Matthew Owens, 42, has made another try to secure his freedom from a 101-year sentence handed down in the 2003 murder of Sonja Ivanoff, 19. That attempt has failed.

Owens filed a petition in court in September 2015 seeking post conviction relief claiming ineffective assistance from his counsel during his second trial held in Kotzebue. The petition focuses on five issues as basis for his claim.

The State of Alaska filed a motion to dismiss Owens’ application for post conviction relief. On Monday, Oct. 23, Judge Romano DiBenedetto issued an order from Superior Court in Nome granting the state’s motion to dismiss.

The court considered Owens’ application, the state’s motion, the opposition and the reply along with oral arguments presented by both sides in Nome on Oct. 17.

Based on consideration of the information, DiBenedetto found that Owens had not satisfied a two-pronged test for claims of inefficient counsel established by the Alaska Supreme Court through the case Risher v. State.

“A defendant who claims ineffective assistance of counsel must prove two things: first, that their attorney acted incompetently (i.e., that the attorney failed to meet the standard of performance minimally required of criminal law petitioners); and second, that this attorney incompetence prejudiced the defendant (i.e., that that there is at least a reasonable possibility that the result at the defendant’s trial would have been different but for the attorneys incompetence) from another case, Burton v. State.

The case

Sonja Ivanoff, originally from the village Unalakleet, was working at Norton Sound Regional Hospital in Nome in 2003 to earn college money.

Timayre Towarak, Ivanoff’s roommate and friend, reported Ivanoff missing on Aug. 12, 2003. The two had gone out the evening of Aug. 10 and parted after midnight. Towarak did not find Ivanoff home the morning of Aug. 11. She could not ascertain Ivanoff’s whereabouts after asking around. Ivanoff did not report to work Aug. 12. Towarak reported Ivanoff missing to the police late in the afternoon, Aug. 12, about 41 hours after Towarak had last seen Ivanoff.

Ivanoff was wearing Sketcher shoes borrowed from Towarak and a pair of jeans. She usually carried identification including her Nome Rec Center card and apartment keys on a chain and wallet attached to her arm by a metal band.

Around 8:30 p.m. on Aug. 12, volunteer searcher Jon Larson found Ivanoff’s body near the road to gold Dredge 5 about three miles from town. Her body had only one sock on the left foot. The state medical examiner verified that Ivanoff had been shot with a .22 caliber bullet in the back of the head, fired at point-blank range.

Matt Owens, an officer for the Nome Police Dept., was on duty at the time of Ivanoff’s disappearance. Witnesses said they saw Ivanoff get into a police vehicle around 1:30 a.m. Aug. 12. Troopers took over the investigation at the request of NPD on Oct. 1, 2003.

Owens was charged in October 2003 on first degree murder and tampering with evidence in the death of Ivanoff.

Owens moved to change his trial venue from Nome to Anchorage or Fairbanks, based on pretrial publicity and the jury panel’s familiarity with the witnesses. Judge Ben Esch denied the motion.

At the beginning of the trial in January 2005, over a year later, prosecutor Richard Svobodny said in Nome Superior Court that Owens committed the murder and later staged the theft of a patrol vehicle where a note addressed to the police was found

Defense attorney James McComas, attorney for Owens’ defense, argued that others were potential suspects, pointing to other members of the NPD and acquaintances of Ivanoff. That trial ended with a hung jury.

A second trial was scheduled for Oct. 17, 2005. Again Owens tried to get the trial moved to Anchorage or Fairbanks. Esch changed the venue to Kotzebue.

Following the Kotzebue jury questioning [voir dire], Owens again moved to transfer venue.

On Dec. 6, 2005, the Kotzebue jury found Owens guilty of murder in the first degree and tampering with evidence. Owens received a sentence of 101 years in prison.

The Sonja Ivanoff Law passed by Alaska Legislature in 2007 came out of the case. The law mandates a police officer convicted of committing murder while on duty be sentenced to 99 years in prison.

Appeals

In March 2010, the Alaska Court of Appeals upheld Owens’ conviction. The Alaska Supreme Court denied Owens’ petition for hearing on Sept. 30, 2010.

On Sept. 21, 2015, Owens filed a petition for post conviction relief. On May 2016, the state filed a motion to dismiss Owens’ claims, maintaining they were either barred or failed to establish a prima facie case [evidence sufficient to prove his claim]. Owens filed his opposition to the motion on Oct. 17, 2016; the state filed its reply on Jan. 25, 2017. On Oct. 22, Judge DiBenedetto issued an order concluding that Owens had not successfully pleaded ineffective assistance of counsel based on trial counsels’ decisions concerning the above claims

At a scheduling hearing in July, Judge DiBenedetto scheduled the oral arguments to be heard on Sept. 19, however, an airline flight cancellation caused the arguments to be rescheduled for Oct. 17. DiBenedetto gave the attorneys an hour each to present their arguments. Adrienne P. Bachman represented the State of Alaska’s argument against granting Owens’ petition for post conviction relief.

