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Stanton v. Municipality of Anchorage9/1/1999
itation potential.
Judge Rhoades rejected Stanton's claims. She concluded that the record showed that Stanton had knowingly and voluntarily entered his plea. She found that Stanton had not shown that his former counsel was ineffective. She also concluded that the sentence she had imposed was not excessive. Stanton now appeals from that decision.
Judge Rhoades' decision that Stanton waived his right to a lawyer and entered a voluntary and knowing plea is supported by the record. As set out above, Stanton actually consulted an attorney before his arraignment. He then watched the court's videotaped advisement of rights, and was present when Judge Rhoades gave a joint advisement of rights. Stanton told Judge Rhoades that he had no questions about any of the rights he would be giving up, told the Judge that he had watched the court's videotaped advisement of rights, and had seen what a lawyer could do for him. He said that he was waiving his right to a lawyer, and responded affirmatively when the Judge asked, "Are you sure you don't want to have a lawyer help you with this case?"
The evidence also supports Judge Rhoades' decision that Stanton did not show ineffective assistance of counsel because of bad advice concerning the sentence he might receive. Generally, under Risher v. State, a defendant who alleges ineffective assistance of counsel must demonstrate that their attorney failed to "perform at least as well as a lawyer with ordinary training and skill in the criminal law." The law presumes that an attorney has acted competently, and that the attorney's decisions were prompted by sound tactical considerations. To prevail in a post-conviction relief action based on an ineffective assistance of counsel claim, a defendant must rebut this presumption. Normally, this requires at least an affidavit from counsel; Stanton failed to file such an affidavit. Furthermore, Stanton's basis for his claim is that his former counsel predicted that Stanton would "likely" receive the mandatory minimum. Incorrect predictions concerning sentence normally are insufficient to show that counsel was ineffective.
We are, however, concerned about the issue of whether Judge Rhoades relied on inaccurate information in imposing Stanton's sentence. The municipality does not dispute that the APSIN information which the municipality presented in court was inaccurate. Instead, the municipality contends that the Judge did not rely on this record. But we cannot be sure from the record that Judge Rhoades did not rely on the inaccurate information presented by the municipality at sentencing. We are also not sure whether Judge Rhoades reconsidered her sentence when she concluded that it was not excessive, or if she was determining, like an appellate court, that the sentence was not clearly mistaken. We conclude that Stanton was entitled to have Judge Rhoades reconsider his sentence based upon an accurate portrayal of his record since he promptly filed a petition for review of his sentence and promptly asked for a remand to the trial court to re-sentence him based on an accurate driving record. We accordingly remand the case.
We REMAND for further findings and, if appropriate, re- sentencing. The district court shall issue its findings within 60 days of this decision. If the parties wish to respond to the court's supplemental findings, they shall file their memoranda within 30 days thereafter. We retain jurisdiction.
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