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Wyatt v State (2/17/2017) ap-2538

Wyatt v State (2/17/2017) ap-2538

                                                                               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@ akcourts.us  



                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                      



RONALD  F.  WYATT,  

                                                                                                                                                 

                                                                                                       Court of Appeals No. A-10791  

                                                                                                                                                              

                                                      Appellant,                                      Trial Court No.  1JU-05-620 CI  



                                        v.  

                                                                                                                       O P I N I O N  

                                                                                                                                              

STATE  OF  ALASKA,  



                                                      Appellee.                                       No. 2538 - February 17, 2017  

                                                                                                                                                         



                           Appeal from the Superior Court, First Judicial District, Juneau,  

                                                                                                                                      

                           Philip M. Pallenberg, Judge.  

                                                                     



                           Appearances:   Ronald F. Wyatt,  in propria persona, Wasilla,  

                                                                                                                                    

                           Alaska, for the Appellant.  Michael Sean McLaughlin, Assistant  

                                                                                                                                   

                           Attorney  General,  Office  of  Criminal  Appeals,  Anchorage,  

                                                                                                                              

                           and  Michael  C.  Geraghty,  Attorney General,  Juneau,  for  the  

                                                                                                                                              

                           Appellee.  

                                               



                           Before:  Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                                                                                                   

                           Superior Court Judge.*  

                                                         

                                                                        



                                                                          

                           Judge MANNHEIMER.  



       *      Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                             


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

                         In   1994,   Ronald   F.   Wyatt   was   convicted   of   first-degree   murder   and  



evidence tampering in connection with the homicide of his wife.                                                      This Court affirmed his               



                                                     1  

convictions on direct appeal.                            



                                                                                                                                                     

                         In 2000, Wyatt filed a pro se  application for post-conviction relief in which  



                                                                                                                                                       

he  claimed that his trial attorney had actively impeded his wish to testify on his own  



                                                                                                                                                         

behalf at his trial.  However, after an attorney was appointed to represent Wyatt in this  



                                                                                                                                                    

post-conviction  relief  litigation,  the  attorney  abandoned  Wyatt's  claim  of  active  



                                                                                                                                                            

obstruction and instead pursued a different claim:  that Wyatt's trial judge had failed to  



                                                                                                 

obtain Wyatt's express waiver of his right to testify.  



                                                                                                                                                     

                         The superior court dismissed that application for failure to state a prima  



                                                                                                                       2  

                                                                                                                            

facie case for relief, and we upheld the superior court's decision.  



                         Wyatt then filed a second application for post-conviction relief, claiming  

                                                                                                                                                 



that his first post-conviction relief attorney had incompetently abandoned his initialclaim  

                                                                                                                                                      



for post-conviction relief and had,  instead, substituted a claim that had no chance of  

                                                                                                                                                            



success.  In this second application, Wyatt renewed his claim that his trial attorney had  

                                                                                                                                                         



actively obstructed or usurped his decision to testify on his own behalf at trial.  

                                                                                                                                                  



                         The superior court  dismissed this second application for post-conviction  

                                                                                                                                    



relief on the pleadings, again concluding that Wyatt failed to state a prima facie case for  

                                                                                                                                                           



relief.  

              



                         For the reasons explained here, we find that  the  superior court erred in  

                                                                                                                                                            



dismissing Wyatt's second application on the pleadings - that this second application  

                                                                                                                                            



did, in fact, state a prima facie claim for relief.  We therefore reverse the superior court's  

                                                                                                                                                   



      1     See Wyatt v. State               , unpublished, 1997 WL 250441 (Alaska App. 1997).                                             



      2  

                                                                                                                                             

            See Wyatt v. State, unpublished, 2004 WL 2966177 (Alaska App. 2004).  



                                                                            - 2 -                                                                       2538
  


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

 decision and remand Wyatt's case to the superior court for further proceedings consistent                                                                                                                                                                                    



 with this opinion.             