Attorney David M. Seid of Public Defender Agency in Juneau presented Owens’ case. Owens claimed his counsel’s assistance in a prior trial was ineffective for failing to remove Ella Ivanoff from the jury, among other things. Ella Ivanoff was married to a relative of Larry Ivanoff, father of Sonja Ivanoff. He reviewed numerous pages in sections connected with either the trial counsel’s decision not to use a pre-emptive challenge against Ella Ivanoff as juror or not to file a motion for a new trial, DeBenedetto said in his order. The defense had used only 15 of 18 challenges. Owens elaborated in his petition that the connection between the Ivanoffs and the communities of Kotzebue, Nome and Unalakleet. “Moreover, reviewing the record, here reveals that there was a strategy, albeit a non-victorious one, for keeping Ella on the jury,” DiBenedetto said. “The Court comes to this conclusion by reviewing Ella Ivanoff’s voir dire questions and trial counsel McComas’ affidavit as to why he kept her on the jury. “Trial counsel states that he let Ivanoff sit on the jury because she appeared to be a strong, verbal woman who would prevent counsel’s perceived racial influence, and this strategy is sound and far exceeds minimum level of competency,” DiBenedetto wrote.

Owens in his petition also said his lawyer failed to challenge testimony of witnesses Dealy Blackshear and Charlotte Calandrelli on any grounds, including hearsay and failed to move for a limiting jury instruction after Blackshear’s testimony. Owens’ attorneys varied in their opinions on how to handle the Blackshear—Calandrelli testimony, which Owens characterized in his conjunctive relief petition as “surprise” testimony.

Further, Owens alleged that his lawyers failed to convey a state’s settlement offer to Owens. Trial counsel [Steven Wells] has filed an affidavit in which he testifies that he received the state’s offer to compromise and conveyed the offer to his client, according to the court document. “Wells further expounds upon Owens’ response to hearing the state’s offer: ‘Matt said that he did not kill Sonja Ivanoff and would not admit to it and I was not to discuss any offer with him further.’”

According to the opinion and order by DiBenedetto, “The offer contemplated: ‘The state would be willing to reduce the Murder I count to Murder II in exchange for a plea of guilty to Murder II with a sentence bargain of 75 years with 25 years suspended, all other conditions to be determined by the court. All other charges would be dismissed.’”

According to the court document, Owens denies speaking with Wells about the state’s offer. Assuming Owens denial is true for the purpose of deciding whether Owens has pleaded a prima facie case of ineffective assistance, DiBenedetto continues, Owens’ pleading still fails to state a claim. Prejudice, the second prong of case law, providing guidance on ineffective assistance, has not been pleaded. “Specifically at no point does Owens testify that he would have been open to hearing an offer, would have accepted the offer, or would have even been willing to negotiate a settlement,” DiBenedetto writes, citing the state’s opposition to Owens’ petition.

Owens responded in his opposition the state’s motion to dismiss the petition, that “without knowledge or discussion of a plea offer, Owens was in no position to accept or to reject, or negotiate a pretrial settlement.”

“Owens is now aware of a pretrial offer. Yet Owens is not asking for an order to reinstate the offer or to allow him to accept a deal as other defendants with this post conviction claim have done. Rather, he just wants another trial,” DiBenedetto writes. “Without a specific pleading of prejudice, the Court has no way of fashioning an appropriate remedy even if it were to believe Owens after an evidentiary hearing. Thus no prejudice can result from failing to hear an offer that Owens had/has no intention of accepting or negotiating.”

Owens finally asserts his lawyer failed to file a motion for a new trial when the verdict was against the manifest weight of evidence. The Court of Appeals has already determined that the verdict did not go against the weight of evidence and did not amount to a miscarriage of justice, and that issue is res judicata [adjudicated by a competent court and cannot be pursued farther by the same parties.]

What is next? Owens can appeal the dismissal of his petition for post conviction relief.

Members of the Owens and Ivanoff family have attended the oral arguments Oct. 17, either in person or by telephone. Tom and Christina Mostoller [Sonja Ivanoff’s sister] sat in the courtroom during the arguments by Bachman and Seid.

“Coming in here was like it had just happened yesterday,” Tom Mostoller said on leaving. “I don’t know how Larry Ivanoff [Sonja’s father] can keep going through it.”