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

MANNHEIMER, Judge.

Thomas Saddler appeals the superior court's denial of his petition for post-conviction relief. Saddler's claim for post-conviction relief was based on the assertion that he received ineffective assistance of counsel from the attorney who represented him at trial and who, during a recess in the trial proceedings, counseled Saddler to enter a Cooksey plea of no contest.1 Specifically, Saddler argued that his attorney acted incompetently when he advised Saddler to enter this plea.

For the reasons explained here, we uphold the superior court's rejection of Saddler's post-conviction relief claim.

A description of Saddler's original trial proceedings, his decision to plead no contest, and his direct appeal of his conviction

The following facts are taken from our decision of Saddler's case on direct appeal: Saddler v. State, Alaska App. Memorandum Opinion No. 5456, 2009 WL 793739 (March 25, 2009).

Saddler and two co-defendants were jointly charged with second-degree controlled substance misconduct (running a methamphetamine operation). On the first day of trial — after the jury was selected and sworn, but before opening statements — the attorneys for Saddler and one of his co-defendants notified the trial judge that they had not received the laboratory report from the State (i.e., the analysis of the chemical substances seized from the defendants), nor had they received the State's related notice of expert testimony.2

Saddler's attorney told the trial judge that he and his client would need a continuance of many weeks' duration to evaluate the lab report and to seek the input of an independent forensic expert. The trial judge concluded that he could not hold the jury that long, so the judge dismissed the jurors and declared a mistrial.3

Saddler then moved to dismiss the charges against him, arguing that there had been no manifest necessity for a mistrial, and that any further proceedings would be barred by the double jeopardy clause. The trial judge initially granted this motion, but the State sought reconsideration of the judge's decision — and, after reconsidering the matter in light of the State's legal arguments, the trial judge reversed himself and ruled that the State could bring Saddler to trial again.4

After the trial judge denied Saddler's motion to dismiss, Saddler entered a Cooksey plea: he pleaded no contest to the charges, reserving his right to renew his double jeopardy argument on appeal.5

On appeal, we concluded that Saddler's trial judge had not abused his discretion when he determined that it was necessary to dismiss the jury and start the trial again later.

In our decision, we noted that many courts had concluded that mid-trial continuances of lengthy and uncertain duration will, of themselves, provide a constitutionally adequate necessity for a mistrial.6 The facts of Saddler's case presented this same difficulty: the delay of Saddler's trial was going to be of unknown duration, and (even at best) it was going to be protracted — because Saddler and his co-defendants demanded the opportunity to engage an independent forensic expert, have that expert re-test the physical evidence, and then (depending on the results of the re-testing) have the expert prepare a report and travel to Alaska to testify for the defendants.7 We held that, given these circumstances, Saddler's trial judge could reasonably conclude that it was necessary to discharge the jurors and start again at a later time.8

The post-conviction relief proceedings in the superior court

After this Court affirmed Saddler's conviction on direct appeal, Saddler filed a petition for post-conviction relief. In his petition, Saddler raised various claims, but in this appeal he pursues only one of those claims — the claim that his trial attorney gave him incompetent advice when he advised Saddler to enter the Cooksey plea.

Specifically, Saddler contended in his petition that his trial attorney was incompetent to think that there was any merit to the double jeopardy issue that Saddler raised on direct appeal. Thus, Saddler argued, his attorney acted incompetently by telling him that if he entered a Cooksey plea that preserved this double jeopardy issue, he would have good prospects for a successful appeal. Saddler further asserted that if he had known that his double jeopardy claim had essentially no chance of success, he would not have entered the no contest plea, and he would have insisted on going to trial.

The superior court held an evidentiary hearing to investigate Saddler's claims, and both Saddler and his trial attorney testified at this hearing. In addition, Saddler presented the testimony of another attorney, Keri Brady, who was offered as an expert witness on the issue of whether Saddler's trial attorney acted competently.

The strength of the case against Saddler, and Saddler's lack of prospects for a successful defense

Saddler's trial attorney testified that the State's evidence against Saddler was overwhelming, and that Saddler had no chance of being acquitted if he went to trial.

The trial attorney acknowledged that, before trial, Saddler told him that there were two alibi witnesses who could testify in Saddler's defense — but when the attorney asked Saddler for the specifics of what these two witnesses would say, Saddler told his attorney that the two witnesses "would say whatever [Saddler] needed them to say". Based on Saddler's response, the trial attorney concluded that Saddler was asking him to present perjured testimony, so he took no further steps to procure these supposed witnesses.

At the evidentiary hearing, Saddler told the court that he could not recall telling his attorney that the two witnesses would say anything they were asked to say, and Saddler further declared that he doubted he would have said something like that. But the superior court concluded that the trial attorney's testimony on this point was credible, and that Saddler's testimony was not. Thus, the court found that the attorney acted competently when he decided not to present these supposed witnesses. Saddler does not pursue this point on appeal.

Based on the State's evidence against Saddler, and on the trial attorney's testimony, the superior court found that the trial attorney's evaluation of Saddler's case was accurate — that "the evidence tying Mr. Saddler to the methamphetamine lab was overwhelming." The superior court further found that Saddler "would have ended up in a much worse position" if he had gone to trial instead of accepting the plea bargain and entering his Cooksey plea.

The reasonableness of the double jeopardy claim that Saddler preserved for appeal when he entered his Cooksey plea

As we explained above, Saddler contended that his trial attorney was incompetent to think that there was any merit to the double jeopardy issue that Saddler raised on direct appeal. Thus, Saddler argued, his trial attorney acted incompetently when he advised Saddler that he would have good prospects on appeal if he entered the Cooksey plea and preserved this double jeopardy issue.

At the evidentiary hearing, Saddler's trial attorney discussed his analysis of, and his approach to, the double jeopardy issue. The attorney testified that he researched the issue, and that he consulted other experienced attorneys regarding the trial judge's dismissal of the jury and the merits of a motion to dismiss the charges against Saddler on double jeopardy grounds. According to the trial attorney's testimony, his research and his consultations with these other attorneys led him to conclude that the trial judge's dismissal of the jury was constitutional error.

Indeed, as we explained earlier, Saddler's trial judge initially agreed with the trial attorney's analysis: the judge issued an order dismissing the case against Saddler. It is true that the judge later reversed himself after the State sought reconsideration of this issue. But when the superior court issued its decision in Saddler's post-conviction relief case, the court noted that the trial judge's initial ruling was further evidence that Saddler's trial attorney's approach to this issue was within the range of competent lawyering.

As we noted earlier, Saddler called an expert witness, attorney Keri Brady, to testify about the competency of Saddler's trial attorney. But during her testimony, Brady did not discuss the double jeopardy issue, and she offered no opinion as to whether the trial attorney's approach to this issue was competent.

Based on all of the foregoing, the superior court concluded that Saddler's trial attorney's evaluation of the double jeopardy issue was competent, even though this double jeopardy claim was ultimately not successful on appeal.

Conclusion

The superior court concluded that Saddler's attorney acted competently with regard to the double jeopardy issue, and with regard to advising Saddler to enter the Cooksey plea that preserved this issue for appeal.

The superior court further concluded that, in any event, Saddler failed to show that he was prejudiced in any manner by his decision to enter the Cooksey plea instead of going to trial.

Both of the superior court's conclusions are amply supported by the record. Accordingly, the judgement of the superior court is AFFIRMED.