Court of Appeals No. A-9993.

Court of Appeals of Alaska.

March 18, 2009.

Brian T. Duffy, Assistant Public Advocate, Joshua Fink, and Rachel Levitt, Public Advocates, Anchorage, for Appellant.

Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, A ttorney General, Juneau, for Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.


COATS, Chief Judge.

Seyran Andreasyan filed an application for post-conviction relief, seeking to withdraw his plea to a charge of second-degree robbery. In an amended application for post conviction relief, Andreasyan asserted that his trial attorney was ineffective because he did not adequately advise him about the deportation consequences of entering his plea. After hearing testimony from Andreasyan and his trial attorney, Superior Court Judge Michael L. Wolverton found that the trial attorney's testimony at the evidentiary hearing was credible and that the attorney had adequately advised Andreasyan of the consequences of his plea. We affirm Judge Wolverton's decision.

Factual and procedural background

The State charged Andreasyan with robbery in the second degree, theft in the second degree, criminal mischief in the fourth degree, and two counts of assault in the third degree for his participation in a robbery at a Wal-Mart. The State also charged Andreasyan, in a separate incident, with three counts of assault in the fourth degree and one count of criminal mischief in the fifth degree. Andreasyan's sister hired attorney Lance Wells to represent Andreasyan in the Wal-Mart case.

Andreasyan is a citizen of Uzbekistan. He was initially admitted to the United States as a political refugee and was later granted permanent resident status. Wells testified that, after thoroughly investigating the case, he concluded that Andreasyan did not have any defense to the Wal-Mart robbery. Wells testified that he was worried that Andreasyan could be deported if he pled guilty to the robbery, although Andreasyan did not seem concerned. Wells therefore contacted two different attorneys who had active immigration practices. These attorneys informed Wells that if Andreasyan entered a plea to robbery in the second degree, more likely than not he would be automatically deported. Wells testified that he informed Andreasyan of the high risk that he would be deported. Wells testified that he had a good relationship with Andreasyan at that time. Wells indicated that, in his opinion, although Andreasyan did not like hearing the advice, Andreasyan accepted the accuracy of the advice. He concluded that, at the time he gave Andreasyan the advice, Andreasyan was not concerned about deportation because Andreasyan was convinced that his status as a refugee protected him from deportation, and that in any event his country of origin would not take him back.

Wells testified that, in his negotiations with the State, he tried to arrange a plea to a less serious offense. However, because of the strength of the State's case against Andreasyan, the best he could do was negotiate a plea to robbery in the second degree. The State agreed to dismiss all of the other charges against Andreasyan. Wells informed Andreasyan that he did not have any defense to the charges that a jury would accept. He stated that Andreasyan appeared happy with the ultimate plea agreement.

Andreasyan also testified at the evidentiary hearing. He testified that Wells never told him that he could be deported if he entered a plea to robbery in the second degree. He testified that Wells told him that, because Andreasyan had a green card, he would be free to remain in the country after he served his term of imprisonment.

After hearing the testimony of Wells and Andreasyan, Judge Wolverton found that Wells's testimony at the evidentiary hearing was credible and that Andreasyan "did not meet his burden of proof to show that Wells was ineffective." Judge Wolverton found "that Wells adequately informed [Andreasyan] of the necessary immigration consequences of his plea deal and that such information was legally sufficient to support a free and voluntary change of plea."

Why we uphold Judge Wolverton's decision

In order to show that he received ineffective assistance of counsel, Andreasyan had to show that Wells took actions which no competent attorney would have reasonably taken, and that Andreasyan was prejudiced by his attorney's incompetence.[1] We are to accept Judge Wolverton's factual findings unless they are clearly erroneous.[2] We give great deference to Judge Wolverton's ability to determine the credibility of witnesses.[3]

According to Wells's testimony, which Judge Wolverton found credible, Wells thoroughly discussed with Andreasyan the fact that he would probably be deported as a consequence of entering a plea to robbery in the second degree. Wells had obtained this advice after consulting two other attorneys who practiced immigration law. Wells thoroughly discussed this information with Andreasyan, and he was sure that Andreasyan understood this advice but chose to go ahead with the plea agreement because he had no defense to the charges against him and received some benefits from entering into the plea agreement.

By accepting Wells's testimony, Judge Wolverton clearly rejected Andreasyan's. We defer to Judge Wolverton's determination of the witnesses' credibility. Judge Wolverton's factual finding that Wells adequately informed Andreasyan of the immigration consequences of his plea is not clearly erroneous. Therefore, we uphold Judge Wolverton's conclusion that Andreasyan failed to show that Wells provided him with ineffective assistance of counsel.

The judgment of the superior court is AFFIRMED.

[1] See Risher v. State, 523 P.2d 421, 424-25 (Alaska 1974).

[2] See Tucker v. State, 892 P.2d 832, 834 (Alaska App. 1995).

[3] See Noble v. State, 522 P.2d 142, 144 (Alaska 1976); Pease v. State, 54 P.3d 316, 331 (Alaska App. 2002).


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