Opinion
Court of Appeals No. A-10174.
March 25, 2009.
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge, Trial Court No. 3PA-06-1251 Civ.
Beth G. L. Trimmer, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Michael Sean McLaughlin, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
David F. Stone appeals the superior court's denial of his petition for post-conviction relief. Stone's primary claim is that the Public Defender Agency, which represented him in the underlying criminal case, gave him ineffective representation because the Agency declined to file a sentence appeal, even after Stone expressly demanded that they do so.
As we explain in this opinion, Stone's assertion of ineffective assistance hinges on at least two claims of law that have not yet been resolved by the courts of this state, and on which reasonable people could differ. Because the answers to these two legal issues are unresolved and reasonably debatable, Stone has failed to show that the Public Defender Agency's failure to file the requested sentence appeal constituted ineffective assistance of counsel.
Underlying facts
Stone, who was driving under the influence, got into an accident in which his passenger was killed and two other people were injured. Stone was indicted on three felonies: manslaughter, first-degree assault, and third-degree assault (one charge for each victim). He was also charged with misdemeanor driving under the influence.
Stone's trial on these charges commenced on May 25, 2005, with the impanelment of a trial jury. But the next day, following the prosecutor's opening statement, Stone's assistant public defender informed the superior court that the parties had reached a plea agreement.
Under the terms of this agreement, Stone pleaded no contest to a reduced charge of criminally negligent homicide, a reduced charge of second-degree assault, and the original charges of third-degree assault and driving under the influence. The agreement also provided that Stone would receive a composite sentence of between 5 years to serve (the specified minimum) and 12 years to serve (the specified maximum).
In August 2005, the superior court sentenced Stone to a composite term of 13 years' imprisonment with 4 years suspended — i.e., 9 years to serve. In addition, based on his commission of these new crimes, Stone's probation from a previous conviction was revoked, and the court imposed all of Stone's remaining suspended jail time from that prior conviction — 350 days. Thus, in total, Stone received a sentence of slightly less than 10 years to serve — 9 years plus 350 days.
Stone received consecutive sentences of 6 years with 2 years suspended for criminally negligent homicide, 5 years with 2 years suspended for second-degree assault, 1 year for third-degree assault, and 1 year for DUI.
The following month (September 2005), Stone wrote a letter to the Public Defender Agency, asserting that his sentence was illegal. Stone asserted that his sentence was imposed in violation of his Sixth Amendment right to jury trial as interpreted in Apprendi v. New Jersey and Blakely v. Washington, and he demanded that the Public Defender Agency either appeal the sentence on this basis or (alternatively) file a motion under Alaska Criminal Rule 35(a) to correct the purportedly illegal sentence.
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
In response, the Public Defender Agency wrote a letter telling Stone that they would not appeal or otherwise challenge his sentence. The Agency explained that Stone's sentence was within the range specified in his plea agreement — and that, therefore, Stone had no right to appeal the sentence.
In May 2006, Stone filed a pro se petition for post-conviction relief in which he again asserted that his sentence was legally flawed, and that the Public Defender Agency gave him ineffective assistance because they did not honor his request to appeal his sentence.
However, Stone did not fault the Public Defender Agency for failing to pursue his Apprendi-Blakely claim. Rather, Stone abandoned his Apprendi-Blakely claim and instead argued that there were two other flaws in his sentence. (Stone did not mention either of these new claims in his earlier correspondence with the Public Defender Agency.)
First, Stone argued that, under Whitton v. State, he could not lawfully be convicted of three separate felonies arising from a single act of drunk driving. Stone asserted that, because he committed only one act of negligence, he could not lawfully receive multiple convictions even though he killed or injured three victims. (This argument is mistaken. See State v. Dunlop, 721 P.2d 604 (Alaska 1986).)
479 P.2d 302 (Alaska 1970).
Second, Stone argued that even if he was rightly convicted of separate felonies, his total sentence was excessive, given all the circumstances of his case.
But before the State or the Public Defender Agency had a chance to respond to these new claims, the superior court appointed the Office of Public Advocacy to represent Stone in the post-conviction relief litigation, and Stone's new attorney filed an amended petition for post-conviction relief. In this amended petition, Stone abandoned his Whitton argument and instead presented yet another new argument.
