Rehearing Denied Nov. 21, 2013.
Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, Justices, and EASTAUGH, Senior Justice.[*]
1. The facts of this case were summarized by the court of appeals in its decision below. We recount only the most salient facts: Kim Cook killed a police officer and was charged with first-degree murder. He was also sued in a civil action brought by the police officer's
estate. After Cook failed to answer the civil complaint, Superior Court Judge Beverly Cutler entered a default judgment against Cook, and the police officer's estate began to freeze Cook's assets in an attempt to collect the judgment.
2. When Cook eventually responded to the civil lawsuit, he filed a motion asking the superior court to set aside the default judgment. Judge Cutler denied Cook's motion; as a result, Cook was unable to use his assets to hire private defense counsel to represent him in the criminal case. Cook appealed that decision. While that appeal was pending, the criminal case proceeded against him. A public defender was appointed to represent Cook in the criminal case. The criminal case was reassigned to Superior Court Judge Fred Torrisi, who reviewed Cook's allegation that the State had committed prosecutorial misconduct by sharing Cook's confidential financial information with the plaintiff in the civil case, which allowed the plaintiff to locate and seize Cook's assets so that he could not hire a private attorney. Cook argued in a motion to continue that the State's conduct amounted to a deprivation of his Sixth Amendment right to choice of counsel. Judge Torrisi denied the motion. Cook was subsequently convicted of first-degree murder. Cook's criminal conviction was upheld on appeal. In that appeal, Cook did not argue that his Sixth Amendment rights had been violated.
3. Almost two years after Cook was convicted of murder, we held that the superior court erred in the civil case by failing to recognize the difficulties Cook faced in responding timely to the civil complaint and refusing to set aside the default judgment. The error we identified did not include any failure by the superior court to take Cook's Sixth Amendment rights into account when it denied his motion to set aside the default judgment. Cook then filed a petition for post-conviction relief from his murder conviction, arguing that Judge Cutler's error in the civil case amounted to a deprivation of his Sixth Amendment right to choice of counsel. Superior Court Judge Eric Smith granted the petition for post-conviction relief and set aside Cook's murder conviction. The court of appeals reversed. Cook petitioned for hearing, and we granted the petition. We are now faced with the narrow question whether the decision in the civil appeal reversing the denial of the motion to set aside the default judgment is a new fact under AS 12.72.010(4) that " requires vacation of the [criminal] conviction or sentence in the interest of justice." 
4. A criminal defendant has a right under the Sixth Amendment to the United States Constitution and article I, section 11 of the Alaska Constitution to counsel of his choice. This right is not absolute. The defendant has no right to insist on representation by an attorney that he cannot afford. Nor does he have a right to spend assets that have been lawfully seized or frozen in a separate proceeding, even if those assets are necessary to retain the attorney of his choice. The United States Supreme Court has stated that " the essential aim" of the Sixth Amendment " is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." 
5. In Cook v. Rowland, we concluded that Judge Cutler erred in failing to recognize Cook's difficulty in responding timely to the
civil suit to be excusable neglect when she refused to set aside the default judgment against Cook in the civil case. This error may have had the collateral consequence of depriving Cook of the funds necessary to hire the private counsel of his choice. But there is no evidence that either the State prosecutor or Judge Cutler had any intent to interfere with Cook's ability to hire private counsel or to deprive him of his Sixth Amendment rights. Indeed, Judge Smith quoted Judge Torrisi's earlier finding that the State had not intentionally tried to restrict Cook's choice of counsel: " [I]t is absolutely clear that the State was not trying to prevent Mr. Cook from hiring private counsel. In fact, they were doing the exact opposite." As Judge Torrisi noted, the State was actually " trying to make sure [Cook] hired [private counsel] if he had that much money."  Cook does not challenge this factual finding. Nor is there any evidence that Judge Cutler acted with intent to violate Cook's Sixth Amendment rights. Judge Smith made no such finding, and the court of appeals concluded that restriction of Cook's choice of counsel " was not the point" of Judge Cutler's refusal to set aside the default judgment and observed that there was no evidence in the record that she considered Cook's ability to hire the counsel of his choice when she made her decision. Cook does not dispute this conclusion. Indeed, Cook argues that intent is immaterial and that he should be granted a new trial on Sixth Amendment grounds " regardless of [Judge Cutler's] motives." It is unsurprising that Judge Cutler would not have considered any Sixth Amendment implications of her default judgment ruling given that Cook did little or nothing to flag the issue in the civil case. Although Cook asserted that the entry of default made it impossible for him to hire an attorney in the civil case, he never asserted in the civil case that he could not afford an attorney in the criminal case. And Cook never argued to Judge Cutler that her refusal to set aside the default judgment violated his Sixth Amendment rights in the criminal case. Nor did he appeal Judge Cutler's denial of his motion to set aside the default judgment on Sixth Amendment grounds. The question, then, is whether an incidental error in a separate civil case, detected years later on appeal and unintentionally affecting a criminal defendant's ability to hire the counsel of his choice, is enough to overturn an otherwise valid conviction in the criminal case and order a new trial on Sixth Amendment grounds.
