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.

Jason M. Bailey appeals the superior court's dismissal of his petition for post-conviction relief. Bailey's petition was based on the assertion that he received ineffective assistance of counsel in connection with the underlying criminal proceedings against him. In particular, Bailey claimed that his attorney incompetently advised him to accept the State's proposed plea bargain before the attorney had adequately investigated or pursued defense options in the case.

The superior court dismissed Bailey's petition for failure to state a prima facie case. For the reasons explained in this opinion, we uphold the superior court's decision.

Underlying facts

Bailey was charged with two counts of first-degree sexual abuse of a minor. These counts were based on allegations that Bailey sexually penetrated his two daughters, who were 6 years old and 5 years old at the time.

First-degree sexual abuse is an unclassified felony. Because Bailey's daughters were younger than 13, he faced a presumptive sentencing range of 25 to 35 years' imprisonment on each count.1

When Bailey was interviewed, he confessed to this sexual abuse. During the pre-trial proceedings in this case, Bailey's attorney filed a motion to suppress Bailey's confession on the theory that it was involuntary.

While that suppression motion was pending — in fact, at the start of the evidentiary hearing on Bailey's motion — the parties announced that they had reached a plea agreement. Under the terms of this agreement, the State would dismiss one of the two counts of first-degree sexual abuse of a minor, and the other count would be reduced to attempted second-degree sexual abuse of a minor. For this lesser crime, Bailey would receive a sentence of 15 years with 12 years suspended — i.e., 3 years to serve.

In July 2012, the superior court accepted this plea agreement. Bailey then pleaded guilty to the reduced charge of attempted second-degree sexual abuse of a minor, and he received the sentence specified in the agreement.

The post-conviction relief litigation, and the superior court's ruling

Three months after he was sentenced, Bailey filed a petition for post-conviction relief. Bailey raised several claims in this petition, but for present purposes only one of these claims is pertinent: the claim that Bailey's trial attorney acted precipitously and incompetently when he advised Bailey to accept the plea agreement. More specifically, Bailey argued that no competent attorney would have advised him to accept the plea agreement before the attorney hired an expert to evaluate and potentially challenge the veracity of Bailey's daughters' statements about the sexual abuse.

In response to Bailey's claim of ineffectiveness, Bailey's former attorney filed an affidavit describing his investigation of the case. In this affidavit, the attorney declared that he had retained three different experts in Bailey's case, and that he had "explored the evidence against Mr. Bailey".

The attorney acknowledged that his defense investigator had indeed suspected that the two girls' aunt had "orchestrated" the charges against Bailey in order to gain custody of the girls. But the defense attorney stated that, in his estimation, the most problematic aspect of Bailey's case (from the defense point of view) was the fact that Bailey had confessed to sexually abusing his daughters.

Because Bailey had confessed, the attorney initially focused his efforts on trying to find some colorable ground for suppressing that confession.

In his affidavit, the attorney told the court that he had watched the video of Bailey's confession and that he had obtained a transcript of this video. The attorney also educated himself on fetal alcohol syndrome, to further develop his claim that Bailey felt coerced during the interrogation. (Bailey had been diagnosed as suffering from "partial fetal alcohol syndrome", with measurable impairment of certain aspects of his mental functioning.) The attorney then filed a 19-page motion to suppress Bailey's confession.

As we have already explained, Bailey and the State reached their plea agreement while this suppression motion was being litigated — just before the scheduled evidentiary hearing on the suppression motion.

Bailey's attorney acknowledged that Bailey was reluctant to plead guilty, but the attorney strongly advised him to accept the plea agreement, even though the suppression motion had not yet been decided. The attorney explained that he viewed the State's proposed offer of 3 years' imprisonment as quite favorable for Bailey, because it "was essentially [a sentence of] time served".

In his petition for post-conviction relief, Bailey did not claim that his attorney acted incompetently by advising him to accept the plea agreement before the superior court issued a ruling on the pending motion to suppress Bailey's confession. Rather, Bailey claimed that his attorney acted incompetently by advising him to accept the plea agreement before the attorney hired an expert to evaluate potential ways of attacking Bailey's daughters' statements. Bailey contended that any competent attorney would have advised him to reject the State's offer, so that the attorney could investigate this other potential avenue of defense.

The superior court concluded that Bailey had failed to set forth any reason to think that, given the circumstances, his attorney's advice fell below the minimum standard required of criminal law practitioners. The superior court therefore dismissed Bailey's petition for post-conviction relief for failure to state a prima facie case meriting relief.

Bailey's argument on appeal

On appeal, Bailey argues that the superior court was wrong to dismiss his petition, since it is impossible to know what kind of information might have been discovered, or what kind of analysis might have been developed, if his attorney had hired an expert to analyze his daughters' statements about the sexual abuse. But when a defendant seeks post-conviction relief by asserting that their attorney incompetently failed to interview a witness or hire an expert witness, the defendant must present the court with reason to believe that there is such a witness, and that the witness's testimony would have been materially favorable to the defendant.2 Without this, the defendant fails to offer a prima facie case that their attorney's investigation was, in fact, incompetent — or that the defendant was actually prejudiced by the attorney's approach to the case.

Here, Bailey offered no reason to think that further investigation of his case would have yielded information that was favorable to Bailey's defense. The superior court could properly dismiss his petition on this basis.

But even if we assume that Bailey's proposed investigation would have yielded information favorable to his defense, this would not resolve Bailey's claim of attorney incompetence.

Bailey was convicted because he accepted a plea agreement, and the question is whether Bailey's attorney acted incompetently when he advised Bailey to accept that plea agreement even though the attorney had not yet pursued this other potential avenue of investigation. Under Alaska law, Bailey had to present a prima facie case that all minimally skilled criminal law practitioners would have advised Bailey not to accept the plea agreement until this further investigation was completed.

At the time Bailey's attorney advised him to take the State's offered plea agreement, the main problem facing the defense was the fact that Bailey had confessed to sexually abusing his two daughters. Bailey's attorney had filed a motion to suppress this confession, but the defense attorney did not know whether this motion would succeed. The attorney also believed that the State's offer — only 3 years to serve — was quite favorable to Bailey, since Bailey otherwise faced a presumptive sentencing range of 25 to 35 years' imprisonment on each of the two counts of first-degree sexual abuse of a minor.

Under these circumstances, we agree with the superior court that Bailey failed to present any good reason to think that his attorney acted incompetently when he advised Bailey to accept the plea agreement.

Conclusion

The judgement of the superior court is AFFIRMED.