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Alexie v. State (7/21/2017) ap-2560

Alexie v. State (7/21/2017) ap-2560

                                                                         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:  



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                       IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



ARTHUR A. ALEXIE SR.,  

                                                                                              Court of Appeals No. A-11988  

                                                  Appellant,                                  Trial Court No. 4BE-12-171 CI  



                                     v.  

                                                                                                          O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                                  Appellee.                                       No. 2560 - July 21, 2017  



                                                       

                         Appeal from the Superior Court, Fourth Judicial District,  

                         Bethel, Dwayne W. McConnell, Judge.  



                         Appearances:  Maureen  E.  Dey,  Gazewood  &  Weiner,  P.C.,  

                                                   

                         Fairbanks, for the Appellant.   June Stein, Assistant Attorney  

                                                                                                       

                         General, Anchorage, and Craig W. Richards, Attorney General,  

                                                                                                                           

                         Juneau, for the Appellee.  



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

                                                                              

                         Senior Judge.*  

                                                     



                         Senior Judge COATS.  



                         Arthur A. Alexie Sr. filed an application for post-conviction relief seeking                                               



to withdraw his plea after sentencing. The superior court summarily dismissed Alexie's                                                             



      *      Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska 



Constitution and Administrative Rule 23(a).  


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application.   He was seeking to withdraw his plea after sentencing.                                                                      On appeal, among         



other   things,   Alexie   contends   that   he   presented   a  prima  facie   case   that   he   did   not  



understand the terms of the plea agreement and consequently did not enter his plea                                                                                      



knowingly and voluntarily. For the reasons explained in this decision, we conclude that                                                                                   



Alexie did plead a                     prima facie                case that he did not understand the terms of the plea                                                 



agreement   and,   therefore,   we   remand   this   case   to  the   superior   court   for   further  



proceedings on Alexie's petition.                                     



                           (Alexie   raises   several   other   contentions,   but   all   of   these   appear   to   be  



variations on his claim that his plea was not knowing or voluntary.)                                                                        



             Background  



                           On December 7, 2011, Alexie pleaded guilty to one count of third-degree  

                                                                                                                                                        



sexual abuse of a minor.  Alexie entered this plea in accordance with an agreement with  

                                                                                                                                                                        



the State. He had originally been charged with one count of second-degree sexual abuse  

                                                                                                                                                                      



of a minor and with two counts of attempted second-degree sexual abuse of a minor.  

                                                                                                                                                                                   



There were two victims:  an eight-year-old and a ten-year-old.  

                                                                                                     



                           Alexie's case had been pending for approximately a year and a half before  

                                                                                                                                                                    



the  change-of-plea  hearing.                                  During  that  time,  and  at  the  change  of  plea,  he  was  

                                                                                                                                                                        



represented by an assistant public defender.  At the hearing, Alexie, after a standard  

                                                                                                                                                              



change-of-plea colloquy with the court, entered a plea of guilty to one count of third- 

                                                                                                                                                                      

degree sexual abuse of a minor, a class C felony.1  

                                                                                                                                                                          

                                                                                                               At the end of the colloquy, the  



                                                                                                                                                  

superior court found that Alexie had a full understanding of his rights, and that he had  



                                                                                                                           

made a knowing, voluntary, and intelligent waiver of those rights.  



       1      AS 11.41.438(b).  



                                                                                    - 2 -                                                                            2560
  


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                             Alexie was sentenced that same day to serve 5 years, no time suspended.                                                                                           



As part of the agreement, Alexie conceded one aggravating factor - that the offense was                                                                                              



the most serious. Except under circumstances not present in Alexie's case, the maximum                                                                                 

time to serve for a class C felony is 5 years.                                                 2  



                                                                                                                                                                     

                             Approximately four monthslater,in April 2012, Alexie filed an application  



                                                                                                                                                                      

for post-conviction relief. AlthoughAlexieostensiblyraisedseveral different allegations  



                                                                                                                                                                           

in his application for post-conviction relief, his pleadings -and particularly his affidavit  



                                                                                                                                                                                               

- made it clear that he wished to withdraw his plea under Alaska Criminal Rule 11(h).  



