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Wilson v. State (12/17/2010) ap-2286

Wilson v. State (12/17/2010) ap-2286

                                                 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 

MERLE G. WILSON,                                  ) 
                                                  )         Court of Appeals No. A-10361 
                            Appellant,            )         Trial Court No. 1JU-03-451 CI 
                                                  ) 
             v.                                   )                   O P I N I O N 
                                                  ) 
STATE OF ALASKA,                                  ) 
                                                  ) 
                            Appellee.             )       No. 2286 - December 17, 2010 
                                                  ) 

                 Appeal from the Superior Court, First Judicial District, Juneau, 
                 Michael A. Thompson, Judge. 

                 Appearances:       Colleen A. Libbey, Libbey Law Offices, LLC, 
                 Anchorage,      for  the   Appellant.     W.    H.   Hawley,    Assistant 
                 Attorney General, Office of Special Prosecutions and Appeals, 
                 Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, 
                 for the Appellee. 

                 Before:    Coats,    Chief   Judge,   and   Mannheimer       and  Bolger, 
                 Judges. 

                 COATS,      Chief Judge. 

                 Merle     G.   Wilson     appeals     from    Superior    Court    Judge     Michael     A. 

Thompson's dismissal of his application for post-conviction relief.                  In his application, 

Wilson claimed that he entered a no-contest plea to assault in the second degree for an 

----------------------- Page 2-----------------------

alleged assault on Judith MacDonald only after being assured by his attorney that a no- 

contest plea could not be used against him by MacDonald in a trial for civil damages. 

But when MacDonald later sued Wilson for damages, the court ruled that Wilson was 

collaterally estopped from contesting the elements of the assault conviction. 

                Wilson filed an application for post-conviction relief, claiming that he had 

received ineffective assistance of counsel in entering his plea, that he would not have 

entered the no-contest plea if he had received accurate advice, and asking to withdraw 

his plea.   Judge Thompson ruled that Wilson's application failed to establish a prima 

facie case and dismissed the application.           Wilson appeals.      We conclude that Wilson's 

application was sufficient to establish a prima facie case. We accordingly reverse Judge 

Thompson's dismissal of Wilson's application. 

                Factual and procedural background 

                Judge   Thompson   dismissed   Wilson's   application   on   the   pleadings   for 

failure to set out a prima facie case.  A court should dismiss an application for failure to 

make a prima facie case only when the facts alleged in the application, if true, would not 
entitle the applicant to relief.1    We therefore set out the facts in the light most favorable 

to Wilson's claim. 

                Wilson was indicted for assaulting MacDonald based upon an incident that 

occurred April 2, 2001.  According to Wilson's affidavit, he expected MacDonald to sue 

him civilly.    Wilson stated that his attorney agreed that it was likely that MacDonald 

would   sue   him   for   damages   based   upon   the   alleged   assault.   Wilson   stated   that   his 

attorney advised him "that a no-contest plea could not be used in a civil trial as proof of 

        1   DeJesus v. State, 897 P.2d 608, 617 (Alaska App. 1995); State v. Jones, 759 P.2d 558, 

565 (Alaska App. 1988); Alaska R. Crim. P. 35.1(f)(1). 

                                                  - 2 -                                              2286 

----------------------- Page 3-----------------------

Mrs. MacDonald's allegations." Wilson stated that based on this advice, he entered a no- 

contest plea to assault in the second degree.  Wilson stated that he did not believe he was 

guilty of any criminal wrongdoing and that he would not have entered the no-contest 

plea if he had understood that the plea would prejudice him in a later civil case. 
                 Wilson pled no contest to assault in the second degree2 on November 5, 

2001. Superior Court Judge Larry Weeks sentenced Wilson to four years with all but six 

months suspended. 
                 In March of 2003, MacDonald sued Wilson based upon the alleged assault.3 

