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Knox v. State (3/10/2006) ap-2035

Knox v. State (3/10/2006) ap-2035

     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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


TIERICE KNOX, ) Court of Appeals No. A-8808
) Trial Court Nos. 3AN-01-11360 CI
Appellant, ) 3AN-99-09149 CR
v. ) O P I N I O N
Appellee. ) No. 2035 - March 10, 2006
Appeal    from     the
          Superior   Court,  Third  Judicial  District,
          Anchorage, Larry D. Card, Judge.

          Appearances:    Valerie  Leonard,   Assistant
          Public Defender, and Barbara K. Brink, Public
          Defender,   Anchorage,  for  the   Appellant.
          Michael  Sean McLaughlin, 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.

          COATS,  Chief Judge.

          Tierice  Knox was charged with six counts of misconduct
involving a controlled substance in the third degree, a  class  B
felony,  for  selling crack cocaine.1  Knox entered into  a  plea
bargain  in  which  he agreed to enter a no  contest  plea  to  a
consolidated count of misconduct involving a controlled substance
in the third degree.  Knox was a third-felony offender, and faced
a  6-year  presumptive term.  As part of the plea  bargain,  Knox
          agreed to the presumptive sentence.  Superior Court Judge Larry
D.  Card  accepted the plea agreement and sentenced Knox  to  the
presumptive 6-year sentence.
          Knox  later  filed  an application for  post-conviction
relief  seeking to withdraw his plea based on two separate claims
that  he  had  received ineffective assistance of counsel.   Knox
claimed  that one of his trial attorneys was ineffective  in  the
way  he  litigated a motion to suppress the evidence.  Knox  also
claimed that a different attorney who represented him in entering
his  plea  misinformed him about the nature of  the  sentence  he
would  receive.  Knox claimed that this attorney  told  him  that
after  the  judge  imposed the bargained-for  6-year  presumptive
sentence,  he  would actually serve only 4 years of  imprisonment
because  of good-time credit and then would be released  with  no
further  obligation  to the State.  Knox claimed  that  he  later
discovered  that, after serving 4 years, he would be  subject  to
mandatory  parole  for  the  remainder  of  his  sentence.   Knox
contended  that he would not have entered into the  plea  bargain
had he known that he would be subject to mandatory parole.
          Judge   Card  dismissed  Knoxs  application  for  post-
conviction  relief.  On appeal, we conclude  that  Knox  did  not
establish  a  prima  facie  case  that  he  received  ineffective
assistance in litigating the motion to suppress.  But we conclude
that  Knox  presented a prima facie case that his other  attorney
did  not  properly advise him of the nature of his  sentence  and
that this advice affected his decision to enter his plea.

          Factual and procedural background
          On  October 2, 1999, Tierice Knox was charged with  six
counts  of  misconduct involving a controlled  substance  in  the
third  degree.2    The charges arose out of a series  of  alleged
drug  sales  occurring over a three-day period in late  September
and  early  October 1999.  The indictment alleged that Knox  sold
crack cocaine to undercover Anchorage Police Officer Mark LaPorte
on six separate occasions.
          On  April 14, 2000, Knoxs trial attorney filed a motion
to  dismiss two of the six counts.  That motion claimed that  the
police  lacked  probable cause or reasonable  suspicion  to  stop
Knoxs  car  and arrest him following a drug sale.   Following  an
evidentiary hearing, Judge Card denied the suppression motion.
          In  his  application for post-conviction  relief,  Knox
contends  that  his  attorney  was ineffective  in  pursuing  the
suppression  motion.  He argues that his attorney did  not  raise
the best arguments in litigating the motion.  When we evaluate  a
claim  that a defendants counsel provided ineffective assistance,
we   apply   a   strong  presumption  that  the  attorney   acted
competently.3   When  the defendants attorney  makes  a  tactical
decision,  the choice will be subject to challenge  only  if  the
tactic  itself is shown to be unreasonable   that  is,  a  tactic
that  no  reasonably competent attorney would have adopted  under
the circumstances.4
          In  the  present case, Knox obtained an affidavit  from
his  trial attorney.  In that affidavit, the attorney stated that
his  decisions in pursuing the suppression motion were  tactical.
In  his  order  dismissing Knoxs application for  post-conviction
relief,  Judge  Card  concluded that  Knoxs  allegations  in  his
application  did  not overcome the presumption of  competence  or
show  that  his  attorneys  decisions were  anything  other  than
tactical. We agree with Judge Cards conclusion.