Stone's new argument was that his sentence was illegal because the sentencing judge violated the Neal-Mutschler rule. In other words, Stone asserted that the superior court imposed a composite sentence that exceeded the maximum term of imprisonment for Stone's single most serious offense ( i.e., the 10-year maximum term of imprisonment for criminally negligent homicide) without making an express finding that this amount of imprisonment was necessary to protect the public. Stone then asserted that the Public Defender Agency acted incompetently because they failed to perceive this flaw in Stone's sentence, and thus the Agency incompetently refused to pursue the sentence appeal that Stone requested.
See Neal v. State, 628 P.2d 19 (Alaska 1981); Mutschler v. State, 560 P.2d 377 (Alaska 1977).
See AS 11.41.130(b) (criminally negligent homicide is a Class B felony) and AS 12.55.125(d) (establishing a 10-year maximum term of imprisonment for Class B felonies).
Stone conceded that, to establish the Agency's ineffectiveness under Risher v. State and Strickland v. Washington, he was required to show that he had been prejudiced by the Agency's failure to file the appeal. According to Stone, this meant that he "[had to] show that his issues on appeal would have been meritorious".
523 P.2d 421 (Alaska 1974).
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
But Stone insisted that the Public Defender Agency's advice to him ( i.e., that he had no right to appeal his sentence) was both mistaken and incompetent — because (according to Stone) he did have a valid issue to raise on appeal: the contention that his composite sentence of 13 years and 350 days violated the Neal-Mutschler rule. Stone declared that it was incompetent for the Public Defender Agency to fail to file an appeal raising this issue.
In the State's response to Stone's amended petition, the State pointed out that Stone's argument was based on an incorrect interpretation of the Neal-Mutschler rule. The Neal-Mutschler rule focuses on a defendant's time to serve. While it is true that Stone received a composite sentence of 13 years for his four offenses, a good portion of this sentence — 4 years — was suspended. Thus, Stone's time to serve was only 9 years. Even if the 350 days from the probation revocation are added to this 9 years, Stone's composite term is still less than the 10-year maximum sentence for criminally negligent homicide.
See Powell v. State, 88 P.3d 532, 537 (Alaska App. 2004) ("Having made this `worst offender' finding, [the sentencing judge] was authorized to impose a composite sentence of up to 20 years' imprisonment (the maxim um penalty for a single count of first-degree assault, Powell's most serious offense). But under the Neal-Mutschler rule established by our supreme court, [the judge] could not impose a sentence exceeding 20 years to serve unless he affirmatively found that a longer term of imprisonment was necessary to protect the public.") (emphasis added). See also Davis v. State, 793 P.2d 1064, 1066 n. 2 (Alaska App. 1990).
The State also argued that, because Stone's sentence fell within the range of sentences that Stone had expressly agreed to in his plea bargain, Stone had no right to appeal the sentence in any event.
In Stone's reply to the State's pleading, he altered his argument yet again. In the face of the State's clarification of the Neal-Mutschler rule, Stone apparently abandoned his Neal-Mutschler claim — because he failed to renew this claim or mention it further.
Stone also abandoned his earlier position that, to prove ineffective assistance of counsel, he had to show that he had one or more meritorious arguments to raise on appeal. Instead, Stone now took the position that, regardless of whether he had any meritorious issues to raise on appeal, he was nevertheless entitled to pursue an appeal if he wanted one. Stone now expressly contended that the Public Defender Agency's act of incompetence was the Agency's failure to file the requested appeal — even if the Agency correctly believed that the appeal was frivolous, and even if the Agency ended up filing an Anders brief.
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
As authority for this legal proposition, Stone relied on this Court's decision in Broekel v. State, 900 P.2d 1205 (Alaska App. 1995). In Broekel, this Court held:
[N]o prejudice need be shown when ineffective assistance of counsel consists of an attorney's failure to preserve the right of a client to appeal; . . . upon [such] a showing . . ., the automatic remedy should be restoration of the right to appeal. . . . [A]n attorney who incompetently fails to file a notice of appeal deprives the client of the right to an appeal, not just the right to a successful appeal.
Broekel, 900 P.2d at 1208. Based on Broekel, Stone argued that even if he lacked any colorable claim for appellate relief, the Public Defender Agency's failure to file an appeal (after Stone specifically requested one) was, in itself, ineffective assistance of counsel.
Because Stone presented this legal argument for the first time in his reply, the State filed a second pleading to respond to this new argument. The State argued that Stone had misinterpreted Broekel.
According to the State, the issue in Broekel was a defense attorney's failure to file an appeal for a defendant who went to trial — that is, a defendant who had an unquestioned right to pursue an appeal. The State argued that the rule in Broekel did not apply to Stone because Stone's case did not go to trial; rather, Stone accepted a plea bargain that called for a sentence within a specified range, and he received a sentence within that range. Thus, according to the State, Stone had no right of appeal — and, for this reason, the Public Defender Agency violated no duty toward Stone when it declined to follow Stone's instruction to file an appeal.
