Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Douglas Blankenship, Judge. Trial Court No. 4BE-09-386 CI t/w 4SM-08-173 CR.
David K. Allen, Sechelt, British Columbia, for the Appellant.
Nancy Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.[*] Senior Judge COATS, concurring.
In April 2009, pursuant to a plea agreement, Roland Johnson pleaded guilty to one count of sexual assault in the third degree and was sentenced to an agreed-upon term of 22 years with 10 years suspended, 12 years to serve. In exchange for Johnson's plea, the State dismissed two counts of sexual abuse of a minor in the second degree and one count of sexual assault in the second degree.
Johnson later filed an application for post-conviction relief, alleging that the court-appointed attorney who represented him in negotiating the plea agreement was ineffective. Among other claims, Johnson argued that his attorney was ineffective in failing to seek appellate review of his sentence, despite Johnson's request for such an appeal.
While Johnson's application was pending in the superior court, the Alaska Supreme Court issued its decision in Stone v. State. Based on Stone, Johnson argued that his attorney had been required to file a petition for sentence review at his request, even though the sentence was specifically bargained for as part of his plea agreement.
The superior court dismissed Johnson's post-conviction relief application. The court concluded that Johnson's attorney was not ineffective in refusing to petition the supreme court for review of Johnson's sentence because Stone had not been decided at the time the attorney made that decision. Johnson now appeals, asserting that this decision was error and that Stone should apply retroactively to his case.
We conclude that we need not resolve whether Stone is retroactive because Stone does not govern Johnson's case. More specifically, we conclude that Stone applies only to cases in which: (1) the plea agreement gives the sentencing court some discretion regarding what sentence to impose and (2) the filing of the petition for sentence review will not constitute a breach of the plea agreement.
These conditions are not met here. Johnson bargained for, and received, a specific, fixed sentence, and the sentencing court's discretion was limited to accepting or rejecting the plea agreement as a whole. Moreover, any modification of Johnson's sentence would have required rescission of the plea agreement. Stone therefore did not require Johnson's attorney to file a petition for sentence review. We accordingly affirm the superior court's dismissal of Johnson's application for post-conviction relief.
Why we conclude that Stone v. State did not require Johnson's attorney to pursue appellate review of Johnson's bargained-for sentence
In Stone, the Alaska Supreme Court addressed what it called the " narrow question" of whether, under the Sixth Amendment to the United States Constitution, " a criminal defendant's court-appointed counsel must, upon the defendant's demand after [a] lawful sentencing pursuant to a plea agreement, file a petition for discretionary sentence review by [the supreme court] when AS 12.55.120(a) precludes an appeal of right to the court of appeals." 
The supreme court concluded that the answer to this narrow question in Stone's case was " yes."  The court reasoned that when defendants have no right to appeal their sentence to this Court under Alaska law, a petition for discretionary sentence review to the Alaska Supreme Court is effectively the " first tier" of appellate review -- thus entitling the defendant to the assistance of counsel, at
public expense if the defendant is indigent, under the United States Supreme Court's decision in Halbert v. Michigan.
The supreme court therefore concluded that Stone had a right to demand that his court-appointed attorney pursue a petition for sentence review. The court explained that if Stone's attorney believed that Stone's excessive sentence claim was " wholly frivolous," the attorney had the option of filing an Anders brief and moving to withdraw, but the attorney did not have the option of refusing to file anything.
In the present case, Johnson argues that he, like the defendant in Stone, had the right to demand that his attorney file a petition asking the supreme court to review his sentence for excessiveness, even though his sentence was part of a bargained-for plea agreement. But there ...