                         Underlying proceedings   



                                                The facts of Wyatt's underlyingcriminalcase and his first petition for post-                                                                                                                                                                   



 conviction relief are more fully described in this Court's decisions in                                                                                                                                                                          Wyatt v. State                                    (I),  



 unpublished, 1997 WL 250441 (Alaska App. 1997) (resolving Wyatt's direct appeal),                                                                                                                                                                                                  



 and   Wyatt v. State                                             (II), unpublished, 2004 WL 2966177 (Alaska App. 2004) (resolving                                                                                                                                            



 Wyatt's first petition for post-conviction relief).                                                                                                                          The following procedural history is                                                                                         



 taken from those two prior decisions,                                                                                                    as well as from the pleadings filed in Wyatt's                                                                                           



 current (second) petition for post-conviction relief.                                                                                                       



                                                Wyatt was indicted in 1992 for murdering his wife and for tampering with                                                                                                                                                                         



 evidence by hiding her body.                                                                           Toward the end of Wyatt's trial, his attorney announced                                                                                                           



 that he intended to rest the defense case without putting Wyatt on the stand.                                                                                                                                                                                                 The trial   



judge   accordingly   advised   Wyatt   of   his   right   to   testify   as   required   by   LaVigne   v.  

                      3   In response to this advisement, Wyatt acknowledged that he understood that he  

 State.                                                                                                                                                                                                                                                                                                 



 had the absolute right to testify, and that the decision was his to make, not his attorney's.  

                                                                                                                                                                                                                                                                                                                  



 At that point, Wyatt said nothing more, and the judge did not press Wyatt to formally  

                                                                                                                                                                                                                                                                                  



                                                                                                                                      4  

 declare that he did not wish to testify.  

                                                                                                                                          



                                                The prosecutor was not prepared to present his rebuttal case that day, so he  

                                                                                                                                                                                                                                                                                                        



 asked the judge to adjourn the trial until the next day.  During this discussion, Wyatt said  

                                                                                                                                                                                                                                                                                                  



             3           812 P.2d 217 (Alaska 1991).
                                             



             4  

                                                                                                                                              

                         Wyatt II, 2004 WL 2966177 at *7.
  



                                                                                                                                                 - 3 -                                                                                                                                            2538
  


----------------------- Page 4-----------------------

nothing to indicate that he wanted to testify before the prosecutor presented his rebuttal                                                   



          5  

 case.  



                        Ultimately,  the  jury  convicted  Wyatt  of  both  murder  and  evidence  

                                                                                                                                          

tampering.  We affirmed Wyatt's convictions and sentence in his direct appeal. 6  

                                                                                                                                                  



                        Wyatt then filed a pro se  application for  post-conviction relief, raising a  

                                                                                                                                                        



number of claims.  Among these claims was the assertion that Wyatt's trial attorney had  

                                                                                                                                                    



 actively obstructed or usurped Wyatt's decision to testify on his own behalf - allegedly  

                                                                                                                                           



by telling Wyatt that he would not permit him to take the stand.  

                                                                                                                   



                        The superior court appointed an attorney to represent Wyatt,  and  that  

                                                                                                                                                   



 attorney  filed  an  amended  application  for  post-conviction  relief.                                                   In  this  amended  

                                                                                                                                         



 application, the attorney abandoned Wyatt's claim that his trial attorney had obstructed  

                                                                                                                                        



him from testifying.   Instead, the post-conviction relief attorney substituted a different  

                                                                                                                                           



 claim:  that the trial judge's LaVigne inquiry had been insufficient as a matter of law.  

                                                                                                                                                        



                        Wyatt's post-conviction relief attorney argued that even  though the trial  

                                                                                                                                                   



judge adequately advised Wyatt of his right to testify, the judge then committed error by  

                                                                                                                                                      



 failing to  obtain  Wyatt's express waiver of the right to testify.   The attorney further  

                                                                                                                                              



 argued that the judge's omission required automatic reversal of Wyatt's conviction.  

