Foy v. State, Court of Appeals No. A-13454

CourtCourt of Appeals of Alaska
Writing for the CourtJudge ALLARD.
Citation515 P.3d 659
Parties Matthew FOY, Appellant, v. STATE of Alaska, Appellee.
Docket NumberCourt of Appeals No. A-13454
Decision Date29 July 2022

515 P.3d 659

Matthew FOY, Appellant,
STATE of Alaska, Appellee.

Court of Appeals No. A-13454

Court of Appeals of Alaska.

July 29, 2022

Megan R. Webb, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.

Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.

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



In 2016, the State charged Matthew Foy with two counts of first-degree assault and two counts of third-degree assault for conduct against two women that occurred in 2012 and 2014.1 Foy later pleaded guilty, pursuant to a plea agreement, to a single count of third-degree assault, receiving 2 years to serve. In exchange for his plea, the State dismissed the two first-degree assault charges and the other third-degree assault charge.

After Foy was sentenced on his guilty plea, Foy filed an application for post-conviction relief, alleging for the first time that he was the victim of vindictive prosecution. According to Foy, the prosecuting attorney brought the assault charges in retaliation for Foy filing a bar complaint against the attorney in a different case. (Foy also alleged that the prosecutor was punishing him for having asserted

515 P.3d 660

his speedy trial rights in the other case.) Foy provided no explanation for why this claim was only now being raised after his guilty plea. Foy did not argue that his attorney was ineffective for failing to raise this issue nor did he seek to withdraw from his plea.

The State moved to dismiss Foy's claim on two grounds: that it was untimely and that Foy had failed to state a prima facie case for relief. The superior court dismissed the application for failure to state a prima facie case and did not directly rule on the timeliness issue.

On appeal, the State asks us to affirm on the grounds that Foy's application was untimely; the State also argues that the superior court correctly ruled that Foy failed to state a prima facie case. We agree with the State that Foy's application was properly dismissed. Because resolution of the timeliness issue requires us to partially correct dicta in an unpublished concurrence, we address the timeliness issue in detail here.

Why we uphold the dismissal of Foy's application for post-conviction relief on timeliness grounds

The State argues that Foy's prosecutorial vindictiveness claim is untimely because Foy did not raise the claim prior to the entry of his guilty plea.

A claim of prosecutorial vindictiveness is an objection based on a defect in the prosecution.2 Under Alaska Criminal Rule 12(b)(1), "[d]efenses and objections based on defects in the institution of the prosecution" must be raised before trial. Likewise, under Criminal Rule 12(b)(2), "[d]efenses and objections based on defects in the indictment or information" must be raised before trial — unless the objection alleges "a failure to show jurisdiction in the court or to charge an offense," which are claims that can be raised "at any time."3

Under Criminal Rule 12(e), the "[f]ailure by the defendant to raise defenses or objections ... which must be made prior to trial ... shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver." In other words, under Criminal Rule 12, a defendant who fails to timely bring a prosecutorial vindictiveness claim prior to trial waives that claim unless the defendant can show "good cause" for why it was not brought earlier.4 In addition, it is well established that "a defendant who pleads guilty or no contest waives all non-jurisdictional defects," unless the parties have agreed to a Cooksey plea that allows the defendant to appeal a dispositive ruling by the trial court.5

In the present case, Foy's plea agreement was not a Cooksey plea. Additionally, he has

515 P.3d 661

not alleged — either in the post-conviction relief proceeding or on appeal — that there was "good cause" for his failure to timely raise his prosecutorial vindictiveness claim prior to his guilty plea. Instead, Foy argues that his prosecutorial vindictiveness claim qualifies as a "jurisdictional" claim for which the timeliness requirements of Criminal Rule 12 do not apply.

But Foy's only support for his claim that prosecutorial vindictiveness is "jurisdictional" is his citation to a concurrence in a 2000 unpublished memorandum opinion by this Court, Stough v. State .6 And, as we explain, this reliance on dicta from an unpublished concurrence is misplaced.

In Stough , the defendant timely raised and litigated a motion to dismiss his indictment. The defendant subsequently pleaded no contest pursuant to a plea agreement. After unsuccessfully moving to withdraw his plea, the defendant filed an appeal challenging, inter alia , the trial court's ruling on his motion to dismiss indictment.7 This Court refused to review the trial court's ruling on the ground that a "no contest plea waives all non-jurisdictional defects in the trial court unless the defendant enters a Cooksey plea."8

Judge Mannheimer filed a separate concurrence in which he addressed what types of claims may qualify as "jurisdictional" for purposes of surviving a guilty or no contest plea. The concurrence cited to Professor Charles Wright's seminal treatise on federal procedure, which recognizes the following claims as surviving a guilty plea: (1) contentions that the indictment or information fails to state an offense; (2) contentions that the statute under which the defendant was charged is unconstitutional; and (3) contentions that the prosecution is barred by double jeopardy but only "if [this] defect appears on the face of the indictment."9 The concurrence then stated that "[t]o this list must be added the claims that the defendant was the victim of prosecutorial vindictiveness or that the defendant was unlawfully deprived of counsel."10 In support of the assertion that prosecutorial vindictiveness claims are "jurisdictional" claims that survive a guilty plea, the concurrence cited to a 1974 decision by the United States Supreme Court, Blackledge v. Perry .11 But Blackledge does not support the broad proposition that all prosecutorial vindictiveness claims survive a guilty plea.12

The prosecutorial vindictiveness claim at issue in Blackledge was unusual because the vindictiveness was apparent on the face of the record at the time the trial court accepted the defendant's guilty plea. Blackledge involved a defendant who was originally charged with misdemeanor assault with a deadly weapon.13 Blackledge was convicted of the charge and later successfully appealed and obtained a trial de novo.14 After Blackledge won his appeal, the State indicted him on felony assault with a deadly weapon. Blackledge pleaded guilty to the higher...

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