Alvarenga v. State
| Docket Number | A-13381,7087 |
| Decision Date | 17 January 2024 |
| Parties | HECTOR ALVARENGA Appellant, v. STATE OF ALASKA, Appellee. |
| Court | Alaska Court of Appeals |
1
HECTOR ALVARENGA Appellant,
v.
STATE OF ALASKA, Appellee.
No. A-13381
No. 7087
Court of Appeals of Alaska
January 17, 2024
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-14-06060 CI, Jack W. Smith, Judge.
Susan Orlansky, Reeves Amodio LLC, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
TERRELL JUDGE.
Hector Alvarenga appeals the superior court's dismissal of his application for post-conviction relief for failure to state a prima facie claim. Alvarenga was convicted of two counts of first-degree sexual abuse of a minor and two counts of
second-degree sexual abuse of a minor for abusing his young stepdaughter, L.C. We affirmed his conviction on direct appeal.[1]
In Alvarenga's subsequent post-conviction relief application, he argued that his privately retained trial attorney provided ineffective assistance of counsel for two reasons. First, Alvarenga claimed that his trial attorney was ineffective because he failed to retain an expert witness on false confessions. Second, Alvarenga claimed that his trial attorney was ineffective for not withdrawing from the case after his motion for expert funding was denied so that Alvarenga could obtain public counsel from the Public Defender Agency, which, according to Alvarenga, could have provided funding for a false confessions expert.
The State moved to dismiss Alvarenga's application on the basis that it failed to establish a prima facie claim that all competent defense attorneys would have sought to retain a false confessions expert, given the questionable admissibility of expert testimony on false confessions both in Alaska and nationally when Alvarenga's case was tried in 2009. The superior court agreed and granted the motion to dismiss. For the reasons stated below, we affirm.
Background factual and procedural history
1. The underlying events and police investigation
In late 2007 Alvarenga's wife, Stacy, was tucking L.C. into bed when L.C. stated, "I'm tired of the way that Papi Hector is touching me." L.C. said that Alvarenga would put his hand inside her underwear "on purpose" when he carried her to bed.
L.C. repeated these allegations at a subsequent Child Advocacy Center interview with Anchorage Police Detective Dawn Neer. L.C. told Detective Neer that
Alvarenga had been touching the inside of her vagina with his hand since she was seven years old, "too many times to count," and that the last time it had happened was the preceding weekend.
Detective Neer obtained a warrant to record a phone call from Stacy to Alvarenga. On the recorded phone call, Stacy told Alvarenga that she had heard from L.C.'s counselor that he had inappropriately touched L.C.; Alvarenga denied the accusation. Stacy repeated that she believed L.C., and that L.C. had no reason to make something like that up. Stacy repeatedly pressed Alvarenga to "tell [her] the truth." She stated that she needed to "get some answers" from Alvarenga, and that it was the only way they could maintain their relationship, heal the damage to their family, and that Alvarenga could obtain forgiveness. Stacy implied that their marriage would end if Alvarenga was not forthcoming. Alvarenga stated that he would "go to a counselor with you or whatever I need to do" and did not want their family to dissolve. Alvarenga repeatedly denied wrongfully touching L.C. Stacy told Alvarenga that she was not coming home until he was "willing to talk to [her] about this" - i.e., willing to concede that L.C. was telling the truth.
Half an hour after the call, Detective Neer and Anchorage Police Detective Brett Sarber arrived at Alvarenga's house and obtained his permission to enter. After preliminary questions, Detective Neer told Alvarenga that L.C.'s accusations appeared credible and that the only way that he could repair the damage to his family and obtain forgiveness was to admit the truth. Initially, Alvarenga denied that he intentionally touched L.C. inappropriately. Detective Neer then repeated that she believed L.C. and that Alvarenga could only obtain forgiveness, and allow L.C. to heal, by telling the truth. At that point, Alvarenga confessed to having touched L.C.'s vagina three times, once involving slight digital penetration and two times involving direct contact with her external genitalia. Alvarenga also confessed that he had touched L.C.'s vagina over her clothes up to thirty times from the time she was six years old until the present.
2. The criminal charges and trial
Alvarenga's case proceeded to trial on two counts of first-degree sexual abuse of a minor and two counts of second-degree sexual abuse of a minor.[2]
Ahead of trial, Alvarenga's privately retained attorney focused on attacking Alvarenga's confession. He moved to suppress the confession, arguing that the detectives should have read Alvarenga his Miranda rights. He also argued that Alvarenga's statements were involuntary because he was under the influence of Percocet and because the interview was coercive. The State opposed, arguing that Alvarenga was not in custody during the interview and that his confession was voluntary. After an evidentiary hearing, the court denied the suppression motion.
Alvarenga moved for reconsideration of his motion to suppress. He also moved to continue the trial date because he wished to have a former FBI agent who was an expert on false confessions appointed to review his statements to the detectives, and because he was out of funds to pay for an expert. The court issued a written order setting a trial date and denied Alvarenga's motion for reconsideration.
Twelve days before trial was set to begin, Alvarenga moved to have a former FBI Agent appointed as an expert witness, at public expense, to testify regarding false confessions. The motion also sought to have Alvarenga's privately retained attorney appointed at public expense, noting that Alvarenga was out of funds. The superior court ordered that the case be put on for trial call, rather than go forward on the scheduled trial date. The court also denied Alvarenga's motion for funding for an expert witness, stating that Alaska Criminal Rule 39 only applied where the defendant had publicly appointed counsel.
Alvarenga then filed a petition for review, seeking reversal of the order denying his motion for expert funding. This Court denied Alvarenga's petition for review, and the superior court set a trial date.
At trial, Alvarenga's attorney did not call an expert on false confessions. Rather, in his opening statement, he argued that Alvarenga's confession was false because the detectives pressured Alvarenga and manipulated his desire to maintain his relationship with Stacy, and because Alvarenga experienced mental confusion from having taken Percocet before the interview. He also told the jury that Detective Sarber would verify that false confessions are known to happen. Alvarenga's attorney relied on the recordings of the phone call between Alvarenga and Stacy and his interview with the detectives to support the defense theory that Alvarenga falsely confessed to save his relationship with Stacy. He also relied on the detectives' testimony, which brought out key details in support of the claim that his confession was involuntary.[3]
During the defense case, Alvarenga's attorney called two of Alvarenga's friends to testify regarding his relationship with Stacy. Both testified that Stacy was "controlling" and that Alvarenga would do "anything to please her."
Alvarenga testified that Stacy's phone call had a devastating effect on him. He stated that he was in a state of shock when the detectives showed up, and was so desirous of maintaining his relationship with Stacy that he falsely told them that he had engaged in sexual touching with L.C.
The jury convicted Alvarenga on all four counts. Alvarenga appealed to this Court, and we affirmed his conviction.[4]
3. The post-conviction relief litigation
Alvarenga filed a timely pro se application for post-conviction relief in 2014. Alvarenga then filed an amended post-conviction relief application, with the assistance of counsel, asserting that Alvarenga's trial attorney was incompetent for "failing to properly attack the false confession by hiring an expert or withdrawing so that Alvarenga could hire an expert through court-appointed counsel." The amended application further asserted that his attorney's incompetence prejudiced the outcome of his trial. The amended application noted that Alvarenga was unable to obtain an affidavit from his trial attorney because he died in 2013.
Alvarenga's amended application was accompanied by two expert reports. First, Jeffrey Robinson, a criminal defense attorney, wrote that Alvarenga's trial attorney breached the standard for defense attorney competence. Robinson's report asserted that Alvarenga's trial attorney was...
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