          Knoxs  allegation  that  his  other  attorney
          misinformed  him  about  the  nature  of  his

          A  different attorney represented Knox when he  entered
his  plea  to  the consolidated count of misconduct  involving  a
controlled substance in the third degree, a class B felony.  Knox
was  a  third-felony offender, and therefore faced a  presumptive
term  of  6 years of imprisonment.  The State and Knox agreed  to
the  6-year  term.  According to Knox, his attorney  advised  him
that  he  would serve a flat time sentence without  probation  or
parole  supervision.   But,  under  Alaska  law,  because   Knoxs
sentence  was  more  than 2 years of imprisonment,  when  he  was
released  because  of  good-time  credit,  he  would  serve   the
remainder  of  his  6-year sentence on mandatory  parole.5   Knox
contended  that, had he been aware that he would  be  subject  to
mandatory  parole,  he  would  not have  entered  into  the  plea
agreement with the State.
          In  her  affidavits and in a deposition, Knoxs attorney
conceded  that  she  was unaware that Knox would  be  subject  to
mandatory  parole  supervision after he was released  because  of
good-time credit.  She stated that she told Knox that his  6-year
          presumptive sentence, with accumulated good time, would mean that
he  would actually serve 4 years of imprisonment.  She told  Knox
he  would  serve  four  years  period.   No  probation.   In  her
affidavit,  she  represented  I can unequivocally  state  that  I
affirmatively represented to Mr. Knox that he would be completely
done  with  his  flat time sentence after he served  four  years.
She also stated that she subjectively felt that her parole advice
to Mr. Knox  might have influenced him to proceed with his change
of  plea because Mr. Knox had continued to strongly believe  that
he had a triable case  despite her assessment to the contrary.
          In  his  application,  Knox is making  a  post-sentence
claim to withdraw his plea.  In order to withdraw his plea,  Knox
must  prove  that withdrawal is necessary to correct  a  manifest
injustice.6   One  way  for  Knox  to  establish  that   manifest
injustice has occurred is for him to demonstrate that he received
ineffective  assistance  of counsel.7   In  deciding  whether  to
dismiss  a claim in an application for post-conviction relief,  a
court  must  accept  as  true  all  of  the  allegations  in  the
application  and  inquire whether those facts, if  proved,  would
entitle the applicant to the relief sought.8
          If  we  accept  all of Knoxs allegations  as  true,  we
conclude  that he established a prima facie case that he received
ineffective  assistance  of  counsel  about  the  nature  of  the
sentence  he  would receive if he entered into the plea  bargain,
and  that he would not have entered into the plea bargain had  he
received  accurate  advice.  We accordingly conclude  that  Judge
Card  erred  in dismissing this claim.  We remand  the  case  for
further  proceedings  on  Knoxs application  for  post-conviction
     1 AS 11.71.030(a)(1).

2 AS 11.71.030(a)(1).

     3 State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).

     4 Id. at 569-70 (citations omitted).

     5  See AS 33.16.010(c); AS 33.20.030; AS 33.20.040(a).   See
also  Hill  v.  State,  22 P.3d 24, 26 (Alaska  App.  2001)  (for
prisoners sentenced to serve more than 2 years, good-time  credit
does  not  constitute complete forgiveness of jail time;  rather,
good  time credit converts time that would otherwise be spent  in
prison  to time that will be spent on parole);  Hampel v.  State,
911 P.2d 517, 520 (Alaska App. 1996).

     6 Alaska Crim. R. 11(h)(3).

     7 Alaska Crim. R. 11(h)(4)(A).

     8 Hampel, 911 P.2d at 524 (citations omitted).

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