                                                                                                                                                     



                        The superior court dismissed Wyatt's post-conviction relief application,  

                                                                                                                                      



 finding that it failed to state a prima facie case.   We affirmed that decision on appeal,  

                                                                                                                                             



holding that the trial judge had complied  with LaVigne  even though Wyatt had not  

                                                                                                                                                    



                                                                7  

 expressly waived his right to testify.  

                                                    



      5     Id.  at *7-8.        



      6      Wyatt I, affirmed on petition for hearing in Wyatt v. State, 981 P.2d 109 (Alaska  

                                                                                                                                             

 1999).  

              



      7      Wyatt II     , 2004 WL 2966177.                   



                                                                         - 4 -                                                                    2538
  


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

                              Wyatt then filed a second application for post-conviction relief,                                                                                alleging  



that the attorney who represented him in the first post-conviction                                                                                   relief litigation was              



incompetent because he abandoned Wyatt's original claim for relief - the claim that                                                                                                     



                                                                                                                                                    8  

Wyatt's trial attorney had actively obstructed him from testifying.                                                                                                                      

                                                                                                                                                         In support of this  



                                                                                                           

claim, Wyatt submitted an affidavit in which he stated:  



                                

                                                                                                                                                            

                              At the time of my trial, I did not understand that I had the  

                                                                                                                                                     

                              absolute right to testify.   I had asked my attorney to permit  

                                                                                                                                                             

                              me  to  testify,  and  he  had  indicated  that  I  would  not  be  

                                                                                                                                                               

                              permitted to testify, and had taken no steps to prepare me to  

                                                                                                                                                      

                              testify, even though I had pointed out several areas in which  

                                                                                                                                    

                              I  could   provide  information  to  rebut  the  prosecution's  

                                                      

                              evidence.  



                                                                                                                                                                                         

                              Wyatt's affidavit further alleged that when the trial judge advised him that  



                                                                                                                                                                                     

he could testify despite his attorney's contrary wishes, Wyatt then waited for the judge  



                                                                                                                                                                               

to inquire whether he wished to testify - but the judge instead turned to other matters:  



                                

                                                                                                                                                            

                              When the judge asked whether I understood that I had the  

                                                                                                                                                        

                              right to testify, I answered the question accurately. The judge  

                                                                                                                                                            

                              did not ask me whether I chose to waive that right.   If the  

                                                                                                                                                         

                             judge had asked me, I would have explained that I did wish  

                                                      

                              to testify.  



                                                                                                                                                                           

                              Wyatt's  son,  Mark  Wyatt,  served  as  his  father's  third-party  custodian  



                                                                                                                                                                                

during the trialproceedings, and he attended meetings between his father and the defense  



                                                                                                                                                                               

attorney.  In corroboration of his father's affidavit, Mark Wyatt also alleged that Wyatt's  



                                                                                           

trial attorney obstructed Wyatt's right to testify:  



        8      See Grinols v. State                       , 10 P.3d 600, 618 (Alaska App. 2000),                                            affirmed in part                  , 74 P.3d     



889 (Alaska 2003) (holding that a petitioner may litigate a second application if the first post-                                                                                     

conviction relief attorney provided incompetent representation in the first application).                                                                    



                                                                                            - 5 -                                                                                       2538
  


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

                       

                                                                                                            

                     I was present on several occasions when my father and [his  

                                                                                                    

                     trial   attorney]         had      discussions         regarding   my            father's  

                                                                                                       

                     testimony at trial.  My father argued strongly that he wanted  

                                                                                                             

                     to testify in his own behalf, but his [lawyer] was insistent that  

                                                                  

                     he would not let him testify.  



