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

BOLGER, Judge.

Justin Hoeldt entered into a plea agreement in which he pleaded guilty to one count of second-degree misconduct involving a controlled substance. Nearly six months later, Hoeldt asked to withdraw his plea. The court denied Hoeldt's motion, and he now appeals. We conclude that Hoeldt failed to establish ineffective assistance of counsel or any other fair and just reason to withdraw his plea.

Background

Hoeldt was charged with three counts of second-degree misconduct involving a controlled substance1 for selling heroin to a confidential informant on October 19, October 28, and November 2, 2008. Hoeldt was released to a third-party custodian in December 2008, but was arrested in February 2009 for fourth-degree misconduct involving a controlled substance. Hoeldt was again released to a third-party custodian, but went missing after a month. Hoeldt's whereabouts were unknown until September 2009, when he was arrested on new charges for second-degree misconduct involving a controlled substance. The court then scheduled Hoeldt's trial for February 2010.

At trial call, Hoeldt's attorney announced that he was ready for trial, but that Hoeldt wanted new counsel. Hoeldt also requested that his trial be delayed so that he could attend a nine-month treatment program. After hearing from both parties, the court denied Hoeldt's requests, concluding that Hoeldt was simply trying to avoid a trial. The following day, just before the trial was scheduled to start, Hoeldt's attorney announced that Hoeldt had agreed to plead guilty to a single, consolidated count of second-degree misconduct involving a controlled substance.

Sentencing was scheduled for August 2010. Prior to sentencing, Hoeldt's attorney discovered a conflict of interest and a new attorney was appointed. At the sentencing hearing, the new attorney announced that Hoeldt wanted to withdraw his guilty plea on the ground that he had received ineffective assistance of counsel from his first attorney.

Hoeldt filed a motion arguing that his first attorney was ineffective because Hoeldt was not aware of the fact that the police illegally recorded the first heroin sale alleged in the indictment. The motion was supported by an affidavit from Hoeldt's new attorney, who stated that the prosecutor had admitted that she "was aware of the illegal recording and had discussed the matter with [Hoeldt's first attorney, after which] the parties agreed that the tape in question could not be played [at Hoeldt's trial]."

In response, the State argued that the motion was another attempt by Hoeldt to delay his case and manipulate the system. The State claimed that it would be substantially prejudiced if the court allowed Hoeldt to withdraw his plea because the prosecutor's office had not been in contact with the confidential informant for the six months since Hoeldt entered his guilty plea, and Hoeldt had been allowed to plead guilty to reduced charges in two other cases in reliance on the fact that he would receive a sentence between ten and fourteen years in this case.

The court denied Hoeldt's motion to withdraw his plea. The court found that Hoeldt was manipulating the system, and that Hoeldt had done everything he could to delay his case. The court concluded that Hoeldt had not established ineffective assistance of counsel. The court also determined that the State would be prejudiced by the withdrawal because Hoeldt entered into a global resolution of his cases and because the State would have difficulty obtaining the testimony of the confidential informant. Hoeldt now appeals.

Discussion

Hoeldt failed to establish manifest injustice.

Hoeldt argues that the withdrawal of his plea was necessary to correct manifest injustice. Hoeldt claims that his first attorney provided ineffective assistance by failing to discuss the inadmissible recording.

Prior to sentencing, the court "shall allow a defendant to withdraw a plea whenever the defendant, upon timely motion, proves that withdrawal is necessary to correct manifest injustice."2 Withdrawal is necessary to correct a manifest injustice if the defendant can demonstrate that he was denied the effective assistance of counsel.3

In Risher v. State, the Alaska Supreme Court adopted a twofold test for ineffective assistance of counsel.4 Under this test, the defendant is first required to show that counsel failed to perform at least as well as a lawyer with ordinary training and skill in criminal law.5 The defendant is also required to show prejudice by showing that counsel's incompetence contributed to the outcome of the case.6

In this case, the affidavits Hoeldt submitted suggest that his first attorney had a good tactical reason for not filing a motion to suppress the inadmissible recording. In particular, the prosecutor indicated that Hoeldt's first attorney had discussed the inadmissible recording with her and that she had agreed she would not seek to introduce that recording during the trial. Hoeldt's attorney, therefore, had no reason to file a motion to suppress this evidence; he had already obtained the same relief by his agreement with the prosecutor. We conclude that Hoeldt failed to overcome the presumption of competence for his first attorney.

Moreover, Hoeldt has failed to show any prejudice from his attorney's actions. There was no affidavit from Hoeldt to show that the actions of his first attorney contributed to his decision to enter into the plea agreement or that he would have changed his mind about the plea agreement had he known about the inadmissible recording.

Hoeldt did not establish a fair and just reason to withdraw his plea.

Hoeldt also argues that he presented a fair and just reason for withdrawing his plea. Prior to sentencing, a defendant may be allowed to withdraw a guilty plea for any fair and just reason, even when withdrawal of the plea is not necessary to correct a manifest injustice.7

A trial judge may deny such a motion if the judge concludes that the defendant is simply trying to manipulate the justice system.8 For example, in Ningealook v. State, the defendant sought multiple continuances before he entered his plea of no contest on the morning of trial.9 A few days later, Ningealook filed a motion to withdraw his no contest plea.10 We concluded that the trial judge could reasonably have found that the defendant had entered his plea to manipulate the system to obtain a continuance.11

In this case, the judge reasonably concluded that Hoeldt was attempting to manipulate the system. After Hoeldt was released to a third-party custodian, he went missing for six months. The day before trial, Hoeldt stated that he did not want to go to trial and instead wanted to attend a nine-month treatment program. He also said he wanted a new attorney. The court denied Hoeldt's requests. The next day, Hoeldt announced that he would plead guilty, based on a plea bargain. Hoeldt then waited until the day set for his sentencing hearing, six months later, to indicate that he wanted to withdraw his plea. There is ample support in the record for the judge's conclusion that Hoeldt was attempting to manipulate the system.

The appellate briefing does not discuss whether Hoeldt's sentence in other cases was contingent on his plea in this case. But if it was, then Hoeldt's failure to move to withdraw his pleas in those cases would be another reason supporting the judge's decision to deny Hoeldt's motion to withdraw his plea in this case.12

Conclusion

We accordingly AFFIRM the superior court's judgment.