Frank Miller Kignak v. State of Alaska

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 authority for any proposition
of law, although it may be cited for whatever persuasive value it may have. See
McCoy v. State, 80 P.3d 757, 764 (Alaska App. 2002).
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
FRANK MILLER KIGNAK,
Appellant,
v.
STATE OF ALASKA,
Appellee.
Court of Appeals No. A-14120
Trial Court No. 2BA-16-00333 CI
MEMORANDUM OPINION
No. 7219 — October 14, 2026
Appeal from the Superior Court, Second Judicial District,
Utqiagvik, David Roghair, Judge.
Appearances: Doug Miller, Law Office of Douglas S. Miller,
Anchorage, under contract with the Office of Public Advocacy,
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, Wollenberg and Harbison,
Judges.
Judge ALLARD.
Frank Miller Kignak was convicted, pursuant to a guilty plea, of third-
degree sexual assault.1 After a series of sentencing hearings, including a hearing before
1 Former AS 11.41.425(a)(1)(B) (2013).

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the three-judge sentencing panel, Kignak was sentenced to 17 years with 2 years
suspended (15 years to serve), a sentence at the bottom of the presumptive sentencing
range.
Nine months later, Kignak filed an application for post-conviction relief,
seeking to withdraw his plea and vacate his conviction on the grounds of alleged
ineffective assistance of counsel. The State moved to dismiss the application, alleging
that it failed to state a prima facie claim for relief. The superior court granted this
motion.
Kignak now appeals. For the reasons stated in this decision, we affirm the
superior court’s dismissal of Kignak’s application for post-conviction relief.
Background facts and proceedings
Kignak was indicted on one count of second-degree sexual assault for
sexually penetrating an incapacitated person.2 According to the presentence report, the
victim reported that she and Kignak drank alcohol together, that she passed out, and
that she awoke to Kignak penetrating her vagina with his penis. According to Kignak’s
counsel’s uncontested statements at the sentencing hearing, Kignak’s DNA was found
on the exterior of the woman’s genitals but swabs from inside her vagina were
inconclusive for the presence of Kignak’s DNA.
As a third felony offender with no prior convictions for a sexual felony,
Kignak was subject to a presumptive sentencing range of 20 to 35 years’ imprisonment
for second-degree sexual assault with a minimum period of suspended imprisonment of
3 years.3
2 Former AS 11.41.420(a)(3) (2013).
3 AS 12.55.125(i)(3)(D); former AS 12.55.125(o)(2) (pre-July 2016 version). This
minimum suspended imprisonment term requirement is now codified at
AS 12.55.125(q)(2).

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Kignak and the State subsequently reached an agreement to resolve the
case. Under this agreement, Kignak would plead guilty to the lesser charge of third-
degree sexual assault (engaging in sexual contact with an incapacitated person), with
sentencing left open to the court. Because Kignak was a third felony offender, the
applicable presumptive sentencing range for third-degree sexual assault was 15 to 25
years.4 However, the State agreed that it would take no position on Kignak’s proposed
mitigating factor that “the conduct . . . was among the least serious conduct included in
the definition of the offense” and the State agreed that it would “recognize” that the
case law supported the application of that mitigator to the facts of this case.5 If the court
ultimately found that a mitigating factor applied to Kignak’s conduct, the minimum
sentence it could (but was not required to) impose would be 9½ years with 2 years
suspended (7½ years of active incarceration), rather than 15 years.6
The superior court twice informed Kignak of these terms — including the
fact that his presumptive range was 15 to 25 years and that he was not guaranteed to
receive a sentence below 15 years — prior to Kignak pleading guilty.
The superior court first informed Kignak of his sentencing range at the
pretrial hearing where the parties first announced their plea agreement. After Kignak’s
lawyer laid out the agreement’s terms (including the fact that there was no sentencing
agreement), the superior court summarized the “headlines” for Kignak to ensure he
understood the agreement. During this summary, the court emphasized to Kignak that
his presumptive range under the terms of this agreement was 15 to 25 years. The
superior court noted that there was potential for the sentence to go lower, but
4 Former AS 12.55.125(i)(4)(D) (2013).
5 Former AS 12.55.155(d)(9) (2013).
6 AS 12.55.155(a)(2).

