CLIFFORD F. MURRAY, Appellant,
STATE OF ALASKA, Appellee
Appeal from the Superior Court, Second Judicial District, Nome, Ben Esch, Judge. Trial Court No. 2NO-09-321 CI.
Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant.
Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.[*]
The defendant in this case, Clifford F. Murray, was indicted on two counts of first-degree sexual assault. He ultimately agreed to plead guilty to one count of the lesser offense of second-degree sexual assault. But now Murray seeks post-conviction relief, contending that his decision to enter this plea was contrary to his best interests. More particularly, Murray contends that his decision was the product of mental illness, and that his attorney acted ineffectively -- that is, in violation of her ethical duty under Alaska Professional Conduct Rule 1.14 -- by failing to prevent him (or at least trying to prevent him) from entering this guilty plea.
For the reasons explained here, we conclude that Murray has failed to set out a prima facie case that his attorney acted incompetently.
The events leading up to Murray's guilty plea and sentencing
Because the question to be decided on appeal is whether Murray set forth a prima facie case of ineffective assistance of counsel, the following is a description of all the well-pleaded facts contained in his petition for post-conviction relief.
In early 2007, Clifford Murray was charged with two counts of first-degree sexual assault in connection with the rape of an elderly woman in the village of Elim. Because Murray had two prior felony convictions (for non-sexual offenses), he faced a presumptive sentencing range of 40 to 60 years' imprisonment for these sexual assault counts.
In addition, Murray was on felony parole at the time he committed these assaults, so aggravating factor AS 12.55.155(c)(20) applied to his case. This meant that Murray faced a maximum sentence of 99 years' imprisonment.
The State offered Murray two favorable plea bargains. Murray, who has an extensive history of mental illness and aberrant behavior, rejected both of these offers.
The State initially offered a plea bargain that called for Murray to receive a sentence of 20 years to serve. This sentence -- fifty percent of the low end of the applicable presumptive range -- was the absolute minimum term of imprisonment that the superior court could impose under AS 12.55.155(a)(2), assuming one or more mitigating factors were proved.
Murray's attorney advised him to accept the State's offer, but Murray refused. He insisted on going to trial, despite the considerable evidence against him, and he told his attorney that he did not care if he ended up serving 99 years in prison. According to the attorney's later affidavit, she " [did] everything within her power to dissuade [Murray] from this decision", but Murray was adamant.
Then, in December 2008, Murray told his attorney that he wanted to plead guilty to both counts of first-degree sexual assault, without the benefit of any plea bargain. Murray insisted that he wanted to change his plea immediately and go " straight to sentencing" .
In response, Murray's attorney hurriedly negotiated a second plea bargain with the State. Under the terms of this second bargain, the State offered to let Murray plead guilty to the class C felony of attempted second-degree sexual assault ( i.e., attempted non-consensual sexual contact), with sentencing left " open" -- i.e., with Murray's sentence to be determined by the court, without any constraints on the sentencing judge's decision.
Because of his two prior felony convictions, Murray would face a presumptive sentencing range of 15 to 25 years if he was convicted of attempted second-degree sexual assault (and, because of the aggravating factor, a maximum of 99 years).
But when Murray's attorney explained this new plea bargain, Murray became angry with her and refused to accept the bargain. He then demanded to go to trial.
Then, the next day, Murray changed his mind again. He directed his attorney to propose a new plea bargain to the State -- one that was less advantageous to him than the offer he had just rejected. Under Murray's proposal, he would plead guilty to second-degree sexual assault (not just the attempted crime), again with ...