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 authority for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

COATS, Chief Judge.

In May of 1992, Leslie L. Simpson Jr. was convicted of murder in the first degree and sentenced to eighty-five years of imprisonment. In April of 2004, Simpson filed an application for post-conviction relief. In the application, Simpson claimed that he had recently discovered that, prior to his trial, the State had made an offer to his attorneys to allow Simpson to enter a plea to murder in the second degree, with open sentencing. Simpson claimed that his attorneys never informed him of this offer. He claimed that if he had been informed of the offer and properly advised, he would have accepted the offer. He argued that he had therefore received ineffective assistance of counsel and that, as a remedy, the original offer to plead to murder in the second degree should be reopened or, in the alternative, he should be granted a new trial.

Superior Court Judge Michael Spaan conducted an evidentiary hearing at which Simpson and his trial attorneys testified. Following the testimony, Judge Spaan found that Simpson had not shown by clear and convincing evidence that his attorneys did not convey the State's offer to him or that his attorneys had been ineffective. Simpson appeals this decision. We affirm.

Factual and procedural background

Leslie L. Simpson Jr. was charged with assaulting his wife based on events that occurred in June of 1991. He was first represented by Barbara Brink, who was the Deputy Director of the Public Defender Agency.

After being in the hospital for several days, Simpson's wife died from the injuries she received in the assault. The State offered to allow Simpson to plead to murder in the second degree, with no restriction on the sentence that the court could impose. On August 9, 1991, Brink discovered a conflict of interest, and moved successfully to withdraw from the case.

After Brink withdrew, Gordon G. Goodman assumed Simpson's representation. The record reflects that the prosecutor in the case sent Goodman a letter in which the prosecutor noted that she had communicated an offer to Brink to allow Simpson to plead to murder in the second degree. In the letter, the prosecutor renewed this offer because Simpson now had new counsel.

No plea agreement was ever reached. On September 6, 1991, the State indicted Simpson for murder in the first degree. The case went to trial, and the jury found Simpson guilty of murder in the first degree. Simpson was sentenced to eighty-five years in prison. Simpson appealed, but his conviction was affirmed.1

In April 2004, Simpson filed an application for post-conviction relief and filed an amended application in February 2005. In the amended application, Simpson claimed that he had recently discovered the State's offer to allow him to plead to murder in the second degree. Simpson claimed that neither Brink nor Goodman had ever informed him of the State's offer. He claimed that Brink and Goodman provided ineffective assistance of counsel by failing to inform him of the State's offer and by failing to inform him of the risks of going to trial in light of the State's offer. Simpson asked the court to grant him a new trial, or in the alternative, to allow him to plead to murder in the second degree with open sentencing.

Judge Spaan initially decided the post-conviction relief case against Simpson based upon the affidavits of Simpson, Brink, and Goodman. On appeal, we vacated the superior court's judgment.2 We found that the superior court erred by resolving the factual issue of whether the State's plea offer was communicated to Simpson before trial based solely on the contents of competing affidavits.3 We remanded the case for further proceedings on Simpson's petition for post-conviction relief.4

On remand, Judge Spaan conducted an evidentiary hearing. Simpson, Brink, and Goodman testified. Following the evidentiary hearing, Judge Spaan found that Brink and Goodman had conveyed the State's offer to Simpson. Judge Spaan found that Simpson was extremely emotional around the time of the plea discussions and during his trial, and that Simpson was unable to recall other discussions that Simpson had with his attorneys at that time. He found that Simpson was not a credible witness. He concluded that Simpson did not prove the factual basis supporting his claims by clear and convincing evidence.

Why we uphold Judge Spaan's findings

In a post-conviction relief proceeding, the applicant "must prove all factual assertions by clear and convincing evidence."5 This court will overturn a trial court's finding of fact only if, from a review of the entire record, we are left with a "definite and firm conviction that a mistake has been made."6 Judge Spaan found Simpson's testimony unreliable, and Brink and Goodman's testimony credible. A trial judge is better able to judge the credibility of witnesses and weigh their testimony. The judge has seen and heard the witnesses in person, as opposed to an appellate court which reviews a printed record.7

It is true, as Simpson points out, that Brink and Goodman had difficulty recalling some of the circumstances surrounding their pretrial discussions with Simpson. But Judge Spaan could certainly consider the fact that the attorneys were testifying about events that took place almost twenty years prior to their testimony. Looking at the testimony of Brink and Goodman in its entirety, Judge Spaan could reasonably conclude that the testimony established that Brink and Goodman conveyed to Simpson the State's offer to allow him to plead to murder in the second degree and that Simpson chose to not accept that offer. Judge Spaan found that it was highly unlikely that two experienced criminal defense attorneys violated their ethical obligation under Professional Conduct Rules 1.2(a) and 1.4(b) to convey the offer to Simpson.

Goodman's testimony also indicated that he was "pretty sure" he talked to Simpson about the offer. Judge Spaan noted that Simpson acknowledged that Goodman spoke to him about trial strategy and the risks of taking the stand in his own defense. This finding suggests that Goodman not only conveyed the offer, but also explored with Simpson the risks of going to trial.

We conclude that Judge Spaan's factual findings are not clearly erroneous and that he did not err in concluding that Simpson did not prove by clear and convincing evidence that his attorneys were ineffective.

Conclusion

The judgment of the superior court is AFFIRMED.