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

Judge MANNHEIMER.

In April 2012, pursuant to a plea agreement, Jeremy Eagle Windsor pleaded guilty to one count of second-degree theft and one count of attempted third-degree weapons misconduct; he also admitted violating his probation in two other cases.

Before sentencing, Windsor asked to withdraw his pleas, asserting that the attorney who had represented him up to that point, Andrew Haas, had been ineffective.

The superior court appointed a new attorney to represent Windsor, and this new attorney filed a motion arguing that Haas had been ineffective because he failed to file a motion to dismiss the charges, failed to oppose joinder of the two charges for trial, and generally failed to develop any trial strategy as an alternative to Windsor's pleading guilty.

The superior court held a hearing on Windsor's claims, where the court heard testimony from both Windsor and Haas. Based on this evidence, the superior court concluded that Windsor had failed to show that there was a fair and just reason to allow him to withdraw his pleas. For the reasons explained here, we uphold the superior court's decision.

Underlying facts

Windsor, who was on probation for two prior felony theft convictions, was suspected of stealing a watch and an iPod from his aunt, as well as jewelry and collectible coins from his grandparents. When Windsor's probation officers searched his room and his car, they found several of these items, as well as a pistol and ammunition. (As a felon, Windsor was prohibited from possessing concealable firearms. See AS 11.61.200(a)(1).)

Windsor's aunt and his grandmother later located some of the other missing items at a pawn shop. Windsor's name was on the pawn receipt.

Windsor was indicted on one count of first-degree theft (theft of property valued at $25,000 or more), three counts of second-degree theft, tampering with evidence, and third-degree weapons misconduct (felon in possession of a concealable firearm). In addition, the State petitioned the superior court to revoke Windsor's probation in the two earlier felony theft cases.

Ultimately, the charges against Windsor were resolved with a plea bargain. Under the terms of this agreement, (1) the State reduced the first-degree theft charge to second-degree theft; (2) the State dismissed all three of the original second-degree theft charges as well as the tampering with evidence charge; and (3) the State reduced the third-degree weapons misconduct charge to attempted third-degree weapons misconduct (a misdemeanor).1 Windsor also admitted that he violated his probation in the two earlier felony cases, in exchange for the promise that he would not be ordered to serve any of his previously suspended jail time.

Shortly before his sentencing, Windsor sought to withdraw these guilty pleas. In his plea-withdrawal motion (as ultimately drafted by his new attorney), Windsor argued that his former attorney, Haas, had acted incompetently by:

Haas filed an affidavit responding to these allegations. In this affidavit, Haas agreed with Windsor that the grand jury testimony attributed too much value to the stolen coins. (At grand jury, Windsor's uncle testified that the coins were worth close to a quarter of a million dollars.) But as the superior court noted, the threshold value for first-degree theft is only $25,000 — so that even if Haas had attacked the indictment on this basis, the State could have easily re-indicted Windsor.

Haas also stated that he considered and rejected the option of filing a pre-trial suppression motion, and that he "did not observe any additional legal issues."

With regard to the resolution of Windsor's case, Haas stated that he reviewed all of the State's plea offers with Windsor, and that it was Windsor who drafted various counter-offers — one of which the State finally accepted.

After these pleadings were filed, the superior court held an evidentiary hearing to investigate Windsor's claims. At this hearing, the court heard testimony from both Windsor and Haas. Following this evidentiary hearing, the superior court issued a written order denying Windsor's motion to withdraw his plea.

With respect to Haas's decision not to file pre-trial motions attacking the indictment, the court found that Windsor had failed to rebut the presumption of attorney competence. The superior court noted that even if there were arguable flaws in the grand jury evidence, Windsor failed to show that the State would have been unable to correct these flaws and procure a new indictment.

With regard to the potential severance of the charges against Windsor, the court concluded that a motion to sever would have been denied because the various charges were so closely factually related: the alleged crimes took place over a three-week period, the different victims were all Windsor's relatives, items belonging to different victims were found at the same pawn shop, and the owner of the pawn shop identified Windsor as the man who pawned all these items.

(The court acknowledged that, with respect to the counts that required the State to prove Windsor's prior theft convictions, Windsor would have been entitled to bifurcation of his trial. But that was an issue that could have been taken up at trial — and the issue became moot when Windsor reached his plea agreement with the State.)

The court concluded that Haas "[might] have erred" when he failed to oppose the State's motion for joinder of the theft and evidence-tampering charges with the felon in possession charge in File No. 3KN-11-2189 CR. But the court concluded that Windsor had not shown how he was prejudiced by Haas's failure to oppose this joinder — since Windsor himself designed the plea bargain that was ultimately agreed to by the parties and accepted by the court.

With regard to Windsor's other factual claims — Windsor's assertions that he did not understand the details of the State's case until after he entered his guilty pleas, that Haas refused to give any thought to taking Windsor's case to trial (versus resolving the case through a plea bargain), and that Windsor only agreed to a plea bargain because he was "fed up" with Haas — the superior court found these claims to be false.

All in all, the court concluded that Windsor had failed to show a fair and just reason to allow him to withdraw his pleas.

Why we affirm the superior court's ruling

Alaska Criminal Rule 11(h)(2) states that, before a defendant is sentenced, a trial court "may in its discretion allow the defendant to withdraw a [guilty] plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea." The defendant bears the burden of establishing a "fair and just reason" for the withdrawal of the plea.2

Here, the superior court fully investigated Windsor's claims and concluded that Windsor had failed to substantiate them, given the facts of his case. We have independently reviewed the record, and we find that the superior court's conclusions are amply supported by the record. Accordingly, we uphold the superior court's denial of Windsor's plea-withdrawal motion.

Conclusion

The judgement of the superior court is AFFIRMED.