                                                                                                                                                                                          

That is, Alexie was asserting that withdrawal of his plea was necessary to correct a  



                                                                                                                                                                                      

manifest injustice, in that his attorney did not accurately explain to him the terms of the  



                                                                                                                                                                                         

plea agreement, and that she coerced him to say "guilty" when the court asked him to  



                     

enter his plea.  



                                                                                                                                                                                   

                             Among  other  things,  Alexie  claimed  in  his  application  that  he  was  



                                                                                                                                                                                    

dissatisfied with his trial attorney because she did not adequately communicate with him,  



                                                                                                                                                                             

nor did she inform him about any plea offers from the State.  He alleged he was entitled  



                                                                                                                                                                                    

to withdraw his plea because he was denied the effective assistance of counsel, his plea  



                                                                                                                                                                                      

was involuntary, and the plea was entered without knowledge of the charge, or of the  



                                                                       3  

                                                    

sentence that would be imposed. 



                                                                                                                                                                          

                             In response to Alexie's pleadings, his former attorney filed an affidavit  



                                                                                                                                                                   

controverting Alexie's claims.  Afterwards, the State moved to dismiss the application,  



                                                                                                                                                                            

arguing that in light of thecolloquy that had occurred at Alexie's change-of-plea hearing,  



                                                                                                                                                                           

Alexie's claims were "flatly contradicted by the record." Superior Court Judge Dwayne  



                                                                                                                                                              

M. McConnell agreed with the State and summarily dismissed Alexie's application.  



       2       AS 12.55.125(e).  



       3       See Alaska R. Crim. P. 11(h)(4)(A) and (C).  



                                                                                         -  3 -                                                                                 2560
  


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

                                                           Alexie now appeals.                                   



                               Why we remand for further proceedings on Alexie's petition                                                                                                                                                                              



                                                            In his pleadings, Alexie claimed that he did not understand some key                                                                                                                                                                                                                                              



provisions of the plea agreement.                                                                                                                      In particular, he claimed that he did not understand                                                                                                                                   



how much time he would actually serve, or the nature of the offense to which he was                                                                                                                                                                                                                                                                                           



pleading guilty.                                                         In addition to his general claim that his attorney had not adequately                                                                                                                                                                                                 



communicated with him about his plea, Alexie stated in his affidavit that he was told that                                                                                                                                                                                                                                                                                      



he would serve only 22 months, and that the charge he was pleading to was an "attempt"                                                                                                                                                                                                                                                               



offense, not a completed offense.                                                                                                                    He also claimed that his attorney had coerced him to                                                                                                                                                                              



plead guilty.   



                                                           Alexie's former attorney, however, claimed the opposite in her affidavit.                                                                                                                                                                                                                                                              



 She asserted that Alexie had been informed of the terms of the plea agreement and that                                                                                                                                                                                                                                                                                        



 she had not coerced his plea.                                                                                                           Consequently, the validity of Alexie's claim for plea                                                                                                                                                                              



withdrawal hinged on a question of witness credibility - the conflict between the                                                                                                                                                                                                                                                                                                



competing versions of events offered by Alexie and his trial attorney.                                                                                                                                                                                                       



                                                            In the superior court, the State urged the superior court to dismiss Alexie's                                                                                                                                                                                                                  



application   because,   according  to   the   State,   Alexie's   assertions   of   fact   were   flatly  



contradicted by the colloquy at Alexie's change-of-plea hearing.                                                                                                                                                                                                                                 The State noted that,                                                      

under this Court's decision in  LaBrake v. State,4 when a trial court decides whether to  



                                                                                                                                                                                                                                                                                                                                                                                       

 summarily dismiss an application for post-conviction relief, the court need not accept as  



                                                                                                                                                     5  

                                                                                                                                                                                                                                                                                                                                                                 

true facts that are "patently false."                                                                                                                       In the State's view, Alexie's responses to the court's  



                                                                                                                                                                                                                                                                                                                                                        

questions at the change-of-plea  hearing  demonstrated  the patent falsity  of Alexie's  



               4               152 P.3d 474 (Alaska App. 2007).  