Wilson   represented   himself.         Superior   Court   Judge   Michael   A.   Thompson   granted 

summary judgment against Wilson.              He concluded that Wilson's no-contest plea in his 

criminal     case   collaterally   estopped     Wilson    from    contesting    that  he   had   assaulted 
MacDonald.4      In a trial on damages, a jury awarded MacDonald $75,000 in damages and 

$135,000 in punitive damages.5            In  Wilson v. MacDonald, the Supreme Court upheld 

Judge Thompson's ruling granting summary judgment against Wilson.6                         In addressing 

Wilson's argument that, when he pled no contest he was not aware that it would have 

consequences   in   the later civil case, the Supreme Court stated that "[s]ince this is a 

question as to the validity of the plea itself, it should be resolved through a motion for 
post-conviction relief or an appeal in the criminal case."7 

        2   AS 11.41.210(a)(2).
 

        3    Wilson v. MacDonald, 168 P.3d 887, 888 (Alaska 2007). 
 

        4   Id. at 888. 

        5   Id. 

        6   Id. 

        7   Id. at 889 (footnote omitted). 

                                                   - 3 -                                              2286
 

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                Wilson filed an application for post-conviction relief.           In the application, 

Wilson asked the court to allow him to withdraw his plea.                Wilson contended that his 

plea should be withdrawn because it was not knowing and voluntary and because he 

received   ineffective   assistance   of   counsel.    These   claims   are   based   upon   Wilson's 

contention that his counsel misinformed him of the effect that a no-contest plea would 

have on the civil litigation. He also contended that he should be allowed to withdraw his 

plea because his counsel was ineffective in responding to prosecutorial misconduct. 

                Judge Thompson dismissed Wilson's application on December 10, 2008. 

                Why   we   conclude   that   Wilson's   application   established   a   prima 
                facie case to withdraw his plea 

                As we have previously stated, in determining whether Wilson established 

a prima facie case, we are to look at the facts in the light most favorable to Wilson's 

claim.    After   imposition     of   sentence,   a   defendant   "must   prove   that   withdrawal   is 
necessary   to   correct   a   manifest   injustice."8  "Withdrawal   is   necessary   to   correct   a 

manifest   injustice   whenever   it   is   demonstrated   that   ...   [t]he   defendant   was   denied 
effective assistance of counsel ... ."9 

                Normally,   in   evaluating   a   claim   that   a   defendant   received   ineffective 

assistance of counsel, courts apply a strong presumption that counsel was competent and 

presume       that   the   trial  counsel's     actions    were    motivated     by    sound     tactical 
considerations.10     In   order to establish a claim of ineffective assistance of counsel, a 

        8   Alaska R. Crim. P. 11(h)(3). 

        9   Alaska R. Crim. P. 11(h)(4)(A). 

        10  Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 

(1984); Jones, 759 P.2d at 569. 

                                                 - 4 -                                             2286
 

----------------------- Page 5-----------------------

defendant must rule out the possibility that counsel's decisions were made for a tactical 

         11 
reason.      But   a   claim   that   a   defendant   received   ineffective   assistance   of   counsel   in 

deciding whether or not to enter a plea to a criminal charge is different.  This is because, 

unlike most decisions, the decision whether or not to enter a guilty or no-contest plea is 
ultimately a decision for the defendant to make.12 

                 According to Wilson, he would not have entered a no-contest plea if he had 

been aware that the plea would prejudice him in defending the civil case that he was sure 

that MacDonald would file. Thus, Wilson alleged that his representation was ineffective 

because his attorney gave him incorrect advice regarding the effect of a no-contest plea. 

                 One of the reasons that Judge Thompson rejected this claim was on the 

ground that the issue was collateral to the criminal case.  He reasoned that Wilson hired 

the attorney only to represent him in the criminal case.               Wilson represented himself in 

the    civil  case.    Courts     have    drawn     a  distinction     between     direct   and   collateral 
consequences of criminal convictions.              For instance, in  Tafoya v. State,13  the Alaska 

Supreme Court ruled that a defense attorney's failure to inform Tafoya of the possibility 

that   he   might    face   deportation     was   not   ineffective    assistance    of  counsel    because 
deportation was a collateral, rather than a direct, consequence of a conviction.14                       But 

Wilson raised a different claim in his application for post-conviction relief.  He did not 

         11  Jones, 759 P.2d at 569. 

         12  Alaska R. Prof. Conduct 1.2(a); see Love v. State, 173 P.3d 435, 435-37 (Alaska App. 

2007). 