                                                                                                                          

 Notwithstanding  these  allegations,   the  superior   court  dismissed  Wyatt's  second  



                                                                                                                              

 application for post-conviction relief.  The court concluded that Wyatt had again failed  



                                                                                                                     

 to plead a prima facie case.  Wyatt now appeals the dismissal of his second application.  



                                                                                                                  

           Why we conclude that Wyatt presented a prima facie case that his earlier  

                                                                                                                   

           post-conviction relief attorney acted incompetently in selecting the issues  

                           

           to pursue  



                                                                                                                              

                     To avoid dismissal of  his  second application for post-conviction relief,  



                                                                                                                          

 Wyatt had to offer  a prima facie case (1) that his first post-conviction relief attorney  



                                                                                                                           

 acted incompetently when he abandoned Wyatt's initialclaim (i.e., the claim that Wyatt's  



                                                                                                                                   

 trial attorney actively obstructed him from testifying at trial), and (2) that if this claim of  



                                                                                                                                

 active obstruction had been pursued, Wyatt would have prevailed on this claim,  and  



                                                                                                                           

 (3) that if Wyatt prevailed on this claim, he would be entitled to modification or reversal  



                                                       

 of his original criminal judgement.  



                                                                                                                               

                     Because Wyatt's burden was only to offer a "prima facie case" for post- 



                                                                                                                                        

 conviction relief, Wyatt did not have to prove (at this stage) that he was entitled to relief.  



                                                                                                                                    

 Rather, Wyatt was required to present the superior court with well-pleaded assertions of  



                                                                                                                                        

fact  which, if ultimately proved, would be sufficient to establish his entitlement to relief.  



                                                                                                                              

                     Turning to the  first element of Wyatt's claim for post-conviction relief,  



                                                                                                                              

 Wyatt  had  to  offer  a  prima  facie  case  that  the  litigation  strategy  of  his  first  post- 



                                                                                                                           

 conviction  relief  attorney  -  i.e.,  the  attorney's  abandonment  of  Wyatt's  "active  



                                                                - 6 -                                                          2538
  


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

obstruction" claim and his substitution of the "lack of express waiver" claim - was so                                                                   



incompetent as to fall below the minimum level of competency expected of criminal law                                                                  



practitioners.   



                                                            9  

                        In  Coffman v. State               ,                                                                               

                                                              we addressed the related situation where a defendant  



                                                                                                                                                   

sought post-conviction relief based on the contention that their appellate attorney acted  



                                                                                                  

incompetently when choosing the claims to pursue on appeal:  



                          

                                                                                                                               

                                     [The        petitioner]            raises        a     specialized             claim        of  

                                                                                                                    

                        incompetence:                   she  asserts  that   her   appellate  attorney  

                                                                                                                                       

                        incompetently selected the issues to be pursued on appeal.  

                                                                                                                  

                        Courts  from  around  the  country  are  in  basic  agreement  

                                                                                                                         

                        concerning the prima facie case that a defendant must present  

                                                                                                                                       

                        to support a claim of attorney incompetence in this situation.  

                                                                                                                    

                        To establish  a  prima facie case that an appellate counsel's  

                                                                                                                           

                        choice   of  issues  was  incompetent,  the  defendant  must  

                                                                                                                

                        establish (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.  

                                            

                         [Footnote omitted]  



                                                                                                                      

                                    Although proof of these three elements will establish  

                                                                                                                               

                        a prima facie case, the ultimate question is not whether the  

                                                                                                                              

                        appellate  attorney  could  have  done  better.                                        Rather,  the  

                                                                                                                          

                        ultimate question is whether the attorney's choice of issues  



      9      172 P.3d 804 (Alaska App. 2007).               