               5             Id. at 481.  



                                                                                                                                                                                      - 4 -                                                                                                                                                                            2560
  


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

current claims that he did not understand the plea agreement, and that he was coerced                                                                                                  



into entering a guilty plea.                                   



                               Although a judge may grant summary judgment and end post-conviction                                                                  



relief litigation short of trial, a judge has no authority to grant summary judgment based                                                                                                  



on the judge's pretrial assessments of witness credibility or pretrial assessments of the                                                                                                        



comparative strength of the parties' positions.  When deciding a motion to dismiss for   



failure to plead a                   prima facie                  case, the trial court must accept as true all of the applicant's                                             



                                                                           6  

well-pleaded   factual   assertions.                                                                                                                                                       

                                                                                 "Summary  judgment  is  appropriate  only  in  those  



                                                                                                                                                                                                 

instances where, even if all of the non-moving party's assertions of fact are true, the law  



                                                                                                           7  

                                                                                                               

requires a decision in the other party's favor." 



                                                                                                                                                                                                   

                               This  is  so  even  in  cases  where,  like  here,  an  applicant's  affidavit  is  



                                                                                                                                                                                                      8  

                                                                                                                                                                                                           

                                                                                                                                                                                    

contradicted by the applicant's responses and statements at a change-of-plea hearing. 



                                                                                                                                                                                                    

                               It is true that, in LaBrake, we ruled that a court need not accept the truth of  



                                                                                                                                                                                         

factual assertions that are patently false.  But here, Alexie submitted an affidavit which,  



                                                                                                                                                                                                  

if believed, casts a different light on what happened at the change-of-plea hearing. In his  



                                                                                                                                                                              

affidavit, Alexie offered evidence which, if true, is sufficient to justify the withdrawal  



                                                                                                                                                                                                

of his plea. When material facts are contested, the trial court must hear the evidence and  



                                                                                                       

determine which assertions of fact are more credible.  



                                                                                                                                                                                                 

                               Alexie's pleading may have been technically deficient because he did not  



                                                                                                                                                                                                 

specifically allege that he was prejudiced by his misunderstanding or ignorance of the  



                                                                                                                                                                                                  

consequences of his guilty plea.   That is, Alexie did not affirmatively assert that he  



        6      See Steffensen v. State, 837 P.2d 1123, 1125-26 (Alaska App. 1992).  



        7       Vizcarra-Medina v. State, 195 P.3d 1095, 1099-1100 (Alaska App. 2008).  



        8      See, e.g., id.  (despite contrary evidence in the record from the change-of-plea hearing,                                      



when the attorney's and the applicant's affidavits conflict on the facts, a hearing is necessary  

to resolve the conflict).  



                                                                                               -  5 -                                                                                      2560
  


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

                                                                                                                                                             9  

would not have accepted the plea agreement had he been correctly advised of its terms.                                                                           



                                                                                                                                                         

But Alexie's pleadings make clear that he seeks to withdraw his plea as unknowing and  



                                                                                                                                                           

involuntary. Moreover, the superior court did not dismiss Alexie's application based on  



                                                       

his technical failure to allege prejudice.  



             Conclusion  



                        We REVERSE the judgment of the superior court, and we REMAND this  

                                                                                                                                                         



case to the superior court for further proceedings on Alexie's petition for post-conviction  

                                                                                                                                   



relief.  



      9     See  Wilson  v.  State,  244   P.3d  535,  538  (Alaska  App.  2010)  (When  moving  to  



withdraw a plea, an applicant must show he would not have entered the guilty plea if he had                                                         

not received incompetent or incorrect advice from his attorney).  



                                                                           -  6 -                                                                   2560  

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