Loren J. Larson Jr. v. State of Alaska ( 2023 )

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LOREN J. LARSON JR.,
Court of Appeals No. A-13849
Appellant, Trial Court No. 4FA-16-02876 CI
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2743 — April 7, 2023
Appeal from the Superior Court, Fourth Judicial District,
Fairbanks, Paul R. Lyle, Judge.
Appearances: Loren J. Larson Jr., in propria persona, Wasilla,
Appellant. Eric A. Ringsmuth, Assistant Attorney General,
Office of Criminal Appeals, Anchorage, and Treg R. Taylor,
Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
Judge TERRELL.
In 1998, Loren J. Larson Jr. was convicted of a double homicide, and this
Court affirmed his convictions on direct appeal.1 In 2001, Larson filed an application
for post-conviction relief in which he asserted that he was entitled to a new trial because
1
Larson v. State, 2000 WL 19199 (Alaska App. Jan. 12, 2000) (unpublished).
of juror misconduct.2 The superior court dismissed this application because all of
Larson’s claims of juror misconduct were based on juror affidavits that were
inadmissible under Alaska Evidence Rule 606(b), and this Court affirmed the dismissal
on appeal.3 In the years since then, Larson has pursued numerous collateral attacks on
his convictions based on these same claims of juror misconduct.4
This appeal is from the dismissal of a successive application for post-
conviction relief alleging ineffective assistance of counsel in Larson’s first post-
conviction relief action.5 Larson argued that his attorney in his first post-conviction
relief action was ineffective because the attorney decided not to file a petition for
rehearing with this Court after we issued our opinion affirming the superior court’s
dismissal of the application, instead of allowing Larson to make this decision himself.
According to Larson, the decision regarding whether to file a petition for rehearing
belongs to the defendant, not the attorney. The superior court rejected this claim,
2
Larson v. State, 79 P.3d 650, 652 (Alaska App. 2003).
3
Id. at 652-53.
4
See Larson v. Superior Court, 2020 WL 5946629, at *1 & n.1 (Alaska App. Oct. 7,
2020) (unpublished) (collecting Larson’s numerous post-conviction litigation efforts
related to juror misconduct allegations).
5
See Grinols v. State, 74 P.3d 889 (Alaska 2003) (holding that criminal defendants
have a right to challenge the effectiveness of their post-conviction relief counsel in a
subsequent application for post-conviction relief). Although SLA 2007, ch. 24, § 36(c)
provides a deadline of July 1, 2008 for Grinols applications from post-conviction relief
actions that became final before July 1, 2007, the State did not argue in the superior court
that Larson’s application was untimely. The State did argue that Larson’s application was
barred by AS 12.72.020(a)(5) and (6), which prohibit successive litigation, and by res
judicata. But Larson asserted that he was unaware of the availability of a petition for
rehearing when he filed his earlier actions and that he therefore was unable to bring this
claim previously. The superior court resolved the issue on the merits, rather than resolving
these procedural issues. We do so as well.
–2– 2743
concluding that the decision whether to file a petition for rehearing is a tactical decision
that belongs to the attorney and not the defendant.
We have never directly addressed whether the defense attorney or the
defendant has the final decision on whether to file a petition for rehearing following an
appellate decision, but we have considered analogous situations. In McLaughlin v.
State, we held that it is the decision of the attorney, not the defendant, whether to file a
petition for review in this Court following a non-final, adverse trial court decision.6 We
based our decision in part on the text of Alaska Rule of Professional Conduct 1.2(a),
which provides that the defendant must make the ultimate decision regarding “a plea to
be entered, whether to waive jury trial, whether [they] will testify, and whether to take
an appeal.”7 Because Alaska Appellate Rule 402 provides for petitions for review only
in circumstances “not appealable under [Appellate] Rule 202,” we concluded that the
decision whether to file a petition for review could not be considered a decision
“whether to take an appeal” and therefore that the decision to file a petition for review
was a decision for the attorney.8
In addition to this textual analysis, we noted that our conclusion was
consistent with the division of authority that exists between the attorney and the
defendant in related contexts.9 While the defendant has the final decision whether to
file an appeal, the attorney has the final decision regarding what arguments to raise on
6
McLaughlin v. State, 173 P.3d 1014, 1015-17 (Alaska App. 2007).
7
Id. at 1015-16.
8
Id.9
Id. at 1016.