                                                                          - 7 -                                                                      2538
  


----------------------- Page 8-----------------------

                                                                          was so ill-considered that it fails to demonstrate the minimal                                                                                                                                                                                                                             

                                                                          competence required of criminal law practitioners.                                                                                                                                                                                                                                  



 Coffman, 172 P.3d at 813.                                                                                                                           



                                                                          Applying these criteria to the analogous situation presented in Wyatt's case,                                                                                                                                                                                                                                                                                                        



 we conclude that Wyatt's second application for post-conviction relief set forth a prima                                                                                                                                                                                                                                                                                                                                                           



 facie case that his first post-conviction relief attorney's choice of issues was incompetent.                                                                                                                                                                                                                                                                                                                                                                                               



 Wyatt's initial "active obstruction" claim was at least litigable, but his attorney's "lack                                                                                                                                                                                                                                                                                                                                                                 



 of express waiver" claim was doomed from the outset.                                                                                                                                                                                                                                                         



                                                                          In his "lack of express waiver" claim, Wyatt's first post-conviction relief                                                                                                                                                                                                                                                                                                         



 attorney conceded that Wyatt's trial judge properly apprised Wyatt of his right to testify                                                                                                                                                                                                                                                                                                                                                             



-  but he argued that the trial judge nevertheless committed error by failing "to elicit                                                                                                                                                                                                                                                                                                                                                                       



 from Mr. Wyatt [an express] waiver of his right to testify".                                                                                                                                                                                                                                                                             The attorney then argued                                                                                   



 that,   because the judge failed to elicit this express waiver,                                                                                                                                                                                                                                                                            Wyatt was entitled to an                                                                                                       



 automatic   reversal of                                                                                                  his   convictions,   without   any   affirmative   showing that                                                                                                                                                                                                                                                      he   was  



prejudiced by the judge's supposed error.                                                                                                                                                                                             



                                                                          Both of                                      these   assertions - that the trial judge was required to obtain                                                                                                                                                                                                                                                                



 Wyatt's express waiver of his right to testify, and that this                                                                                                                                                                                                                                                                         supposed departure from                                                                                                



LaVigne   automatically required a reversal of Wyatt's                                                                                                                                                                                                                                                          convictions - were obviously                                                                                        



 meritless under this Court's then-existing case law.                                                                                                                                                                                                                                    



                                                                          As we explained in                                                                                         Wyatt   II, 2004 WL 2966177 at *4-5, this Court had                                                                                                                                                                                                                             



 already rejected                                                                            the notion that                                                                      LaVigne  required trial judges to obtain a defendant's                                                                                                                                                                         

                                                                                                                                                                                                                    10  and we had already rejected the notion that a  

 express waiver of their right to testify,                                                                                                                                                                                                                                                                                                                                                                                                                                        



                    10                See  Knix v. State                                                                          , 922 P.2d 913, 918-19 (Alaska App. 1996), where we noted that                                                                                                                                                                                                                                                                       



 "[t]he   inescapable corollary of [a defendant's] fundamental right to testify is the equally                                                                                                                                                                                                                                                                                                                                                    

 fundamental right to silence" - so that even when a defendant refuses to explicitly waive                                                                                                                                                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                                                                                                                                                                                                       (continued...)  



                                                                                                                                                                                                                                   - 8 -                                                                                                                                                                                                                             2538
  


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

judge's failure to conduct a proper                          LaVigne   inquiry required automatic reversal of a                                   



                                                                                                                      11  

defendant's conviction, without a case-specific showing of prejudice.                                                     



                       When the superior court dismissed Wyatt's current application for post- 

                                                                                                                                            



conviction relief on the pleadings,  the court hypothesized that,  despite the fact that  

                                                                                                                                             



Wyatt's first post-conviction relief attorney could not recall his reason for pursuing the  

                                                                                                                                               



meritless "lack of express waiver"  claim, the attorney might have had a valid tactical  

                                                                                                                                        



reason for choosing to pursue this meritless claim rather than  Wyatt's initial "active  

                                                                                                                                        



obstruction" claim.  The court suggested that the meritless "lack of express waiver" claim  

                                                                                                                                            



was "cleaner" than Wyatt's initial "active obstruction" claim - "cleaner" in the sense  

                                                                                                                                           



that  the lack-of-waiver claim "did not require an evidentiary hearing".   The superior  

                                                                                                                                     



court also suggested that if an evidentiary hearing had been held, the testimony elicited  

                                                                                                                                        



 from  Wyatt and his trial attorney "might weaken" Wyatt's claim for post-conviction  

                                                                                                                          



relief.  

