Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

COATS, Chief Judge.

David E. Williams was convicted of kidnapping1 and assault in the first degree.2 Williams filed an application for post-conviction relief, claiming he received ineffective assistance of counsel at his trial. He argued that his attorney was ineffective because, after the court granted a mid-trial motion for a mistrial, the attorney, at Williams's insistence, withdrew the motion and continued with the trial. Williams also argued that his attorney was ineffective because she did not propose any statutory mitigating factors at sentencing. Superior Court Judge Douglas Blankenship granted the State's motion for summary disposition and dismissed the case. We affirm Judge Blankenship's decision.

Factual and procedural background

In March 2004, David Williams, Nathaniel Ahsoak, Komson Spencer, and Spencer's girlfriend, Sasha Dennis, gathered at Williams's and Spencer's trailer on the outskirts of Fairbanks. They had all been drinking. At some point after arriving at the trailer, Ahsoak pushed Dennis, knocking her to the floor.

Williams told the troopers that he attacked Ahsoak in Dennis's defense. His attack ultimately lasted for several hours. Williams and Spencer repeatedly struck Ahsoak both with their fists and the handle of an axe. More than once, Ahsoak tried to leave, but Williams and Spencer stopped him. They later bound Ahsoak's legs and wrists. After Ahsoak freed himself, Williams and Spencer "hogtied" him with plastic zipties.

Eventually, everyone in the trailer passed out or fell asleep. The next morning, someone cut the zipties off Ahsoak and Spencer drove him home. Ahsoak's roommate then took him to the hospital. Ahsoak had broken ribs, a punctured lung, a broken ankle, an injured wrist, and a re-injured knee. A witness testified that Ahsoak's face "was all swollen" and "deformed."

Williams and Spencer were tried as co-defendants on charges of kidnapping and first-degree assault. Williams was represented by Assistant Public Advocate Susan Carney. On the first day of trial, the State called Ahsoak as a witness. After Ahsoak had testified for some time, the court took a regularly scheduled recess.

During the recess, the State told the court that it thought Ahsoak may have been drinking. The court called Ahsoak in to discuss the matter. Ahsoak stated that he had consumed "about four beers" at around 6:00 a.m. that morning. He said he had done this because of the stress of appearing as a witness. When the court asked whether the alcohol was "affecting [his] ability to testify," Ahsoak said it was.

Carney moved for a mistrial. The court granted the motion. But a short time later, after consulting with Williams, Carney withdrew her motion for a mistrial. She indicated she made this decision because Williams wanted to continue with the trial.

Soon after, the trial reconvened. The court explained to the jury that the trial was stopping for the day to allow Ahsoak "time to sober up." After dismissing the jury, the court discussed with Ahsoak its expectation that he would be sober when he returned to court the next day. When Ahsoak returned to the stand, counsel for both defendants cross-examined him about his drinking. The jury ultimately convicted both defendants, Williams and Spencer, of kidnapping and first-degree assault.

In his application for post-conviction relief, Williams argues that Carney provided ineffective assistance of counsel when, after the court granted the motion for a mistrial, she withdrew the motion and continued with the trial. He also argues that Carney provided ineffective assistance by not proposing any statutory mitigating factors at sentencing.

Why we conclude that Carney did not provide ineffective assistance of counsel when she withdrew the mistrial motion

To prevail on a claim of ineffective assistance of counsel, a defendant must overcome a strong presumption that his counsel acted competently.3 If the defendant cannot rule out the possibility that his counsel had a sound tactical reason for taking an action, the presumption of competence has not been rebutted and bars a finding of ineffective assistance of counsel.4

Carney submitted an affidavit explaining that she withdrew the motion for a mistrial "because Mr. Williams objected strongly and repeatedly to me that he did not want a mistrial." She explained that, although she was aware that the decision whether or not to proceed with the trial was a tactical decision that was ultimately up to her, as the attorney, to make, she "decided to honor [Williams's] request." Williams did not present any evidence suggesting that Carney's action was not a reasonable tactical decision. He therefore did not rebut the presumption of competence and did not establish a prima facie case of ineffective assistance of counsel.

Why we conclude that Carney did not provide ineffective assistance of counsel by not proposing any statutory mitigating factors at sentencing

Williams argues that Carney provided ineffective assistance of counsel because she did not propose any statutory mitigating factors at sentencing. Carney filed an affidavit in which she stated that she did not propose any mitigating factors because she was "unable to find any [mitigating factors] that were supported by the evidence."

In addition, Williams filed an affidavit from Sidney Billingslea, an experienced criminal defense attorney. Billingslea identified three mitigating factors potentially applicable to Williams's case: that "the defendant committed the offense under some degree of duress, coercion, threat, or compulsion insufficient to constitute a complete defense, but which significantly affected the defendant's conduct"; that "the defendant acted with serious provocation from the victim"; and that "the victim provoked the crime to a significant degree."5 Billingslea stated that "no minimally competent attorney would have failed to propose at least one, if not all, of these mitigating factors for sentencing in this case."

To establish ineffective assistance of counsel, it is not enough for Williams to demonstrate that a minimally competent attorney would have proposed one or all of these statutory mitigating factors. Under Risher v. State,6 a defendant must additionally show that there is at least a reasonable possibility that this lack of competency contributed to the defendant's conviction or sentence.7 In State v. Steffensen,8 we applied this standard to the defendant's claim that his attorney provided ineffective assistance by not filing a suppression motion. We held that, to establish ineffective assistance of counsel, the defendant must show (1) that "the defense attorney had no valid reason for failing to pursue the suppression motion," (2) "that the proposed suppression motion would have been granted," and (3) "that there is at least a reasonable possibility that the outcome of the trial court proceedings would have been different had the evidence been suppressed."9 We conclude that the Steffensen test is also the appropriate standard to apply in reviewing Williams's claim.

In the present case, through Billingslea's affidavit, Williams presented evidence that any competent criminal defense attorney would have proposed mitigating factors in this case. But Williams made no attempt to show that he would have succeeded in proving these mitigating factors if Carney had proposed them. (We note that the burden was on Williams to establish the mitigating factors by clear and convincing evidence.10) Williams also did not present any evidence that, if the sentencing judge found one of these mitigating factors, Williams might have received a more favorable sentence. Williams has thus failed to present a prima facie case of prejudice under Risher.

We accordingly conclude that Williams did not present a prima facie case of ineffective assistance of counsel.

Conclusion

The judgment of the superior court is AFFIRMED.