         13  500 P.2d 247 (Alaska 1972). 

         14  Id. at 252; see also Peterson v. State, 988 P.2d 109, 115 (Alaska App. 1999) (holding 

that sex offender registration is a collateral consequence to a conviction for a sex offense); see 
generally 5 Wayne R. LaFave, Criminal Procedure  21.4(d), at 171-73 (2d ed. 1999 & Supp. 
2006). 

                                                    - 5 -                                               2286
 

----------------------- Page 6-----------------------

claim that his attorney neglected to advise him about the consequences that his no- 

contest plea might have on a later civil case. Wilson alleged that both he and his attorney 

were aware that MacDonald would file a civil case, that the civil case was of critical 

importance to Wilson, that Wilson specifically asked for legal advice about the possible 

consequences of the no-contest plea in the civil case, and that the attorney assured him 

that the no-contest plea would not prejudice him in the civil case. Wilson contended that 
this fell below the standard of care set out in Risher v. State,15 and that he would not have 

entered the plea except for this advice. 

                Cases decided subsequent to  Tafoya support Wilson's claim.                   In  United 
States v. Kwan,16 the defendant pled guilty to bank fraud after his attorney assured him 

that deportation "was not a serious possibility."17  This advice was incorrect. Federal law 

made Kwan's deportation almost certain.18  The Ninth Circuit stated that "where, as here, 

counsel has not merely failed to inform, but has effectively misled, his client about the 

immigration       consequences      of   a  conviction,    counsel's    performance      is  objectively 
unreasonable under contemporary standards for attorney competence."19                     In Padilla v. 

Kentucky,20      Padilla   pled   to  drug   charges    which    made     his  deportation     "virtually 

mandatory."21     Padilla alleged that he would not have entered a guilty plea if he had not 

        15  523 P.2d 421 (Alaska 1974).
 

        16  407 F.3d 1005 (9th Cir. 2005).
 

        17  Id. at 1008. 
 

        18  Id. at 1009.
 

        19  Id. at 1015. 
 

        20   130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).
 

        21  Id. at 1478. 
 

                                                  - 6 -                                             2286
 

----------------------- Page 7-----------------------

received incorrect advice from his attorney.              The Supreme Court of Kentucky denied 

Padilla's post-conviction relief application, concluding that deportation was a collateral 

consequence of the conviction and therefore "neither counsel's failure to advise [Padilla] 

about the possibility of removal, nor counsel's incorrect advice, could provide a basis for 
relief."22  The United States Supreme Court reversed, holding that Padilla's contentions, 

if proven, would establish that he received ineffective assistance of counsel in entering 
his plea.23 

                 In  Padilla,   the   Supreme   Court   did   not   consider   whether   a   distinction 

between direct and collateral consequences was generally appropriate, because "of the 
unique nature of deportation."24          The court also refrained from distinguishing between 

failing to advise and providing incorrect advice, instead simply finding that Padilla's 
counsel had provided assistance that fell below the requisite standard of care.25                     Given 

these cases, we conclude that Wilson's claims, if proven, would establish that he received 

ineffective assistance of counsel. 

                 In rejecting Wilson's application, Judge Thompson also relied upon an 

observation that, at the time Wilson's attorney advised him in 2001, the law was unclear 

about the effect of a no-contest plea on civil litigation.  Judge Thompson pointed out that 
in Burcina v. Ketchikan,26         decided in 1995, the court held that "a civil plaintiff [was] 

collaterally estopped from relitigating any element of a criminal charge to which he has 

         22  Id.
 

         23  Id. at 1483.
 

         24  Id. at 1481.
 

         25  Id. at 1483-84.
 

         26  902 P.2d 817 (Alaska 1995).
 

