Aubrey v. State, 012319 AKCA, A-12678

• Opinion Judge: MANNHEIMER JUDGE.
• Party Name: SEAN MICHAEL AUBREY, Appellant, v. STATE OF ALASKA, Appellee.
• Attorney: Elizabeth D. Friedman, Redding, California, under contract with the Office of Public Advocacy, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
• Judge Panel: Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.
• Case Date: January 23, 2019
• Court: Alaska Court of Appeals

SEAN MICHAEL AUBREY, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12678

Court of Appeals of Alaska

January 23, 2019

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, No. 3PA-13-1704 CI, Third Judicial District, Palmer, Vanessa H. White, Judge.

Elizabeth D. Friedman, Redding, California, under contract with the Office of Public Advocacy, for the Appellant.

Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.

MEMORANDUM OPINION

MANNHEIMER JUDGE.

In 2011, Sean Michael Aubrey was indicted on one count of first-degree sexual abuse of a minor and two counts of second-degree sexual abuse of a minor, for conduct involving his stepdaughter. Just before Aubrey's trial was to begin, the charges against Aubrey were resolved in a plea agreement. Under the terms of this agreement, Aubrey pleaded guilty to a single count of second-degree sexual abuse of a minor, with open sentencing, and the two remaining charges were dismissed.

As a first felony offender convicted of second-degree sexual abuse of a minor, Aubrey faced a presumptive sentencing range of 5 to 15 years to serve.¹ But because of the mandatory probation and suspended sentence requirements of former AS 12.55. 125(o) (now repealed), Aubrey's actual minimum sentence was 8 years with 3 years suspended. The superior court ultimately sentenced Aubrey to 10 years' imprisonment with 4 years suspended (i. e., 6 years to serve).

Aubrey later filed a timely petition for post-conviction relief. In this petition (as ultimately amended), Aubrey asserted that his trial attorney had failed to represent him effectively in several respects. Aubrey contended that the trial attorney failed to advise him competently during the discussions that led to Aubrey's acceptance of the plea agreement. Aubrey separately contended that the trial attorney failed to represent him competently during the sentencing proceedings.

The superior court dismissed Aubrey's petition on the ground that Aubrey had failed to set forth a prima facie case for relief. Aubrey now appeals the superior court's decision.

For the reasons explained in this opinion, we affirm the superior court's decision for the most part, but we conclude that Aubrey did present a prima facie case that his trial attorney failed to competently attack certain assertions in Aubrey's pre-sentence report, including the allegations underlying the two dismissed charges. We therefore direct the superior court to let Aubrey proceed to the next stage of litigating these matters.

Aubrey's claim that his attorney failed to explain what an "open sentencing" was

On appeal, Aubrey claims that he never fully understood the sentencing consequences of pleading guilty to second-degree sexual abuse of a minor with "open sentencing".

In Aubrey's affidavit supporting his application for post-conviction relief, Aubrey declared that his trial attorney "did not explain open sentencing to [him]". But Aubrey did not accompany this conclusory assertion with any details - no description of what it was, exactly, that Aubrey failed to understand about open sentencing.

As we explained in LaBrake v. State^[2] and in David v. State, ³ such a conclusory assertion, unaccompanied by explanatory details, is insufficient to support a prima facie case for relief.

In Aubrey's brief to this Court, his attorney tries to supplement Aubrey's position with a new argument.

Aubrey's appellate attorney points out that, in Aubrey's superior court affidavit, he criticized his trial attorney for failing to ask the court to impose the minimum sentence-which Aubrey mistakenly described as "5 years". In fact, Aubrey faced a minimum sentence of 5 years to Serve plus 3 years suspended - which was the sentence that his attorney argued for. Moreover, in Aubrey's statement to the pre-sentence investigator, he stated that he wanted the superior court to impose an entirely suspended sentence - a sentence that was not possible under Alaska's presumptive sentencing laws at the time.⁴

Based on Aubrey's mistaken statements regarding his potential sentence and the minimum allowed sentence, Aubrey's appellate attorney now argues that the record shows that Aubrey failed to understand at least this portion of the law that governed his sentencing-and that, therefore, Aubrey's affidavit sets forth aprima facie case that his trial attorney failed to adequately explain the applicable sentencing law to Aubrey. We reject this contention for three reasons.

First, this argument was never presented to the superior court.

Second, Aubrey's affidavit does not assert that his trial attorney gave him mistaken information about the minimum sentence. In fact, Aubrey's affidavit does not offer any explanation as to why Aubrey mistakenly believed that the minimum sentence was 5 years.

And third, Aubrey's post-conviction relief attorney apparently never confronted Aubrey's trial attorney with this allegation.⁵ The trial attorney's affidavit does not address this issue - although the attorney's affidavit does indicate, in another context, that he spoke to Aubrey at some length about the applicable sentencing ranges, and that "Mr. Aubrey argued with [him] about the sentence ranges".

Moreover, Aubrey's post-conviction relief attorney never complained to the superior court that Aubrey's trial attorney had been confronted with the allegation that he misdescribed the minimum sentence to Aubrey, and that the trial attorney refused to address this issue in his affidavit.

For these reasons, we conclude that Aubrey failed to offer a prima facie case that his trial attorney incompetently advised him regarding his sentencing exposure.

Aubrey's claim that his attorney failed to explain that the sentencing judge could consider the dismissed counts

Aubrey's next claim of ineffective assistance is that his trial attorney "did not inform [him] that the State could use the allegations from the [two] dismissed counts during sentencing".

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