            



                       There are three problems with the superior court's approach to this issue.  

                                                                                                                                                      



                       First, Wyatt offered an affirmative and plausible reason to believe that his  

                                                                                                                                                



 former attorney's choice of issues was incompetent. As we have just explained, the issue  

                                                                                                                                            



      10    (...continued)  



                                                                                                                                               

their right to testify, a trial judge "[can] hardly order [a  defendant] to take the stand and  

                                                 

testify in their own defense."  



      11  

                                                                                                                                           

            See Weist v. Anchorage, 929 P.2d 668, 669 (Alaska App. 1996), and Pitka v. State ,  

                                                                                                                                   

995 P.2d 677, 680 (Alaska App. 2000) (both holding that even when a trial judge completely  

                                                                                                                                                

fails to conduct any LaVigne  advisement, the defendant must still establish prejudice by  

                                                                                                                                              

affirmatively showing (1) that they would have taken the stand if they had known that it was  

                                                                                                                                              

their right, and (2) that they had relevant testimony to offer).  See also Hurn v. State, 872  

                                                                                                                                       

P.2d 189, 198 (Alaska App. 1994) ("A failure to comply with the LaVigne rule is harmful,  

                                                                                                                                     

not because that failure by itself proves that a defendant's constitutional right was abridged,  

                                                                                                                                  

but because the failure makes it harder  to determine the facts underlying the defendant's  

                                                           

claim of constitutional violation.").  



                                                                      - 9 -                                                                  2538
  


----------------------- Page 10-----------------------

that his attorney chose to pursue (                                                                                               i.e., the "lack of express waiver" argument) was clearly                                                                                                                                               



meritless.   In contrast, Wyatt's claim that his trial attorney actively obstructed Wyatt's                                                                                                                                                                                                                                        



desire to testify had ostensible evidentiary support and was litigable.                                                                                                                                                                                                                 



                                                        Second, because it was the court (and not Wyatt's attorney) who suggested                                                                                                                                                                                            



this potential tactical reason for the attorney's actions, and because the court did not air                                                                                                                                                                                                                                                             



this potential reason until the court issued its decision dismissing Wyatt's application for                                                                                                                                                                                                                                                           



post-conviction   relief,   Wyatt   never   had   an   opportunity   to   respond   to   the   court's  



 suggestion.   



                                                       Third, even if Wyatt's post-conviction relief attorney                                                                                                                                                                  had  based his choice                                     



of issues on the tactic suggested by the superior court (                                                                                                                                                                     i.e., the tactic of trying to keep                                                                                



Wyatt from taking the stand),                                                                                                   the attorney's tactic was                                                                                    incompetent - because,                                                                                        to  



 successfully pursue the "lack of express waiver" claim that his attorney raised, Wyatt                                                                                                                                                                                                                                                   



would have to take the stand.                                                                                               



                                                       Turning to the first problem with the superior court's analysis, we begin by                                                                                                                                                                                                                       



noting that even though a defendant who seeks post-conviction relief bears the burden                                                                                                                                                                                                                                                 



of proving that their attorney was incompetent, the defendant does not have to prove                                                                                                                                                                                                                                                       



their attorney's incompetence beyond all doubt.                                                                                                                                                      Rather, the defendant must prove this                                                                                                           



                                                                                                                                                                                              12  

proposition by clear and convincing evidence.                                                                                                                                                        



                                                       We have previously explained that when the record is neutral on the issue  

                                                                                                                                                                                                                                                                                                                                                



of the  attorney's incompetence - i.e., when the attorney's complained-of action (or  