6. The United States Supreme Court has generally rejected the idea that civil actions that collaterally affect a defendant's financial condition— and thus his ability to afford the attorney of his choice in a separate criminal case— violate the Sixth Amendment right to choice of counsel. In Caplin & Drysdale, Chartered v. United States, the Court held that the Sixth Amendment right to counsel does not prevent a criminal defendant's assets from being seized in a related civil case, even if that seizure prevents the defendant from hiring the attorney of his choice in the criminal case. In Caplin, a criminal defendant was charged with running a massive drug importation
and distribution scheme. The government sought to seize the proceeds from this enterprise under the federal drug forfeiture statute. The government obtained a restraining order barring the defendant from transferring his potentially forfeitable assets. Despite the order, the defendant paid a law firm $25,000 to represent him.  The defendant pleaded guilty in the criminal case, and the court seized virtually all of his assets. The law firm petitioned the court to adjudicate the firm's rights to the funds. After concluding that the federal forfeiture statute did not permit the defendant to use the contested funds to pay his attorneys, the Court concluded that the statute did not violate the defendant's Sixth Amendment rights. The Court reasoned that the governmental interest in obtaining full recovery trumped the defendant's Sixth Amendment interest in using the contested assets to pay for his defense. " A defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice." 
7. The dissent objects to our reliance on the fact that neither Judge Cutler nor the State had any intent to interfere with Cook's exercise of his Sixth Amendment rights. The dissent maintains that it is " unaware of any authority ... [stating] that a constitutional deprivation in the trial courts is without remedy unless the State or the court specifically intended that the constitution be violated."  But there is nothing new or improper about finding a constitutional deprivation only when the court intended to effect a deprivation. For example, the United States Supreme Court famously held in Batson v. Kentucky  that " [p]urposeful racial discrimination in selection of the [jury] venire violates a defendant's right to equal protection" but otherwise reaffirmed the general principle that the discriminatory impact of facially neutral practices in jury selection is not a violation of the Equal Protection Clause. Indeed, as state actors, courts are often subject to the same motive inquiries that define prohibited state action more generally. Motive is the determinative factor in many doctrines of constitutional law, and
motive is especially relevant in this case: Unlike the dissent, our reliance on motive draws a clear line between prohibited and permissible state action. Every state action involving a person's money will foreseeably have an impact on that person's exercise of a constitutionally protected right, yet we do not require state actors to sua sponte balance those incidental impacts against other concerns in all such cases.
8. Neither Cook nor the dissent cites any precedent for reopening a settled criminal case on Sixth Amendment grounds merely because, years later, an error was detected on appeal in a concurrent civil case that may have prevented the criminal defendant from accessing some of his assets. The cases Cook cites that have found Sixth Amendment violations are completely distinguishable because in those cases an order was issued in the criminal case itself that prevented the defendant's chosen attorney from participating in the criminal proceeding. But in Bell v. Todd, the Tennessee Court of Appeals held that an erroneously entered default judgment in a related but separate civil case did not implicate a criminal defendant's Sixth Amendment rights because " [t]he right to retain counsel does not carry with it an entitlement to funds that have been sequestered by a court to secure the interests of a claimant or the public." 
9. We agree with the court of appeals that
under Cook's view of this issue, any judg[ment] directing a person to pay damages for a breach of contract, or to pay back taxes and penalties, or even to pay a fine as punishment for an unrelated crime, would be deemed an abridgement of that person's Sixth Amendment right to counsel of choice in a pending criminal case if (1) the person was forced to satisfy the judg[ment] (or, at least, forced to sequester funds to pay the judg[ment] ), and (2) the person's lack of funds prevented the person from hiring a private attorney in the criminal case, or at least the particular private attorney the person would otherwise have chosen, and then (3) the money judg[ment] was later overturned because of a procedural error, or a mistaken evidentiary ruling, or an improper jury instruction.[]
10. We conclude that finding a constitutional violation in such a case would subject the finality of criminal convictions to events outside the control of the judge or the parties to the criminal case. Here, the State was not a party to the civil suit and had no means of detecting or preventing reversible error in that case. Nor would a judge presiding over a criminal case have the power to protect against error in a related civil suit handled by a different judge.
