CHARLES GOLDSBURY v. STATE OF ALASKA (2010)

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.

MEMORANDUM OPINION AND JUDGMENT

In October of 1999, Charles L. Goldsbury entered into a plea bargain with the State in which he agreed to plead no contest to three counts of sexual abuse of a minor.¹  The State agreed to dismiss several other charges and agreed that Goldsbury would receive a sentence of 8 years or less to serve, with no limit on the jail time that could be suspended.

Four and a half months later, at the time scheduled for sentencing, Goldsbury attempted to withdraw from the plea agreement.²  Superior Court Judge Larry C. Zervos found that Goldsbury “was simply engaging in manipulation to obtain a tactical advantage in the litigation.” ³  He found that Goldsbury had knowingly and voluntarily accepted the plea agreement after careful consultation with his attorney.

Goldsbury appealed, arguing that Judge Zervos had erred in refusing to allow him to withdraw from the plea agreement.   In September of 2001, we affirmed Judge Zervos's decision.⁴

Goldsbury then filed an application for post-conviction relief, arguing that he had received ineffective assistance from his attorney.⁵  Goldsbury raised several claims that his attorney had been ineffective, including a claim that his attorney had been ineffective in advising him about the plea agreement.⁶  Judge Zervos rejected Goldsbury's claims.   We affirmed Judge Zervos's decision.   We stated that “[t]he record establishes that Goldsbury's trial attorney advised Goldsbury about whether or not to accept the plea agreement and Goldsbury ultimately made the decision to accept the plea agreement.   Goldsbury has not shown that his attorney was ineffective.” ⁷

Goldsbury was released on parole after serving 8 years.   On May 15, 2006, he was charged with violating his parole for not participating in sex offender treatment.   On August 8, the parole board revoked Goldsbury's parole.   He went back to prison.   From there, Goldsbury filed a pro se application for post-conviction relief on November 23, 2006.   In the application, Goldsbury asked for a new trial based on newly discovered evidence.

Judge Zervos held an evidentiary hearing on Goldsbury's application.   At the hearing, Jack Hoover testified that sometime around 1998, he was in the Brig Bar in Wrangell with his friend, Jim Gale. They overheard a woman tell her friend that she had framed her husband, that she had done a good job, and that this way she could go south with her children.   Hoover did not know who the woman speaking was.   His friend, Gale, told him that she was Deborah Goldsbury, Charles Goldsbury's wife.   Gale died prior to the hearing.   Hoover said that shortly after overhearing the woman, he told Goldsbury's brother, Kenny, about what he heard the woman say.   Hoover also told Kenny that he was willing to testify.   Hoover testified that he did not know Goldsbury at that time and did not hear anything else about the matter until Goldsbury's present attorney contacted him.   Goldsbury argued that Hoover's testimony constituted newly discovered evidence that entitled him to withdraw his plea.

Judge Zervos made several findings following the evidentiary hearing.   He pointed out that the main evidence against Goldsbury was the statements of Goldsbury's children that he had abused them.   He pointed out that Hoover's testimony did not directly attack this evidence but only attacked Deborah Goldsbury and her motives.   He found that “other than attacking Ms. Goldsbury and undermining her motives [there is] no link or nexus that I can see between ․ her alleged statements in that bar and those children's statements made to the police sometime at or near the time that this was all going on.”   He also pointed out that Goldsbury had not proven by clear and convincing evidence that Goldsbury had used due diligence in coming forward with Hoover's testimony.   He pointed out that Hoover had contacted Goldsbury's family about seven years previously and that Goldsbury had not presented any witnesses who explained the delay in having this information presented.   Judge Zervos dismissed Goldsbury's application for post-conviction relief.

Alaska Criminal Rule 11(h)(3) governs withdrawal of pleas after sentencing.   The rule provides that once a sentence is imposed, the withdrawal of a plea may be sought only under AS 12.72.   The defendant requesting the withdrawal “must prove that withdrawal is necessary to correct a manifest injustice.”

Alaska Statute 12.72 sets up barriers to Goldsbury's application for post-conviction relief.   First, AS 12.72.020(a)(6) provides that a claim is barred when the defendant has filed a previous application for post-conviction relief.   We have previously indicated that, in an exceptional case, it was possible that we might conclude that the due process clause of the Alaska Constitution required an exception to this seemingly absolute bar to relief.⁸  But Goldsbury's case is clearly not such an exception.   At most, Hoover's testimony suggested that Deborah Goldsbury might have influenced the children to allege that Goldsbury had sexually abused them.   But, as Judge Zervos pointed out, the case against Goldsbury rested on the statements of his children.   And Hoover's testimony only tangentially related to the children's statements.   There was no evidence that the children had recanted their statements.   Furthermore, Hoover's testimony did not establish that the statements were actually made by Deborah Goldsbury.   He could not personally identify the woman that he had overheard at the bar.   He only relied on the hearsay statements of a man who is now deceased.

Second, under AS 12.72.020(a)(3), Goldsbury had to bring his claim within one year after the affirmance of the judgment on appeal, so Goldsbury's claim is untimely.  Alaska Statute 12.72.020(b)(2) provides an exception to the timeliness requirement for newly discovered evidence.   But, to qualify under the newly discovered evidence exception, as a prerequisite, Goldsbury had to show that he acted with due diligence in coming forward with the evidence.   Judge Zervos found that Goldsbury had not established that he had acted with due diligence.   This finding is supported by the record.   It is uncontested that, several years before, Hoover had approached Goldsbury's relatives with the information that Goldsbury presented at the evidentiary hearing.   Goldsbury never presented any testimony which would explain his delay in coming forward with the information.

