions of fact were  proved,
then  the  attorney can properly label  the  defendants
claim frivolous.  But the attorneys primary duty is  to
the  defendant,  and the defendant is  constitutionally
entitled to the zealous assistance of counsel.  Because
of  this,  unless the attorney knows that the defendant
intends  to commit perjury, it is never proper for  the
attorney  to  declare that a claim for  post-conviction
relief  is  frivolous based on the attorneys assessment
of  how  the  judge is likely to weigh  the  defendants
testimony when resolving the disputed factual issues in
the case.
          As we stated in Johnson v. State, 77 P.3d 11,
13  (Alaska App. 2003), A claim is frivolous [only]  if
there  is no colorable argument that a zealous advocate
could advance in support of the claim.  Here, the  duty
of  a zealous advocate was to allow Vizcarra-Medina  to
take  the stand and have his day in court  even if  the
advocate  reasonably believed that there was little  or
no chance that the superior court would credit Vizcarra-
Medinas testimony.

Conclusion

          For  the  reasons  explained here,  Vizcarra-
Medinas attorney should not have filed a certificate of
no  arguable  merit under Criminal Rule  35.1(e)(2)(C),
and  the  superior  court  should  not  have  dismissed
Vizcarra-Medinas  petition for  post-conviction  relief
based on the attorneys certificate.
          The  judgement  of  the  superior  court   is
VACATED,   and   the   litigation  of  Vizcarra-Medinas
petition  for post-conviction relief shall continue  in
the superior court.

_______________________________
  1 AS 11.46.140(a).

2 See AS 12.72.040.

3  Dolchok  v.  State, 639 P.2d 277, 282-83  (Alaska  1982);
Register v. State, 71 P.3d 337, 341-42 (Alaska App. 2003).

4 See Criminal Rule 35.1(f)(3).

5 Peterson v. State, 988 P.2d 109, 120 (Alaska App. 1999).

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