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appeal.10 And in a trial court, the attorney, not the defendant, has the final decision on
whether to call or cross-examine a witness and whether to file a motion.11 We concluded
that it would be inconsistent to hold that the defendant has the right to file a petition for
review of a specific trial court decision when the attorney would have the final decision
whether to challenge that decision in an appeal once the case became final.12 We
explained,
Whether to petition for review is generally a complicated
strategic and tactical decision that is best left to the attorney.
In general, if a client is convicted, the attorney can then
challenge any ruling made by the trial court. Allowing a
client to independently file a petition for review would raise
the distinct possibility that such a procedure would cause the
client to undermine his counsel’s trial tactics and would
cause an undue burden on his attorney, the courts, and the
State.[13]
In Smith v. State, we considered a situation where we had reversed on one
claim and rejected the other claims Smith raised in his direct appeal.14 The State then
filed a petition for hearing in the Alaska Supreme Court, and the supreme court reversed
our decision, affirming the superior court.15 In an application for post-conviction relief,
10
Id. (discussing Jones v. Barnes, 463 U.S. 745, 750-51 (1983); Tucker v. State, 892
P.2d 832, 836 & n.7 (Alaska App. 1995); Coffman v. State, 172 P.3d 804, 807-08, 810-12
(Alaska App. 2007)).
11
Id. (discussing Taylor v. Illinois, 484 U.S. 400, 418 (1988); Martin v. State, 797
P.2d 1209, 1217 (Alaska App. 1990)).
12
Id.13
Id. at 1016-17.
14
Smith v. State, 185 P.3d 767, 768 (Alaska App. 2008) (citing Smith v. State, 1999
WL 494991, at *9 (Alaska App. July 14, 1999) (unpublished), rev’d, 38 P.3d 1149 (Alaska
2002)).
15
Id. at 768 (citing Smith, 38 P.3d at 1161).
–4– 2743
Smith challenged his attorney’s decision to file only an opposition to the State’s petition
for hearing and not to file a cross-petition for hearing challenging our rejection of his
other appellate claims.16 As in McLaughlin, we concluded that the decision whether to
file a cross-petition for hearing in the supreme court belongs to the attorney and not the
defendant.17
We based our decision in Smith on the complexity of the tactical decision
whether to file a cross-petition for hearing. We explained that, at the time of the State’s
petition for hearing, Smith’s attorney had already won reversal of Smith’s convictions
and a retrial with significantly weaker evidence. Under these circumstances, a
competent attorney might reasonably conclude that it was best to argue there was no
reason for the supreme court to grant discretionary review in the case, rather than
arguing for the supreme court to grant review on additional issues, which might make
the court more likely to grant review in the case.18
As in McLaughlin, we noted that our decision was consistent with the
principle that, although the defendant has the right to determine whether to file an
appeal, the tactical decision of what arguments to raise on appeal is for the attorney. We
explained, “The decision that Smith’s appellate counsel had to decide in determining
whether to file a cross-petition for hearing is remarkably similar to the decision that
counsel has to make in deciding which issues to raise on appeal — would raising this
additional issue help or hinder the client?”19
16
Id.
17
Id. at 769-70.
18
Id.
19
Id. at 770.
–5– 2743
The same considerations that were present in McLaughlin and Smith exist
here too. The attorney who represented Larson in his first post-conviction relief action
submitted an affidavit explaining why he decided not to file a petition for rehearing in
this Court. The attorney explained that, based on the language we used in our opinion,
he did not believe that a petition for rehearing would be successful. But he believed that
he could write a compelling petition for hearing (for review by the supreme court) by
focusing on some of the language that we had used in our opinion, and he worried that
we might change some of this language if he filed a petition for rehearing in this Court.
He therefore believed that the best course of action was not to file a petition for
rehearing. The decision Larson’s attorney faced after we rejected Larson’s appeal in his
first post-conviction relief action is representative of the types of decisions that must be
made when deciding whether to file a petition for rehearing and shows the complexity
of these tactical decisions.
Additionally, the decision whether to file a petition for rehearing is a
continuation of the decision of which issues to raise on appeal. Alaska Appellate
Rule 506(a) allows for an appellate court to rehear a decision only if:
(1) The court has overlooked, misapplied or failed to
consider a statute, decision or principle directly
controlling; or
(2) The court has overlooked or misconceived some material
fact or proposition of law; or
(3) The court has overlooked or misconceived a material
question in the case.
