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Samskar v. State8/11/2004
NOTICE 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 precedent for any proposition of law, nor as an example of the proper resolution of any issue.
No. 4908
MEMORANDUM OPINION AND JUDGMENT
John Samskar was convicted of several charges at his trial and we affirmed all but one of those convictions on direct appeal. Samskar filed an application for post-conviction relief. After Samskar had obtained counsel, counsel filed an amended application alleging that Samskar's trial attorney and his appellate attorney both provided ineffective assistance of counsel.
After conducting a hearing on Samskar's application, Superior Court Judge Harold M. Brown found that Samskar had not met his burden of proof and dismissed the application.
We affirm the superior court because Samskar has not convinced us that Judge Brown erred.
Background facts and proceedings On December 23, 1997, Samskar drank several beers, went to the Blue Jay Trailer Court in Nikiski with his 10-year-old son, fired several rounds from his 9mm pistol, and then left. Acting on a tip, state troopers went to Samskar's residence and arrested him for driving while intoxicated and fourth-degree weapons misconduct (possessing a firearm while intoxicated).
The grand jury indicted Samskar on five counts of third-degree assault (for recklessly placing several trailer court residents in fear of imminent physical injury by means of a dangerous instrument). Samskar was also charged by information with fourth-degree weapons misconduct, reckless endangerment, driving while intoxicated, and breath-test refusal. Samskar's jury convicted him of all but the DW I charge.
We affirmed all of Samskar's convictions except his conviction for fourth-degree w eapons misconduct.
Samskar's application for post-conviction relief alleged that his trial attorney and his appellate attorney provided ineffective assistance. Samskar supported his application with an affidavit from each attorney. Judge Brown held a hearing on the application. Samskar testified and called his trial attorney as a witness. The trial attorney confirmed that a photocopy of a case, Gallmeyer v. State, was included in the Samskar trial file. The trial attorney had written "Samskar" on the photocopy and noted on the photocopy that the case addressed warrantless entries. The attorney did not recall reading the case, but testified that since there was a copy in the file, he assumed he had read it. Samskar's post-conviction relief attorney did not call the appellate attorney because " here's nothing factual that he would testify to that[,] in my professional opinion[,] is beneficial to Mr. Samskar."
After the hearing, Judge Brown found that Samskar had not shown that his trial or appellate counsel had been incompetent in any respect.
Discussion
Samskar claimed that his trial counsel was ineffective by failing to move to suppress evidence obtained after the police had entered his residence without a warrant. Samskar also claimed that his trial counsel was ineffective by committing "cumulative errors ... during trial." In addition, Samskar claimed that his appellate counsel was ineffective by failing to appeal the denial of Samskar's motion to suppress certain statements at trial and by failing to appeal his sentence as excessive.
An applicant for post-conviction relief has the burden of proving all factual assertions by clea
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