Based on these pleadings, and after concluding that no material issues of fact were disputed by the parties, Superior Court Judge Beverly W. Cutler denied Stone's petition for post-conviction relief. She agreed with the State that Stone's sentence did not implicate the Neal-Mutschler rule — because that rule focuses on the "time to serve" component of a defendant's sentence, and because Stone received less than 10 years to serve (the maximum term of imprisonment for his most serious crime). Accordingly, Judge Cutler concluded that the Public Defender Agency did not demonstrate incompetence when it declined to pursue Stone's suggested Neal-Mutschler claim.
Judge Cutler also rejected Stone's contention that the Public Defender Agency was required to file an appeal on his behalf even though there was no arguable claim to raise on appeal. Judge Cutler ruled that the Public Defender Agency had no legal duty to file an appellate attack on Stone's sentence, given the fact that the Agency had concluded that Stone had no right of appeal, and given the fact that Stone had never identified any arguable issue that might have been raised on appeal.
Stone's argument on appeal
In his appeal to this Court, Stone abandons his earlier Apprendi-Blakely claim, his earlier excessive sentence claim, and his earlier Neal-Mutschler claim. Instead, Stone focuses solely on the last argument that he made in the superior court: the claim that the Public Defender Agency was obligated to honor Stone's request for an appeal, even if Stone had no colorable claim that might be raised on appeal. Stone declares that the law "is well established" that, "regardless of the merits of an appeal, it is per se ineffective assistance of counsel when an attorney fails to file an appeal when requested by a client."
For this proposition, Stone relies on the three interrelated assertions about the law: first, that a criminal defendant is always entitled to pursue an appeal if the defendant wishes to do so; second, that Alaska Professional Conduct Rule 1.2(a) requires the defendant's attorney to abide by the defendant's decision to pursue an appeal; and third, that it is ineffective assistance of counsel, per se, if the defense attorney then fails to pursue the requested appeal.
It is true, as we held in Broekel, that a defense attorney's incompetent failure to file an appeal is conduct that, of itself, causes prejudice to a criminal defendant, regardless of whether the defendant can show that there were meritorious issues to be raised on appeal. The prejudice is that the defendant has been deprived of the ability to pursue the appeal and argue the issues.
But as the State noted in its superior court pleadings, and as the State again notes in its brief to this Court, Broekel is arguably distinguishable from Stone's case — because the defendant in Broekel had an undisputed right to pursue an appeal, but Stone does not.
As we explained above, Stone was convicted based on pleas of no contest to three felonies and one misdemeanor. A defendant who pleads guilty or no contest waives the right to appeal non-jurisdictional defects in the process leading to the defendant's conviction. Stone has never suggested that there was some jurisdictional defect in the State's prosecution of him, and he has no right to appeal his conviction on non-jurisdictional grounds.
State v. Saathoff, 29 P.3d 236, 237 n. 10 (Alaska 2001).
Moreover, under the terms of AS 12.55.120(a), felony defendants who negotiate a sentence bargain with the State often lose their right to appeal the resulting sentence. AS 12.55.120(a) declares that a defendant may appeal a felony sentence that exceeds 2 years of unsuspended incarceration "unless the sentence was imposed in accordance with a plea agreement . . . provid[ing] for imposition of a specific sentence or a sentence equal to or less than a specified maximum sentence." (Emphasis added) As we explained above, Stone's plea agreement with the State called for a sentencing range of no less than 5 years to serve and no more than 12 years to serve. Stone's sentence of 9 years to serve is well within this range. Accordingly, Stone has no right to appeal his sentence as excessive.
Support for this conclusion is also found in Alaska Criminal Rule 11(c)(5), which deals with the procedure that a judge must follow when accepting a guilty plea or a no contest plea in conjunction with a sentencing agreement. Under Rule 11(c)(5), the judge must advise the defendant "that the defendant waives the right to appeal [their] sentence as excessive and waives the right to seek reduction of [their] sentence under Criminal Rule 35 if [the] plea agreement between the defendant and the prosecuting attorney provides for a specific sentence or a sentence equal to or less than a specified maximum[.]"