Rule 506(a) expressly provides, “A rehearing will not be granted if it is sought merely
for the purpose of obtaining a reargument on and reconsideration of matters which have
already been fully considered by the court.” It would be inconsistent to say that the
attorney, not the defendant, has the final decision of which issues to raise on appeal but
–6– 2743
that the defendant has the final decision whether to argue that the court overlooked or
misconceived the facts or law when resolving those issues.
A rule that the attorney, not the defendant, has the final decision whether
to file a petition for rehearing is also consistent with the rule that trial counsel, and not
the defendant, has the final decision over whether to file a motion. And a contrary rule
allowing the defendant to demand a petition for rehearing be filed could “cause an
undue burden on his attorney, the courts, and the State.”20
We recently held in Mack v. State that the defendant has the final decision
whether to file a petition for hearing with the Alaska Supreme Court after losing their
appeal in this Court.21 But “the petition for hearing is an important part of the appellate
process in Alaska, and it serves as the final opportunity in state court for the defendant
to have their claims heard.”22 It “provides the last pathway to ensure that the defendant’s
substantial rights were observed during the trial and sentencing phases of the
proceedings.”23 This is unlike a petition for rehearing, which is not a vehicle for
rearguing a case.24
20
McLaughlin v. State, 173 P.3d 1014, 1017 (Alaska App. 2007).
21
Mack v. State, 523 P.3d 1235, 1251-53 (Alaska App. 2023).
22
Id. at 1244.
23
Id. (quoting State v. Uchima, 464 P.3d 852, 863 (Haw. 2020)).
24
Alaska Appellate Rule 304 provides that a petition for hearing may be granted if
“[t]he decision of the intermediate appellate court is in conflict with a decision of the
Supreme Court of the United States or the supreme court of the state of Alaska, or with
another decision of the court of appeals” — a ground which is similar to the grounds for
granting a petition for rehearing. But the rule also provides that a petition for hearing may
be granted if “[t]he intermediate appellate court has decided a significant question
concerning the interpretation of the Constitution of the United States or the Constitution of
Alaska, which question has not previously been decided by the Supreme Court of the
United States or the supreme court of the state of Alaska”; “[t]he intermediate appellate
court has decided a significant question of law, having substantial public importance to
–7– 2743
We therefore conclude that the decision whether to file a petition for
rehearing rests with the attorney, not the defendant. As such, Larson’s claim that his
attorney should have given him this choice fails.
The superior court also considered whether Larson’s attorney was
ineffective in deciding not to file a petition for rehearing. The court concluded that the
attorney made a reasonable tactical decision not to file a petition for rehearing and,
therefore, he provided competent representation.25 It is unclear whether Larson is also
challenging this ruling on appeal. To the extent that Larson is appealing the superior
court’s ruling that his attorney was not ineffective in declining to file a petition for
rehearing, we agree with the superior court that Larson’s attorney made a reasonable
tactical decision and, therefore, acted competently.
Finally, Larson argues that he received inadequate notice of one of the
rationales the superior court used to dismiss his application. Specifically, the superior
court noted that the affidavit of Larson’s attorney failed to address one of the arguments
that Larson made about why a petition for rehearing should have been filed, and the
superior court concluded that Larson’s application therefore failed to present a prima
facie case on this argument. But the State never argued in its motion to dismiss that the
others than the parties to the present case, which question has not previously been decided
by the supreme court of the state of Alaska”; or “[u]nder the circumstances, the exercise of
the supervisory authority of the court of discretionary review over the other courts of the
state would be likely to have significant consequences to others than the parties to the
present case, and appears reasonably necessary to further the administration of justice.”
And the rule states that these grounds for granting a petition for hearing are “neither
controlling nor fully measuring that court’s discretion” and instead “indicate[] the character
of reasons which will be considered.”
25
See State v. Jones, 759 P.2d 558, 569-70 (Alaska App. 1988) (holding that, when
an attorney has made a tactical choice, the defendant must show that the tactic itself was
unreasonable — that is, that no reasonably competent attorney would have adopted the
tactic under the circumstances).
–8– 2743
attorney’s affidavit was inadequate. We need not resolve whether Larson was denied
adequate notice on this issue because the superior court went on to conclude that Larson
still would not have presented a prima facie case even if the affidavit were adequate.
Thus, any lack of notice was harmless.
The judgment of the superior court is AFFIRMED.
–9– 2743