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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| GABRIEL J. SERRADELL, | ) |
| ) Court of Appeals No. A-8768 | |
| Appellant, | ) Trial Court No. 4BE-02-00164 CI |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2032 February 10, 2006] |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Bethel, Leonard R. Devaney
III, Judge.
Appearances: Valerie Leonard, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and David W. M rquez, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
In January 1999, Gabriel J. Serradell beat Mary
Kawagley to death. The grand jury indicted Serradell on one
count of first-degree murder and two counts of second-degree
murder. Serradell reached a plea agreement with the State:
Serradell pleaded no contest to one count of second-degree murder
with a sentencing cap of 50 years to serve. In September 2000,
the superior court imposed a 45-year term with 15 years
suspended, a 30-year term to serve.
In July 2002, Serradell filed a pro se application for
post-conviction relief. Serradell sought to withdraw his plea,
claiming that his trial attorneys had tricked him into accepting
the plea agreement. A year later, Serradells appointed attorney
filed an amended application that included the affidavit of one
of Serradells trial attorneys. The State filed an Answer and
Opposition, asserting that Serradell had failed to rebut the
presumption that his trial attorneys were competent.
The superior court denied Serradells application less
than three weeks later. The court concluded, based on the
evidence in the record, in particular the affidavit of Serradells
trial attorney, that Serradell had failed to overcome the strong
presumption that this attorney had performed competently and that
her actions were motivated by sound tactical decisions.
Serradell appeals the superior courts decision on
various grounds. One of these grounds is that the superior court
did not notify Serradell that it was treating the States Answer
and Opposition to the application as a motion to dismiss. We
agree that Serradell was not reasonably put on notice that the
court was treating the States response as a motion to dismiss or
that the court was considering taking this action sua sponte. We
accordingly reverse the superior courts order and remand this
case for further proceedings on Serradells application.
Background facts and proceedings
On January 26, 1999, Serradell caused the death of his
girlfriend, Kawagley, when he struck her repeatedly with a blunt
object. The police found Serradell sitting on a mattress next to
Kawagleys body. Serradell volunteered that he was sorry for what
he had done and said he did not mean to beat Kawagley so badly.
The grand jury indicted Serradell on one count of first-
degree murder1 and two counts of second-degree murder.2 After
reaching a plea agreement with the State, Serradell pleaded no
contest to one count of second-degree murder (Serradell caused
Kawagleys death under circumstances manifesting an extreme
indifference to the value of human life),3 with a maximum
possible sentence of 50 years imprisonment. The court dismissed
the other charges and imposed a 30-year term to serve.
Serradell filed a pro se application for post-
conviction relief on July 18, 2002. He claimed that his trial
attorneys were ineffective because they tricked him into pleading
to second-degree murder and because they refused to obtain a
second psychological evaluation.
On July 26, 2002, Superior Court Judge Leonard B.
Devaney III appointed the Public Defender Agency to represent
Serradell on his application. Serradells public defender filed
an amended application for post-conviction relief on July 25,
2003. The amended application abandoned Serradells claim
regarding the psychological evaluation but proceeded with his
claim that he had been tricked into accepting the plea agreement.
Serradell alleged that his trial attorneys knew that his offense
was really manslaughter and could have been resolved as such at
trial.
Attached to the amended application was the affidavit
of one of Serradells attorneys. That attorney explained that
she had tactical reasons for urging Serradell to accept the plea
agreement. She denied tricking Serradell into his plea. She
explained that she and Serradells other trial attorney had
attempted to negotiate a plea to manslaughter but were
unsuccessful. She said she believed it was in Serradells best
interest to accept the plea because there was a serious risk that
he would be convicted of first-degree murder at trial.
On January 8, 2004, the State filed its Answer and
Opposition, which asserted that Serradell had failed to rebut the
presumption that his trial attorneys were competent . The State
argues that the attorneys could not have resolved Serradells case
with a manslaughter conviction. The State also alleged that the
affidavit provided by one of Serradells attorneys set out
tactical reasons for urging Serradell to plead to second-degree
murder.
Judge Devaney denied Serradells post-conviction relief
application on January 26, 2004. He concluded that, based on the
evidence in the record, Serradell had failed to overcover the
strong presumptions that his attorney performed competently and
that her actions were motivated by sound tactical decisions.
Serradell appeals.
Discussion
In this appeal, Serradell argues that, because he made
a prima facie case for relief, the trial court erred in
dismissing his application for post-conviction relief. He also
argues that the trial court should have informed him of its
intention to dismiss his application and given him an opportunity
to supplement his pleadings.
The State contends that the court correctly dismissed
Serradells application without an evidentiary hearing because
there were no genuine issues of material fact in dispute and
Serradell had failed to rebut the presumption that his attorneys
were competent. Moreover, the State contends that the trial
court was not required to notify Serradell that his application
was insufficient to state a prima facie case because the States
answer was functionally a motion to dismiss, and therefore,
Serradell was on notice that the application faced dismissal.
We agree with the States general contention that
Serradells application, in its present form, does not plead a
prima facie case. Serradells claim that he was tricked into
accepting the plea agreement is a conclusory allegation of
implicit coercion rather than an assertion of specific facts
that, if true, would overcome the presumption of competence that
attaches to a trial attorneys tactical choices.4
Nevertheless, we reject the States contention that the
States Answer and Opposition was the functional equivalent of a
motion for summary disposition under Alaska Criminal Rule
35.1(f). We conclude that the pleading did not put Serradell on
notice that the State was moving the court for summary
disposition of Serradells application for failing to plead a
prima facie claim. Furthermore, even if we considered the States
pleading to be a motion for summary disposition, under Rule
35.1(f)(1), Serradell would have thirty days to oppose the
motion. The superior courts order dismissing Serradells
application was entered less than twenty days after the State
filed its Answer and Opposition.
We understand the State to argue that, whether or not
its Answer and Opposition constituted a motion to dismiss, the
superior court retained the power to dismiss Serradells
application sua sponte and without prior notice if the superior
court concluded that the application did not plead a prima facie
case for relief.
Before Criminal Rule 35.1 was rewritten by the
legislature in 1995, subsection (f)(2) of the rule authorized the
superior court to dismiss an application for post-conviction
relief sua sponte if the court was satisfied that the applicant
[was] not entitled to post-conviction relief and no purpose would
be served by any further proceedings[.] But the court was
required to notify the petitioner of the reasons why the court
believed the petition was deficient, and the court was further
required to allow the applicant an opportunity to respond to the
proposed dismissal, or to amend the application to cure the
deficiency.
The current version of Criminal Rule 35.1 contains no
provision explicitly giving the superior court the power to
dismiss an application for post-conviction relief sua sponte.
Even assuming that the superior court retains this power, the
State points to no provision of Criminal Rule 35.1, nor any
provision of the Alaska Civil Rules, that authorizes a court to
dismiss an action sua sponte without prior notice to the parties.
Because Serradell was not given reasonable notice that
the superior court was treating the States response as a motion
to dismiss, or that the superior court was considering taking
this action sua sponte, we reverse the superior courts order.
Conclusion
The judgment of the superior court is REVERSED, and
this case is remanded to the superior court for further
proceedings on Serradells application for post-conviction relief.
_______________________________
1 AS 11.41.100(a)(1).
2 AS 11.41.110(a)(1); AS 11.41.110(a)(2).
3 See AS 11.41.110(a)(2).
4 See State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
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