SUMMARY DISPOSITION

This is a summary disposition issued under Alaska Appellate Rule 214(b). Summary disposition decisions of this Court do not create legal precedent and are not available in a publicly accessible electronic database. See Alaska Appellate Rule 214(d).

Ezial Avery was convicted after a bench trial of two counts of first-degree sexual assault, one count of fourth-degree assault, and one count of violating a domestic violence protective order.1 Avery subsequently filed an application for post-conviction relief, in which he argued that his trial attorney had provided ineffective assistance by failing to convey the State's pretrial plea offer to him.

In Missouri v. Frye, the United States Supreme Court held that "as a general rule, defense counsel has the duty to communicate [to the accused] formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused."2 The Court further held that, to establish prejudice from an attorney's failure to convey a plea offer, defendants must demonstrate, inter alia, that "they would have accepted the earlier plea offer had they been afforded effective assistance of counsel."3

After an evidentiary hearing in this case, the superior court found that Avery had failed to prove, by clear and convincing evidence, that his trial attorney did not convey the State's plea offer. In the alternative, the court found that Avery had failed to prove that he would have accepted the offer had it been properly conveyed. The court therefore denied Avery's application for post-conviction relief.4

In this appeal, Avery argues that the superior court's factual findings were clearly erroneous.5 Because we conclude that the court's second finding — that Avery would not have accepted the plea offer — was not clearly erroneous, we need not address the superior court's finding that Avery failed to establish, by clear and convincing evidence, that his attorney did not convey the plea offer to him.

The superior court found that there was no reasonable possibility that Avery would have accepted the State's plea offer.6 The court acknowledged that Avery testified that he would have accepted the offer, but the court found that Avery's testimony was not credible. In particular, the court noted that Avery's trial attorney testified that Avery was adamant that he wanted to take his case to trial and was not interested in negotiating with the State. The court found credible an instance identified by his trial attorney in which she sought Avery's permission to seek a plea agreement from the State to resolve his case, and Avery said no. Ultimately, the court concluded that there was "no credible evidence indicating that Mr. Avery would, in fact, have accepted the offer as it was presented."

The superior court's credibility findings — which are entitled to broad deference by this Court — are amply supported by the record.7

Accordingly, we AFFIRM the superior court's denial of Avery's petition for post-conviction relief.