Wyatt v. State

         Appeal from the Superior Court, No. 1JU-05-620 CI, First Judicial District, Juneau, Philip M. Pallenberg, Judge.

          Ronald F. Wyatt, in propria persona, Wasilla, Alaska, for the Appellant.

          Michael Sean McLaughlin, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. ^[*]

          OPINION

          MANNHEIMER Judge.

         In 1994, Ronald F. Wyatt was convicted of first-degree murder and evidence tampering in connection with the homicide of his wife. This Court affirmed his convictions on direct appeal.^[1]

         In 2000, Wyatt filed a pro se application for post-conviction relief in which he claimed that his trial attorney had actively impeded his wish to testify on his own behalf at his trial. However, after an attorney was appointed to represent Wyatt in this post-conviction relief litigation, the attorney abandoned Wyatt's claim of active obstruction and instead pursued a different claim: that Wyatt's trial judge had failed to obtain Wyatt's express waiver of his right to testify.

         The superior court dismissed that application for failure to state a prima facie case for relief, and we upheld the superior court's decision.^[2]

         Wyatt then filed a second application for post-conviction relief, claiming that his first post-conviction relief attorney had incompetently abandoned his initial claim for post-conviction relief and had, instead, substituted a claim that had no chance of success. In this second application, Wyatt renewed his claim that his trial attorney had actively obstructed or usurped his decision to testify on his own behalf at trial.

         The superior court dismissed this second application for post-conviction relief on the pleadings, again concluding that Wyatt failed to state a prima facie case for relief.

         For the reasons explained here, we find that the superior court erred in dismissing Wyatt's second application on the pleadings - that this second application did, in fact, state a prima facie claim for relief. We therefore reverse the superior court's decision and remand Wyatt's case to the superior court for further proceedings consistent with this opinion.

         Underlying proceedings

         The facts of Wyatt's underlying criminal case and his first petition for postconviction relief are more fully described in this Court's decisions in Wyatt v. State (I), unpublished, 1997 WL 250441 (Alaska App. 1997) (resolving Wyatt's direct appeal), and Wyatt v. State (II), unpublished, 2004 WL 2966177 (Alaska App. 2004) (resolving Wyatt's first petition for post-conviction relief). The following procedural history is taken from those two prior decisions, as well as from the pleadings filed in Wyatt's current (second) petition for post-conviction relief.

         Wyatt was indicted in 1992 for murdering his wife and for tampering with evidence by hiding her body. Toward the end of Wyatt's trial, his attorney announced that he intended to rest the defense case without putting Wyatt on the stand. The trial judge accordingly advised Wyatt of his right to testify as required by LaVigne v. State.^[3] In response to this advisement, Wyatt acknowledged that he understood that he had the absolute right to testify, and that the decision was his to make, not his attorney's. At that point, Wyatt said nothing more, and the judge did not press Wyatt to formally declare that he did not wish to testify.^[4]

         The prosecutor was not prepared to present his rebuttal case that day, so he asked the judge to adjourn the trial until the next day. During this discussion, Wyatt said nothing to indicate that he wanted to testify before the prosecutor presented his rebuttal case.^[5]

         Ultimately, the jury convicted Wyatt of both murder and evidence tampering. We affirmed Wyatt's convictions and sentence in his direct appeal.^[6]

         Wyatt then filed a pro se application for post-conviction relief, raising a number of claims. Among these claims was the assertion that Wyatt's trial attorney had actively obstructed or usurped Wyatt's decision to testify on his own behalf- allegedly by telling Wyatt that he would not permit him to take the stand.

         The superior court appointed an attorney to represent Wyatt, and that attorney filed an amended application for post-conviction relief. In this amended application, the attorney abandoned Wyatt's claim that his trial attorney had obstructed him from testifying. Instead, the post-conviction relief attorney substituted a different claim: that the trial judge's LaVigne inquiry had been insufficient as a matter of law.

         Wyatt's post-conviction relief attorney argued that even though the trial judge adequately advised Wyatt of his right to testify, the judge then committed error by failing to obtain Wyatt's express waiver of the right to testify. The attorney further argued that the judge's omission required automatic reversal of Wyatt's conviction.

         The superior court dismissed Wyatt's post-conviction relief application, finding that it failed to state a prima facie case. We affirmed that decision on appeal, holding that the trial judge had complied with LaVigne even though Wyatt had not expressly waived his right to testify.^[7]

         Wyatt then filed a second application for post-conviction relief, alleging that the attorney who represented him in the first post-conviction relief litigation was incompetent because he abandoned Wyatt's original claim for relief- the claim that Wyatt's trial attorney had actively obstructed him from testifying.^[8] In support of this claim, Wyatt submitted an affidavit in which he stated:

At the time of my trial, I did not understand that I had the absolute right to testify. I had asked my attorney to permit me to testify, and he had indicated that I would not be permitted to testify, and had taken no steps to prepare me to testify, even though I had pointed out several areas in which I could provide information to rebut the prosecution's evidence.

         Wyatt's affidavit further alleged that when the trial judge advised him that he could testify despite his attorney's contrary wishes, Wyatt then waited for the judge to inquire whether he ...