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underscored that going lower was not guaranteed and that Kignak should be focused on
the presumptive range of 15 to 25 years as his likely sentence.
In addition, at the change of plea hearing, the superior court told Kignak
for the second time that he was facing a presumptive sentencing range of 15 to 25 years
and that he was not guaranteed to receive a sentence below the presumptive range even
if the court found the proposed mitigator. In response to this advisory, Kignak stated
that he thought the minimum presumptive sentence for his crime was 10 years. The
superior court explained that this was not correct. The superior court again told Kignak
that his presumptive range was 15 to 25 years and that, if a mitigating factor was found,
then “legally the sentence could go down to as low as seven and a half years.” But the
court was careful to emphasize that the sentence “doesn’t have to” go below the
presumptive range and going below the presumptive range was “not automatic.” Kignak
confirmed that he understood this.
At the end of the plea colloquy, the court gave Kignak an opportunity to
“take a break and talk with” his attorney. Kignak then spoke with his attorney off record
for six minutes. After going back on record, Kignak pleaded guilty. The court accepted
his guilty plea, found it was knowing and voluntary, and scheduled a sentencing
hearing.
At the sentencing hearing, Kignak’s attorney proposed the least serious
mitigator. Per the plea agreement, the State did not oppose or concede this issue, and
the prosecutor stated that he “recognize[d] that the case law is on Mr. Kignak’s side.”
The superior court, however, disagreed with the parties’ assessment of the
least serious mitigating factor case law. The court ruled that the cases cited by the
defense and the State were distinguishable from Kignak’s case and that there was not
clear and convincing evidence to prove the least serious mitigating factor, particularly
because the charge had been reduced from second-degree sexual assault.
Despite not finding the mitigating factor, the court inquired about the
parties’ positions on a referral to the three-judge panel, which neither party had

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proposed. Kignak’s attorney then asked for Kignak’s case to be referred to the three-
judge panel, arguing that a sentence within the presumptive range would be manifestly
unjust. Kignak’s attorney stated that her failure to ask for a referral to the three-judge
panel was “clearly an oversight on my part.” The State did not take a position on
referring Kignak to the three-judge panel. After finding that a sentence within the
presumptive range would be manifestly unjust, the superior court referred Kignak’s
case to the statewide three-judge sentencing panel.
The three-judge panel disagreed with the superior court, finding that a
sentence within the presumptive range would not be manifestly unjust. The panel
accordingly referred the matter back to the superior court.
When the case was referred back to the superior court, a different judge
was assigned to the case because the prior judge had retired. After the case was referred
to the new judge, Kignak sent a letter to the court dated May 5, 2015. In the letter,
Kignak stated that he “had some concerns” with his case because he “entered a plea
deal/agreement with the state in 2014 for 9.5 years with 2 suspended, which is what I
pled out to.” He further asserted that he “did not know that it was open sentencing” and
did not know why his agreement for 9½ years with 2 years suspended was “taken
away.” He blamed his situation at least in part on his attorney, stating she “never
indicated to me that the sentence was open, I didn’t understand from the paper she gave
me that I would be looking at more prison time than 9.5 years.”
Kignak also claimed that he had a “receipt for a plea withdrawal” from
another attorney that Kignak had apparently spoken with. Kignak quoted the rule
governing withdrawing a guilty plea — though he did not affirmatively state he wished
to withdraw his plea. Instead, he concluded his letter by “asking [the court] to please
consider these conditions before handing down any jail time.”
As a result of the May 5, 2015 letter, the superior court held a
representation hearing. At the hearing, Kignak repeatedly stated that his understanding
of his plea was that he would receive a sentence of 9½ years with 2 years suspended

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(7½ years of active incarceration). After his attorney and the court explained that it was
no longer even possible for him to receive this sentence, Kignak inquired whether he
could withdraw his plea. The court informed Kignak that his attorney would have to
file a motion to withdraw his plea on his behalf, but urged Kignak to discuss the issue
with his attorney because withdrawal was not guaranteed to be accepted and because
— if the withdrawal was accepted — he risked receiving an even longer sentence if he
were found guilty at trial of the higher second-degree sexual assault charge. At the end
of the hearing, Kignak’s attorney stated that she would “make a point to talk to
Mr. Kignak further about a motion to withdraw his plea.”
After the representation hearing, Kignak did not file a motion to withdraw
his plea. And, at the subsequent sentencing hearing, Kignak made no statements about
being dissatisfied with or misunderstanding his plea agreement. The superior court then
imposed the lowest possible sentence within the presumptive range: a sentence of
17 years with 2 years suspended (15 years to serve).
Kignak appealed his sentence to this Court, arguing that the three-judge
panel erred in rejecting his manifest injustice claim.7 This Court affirmed Kignak’s
sentence as not clearly mistaken.8
Post-conviction proceedings
Nine months after the final sentencing hearing, Kignak filed a timely
pro se application for post-conviction relief, arguing that he received ineffective
assistance of counsel in relation to his plea and he should therefore be allowed to
withdraw his plea. The superior court appointed a new attorney to represent Kignak.
The attorney filed an amended application for post-conviction relief, which alleged that
7 Kignak v. State, 2019 WL 5212194, at *1 (Alaska App. Oct. 16, 2019)
(unpublished). Kignak did not challenge the rejection of the proposed mitigating factor.
8 Id.