                                                                                                                                                                                                                                                                                                                                                       



inaction) might, as likely as not, be attributed to a reasonable tactical choice - then the  

                                                                                                                                                                                                                                                                                                                                                        

defendant has failed to meet their burden of proof. 13  

                                                                                                                                                                                      

                                                                                                                                                                                                                          



               12           AS 12.72.040.                                             



               13  

                                                                                                                                                                                                                                                                                                                                                    

                            See Allen v. State, 153 P.3d 1019, 1027 (Alaska App. 2007);Parker v. State ,779 P.2d  

                                                                                                                                                                                                                                                                                                                                          

 1245, 1248 (Alaska App. 1989); State v. Jones, 759 P.2d 558, 574 n. 8 (Alaska App. 1988).  



                                                                                                                                                                        -  10 -                                                                                                                                                                     2538
  


----------------------- Page 11-----------------------

                                                                            But when, as here, the record affirmatively indicates that the attorney's                                                                                                                                                                                                                                                                                         



action was incompetent,                                                                                                                        the fact that the superior court can hypothesize a                                                                                                                                                                                                                                                      potential  



tactical reason for the attorney's action does not authorize the superior court to dismiss                                                                                                                                                                                                                                                                                                                                                                        



a defendant's post-conviction relief application on the pleadings -                                                                                                                                                                                                                                                                                                                             i.e., to dismiss the                                                                     



case without allowing discovery and, potentially, holding an evidentiary hearing.                                                                                                                                                                                                                                                                                                                                                                                       



                                                                            At   this   stage   of   the   proceedings,   Wyatt   had   no   obligation   to   present  



conclusive proof of attorney incompetence.                                                                                                                                                                                                            Because Wyatt asserted facts that affirma-                                                                                                                                                              



tively raised a reasonable inference of attorney incompetence, the mere possibility that                                                                                                                                                                                                                                                                                                                                                                                             



Wyatt's attorney may have acted for sound tactical reasons was not a sufficient basis for                                                                                                                                                                                                                                                                                                                                                                                                  



dismissing Wyatt's post-conviction relief petition on the pleadings.                                                                                                                                                                                                                                                                                                                     



                                                                             The final problem with the superior court's analysis of Wyatt's case is that,                                                                                                                                                                                                                                                                                                                  



even if Wyatt's post-conviction relief attorney based his choice of issues on the tactic of                                                                                                                                                                                                                                                                                                                                                                                                     



trying to keep Wyatt from taking the stand (as the superior court suggested), this tactic                                                                                                                                                                                                                                                                                                                                                                                    



would be incompetent.                                                                                                             The tactic would be incompetent because Wyatt would, in fact,                                                                                                                                                                                                                                                                                  



have to take the stand if his attorney was to successfully pursue the                                                                                                                                                                                                                                                                                                                                      "lack of express                                     



waiver" claim.                                                                      



                                                                             This Court has repeatedly held that a faulty                                                                                                                                                                                                         LaVigne  advisement does not                                                                                                                            



lead to automatic reversal of a defendant's conviction.                                                                                                                                                                                                                                                             Even when a trial judge gives an                                                                                                                                          



inadequate  LaVigne  advisement (or completely fails to give one), a defendant must still                                                                                                                                                                                                                                                                                                                                                                                                



establish prejudice - by showing (1) that they would have testified if they had known                                                                                                                                                                                                                                                                                                                                                                               



that it was their right, and (2) that they had relevant testimony to offer.                                                                                                                                                                                                                                                                                                                                               This rule was                                              



already well established when Wyatt's first                                                                                                                                                                                                                application for post-conviction relief was                                                                                                                                                                               



                                                   14  

litigated.      



