Beth G.L. Trimmer, Assistant Public Advocate, and Joshua Fink, Public Advocate, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before : COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
In this case, Rolando Vizcarra-Medina sought post-conviction relief based on assertions that he had not understood key aspects of his plea agreement with the State. The attorney appointed to represent Vizcarra-Medina investigated these claims and concluded that they could not be proved. That is, the attorney concluded that, whatever Vizcarra-Medina might say in support of these claims, Vizcarra-Medina could not establish by clear and convincing evidence that he had not understood the terms of the plea agreement, or that he had not voluntarily agreed to these terms.
Based on this conclusion, the attorney filed a certificate under Alaska Criminal Rule 35.1(e)(2)(C)- i.e., a certificate declaring that Vizcarra-Medina had no non-frivolous claims for post-conviction relief, and asking the superior court to dismiss Vizcarra-Medina's petition. See Griffin v. State, 18 P.3d 71, 75, 77 (Alaska App.2001) (construing the requirements
of Rule 35.1(e)(2)). The superior court agreed with the attorney's assessment and (after giving Vizcarra-Medina a chance to respond) the court dismissed the petition for post-conviction relief. Vizcarra-Medina now appeals.
We conclude that the superior court should not have accepted the attorney's certificate.
As evidenced by the multiple letters filed by Vizcarra-Medina in support of his petition, Vizcarra-Medina was willing to assert under oath that he did not understand key terms of his plea agreement with the State. Vizcarra-Medina's post-conviction relief attorney may have reasonably concluded that the other available evidence contradicted Vizcarra-Medina's assertion, and that Vizcarra-Medina's claim could likely never be proved by clear and convincing evidence (the standard of proof imposed by AS 12.72.040). Nevertheless, the fact that Vizcarra-Medina was willing to testify that he did not understand key aspects of his plea agreement means that Vizcarra-Medina's claim for post-conviction relief was not " frivolous" for purposes of Criminal Rule 35.1(e)(2)(C).
The claim was not frivolous because (1) Vizcarra-Medina was ready to offer testimony under oath that he did not understand key aspects of the plea agreement, and (2) it appears that Vizcarra-Medina would be entitled to relief if-despite the contrary evidence-the superior court believed his testimony.
It is true that, under Alaska Professional Conduct Rule 3.3(a)(4), an attorney is forbidden from offering evidence that the attorney knows to be false. But Vizcarra-Medina's post-conviction relief attorney has never asserted or even suggested that he knew that Vizcarra-Medina's proposed testimony would constitute perjury. Thus, even if the attorney reasonably believed that the superior court would ultimately reject Vizcarra-Medina's testimony, it was still the attorney's job to pursue Vizcarra-Medina's claim for relief by presenting his testimony, and then letting the superior court make the assessments of credibility and testimonial accuracy.
Rolando Vizcarra-Medina was charged with first-degree theft for allegedly misappropriating approximately $250,000 in insurance proceeds that, according to the State, should have been paid to his brother's widow and children.
This felony theft charge was ultimately resolved by a plea agreement. Vizcarra-Medina pleaded no contest to two counts of third-degree theft (a misdemeanor: theft of between $50 and $500). The State agreed that Vizcarra-Medina would receive a suspended imposition of sentence on each count, with no additional time to serve, ...