Morgan v. State, 2894

• Decision Date: 21 July 1978
• Docket Number: No. 2894,2894
• Citation: 582 P.2d 1017
• Parties: Donald A. MORGAN, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 1017

582 P.2d 1017

Donald A. MORGAN, Appellant, v. STATE of Alaska, Appellee.

No. 2894.

Supreme Court of Alaska.

July 21, 1978.

Stephanie J. Cole and Saul R. Friedman, Rice, Hoppner & Hedland, Anchorage, for appellant.

Charles M. Merriner, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.

OPINION

RABINOWITZ, Justice.

Appellant Donald Morgan was indicted, in a two-count indictment, for the crimes of escape ¹ and first degree murder. ² Prior to trial, Morgan moved to withdraw his not guilty pleas to both counts. The motion was granted by the superior court. Morgan then pled guilty to both counts and was sentenced to life imprisonment upon his conviction of first degree murder. The superior court's judgment and commitment further provided that Morgan "shall be required to serve a minimum of 35 years in custody before he shall be eligible for parole and in any event parole shall not be granted unless the parole board can reasonably believe that the defendant has ceased to be a danger to the community." As to the crime of escape, Morgan was given a three year sentence which was made to run concurrently with the life sentence.

After imposition of sentence, Morgan timely moved, pursuant to Criminal Rule 35(a), ³ to modify his sentence. This motion was denied by the superior court. Morgan then filed a motion, pursuant to Criminal Rules 11(d) and 32(d), ⁴ to withdraw the guilty pleas he had previously entered to the homicide and escape charges. In support of this motion to withdraw, Morgan alleged that he had been denied effective assistance of counsel; that the guilty pleas were entered without adequate knowledge of the charges; ⁵ that the pleas were entered without knowledge that the sentence actually imposed could be imposed; ⁶ that the superior court failed to comply with the requirements of Criminal Rule 11(c) before accepting the guilty pleas; ⁷ that the superior court failed to comply with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); that the superior court did not adequately advise him of his rights; that the superior court did not undertake to determine his competency to plead to the charges; that there was no factual basis for the pleas; and that the indictment was insufficient. ⁸ After hearing oral argument on the motion to withdraw, the superior court issued a memorandum decision in which it denied Morgan's Rule 32(d) motion. Morgan thereafter filed a motion which was captioned "Motion to Reconsider and Renewed Motion to Hold an Evidentiary Hearing." ⁹ The superior court subsequently entered an order denying the motion to reconsider in its entirety. This appeal followed.

Morgan has advanced four specifications of error in which he asserts that the superior court erred in denying the motion to withdraw his guilty pleas. In addition, Morgan has appealed the sentence imposed on the ground that it is excessive. Initially, we will address two relatively minor specifications of error before treating the major issues in this appeal.

In one of his specifications of error, Morgan asserts that the superior court failed to make a mandatory determination that he was competent to waive his constitutional rights and plead guilty. Morgan bottoms his argument upon Sieling v. Eyman, 478 F.2d 211 (9th Cir. 1973). Morgan contends that this court should adopt the holding of Sieling which requires that the trial court's inquiry, in making a determination whether a defendant is voluntarily and intelligently entering a guilty plea, must differ in those cases where a substantial question of the defendant's mental capacity has arisen. In such instances, Sieling requires that the trial court determine whether or not a mental illness has substantially impaired the accused's ability to make a reasoned choice among the alternatives presented to him and to understand the nature of the consequences of his plea.

Morgan concedes that, prior to the entry of his guilty pleas, he was examined by three psychiatrists on the issue of his criminal responsibility for the first degree homicide. Nevertheless, Morgan contends that since none of the psychiatrists addressed the question of his competency to plead guilty, he should have been afforded an evidentiary hearing on this question under Sieling. ¹⁰

The state counters by noting that at no time prior to the entry of the questioned pleas did Morgan assert that he lacked the mental capacity to plead to the charges nor did Morgan present any evidence of his incompetency "by means of an evidentiary hearing, affidavits, or otherwise." The state further argues that this court should follow the majority rule, reject Sieling, and hold that the competency to stand trial test is the same as the competency to plead standard.