In turn, Alaska Criminal Rule 35(b) authorizes a sentencing court to modify or reduce a sentence in many circumstances, but this rule expressly states that the court has no power to "reduce a sentence imposed in accordance with a plea agreement between the defendant and the prosecuting attorney that provided for imposition of a specific sentence or a sentence equal to or less than a specified maximum". Criminal Rule 35(b)(4).
We need not decide whether these provisions of law foreclose any and all appellate attacks on the severity of sentences imposed under plea agreements such as the one in Stone's case. All that need be said is that, based on these provisions of law, reasonable judges and attorneys could conclude that Stone had no right to appeal his sentence on the ground of excessiveness, or to seek reduction of his sentence under Criminal Rule 35(a).
In sum, both the Public Defender Agency and Judge Cutler could reasonably conclude that, under the facts of this case, Stone had no right to appeal his conviction and no right to appeal his sentence — at least, absent an identifiable jurisdictional defect in Stone's criminal prosecution or an identifiable illegality in Stone's sentence or the sentencing process.
The next issue presented in this case is to determine how our decision in Broekel relates to a defendant in Stone's situation.
Stone interprets Broekel to mean that, because Stone wanted to appeal his sentence, the Public Defender Agency was obliged to do something, even if the Agency believed that Stone had no right of appeal and that any appeal would be frivolous. According to Stone, the Public Defender Agency was required to at least file an Anders brief explaining why there were no illegalities in Stone's sentence or in the sentencing process. As an alternative, Stone suggests that the Agency was at least obliged to seek a reduction of Stone's sentence by filing a petition for discretionary sentence review in the Alaska Supreme Court (see Alaska Appellate Rules 215(a)(5) and 403(h)) — even though there was a significant chance that the State might interpret this effort as a unilateral repudiation of the plea bargain.
The State, on the other hand, contends that the holding in Broekel is confined to defendants who have a right of direct appeal — and that Broekel does not apply to defendants like Stone, who have no right of direct appeal but only the right to petition for discretionary appellate review. In other words, the State takes the position that defendants in Stone's situation can not base a claim of ineffective assistance of counsel merely on the fact that their attorney failed to file a petition for discretionary appellate review. Instead, these defendants must show that they were affirmatively prejudiced by their attorney's inaction — by identifying one or more meritorious claims that could have been presented to the appellate court despite the normal strictures on the defendant's right of appeal.
This is a complicated legal issue. However, Stone is mistaken when he asserts that it is "well established" that Broekel guarantees his right to pursue an appeal, and that Broekel guarantees him the assistance of counsel at public expense to help him pursue this appeal. These conclusions are neither "well established" nor self-evident. Rather, there is significant reason to doubt whether Broekel guarantees these rights to defendants like Stone who, due to their acceptance of a sentence bargain, have no right of direct appeal.
We have researched this issue and have found that, in many jurisdictions, an indigent defendant either has no right to the assistance of court-appointed counsel to pursue a petition for discretionary appellate review after the defendant has pursued and lost a direct appeal, or (if the defendant does have this right to counsel) the defendant's court-appointed counsel retains the authority to refuse to pursue a petition that the attorney concludes is frivolous.
For example, in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), the United States Supreme Court construed its earlier decision in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and held that, although the Fourteenth Amendment guarantees court-appointed counsel for indigent defendants in their first appeal ( i.e., their appeal of right), the Fourteenth Amendment does not require court-appointed counsel for indigent defendants seeking discretionary, second-tier appellate review. Moffitt, 417 U.S. at 614-16, 94 S.Ct. at 2446-47.
More recently, in Austin v. United States, 513 U.S. 5, 8-9; 115 S.Ct. 380, 381-82; 130 L.Ed.2d 219 (1994), the Supreme Court held that a defendant's court-appointed counsel is under no obligation to file a petition for certiorari if that petition would be frivolous. The Austin court distinguished this situation from the situation presented in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In Anders, the Supreme Court declared that, when a court-appointed attorney concludes that any direct appeal of a criminal conviction would be frivolous, the indigent defendant nevertheless has a right to have the attorney file a brief fully explaining this conclusion. But while Anders requires a court-appointed attorney to file this type of explanatory brief in direct appeals, the Anders requirement applies only to a defendant's first appeal of right; it does not extend to appellate forums where review is discretionary. Austin, 513 U.S. at 8, 115 S.Ct. at 381.
The Mississippi Supreme Court's opinion in Harris v. State, 704 So.2d 1286, 1289-1292 (Miss. 1997), contains an extensive review of state court decisions in this area. As explained in Harris, many states hold that an indigent defendant's right to court-appointed counsel extends only to the defend ant's first appeal ( i.e., the defendant's appeal of right), and that a defendant has no right to court-appointed counsel to pursue further discretionary review.