We accordingly conclude that Judge Zervos did not err in dismissing Goldsbury's application for post-conviction relief.   BOLGER, Judge, concurring.

The lead opinion analyzes whether Goldsbury's claims should have been allowed under AS 12.72.020(b)(2), the exception to the statute of limitations for newly discovered evidence in post-conviction relief actions.   But Goldsbury argues that the superior court should not have applied this exception to determine whether his claims were barred.   I agree with this part of Goldsbury's argument.   The terms of this exception require an applicant to prove that the newly discovered evidence “is not cumulative to the evidence presented at trial.” ¹  So this exception applies only to claims based on evidence that is “newly discovered” after trial proceedings.   This exception does not apply to cases like Goldsbury's that are resolved by a no contest plea.

If AS 12.72.020(b)(2) does not apply to Goldsbury's case, then the general statute of limitations required his application to be filed within one year after his conviction became final following his appeal.²  Goldsbury's application was filed in November of 2006, approximately five years after this court's decision on his appeal became final.³  So Goldsbury's post-conviction claim is barred by the statute of limitations.

I agree with the lead opinion that Goldsbury's application for post-conviction relief is also barred because he had filed a previous application.⁴  But I conclude that Goldsbury cannot avoid this bar for a different reason.   Goldsbury previously had a fair opportunity to litigate the claims that could justify his request to withdraw his plea.⁵  Goldsbury's current application does not raise any new dispute because the marginal evidence of innocence contained in Hoover's testimony is consistent with Goldsbury's original plea of no contest.

A defendant has the right to plead no contest even when the defendant maintains his factual innocence.⁶  So it is not inconsistent for a defendant to enter a plea of no contest, even though he is innocent of any wrongdoing.⁷  Indeed, a criminal defendant who pleads no contest is collaterally estopped from asserting his innocence in future proceedings.⁸  Goldsbury gave up his right to raise claims related to his innocence when he entered his plea of no contest.⁹

I therefore concur with the conclusion of the lead opinion affirming the judgment dismissing Goldsbury's application for post-conviction relief.

FOOTNOTES

FN1. Goldsbury v. State, Memorandum Opinion and Judgment No. 4453 (Alaska App., Sept. 19, 2001), 2001 WL 1090622 at *1..  FN1. Goldsbury v. State, Memorandum Opinion and Judgment No. 4453 (Alaska App., Sept. 19, 2001), 2001 WL 1090622 at *1.

FN2. Id..  FN2. Id.

FN3. Id..  FN3. Id.

FN4. Id..  FN4. Id.

FN5. Goldsbury v. State, Memorandum Opinion and Judgment No. 4983 (Alaska App., Apr. 27, 2005), 2005 WL 957045 at *1..  FN5. Goldsbury v. State, Memorandum Opinion and Judgment No. 4983 (Alaska App., Apr. 27, 2005), 2005 WL 957045 at *1.

FN6. Id. at *4..  FN6. Id. at *4.

FN7. Id. at *4..  FN7. Id. at *4.

FN8. Roberts v. State, 164 P.3d 664, 666 (Alaska App.2007)..  FN8. Roberts v. State, 164 P.3d 664, 666 (Alaska App.2007).

FN1. AS 12.72.020(b)(2)(B) (emphasis added)..  FN1. AS 12.72.020(b)(2)(B) (emphasis added).

FN2. See AS 12.72.020(a)(3)(A)..  FN2. See AS 12.72.020(a)(3)(A).

FN3. See Goldsbury v. State, Memorandum Opinion and Judgment No. 4453 (Alaska App., Sept. 19, 2001) 2001 WL 1090622 at *1, petition for hearing denied, Alaska Supreme Court No. S-10371 (November 14, 2001)..  FN3. See Goldsbury v. State, Memorandum Opinion and Judgment No. 4453 (Alaska App., Sept. 19, 2001) 2001 WL 1090622 at *1, petition for hearing denied, Alaska Supreme Court No. S-10371 (November 14, 2001).

FN4. See AS 12.72.020(6)..  FN4. See AS 12.72.020(6).

FN5. See Goldsbury v. State, Memorandum Opinion and Judgment No. 4983 (Alaska App., Apr. 27, 2005) 2005 WL 957045 at *3-5 (holding that Goldbury's plea was not the result of ineffective assistance of counsel);  Goldsbury, 2001 WL 1090622 at *4 (rejecting Goldsbury's argument that his plea was involuntary)..  FN5. See Goldsbury v. State, Memorandum Opinion and Judgment No. 4983 (Alaska App., Apr. 27, 2005) 2005 WL 957045 at *3-5 (holding that Goldbury's plea was not the result of ineffective assistance of counsel);  Goldsbury, 2001 WL 1090622 at *4 (rejecting Goldsbury's argument that his plea was involuntary).

FN6. See Peterson v. State, 988 P.2d 109, 113 (Alaska App.1999)..  FN6. See Peterson v. State, 988 P.2d 109, 113 (Alaska App.1999).

FN7. Id..  FN7. Id.

FN8. See Lamb v. Anderson, 147 P.3d 736, 742 (Alaska 2006)..  FN8. See Lamb v. Anderson, 147 P.3d 736, 742 (Alaska 2006).

FN9. See Peterson, 988 P.2d at 113 (finding that defendant's assertions of factual innocence did not require the trial court to re-examine his no contest plea)..  FN9. See Peterson, 988 P.2d at 113 (finding that defendant's assertions of factual innocence did not require the trial court to re-examine his no contest plea).

BOLGER, Judge, concurring.