                    14                See,  e.g.,   Weist v. Anchorage                                                                                                                                 , 929 P.2d at 669.                                                                               



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----------------------- Page 12-----------------------

                                                                                                                                  

                     Thus, even if the trial judge's failure to obtain Wyatt's express waiver of  



                                                                                                                            

the right to testify had been error under LaVigne, Wyatt would still have had to testify  



                                                                                                                                

in  the  post-conviction  relief  proceedings  to  establish  that  he  was  prejudiced  by  the  



                                                                                                                       

LaVigne error.  And after Wyatt testified, one side or the other would almost inevitably  



                                                                                                   

have called Wyatt's trial attorney to testify about these matters.  



                                                                                                                              

                     In other words,  Wyatt's first post-conviction relief attorney would have  



                                                                                                                                

acted incompetently if he made his choice of issues based on the purported "fact" that  



                                                                                                                                

a  faulty  LaVigne   advisement  would  entitle  Wyatt  to  automatic   reversal  of  his  



                                                                                                                                 

convictions, without the need for Wyatt to take the stand at an evidentiary hearing.  



                                                                                                                             

                     In  summation:            Wyatt's  current  application  for  post-conviction  relief  



                                                                                                                        

contains well-pleaded assertions  of fact which,  if ultimately proved,  would establish  



                                                                                                                               

(1) that Wyatt's first post-conviction relief attorney abandoned a litigable claim (the  



                                                                                                                          

claim that Wyatt's trial attorney obstructed Wyatt from exercising his right to  testify)  



                                                                                                                               

in favor of a "lack of express waiver" claim that was clearly meritless under existing law,  



                                                                                                                          

and (2) that the attorney's choice of issues was incompetent - i.e., below the minimal  



                                                                                                      

level of competence that we require of criminal law practitioners.  



                                                                                                                      

                     Because Wyatt offered affirmative reasons to believe that his attorney's  



                                                                                                                           

choice  of issues was incompetent, Wyatt was entitled to litigate his case even though  



                                                                                                                              

there  might  be  a  possibility  that  his  attorney  acted  for  tactical reasons.                                 And  even  



                                                                                                                         

assuming that Wyatt's post-conviction relief attorney  had  acted for tactical reasons,  



                                                                                                               

Wyatt was entitled to challenge the competency of his attorney's tactic.  



                                                                                                              

                     We therefore conclude that Wyatt's current application for post-conviction  



                                                                                                                                

relief presents a prima facie case that Wyatt received ineffective assistance  from  the  



                                                                                                                               

attorney who represented him in his first application for post-conviction relief.                                              The  



                                                                                                                                  

superior court should not have dismissed this claim, and Wyatt is entitled to proceed to  



                  

discovery.  



                                                              -  12 -                                                         2538
  


----------------------- Page 13-----------------------

                Wyatt's additional issues                     



                               Wyatt raises additional issues in his brief to this Court:                                                                        issues concerning   



the jury instructions at his trial,                                          the   trial court's denial of a suppression motion, and                                                               



allegations of prosecutorial misconduct.                                                      Claims based on the admission of evidence at                                                             

                                                                                                                                 15    Moreover, all of these claims  

trial cannot be raised in a post-conviction relief action.                                                                                                                                   



are barred because they either were raised or could have been raised in Wyatt's direct  

                                                                                                                                                                                               

appeal of his convictions. 16                                     We therefore affirm the superior court's dismissal of these  

                                                                                                                                                                                                



claims.  



                Conclusion  



                               We REVERSE the superior court's dismissal of Wyatt's claim  that  he  

                                                                                                                                                                                                      



received ineffective assistance of counsel from the attorney who represented him in his  

                                                                                                                                                                                                     



first post-conviction relief litigation.  On that claim, this case is remanded to the superior  

                                                                                                                                                                                         



court for further proceedings.  However, we AFFIRM the superior court's dismissal of  

                                                                                                                                                                                                       



Wyatt's other claims.  

                                                    



        15      AS 12.72.020(a)(1).   



        16  

                        

                AS 12.72.020(a)(2).  



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