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Butler v. State10/13/2004
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.
MEMORANDUM OPINION AND JUDGMENT
No. 4934
Tommy M. Butler claims that the superior court should not have dismissed his application for post-conviction relief. The superior court ruled that Butler's application failed to plead a prima facie case. Specifically, the court ruled that Butler had not rebutted the presumption that his trial attorney's tactical choice was competent. The superior court also found that Butler had not adequately pleaded that he was prejudiced by his trial attorney's tactical choice. We conclude that the superior court's dismissal is supported by the record. Therefore, we affirm the superior court.
Facts and Proceedings
In 1996, Juneau police responded to a domestic dispute at the apartment of Butler's estranged girlfriend, Arnella Horsford. While the police were inside the apartment, Butler drove recklessly into the parking lot. Butler slipped a photograph under the apartment door and left. The photograph showed Horsford and her children, and the photograph had two bullet holes in it.
Based on a tip, the police went to a local firing range to look for Butler. Butler was not there, but a witness told the police that a man matching Butler's description (and driving a vehicle that matched the description of Butler's vehicle) had recently been at the range, shooting a handgun.
The police contacted Butler and interviewed him. Butler admitted that he had taken the photograph to the firing range, shot holes in it, and then slid the photograph under Horsford's door.
The City and Borough of Juneau filed charges against Butler for misdemeanor assault and reckless driving. Butler entered into an agreement with Juneau to defer prosecution, and the case was dismissed in February 1998.
Two years after Butler shot holes in the photograph, in 1998, a police officer who had not been involved in the 1996 case interviewed Butler on another matter. After this interview, the officer reviewed Butler's file from the 1996 incident. This officer knew that Butler had a prior felony conviction from before the 1996 incident, so when he reviewed the 1996 file, he recognized that Butler's possession of a handgun was a felony.
The officer re-interviewed the witness from the firing range. Feigning concern for Butler's children, the officer contacted Butler and asked him where the gun from the 1996 incident was. Butler admitted that he still had the gun, but reported that it was safely locked in storage. Butler was indicted for third-degree weapons misconduct. Butler moved to dismiss the charge, claiming that the pre-indictment delay violated due process. The superior court denied the motion. Butler was found guilty of this crime following a jury trial. We affirmed Butler's conviction on direct appeal.
Butler filed a pro se application for post-conviction relief, which was later amended by Butler's appointed attorney. The application alleged that Butler's trial attorney had provided ineffective assistance because the trial attorney had not moved to dismiss the indictment on the ground that his right to a speedy trial under Criminal Rule 45 had been violated. The State moved for summary disposition of the amended application, and Superior Court Judge Michael Thompson ultimately granted the State's motion and
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