                                                    - 7 -                                                2286
 

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pled [no contest]."27      It was not until 2006, in Lamb v. Anderson,28             well after Wilson's 

attorney advised him, that the Supreme Court extended the rule to collaterally estop 

defendants in civil cases. 

                 In support of his claim of ineffective assistance of counsel, Wilson filed a 

letter from an attorney experienced in defending criminal cases, Sydney K. Billingslea. 

Ms. Billingslea stated in her letter that, in her opinion, Wilson's attorney's failure to 

accurately advise Wilson in 2001that a no-contest plea would offer him no protection in 

a civil suit, and "would in fact serve to admit the facts of the charge as surely as a guilty 

plea," would amount to ineffective assistance of counsel. 

                 At oral argument on appeal, the attorney for the State pointed out that Ms. 

Billingslea's opinion was set out in a letter, not an affidavit.            But the State never raised 

any   objection   in   the   trial   court   to   the   fact   that   Ms.   Billingslea's   opinion   was   not 

submitted in affidavit form.   Under these circumstances, we conclude that the trial court 

was required to consider Ms. Billingslea's opinion in deciding whether to dismiss the 

application for post-conviction relief or, in the alternative, to give Wilson an opportunity 
to remedy any deficiency before ruling.29 

                 Ms. Billingslea's report supports the contention that after the decision in 

Burcina, when a criminal defendant asked an attorney about the effect of a no-contest 

plea on civil litigation, a competent attorney would have foreseen that the no-contest plea 

would collaterally estop the criminal defendant from denying that he committed the 

assault   in   civil   litigation. We   note   that,   when   MacDonald   did   sue   Wilson,   Judge 

        27  Id. at 822 (emphasis added).
 

        28   147 P.3d 736, 742-43 (Alaska 2006). 
 

        29   Turnbull v. LaRose, 702 P.2d 1331, 1335 (Alaska 1985); Kvasnikoff v. Weaver Bros.
 

Inc., 405 P.2d 781, 784 (Alaska 1965). 

                                                   - 8 -                                               2286
 

----------------------- Page 9-----------------------

Thompson - relying on Burcina and before the Supreme Court decided Lamb - held 

that MacDonald was entitled to summary judgment against Wilson based upon Wilson's 

no-contest plea. We accordingly conclude that Wilson established a prima facie case that 

he received ineffective assistance of counsel in entering his plea. 

                Wilson's remaining claims were correctly dismissed for failure to 
                make a prima facie case 

                Wilson   separately   contended   in   his   application   that   his   plea   must   be 

withdrawn because his attorney provided ineffective assistance by failing to respond to 

prosecutorial misconduct at the grand jury proceeding.              Wilson argued that the failure 

to   move   for   dismissal   of   the   indictment   constituted   ineffective   assistance.  Wilson 

separately   contended   that   his   plea   must   be   withdrawn   because   of   the   prosecutorial 

misconduct.  Wilson's application was insufficient to provide a prima facie case of these 

claims.   He presented no evidence that would rebut the presumption that the attorney 
made competent tactical decisions in addressing these matters.30             We therefore conclude 

that Judge Thompson did not err in dismissing these contentions. 

                Conclusion 

                We conclude that Wilson established a prima facie case that he received 

ineffective assistance of counsel in entering his plea.             We accordingly conclude that 

Judge Thompson erred in dismissing Wilson's application for post-conviction relief on 

the pleadings for failure to state a prima facie case. 

                The     judgment     of  the  superior    court   is  REVERSED.          The    case   is 

REMANDED for further proceedings on Wilson's application for post-conviction relief. 

        30  See Jones, 759 P.2d at 569; Gaona v. State, 630 P.2d 534, 538 (Alaska App. 1981). 

                                                 - 9 -                                              2286 
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