We have concluded that there is no merit in this specification of error. We note that the psychiatrists who examined Morgan, before his pleas were accepted, specifically found that he was capable of understanding the nature of the charges against him and of cooperating with his attorney in the preparation of his defense. The superior court specifically found that Morgan, at the time his pleas were entered

was competent to plead guilty and did not suffer from a mental illness that substantially impaired his ability to make a reasoned choice among possible alternatives and to understand the nature of the consequences of his plea. ¹¹

As to these findings and conclusions, we think there is ample evidentiary support in the record. Further, we think there is considerable merit in the state's position that the instant specification of error should be rejected on the merits because of the appellant's failure to assert his mental incompetence prior to the entry of the guilty pleas and the absence of any evidence as to incompetency. ¹²

Morgan has also specified as error the superior court's denial of his motion to withdraw his guilty pleas on the ground that he was denied the effective assistance of counsel under both the federal and Alaska constitutions. ¹³ Morgan advances three lines of argument in support of his assertion that he was denied effective assistance of counsel. First, Morgan argues that his trial attorney failed to move to dismiss the first degree murder count on the ground that the indictment was fatally deficient since it did not contain factual allegations as to the burglary not in a dwelling sufficient to allege felony murder. ¹⁴ Second, Morgan contends he was denied effective assistance of counsel in that his trial counsel failed to explain the elements of the offense of felony murder to him. Third, Morgan takes the position that his trial attorney's failure to advise him that the sentence which the superior court imposed as to his first degree murder conviction could have been imposed constituted ineffective assistance of counsel. ¹⁵

In Risher v. State, 523 P.2d 421, 423-25 (Alaska 1974), we articulated the criteria against which claims of ineffective assistance of counsel are to be evaluated. In Risher, we quoted with approval the following statement from Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974):

Defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client's interest, undeflected by conflicting considerations.

Study of the record in this case has led us to the conclusion that appellant has failed to make out a case of ineffective assistance under the standards of Risher.

We reach this conclusion for the following reasons: Morgan accurately cites Adkins v. State, 389 P.2d 915, 916 (Alaska 1964), for the proposition, "(b)y the weight of authority an indictment for burglary must specify by name the ulterior crime which it is alleged the accused intended to commit." Nevertheless, this court has not as yet spoken as to the question of the requisite degree of specificity with which the crime of burglary must be alleged when the crime is a component element of the offense of felony murder. Given the direction of those post-Adkins decisions in which we addressed sufficiency of indictment issues, a strong argument can be made that the burglary aspects of the felony murder count of the indictment were sufficient to give Morgan adequate notice of the charge, as well as protection against double jeopardy. ¹⁶ But even assuming arguendo that the indictment was defective, Morgan's trial counsel's failure to move for its dismissal is not reflective of professional performance below the standard mandated by Risher. Here review of the record demonstrates that the state had more than an adequate evidentiary basis for reindicting Morgan and thus obtaining an indictment sufficient on its face. ¹⁷ Given the foregoing, and the fact that Morgan's trial counsel obtained "significant concessions" from the prosecution in a plea bargain context, ¹⁸ we cannot characterize defense counsel's failure to move to dismiss the indictment as tantamount to ineffective assistance of counsel.

As mentioned earlier, Morgan takes the further position that his trial counsel's alleged failure to explain the elements of the offense of felony murder, as well as his alleged failure to advise him that the sentence actually imposed on the first degree murder charge could have been imposed, denied him the effective assistance of counsel. We think it of controlling significance that Morgan fell short of meeting his burden of proof by virtue of the fact that he presented no evidence by way of affidavits, testimony or otherwise in support of his contention that his trial counsel did not advise him on these subjects. ¹⁹ Given the absence of any showing relating to his trial attorney's purported failures, we conclude that the superior court did not err in failing to grant Morgan's motion to withdraw his guilty pleas on the...