SCOTT HIGGINS v. STATE OF ALASKA (2011)

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

Scott A. Higgins agreed to enter into a therapeutic court program as a condition of his plea agreement.   But Higgins relapsed, and he was discharged from the program.   Higgins then filed an application for post-conviction relief, asking the court to allow him to withdraw from the plea agreement.

The superior court appointed counsel to represent Higgins, but Higgins became dissatisfied with his attorney and asked the court to allow him to represent himself.   The court determined that Higgins had the ability to represent himself, but required Higgins's attorney to remain available as advisory counsel.   The court informed Higgins that he could participate telephonically in the post-conviction hearing.

Higgins appeared telephonically at the hearing on his application, and his advisory counsel was present in person.   During the hearing, Higgins's advisory counsel was able to present exhibits to witnesses so that the witnesses could respond to Higgins's questions.

The court informed Higgins that he would have a chance to testify and Higgins replied, “Absolutely.”   Then when the court asked Higgins if he wanted to testify, Higgins replied, “Actually, I don't need to.”   After a short recess, Higgins asked if he could testify when the hearing continued during the following week.   But on the final day of the hearing, Higgins concluded his presentation without offering his personal testimony.

The court denied Higgins's application for post-conviction relief, and Higgins now appeals.   Higgins argues that the superior court erred by allowing him to represent himself without requiring the Department of Corrections to transport him so that he could be present at the post-conviction hearing.

Under AS 33.30.081(f), Higgins was required to make a showing that his personal appearance at the post-conviction hearing was “essential to the just disposition of the action.”   Higgins did not ask the court to order the Department of Corrections to transport him for the hearing.   Under these circumstances, Higgins must show that the superior court committed plain error.

Higgins mainly relies on a statement from McCracken v. State that limited a post-conviction applicant's right to self-representation:  “[A]s a precondition to self-representation at an evidentiary hearing, the hearing judge must already have determined that the prisoner's personal presence at the evidentiary hearing is necessary pursuant to the discretionary authority vested in him under Criminal Rule 35(h).” ¹  But Higgins takes this statement out of context.   The supreme court did not hold that an applicant who represented himself had an absolute right to be transported to appear at a post-conviction hearing.   The supreme court held that an applicant who did not establish the necessity to be transported to the post-conviction hearing did not have the right to represent himself.²

The Alaska Supreme Court decided McCracken in 1974.   Since that time, the court rules have been amended to reflect advances in technology.  Criminal Rule 35.1(g) now allows the trial court to order a post-conviction applicant to participate by telephone or video conference.   Consistent with this provision, the superior court granted Higgins's request to represent himself, even though Higgins had not shown the necessity for his personal appearance.

Moreover, it was not obvious that Higgins's personal appearance was essential.   In particular, Higgins did not offer his testimony on any issues that required the court to assess his credibility.³  Higgins decided not to testify at all.   Higgins also had the assistance of advisory counsel to handle exhibits and offer suggestions during the hearing.   We conclude that Higgins has not shown that the superior court committed plain error.

We accordingly AFFIRM the superior court's judgment.

FOOTNOTES

FN1. 518 P.2d 85, 92 (Alaska 1974)..  FN1. 518 P.2d 85, 92 (Alaska 1974).

FN2. Id..  FN2. Id.

FN3. See Richard B. v. State, Dept. of Health and Soc. Servs., 71 P.3d 811, 827–33 (Alaska 2003) (discussing when an incarcerated parent must be transported to offer testimony at a hearing on the termination of parental rights);  Fajeriak v. State, 520 P.2d 795, 803 (Alaska 1974) (requiring a post-conviction applicant to be transported for a hearing because he offered material testimony based on his personal knowledge)..  FN3. See Richard B. v. State, Dept. of Health and Soc. Servs., 71 P.3d 811, 827–33 (Alaska 2003) (discussing when an incarcerated parent must be transported to offer testimony at a hearing on the termination of parental rights);  Fajeriak v. State, 520 P.2d 795, 803 (Alaska 1974) (requiring a post-conviction applicant to be transported for a hearing because he offered material testimony based on his personal knowledge).

BOLGER, Judge.