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Kignak should be allowed to withdraw his plea because Kignak’s trial attorney had
provided him with ineffective assistance of counsel.
The amended application identified multiple actions by his trial attorney
that Kignak alleged constituted ineffective assistance of counsel. (Only some of these
claims are renewed on appeal.) First, Kignak alleged that at some point there was an
agreement for him to serve a sentence of less than 10 years, and he asserted that his trial
attorney was ineffective for failing to enforce that agreement. Second, Kignak alleged
that his trial attorney misled him about the terms of the agreement by telling him he
would receive a sentence of 9½ years with 2 years suspended. Third, Kignak alleged
that the trial attorney ineffectively litigated the original sentencing hearing by (1) not
calling witnesses and developing additional legal argument to prove the least serious
mitigating factor, (2) misjudging the likelihood of that factor’s success, and (3) not
moving to refer Kignak to the three-judge panel as a back-up plan if that mitigating
factor was not found. Fourth, Kignak alleged that his trial attorney was ineffective for
not instructing Kignak that he could seek to withdraw his plea after the court refused to
find the least serious mitigating factor. Fifth and lastly, Kignak argued that his attorney
should have advised him to withdraw his plea and plead guilty to the higher charge of
second-degree sexual assault with the goal of arguing that the least serious mitigator
applied to the higher charge and that the court therefore had the authority to impose a
10-year sentence.
These claims were supported by two affidavits: Kignak’s and his trial
attorney’s.
In his affidavit, Kignak stated that he “did not want to plead to anything[]
and certainly not to anything with a sentence of more than ten years.” He stated that his
attorney “told [him] that there was a deal for [him] to get 9½ years with 2 years
suspended” and that this offer was memorialized on a piece of paper that he lost. Kignak
further asserted that he “would not have agreed to accept the state’s offer if I had
realized there was any real chance of getting 15 years to serve.” Kignak’s affidavit did

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not acknowledge that the record shows that both his attorney and the superior court told
him in open court at the pretrial hearing that there was no sentencing agreement and
that there was no guarantee that he would receive a sentence below the presumptive
range. Kignak’s affidavit also did not acknowledge the additional advisories he received
at the change of plea hearing and did not assert that his attorney did something or said
something at that hearing that would affect his understanding of the advisories he
received.
Kignak also stated in his affidavit that he did not recall his attorney talking
to him about withdrawing his guilty plea “in those months” after the judge declined to
find the proposed mitigating factor. According to Kignak, if his attorney had “fully
explained that option” to him, he would have moved to withdraw his plea. However, he
also stated that he “would have probably pled to Sexual Assault in the Second Degree,
even though it was a higher charge, as long as I could be sure the sentence for that
would be 10 years or less.”
Kignak’s trial attorney stated in her affidavit that she negotiated a plea
agreement for Kignak to plead guilty to third-degree sexual assault with open
sentencing and that the State agreed not to oppose Kignak’s arguments for the least
serious mitigator. The trial attorney stated that her assessment of this agreement was
“that it was likely that Mr. Kignak would receive no more than 10 years” and that she
had several conversations with Kignak about his sentencing exposure if he accepted the
plea offer or decided to go to trial. The trial attorney stated that Kignak decided to accept
the plea offer and plead guilty. The affidavit did not contain any statements about
whether the attorney had ever discussed with Kignak the possibility of withdrawing his
plea.
The State filed a motion to dismiss Kignak’s post-conviction relief
application for failure to state a prima facie case, arguing that Kignak had failed to show
that he received ineffective assistance of counsel. The superior court granted the State’s
motion to dismiss.