See, e.g., Jackson v . State, 612 So.2d 1356, 1357 (Ala.Crim.App. 1992); Foy v. State, 844 P.2d 744, 744-45 (Kan. 1993); Harris v. State, 704 So.2d 1286, 1288-1292 (Miss. 1997). See also Tolliver v. State, 629 S.W.2d 913, 915 (Tenn.Crim.App. 1981) (holding that, even though the attorney has no obligation to pursue discretionary appellate review on the defendant's behalf, the attorney must alert the defendant to the possibility of seeking discretionary review); Wooten v. State, 266 S.E.2d 927 (Ga. 1980) (holding that, unless a court directs an attorney to pursue a petition for discretionary appellate relief, the attorney has no obligation to file the petition).
Other states acknowledge that an attorney can be appointed for purposes of discretionary appellate review, but hold that the court-appointed attorney can validly decline to pursue a petition for discretionary review if the attorney concludes that the petition would be frivolous — although, in some states, the attorney has a duty to timely inform the defendant of their right to file the petition themselves.
See, e.g., State v. Shattuck, 684 P.2d 154, 156-58 (Ariz. 1984); People v. Valdez, 789 P.2d 406, 408 (Colo. 1990); Ex Parte Wilson, 956 S.W.2d 25, 27 (Tex.Crim.App. 1997). See also State v. Mosely, 307 N.W.2d 200, 212-18 (Wis. 1981) (upholding a Wisconsin appellate rule under which the court-appointed attorney is obligated to file the initial formal request for discretionary review, but, the attorney need not state or explain the reasons why discretionary review should be granted. Rather, it is up to the defendant (without the assistance of the attorney) to formulate and explain the reasons w hy the suprem e court should grant discretionary review.).
The Colorado Supreme Court has recognized a defendant's right to attack the competence of their attorney's decision not to file a petition for discretionary appellate review ( i.e., the competence of the attorney's underlying conclusion that any petition would be frivolous). But if the defendant asserts that their attorney's decision was incompetent, the defendant must show that there indeed existed one or more meritorious claims that could have been raised in a petition for discretionary review — and that these claims (if pursued) would have resulted in a reversal of the intermediate appellate court's decision.
See People v. Valdez, 789 P.2d 406, 408 (Colo. 1990).
Id. at 410.
In sum: Many jurisdictions do not require a court-appointed attorney to pursue a petition for discretionary appellate review whenever their client requests one. Broadly speaking, these jurisdictions are divided into two camps. Some of them hold that a defendant has no right to the assistance of counsel to pursue a petition for discretionary appellate review. Other jurisdictions allow for appointed counsel in these circumstances, but recognize that the attorney retains the authority to refuse to pursue a petition for discretionary appellate review if the attorney concludes that the petition would be frivolous — and that the attorney need not file an Anders brief to explain this conclusion.
These cases — and the two approaches to the problem that they illustrate — do not necessarily encompass the complete spectrum of judicial thinking on this issue. But to resolve Stone's case, we need not decide whether to adopt either of two these approaches (or indeed, any other approach). Nor need we decide whether to clarify or modify our holding in Broekel with respect to defendants who have no right of direct appeal. The issue before us is narrower.
Stone seeks post-conviction relief under the theory that, given our decision in Broekel, it was incompetence per se for the Public Defender Agency to fail to seek discretionary appellate review of Stone's sentence after he asked the Agency to do so, regardless of whether Stone had any colorable claims to raise. To prevail on this theory, Stone must show that all competent judges and lawyers would have known, based on Broekel, that the Agency had no right to refuse Stone's request, even if the Agency concluded that any petition for discretionary review would be frivolous.
But as the cases from other jurisdictions show, this matter is reasonably debatable. (Indeed, the case law appears to be predominately contrary to Stone's position.) Moreover, neither Stone's pleadings in the superior court nor Stone's briefs to this Court contain any substantive discussion of whether (or how) our decision in Broekel applies to defendants in Stone's situation. Rather, Stone presents only conclusory assertions.
Given this record, Stone has failed to establish that the Public Defender Agency acted incompetently or otherwise violated its professional duty to Stone merely because the Agency declined to file the petition for sentence review that Stone requested (after the Agency concluded that the proposed petition would be frivolous). And, as we have explained, Stone has abandoned all of his claims that there were specific appellate issues that the Agency incompetently failed to pursue.
Accordingly, the judgement of the superior court is AFFIRMED.