Opinion
A-13874 0358
02-07-2024
EDWIN ALLEN STOLTENBERG, Appellant, v. STATE OF ALASKA, Appellee.
Michael L. Barber, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Trial Court No. 3KN-18-00852 CI Kenai, Lance Joanis, Judge.
Michael L. Barber, Attorney at Law, under contract with the Public Defender Agency, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
SUMMARY DISPOSITION
Edwin Allen Stoltenberg pleaded guilty to sixteen criminal counts as part of a global plea agreement that resolved six criminal cases. Stoltenberg then filed an application for post-conviction relief seeking to withdraw his guilty pleas on two separate grounds: (1) that one of his attorneys suffered from a conflict of interest; and (2) that conversations he had with his attorneys were illegally recorded. The superior court dismissed his application, concluding that he had failed to present a prima facie case with respect to either claim. Stoltenberg now appeals that ruling.
To establish a prima facie case for relief, a post-conviction relief applicant must "present the superior court with well-pleaded assertions of fact which, if ultimately proved, would be sufficient to establish his entitlement to relief.” Although the superior court is required to assume the truth of the applicant's well-pleaded assertions of fact, the court "need not assume the truth of pro forma assertions of the ultimate facts to be proved when these assertions are not supported by specific details."
Wyatt v. State, 393 P.3d 442, 445 (Alaska App. 2017) (emphasis omitted).
LaBrake v. State, 152 P.3d 474, 481 (Alaska App. 2007).
Stoltenberg's first ground for withdrawing his guilty pleas was that one of his attorneys suffered from a conflict of interest. As the parties agree, in order to succeed on this ground, Stoltenberg was required to establish that his attorney suffered from an "actual conflict" of interest that "adversely affected" her preparation or presentation of the case. But Stoltenberg's application alleged only that his attorney had previously represented a possible witness in one of his cases, and that when Stoltenberg mentioned that this person could be helpful to him, his attorney allegedly responded that this was a potential conflict of interest. Stoltenberg alleged no additional facts establishing that his attorney's representation of both him and the potential witness created an actual conflict, or that this witness had anything helpful to contribute to his case. We agree with the superior court that these facts, even if proven, are insufficient to establish that his attorney was laboring under an "actual conflict" that "adversely affected" her representation in his case.
State v. Carlson, 440 P.3d 364, 383-84 (Alaska App. 2019); see also Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980).
See Carlson, 440 P.3d at 384-85 ("A 'conflict in the abstract,' or the mere possibility of a conflict of interest, is insufficient to meet this standard.").
Stoltenberg's second ground for withdrawing his guilty pleas was that conversations he had with his attorneys were illegally recorded. To support this claim, Stoltenberg simply asserted in his own affidavit, in relevant part, that "it was discovered that attorney-client conversations between [my] attorneys and me were recorded and accessed by state and federal government officials."
In Fajeriak v. State, the Alaska Supreme Court held that when a defendant successfully proves that his confidential communications with his attorney were electronically monitored, the defendant is entitled to a new trial unless the State proves beyond a reasonable doubt that the defendant suffered no prejudice from the eavesdropping. Assuming, as the parties do on appeal, that this same reasoning applies to the withdrawal of a guilty plea, we agree with the superior court that Stoltenberg failed to establish a prima facie case for relief
Fajeriak v. State, 520 P.2d 795, 803-05 (Alaska 1974).
In Fajeriak, the defendant's affidavit identified the days the monitoring took place, the attorney it involved, and how the defendant came to learn of the eavesdropping. The court also noted that there was "[considerable evidence substantiating" the claim that jail authorities were electronically monitoring his conversations. Here, by contrast, Stoltenberg's affidavit included only the bare assertion that "it was discovered" that attorney-client conversations were being monitored. Stoltenberg provided no additional information about how this discovery was made, what calls were recorded, or which government officials listened to the recordings. We agree with the superior court that Stoltenberg's assertion is insufficient to establish a prima facie case for relief, as the court "need not assume the truth of pro forma assertions of the ultimate facts to be proved when these assertions are not supported by specific details."
Id. at 798-99, 798 n.5.
Id. at 798.
See LaBrake v. State, 152 P.3d 474, 481 (Alaska App. 2007).
The judgment of the superior court is AFFIRMED.