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This appeal followed.
Why we affirm the superior court’s dismissal of Kignak’s claims of
ineffective assistance of counsel
In Risher v. State, the Alaska Supreme Court set out a two-prong standard
for evaluating ineffective assistance of counsel claims.9 Under the first prong, the
defendant must establish that their counsel failed to act with minimal competence —
i.e., failed to “perform at least as well as a lawyer with ordinary training and skill in the
criminal law[.]”10 Under the second prong, the defendant must establish a reasonable
possibility that, but for the attorney’s incompetent performance, the outcome of the
proceeding would have been different.11
On appeal, Kignak renews some of his claims of ineffective assistance of
counsel, and he asserts that his pleadings in the superior court effectively pleaded a
prima facie case for relief on each of his claims.
Whether a defendant’s pleadings in an application for post-conviction
relief establish a prima facie case for relief is a question of law that we review de novo.12
At this initial pleading stage, courts are required to view all well-pleaded factual
assertions in the light most favorable to the defendant.13 However, as we explained in
LaBrake v. State, courts are not required to presume the truth of “assertions that are
9 Risher v. State, 523 P.2d 421, 425 (Alaska 1974).
10 Id. at 424 (quoting Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974)); see
also Strickland v. Washington, 466 U.S. 668, 687-88 (1984) (“When a convicted defendant
complains of the ineffectiveness of counsel’s assistance, the defendant must show that
counsel’s representation fell below an objective standard of reasonableness.”).
11 Risher, 523 P.2d at 425.
12 David v. State, 372 P.3d 265, 269 (Alaska App. 2016).
13 DeJesus v. State, 897 P.2d 608, 618 (Alaska App. 1995).

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patently false or unfounded, based on the existing record or based on the court’s own
judicial notice.”14
Kignak’s first claim on appeal is that his trial attorney was ineffective
because she allegedly left him with the impression that there was a “deal” for 7½ years
or that, at the very least, he would not get a sentence over 10 years. Kignak’s pleadings
are vague about which of these things he actually believed — i.e., whether he believed
that he had a “deal” or whether he understood that there was no “deal” but nonetheless
believed (for unstated reasons) that he would definitely get a sentence under 10 years.
Kignak is also vague about what, if anything, his attorney said or did that would have
led to such misimpressions. Most importantly, Kignak does not acknowledge that the
record shows that he was repeatedly told by both his attorney and the superior court in
open court that there was no “deal” and that there was no guarantee that he would get a
sentence under the presumptive range.
The State argues that Kignak’s pleadings are insufficient to allege a
prima facie case because the record shows that Kignak was clearly advised by both his
attorney and the superior court that there was no “deal” and that he could receive a
sentence within the presumptive range of 15 to 20 years and Kignak provides no
explanation for why those advisories were not sufficient or why the court should
discount his professed understanding of the terms of the agreement.
We agree that this omission is fatal to Kignak’s establishment of a
prima facie case on this ineffective assistance of counsel claim.15 Here, the record
shows that the judge explained the actual terms of the plea agreement two times before
Kignak changed his plea and Kignak expressed his understanding of those terms prior
to changing his plea. Specifically, the record for the September 5, 2014 pretrial hearing
14 LaBrake v. State, 152 P.3d 474, 481 (Alaska App. 2007).
15 Id. at 481-82.

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shows that Kignak was told by both his attorney and the superior court that the plea
agreement called for open sentencing and that there was no guarantee that the court
would find the proposed mitigator or that the court would sentence him below the
presumptive range of 15 to 25 years to serve even if it did find the mitigator. Similarly,
the record for the change of plea hearing on September 30, 2014, shows that Kignak
was told, prior to his change of plea, that his plea agreement did not include an agreed-
upon sentence and that there was no guarantee that he would receive a sentence below
the presumptive range. The record further shows that Kignak expressed his
understanding of the terms of the plea agreement prior to his change of plea.
On appeal, Kignak points to our decision in Alexie v. State for the
proposition that a defendant’s claim that they did not understand the terms of their plea
agreement is not necessarily defeated at the prima facie case stage by a record that
shows that the defendant was advised of the terms of the agreement at the change of
plea hearing.16 We agree. But Alexie is distinguishable because the defendant
specifically pleaded facts “which, if believed, cast[] a different light on what happened
at the change-of-plea hearing.”17
Here, Kignak claims that his attorney incompetently led him to believe
that there was a “deal” for 7½ years and that there was a guarantee that he would receive
a sentence under 10 years. But, as already explained, the record demonstrates that
Kignak was repeatedly told that there was no agreement on the mitigator and no
guarantee that he would receive a sentence under the presumptive range even if the
mitigator were found. The record further shows that Kignak expressed understanding
of the terms of the plea agreement prior to changing his plea to guilty, and that the trial
court entered a specific finding that Kignak understood the agreement. Thus, in order
16 Alexie v. State, 402 P.3d 416, 418 (Alaska App. 2017).
17 Id.

