Nabbed on parole, local man contests sentence

PALMER — What happens if you sue your public defender for incompetence then need someone to guide you through a brand new criminal case?

The state is set up to handle such cases, with multiple agencies providing lawyers to defendants. But sometimes the issues aren’t so clear cut, as Johnny Burk, 24, found out last week.

Burk, of Wasilla, was in court Jan. 9 with a laundry list of case numbers next to his name.

In 2003, he was hit with charges ranging from contributing to the delinquency of a minor to burglary to vehicle theft to attempted murder.

Burk was arrested soon after a break-in on Agate Lane. In an affidavit filed at the time by Alaska State Trooper Gary Cox, the trooper reports that after his arrest, Burk told troopers that he and some friends had been hanging out in late January 2003.

“He stated that they decided to break into some houses,” Cox wrote.

Burk told troopers he and two friends, unnamed in the affidavit since they were still under the age of 18, hit one house, taking a revolver and Oxycontin pills. They tried to find someone to pick them up. Failing that they hit another house.

“He stated that immediately after the door was kicked open he saw a woman inside the house and heard her yell at them,” Cox wrote, summarizing Burk’s statements. “He shot one round from .44 Magnum revolver from a distance of about 5 feet at the woman in the house because he was scared and wanted to stop anyone from chasing them. He stated that he then shot toward the open door four times while he ran down the driveway away from the house.”

Those five rounds fired led to the attempted murder charges, which were eventually dropped in a plea agreement reached with the state.

According to the case file, Burk agreed to a 15-year term with eight suspended in exchange for a guilty plea to assault, burglary and vehicle theft charges.

But Burk wasn’t happy with the plea. In a case filed in 2007, Burk alleges his attorneys, Diane Foster and John Pharr, told him he’d serve no more than four years of jail time. He claims the sentence was too harsh for someone as young as he was at the time — 19 — and wants it amended.

An appeal filed in 2004 failed, with a panel of Alaska Appelate Court judges deciding the Superior Court imposed a proper sentence.

And now Burk is facing more charges. In October of last year, while out of jail on probation, he was hit with felony drug charges and a misdemeanor count of driving without a license.

Now, prosecutors are filing motions trying to take away his probation, essentially sending Burk back to prison for all or part of the eight years suspended from his sentence.

Last week, Superior Court Judge Beverly Cutler attempted to find out what to do with a defendant who was suing the very agency representing him in the new case. The Office of Public Advocacy usually takes cases in which the Public Defender Agency has a conflict. But it wasn’t so clear if a conflict, in strict legal terms, exists.

Nathaniel Peters, the attorney assigned to represent Burk in the new case, said he doesn’t know if the suit disqualifies his office or not, considering Burk sued his attorneys in the previous case, not his attorneys in this new case.

“I don’t know if there’s a conflict yet on the new case because he hasn’t accused us of ineffective assistance of counsel,” Peters said.

Cutler made the analogy of a patient suing a doctor for malpractice for work done on one organ then considering whether to use the same hospital for work on another organ.

She scheduled the new hearings for later in the year, telling Burk, “Mr. Peters is well aware of the delicate issues involved and he will try to sort them out with you.”

Contact Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.