11. Cook argues that the rule he proposes can be limited to the unique circumstances of his case. In particular, Cook argues that a constitutional error may be found in this
case because the civil and criminal proceedings were closely related. But we see no principled way to protect the finality of criminal convictions by limiting this case to its facts. The fact that the same judge presided over both the civil and criminal proceedings for a period of time in this case is irrelevant to Cook's broader legal argument that he was deprived of his Sixth Amendment rights. Under Cook's argument, a judge commits constitutional error as a state actor whenever an error in the civil case restricts a party's ability to hire his preferred attorney, regardless of who presides over the criminal case. Nor is the fact that the civil and criminal trials in this case stemmed from the same alleged act pertinent to Cook's constitutional analysis. The subject matter of the civil or criminal case cannot possibly be relevant to the question whether an error in the civil case has limited a criminal defendant's ability to hire the attorney of his choice. The only relevant issue is whether that error prevented the defendant from accessing his funds. Under Cook's constitutional interpretation, any such error in a civil case— closely related or not— would violate a defendant's Sixth Amendment rights in the criminal case if it prevented the defendant from accessing the funds necessary to hire the attorney of his choice. Therefore, although the civil and criminal cases happened to arise out of the same conduct by Cook and were briefly before the same judge in this case, those facts are not a useful way to distinguish future cases. If we conclude that the error in the civil case violated Cook's Sixth Amendment rights we must also conclude, as the court of appeals did, that " a criminal defendant's Sixth Amendment rights would be violated by any judg[ment] or order in any proceeding if that judg[ment] or order deprived the defendant of the funds necessary to hire a private attorney in a pending criminal case, and if the judg[ment] or order was later overturned for any reason in a subsequent appeal, or in a motion for relief from judg[ment]." 
12. Although the dissent predicts that the " unusual facts of this case" will be " unlikely to arise again,"  the logic of the dissent's proposed rule would extend far beyond its factual predicate. The U.S. Supreme Court recognized this line-drawing problem and cited it as support for its holding in Caplin, asking rhetorically:
If defendants have a right to spend forfeitable assets on attorney's fees, why not on exercises of the right to speak, practice one's religion, or travel? ... The full exercise of these rights, too, depends in part on one's financial wherewithal; and forfeiture ... may similarly prevent a defendant from enjoying these rights as fully as he might otherwise. Nonetheless, we are not about to recognize an antiforfeiture exception for the exercise of each such right; nor does one exist for the exercise of the Sixth Amendment rights.[[[[]
Similarly, in the present case, if a defendant has a right to have a court weigh, sua sponte, the effects of a civil judgment on the defendant's ability to procure a lawyer of his choice in a parallel criminal case presided over by the same judge, then why not in a nonparallel case or one presided over by a different judge? Moreover, why would entering judgment in any civil matter without considering the effect of the judgment on the losing party's ability to exercise any constitutionally protected right not impermissibly burden that right? Finding no principled stopping point for such a sua sponte duty on state actors to consider incidental burdens on constitutional rights, we prefer the improper-motive inquiry announced in this order. It adequately protects against unconstitutional penalties sought by intentional bad actors without presenting intractable line-drawing problems.
13. Therefore, the Petition for Hearing, filed on January 18, 2012 and granted on June 5, 2012, is DISMISSED as improvidently granted.
Entered by direction of the court.
BOLGER, Justice, not participating.
MAASSEN, Justice, with whom STOWERS, Justice, joins, dissenting.
I respectfully dissent from the court's dismissal of Kim Michael Cook's petition for hearing. In my opinion, Cook's Sixth Amendment right to counsel  was not given the express consideration that the Constitution requires when the superior court denied him access to the funds he needed to retain the lawyer of his choice. This was " structural error" that leaves no option but a new trial, as Superior Court Judge Eric Smith correctly concluded in deciding Cook's petition for post-conviction relief. The court of appeals' opinion reversing Judge Smith's order  is flawed and should be reversed.
A. Underlying Facts
In the early morning of May 15, 1999, Palmer Police Officer James Rowland approached a parked pickup truck to check on the driver, who appeared to be slumped over the steering wheel. The driver was Cook. The encounter devolved into a struggle in which Officer Rowland and Cook shot each other. Officer Rowland was killed; Cook survived with two gunshot wounds to the chest.
Cook was charged with first-degree murder. He underwent two surgeries for his wounds and was hospitalized for over a week before being moved to a maximum security cell. Criminal and civil cases were filed against him almost ...