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to establish a prima facie case, Kignak was required to provide specific facts that, if
true, would cast a “different light on what happened at the change-of-plea hearing” —
i.e., facts that would provide a basis for the superior court to reach a different conclusion
about Kignak’s understanding than the trial court did.18
But Kignak’s application did not provide the necessary specific facts.
Indeed, the application did not acknowledge the plea colloquy or the trial court’s
findings that Kignak had entered his plea knowingly and that he understood the
potential consequences of entering his plea. Furthermore, it provided no details about
what his attorney said to him that would have led him to believe, despite the trial court’s
plea colloquy, that there was either a “deal” for 7½ years or a guarantee that he would
receive a sentence under 10 years. Under these circumstances, it was not error for the
superior court to reject Kignak’s post-conviction relief claim that his attorney misled
him about the terms of the plea agreement.19
Kignak’s second claim of ineffective assistance of counsel on appeal is
that his attorney was ineffective for having failed to advise him to withdraw his plea
“in those months after Judge Jeffery rejected the mitigating factor.” As an initial matter,
we note that it would not have been incompetent for his attorney not to advise Kignak
to withdraw his plea immediately after the change of plea hearing because Judge Jeffery
had sua sponte suggested referring the case to the three-judge sentencing panel, who
could still have provided the lower sentence that Kignak sought.20
18 Id.
19 LaBrake, 152 P.3d at 481.
20 Kignak also asserts that his attorney was ineffective for failing to request the three-
judge sentencing panel as a “back-up” if the court rejected the proposed mitigator. But this
claim fails on the second prong of the Risher test because Kignak cannot show that he was
prejudiced by his attorney’s failure to request the three-judge sentencing panel given the
fact that Judge Jeffery sua sponte suggested referral of the case to the three-judge
sentencing panel and given the fact that the three-judge sentencing panel ultimately

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To the extent that Kignak’s claim can be interpreted as a claim that his
attorney never told him about the option of withdrawing his plea even after the three-
judge sentencing panel found that it would not be “manifestly unjust” to sentence him
within the applicable presumptive range, this claim is directly belied by the record
which shows that Kignak was well aware of the option of withdrawing his plea before
the superior court finally sentenced him to a term within the applicable presumptive
range. Evidence to this effect includes the May 5, 2015 letter that Kignak wrote to the
court explicitly referring to the option of moving to withdraw his plea. There is also the
extended discussion at the representation hearing on May 21, 2015, in which Kignak
suggested that he might want to withdraw his plea and the trial judge advised him that
there were risks in withdrawing his plea (namely, the original higher charge would be
reinstated) and that he should talk to his attorney about this option before he decided
what to do.
In other words, the record makes clear that Kignak was aware of the option
of moving to withdraw his plea before the sentencing was complete and that he
nevertheless chose not to do so and to be sentenced by the superior court after it was
clear that it was impossible for him to get a sentence below the presumptive range.
Under these circumstances, it was not error for the superior court to conclude that
Kignak was not prejudiced by his attorney’s alleged failure to talk to Kignak about
withdrawing his plea “in the months” immediately following the superior court’s
rejection of the proposed mitigator.
Lastly, Kignak argues that it was ineffective for his attorney not to advise
him to withdraw his plea to third-degree sexual assault and to instead plead to the higher
charge of second-degree sexual assault under the theory that the superior court might
have been more willing to find the least serious mitigator in relation to the higher charge
rejected Kignak’s claim that it would be “manifestly unjust” to sentence him within the
presumptive range. See Risher v. State, 523 P.2d 421, 425 (Alaska 1974).

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of penetration, thus authorizing the court to impose a sentence as low as 10 years to
serve.
But, as the superior court specifically warned Kignak at the representation
hearing, withdrawing from the charge bargain and reinstating the second-degree sexual
assault charge was inherently risky. As a second felony offender, Kignak was subject
to a presumptive range of 20 to 35 years on the higher second-degree sexual assault
charge.21 He therefore faced a real possibility of a higher sentence than 15 years if he
pleaded to the higher charge. Moreover, even if the court found the least serious
mitigator, there would be no guarantee that the court would have lowered the sentence
by more than 5 years — the end result being that Kignak would still have to serve
15 years but now he would be convicted of a more serious sexual assault charge. Given
these circumstances, we agree with the superior court that Kignak failed to plead a
prima facie case that his attorney was incompetent for failing to suggest such a novel
and inherently risky strategy.
In sum, having reviewed Kignak’s pleadings, we conclude that the
superior court was correct that Kignak’s pleadings failed to establish a prima facie case
on any of his ineffective assistance of counsel claims. We therefore affirm the dismissal
of Kignak’s post-conviction relief application.
Conclusion
We AFFIRM the judgment of the superior court.
21 AS 12.55.125(i)(3)(D).