JUSTIN A.D. NELSON, Appellant,
v.
STATE OF ALASKA, Appellee.
Appeal
from the Superior Court, Third Judicial District, Dillingham,
Fred Torrisi, Judge. Trial Court No. 3DI-11-216 CR
Brooke
Berens, Assistant Public Advocate, and Richard Allen, Public
Advocate, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Michael C. Geraghty,
Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley,
District Court Judge. [*]
OPINION ORDER ON REHEARING
ALLARD
Judge.
As part
of a plea agreement with the State, Justin A.D. Nelson
pleaded guilty to attempted first-degree sexual abuse of a
minor.[1] Later, before sentencing, Nelson sought to
withdraw his plea. Nelson alleged that he entered his guilty
plea without fully understanding the terms of the plea
agreement. Nelson also alleged that he had received
ineffective assistance of counsel from the assistant public
defender who represented him at the change of plea hearing.
Nelson
asked the superior court to delay his scheduled sentencing
hearing and to appoint him conflict counsel so that he could
fully litigate his alleged claim of ineffective assistance of
counsel. The superior court ruled that Nelson had shown no
"fair and just reason" to withdraw his plea. The
superior court also denied Nelson's requests for a delay
of sentencing and for the immediate appointment of conflict
counsel. Instead, the court appointed Nelson conflict counsel
after sentencing occurred.
In our
earlier decision in this case -Nelson v. State, 2016
WL 7422690 (Alaska App. Dec. 21, 2016) (unpublished) - we
upheld the superior court's handling of these matters and
we affirmed Nelson's conviction. Following the issuance
of our decision, Nelson filed a petition for rehearing in
which he asked us to reconsider these matters. We now
announce our decision on rehearing.
In
Nelson's case, the question facing the trial judge was
whether to delay the sentencing proceedings, appoint conflict
counsel, and permit Nelson to fully litigate his claim of
ineffective assistance of counsel before holding the
sentencing hearing - or, instead, to deny Nelson's
request for the immediate appointment of conflict counsel.
This second option would effectively delay any litigation of
Nelson's ineffective assistance of counsel claim until
after Nelson's sentencing, when Nelson could pursue any
such claims in an application for post-conviction relief.
Before
making this decision, the superior court undertook
considerable efforts to obtain a clearer understanding of
Nelson's ineffective assistance of counsel claim. When
Nelson proved unable to articulate or substantiate any
specific assertions of how he had been incompetently
represented, the trial judge chose to rule on Nelson's
involuntariness claim and proceed with sentencing (which had
already been delayed multiple times), thereby deferring the
litigation of Nelson's ineffective assistance of counsel
claim until later.[2] On this record, we concluded that the
superior court did not abuse its discretion when it denied
Nelson's request for the immediate appointment of
conflict counsel.[3]
In his
petition for rehearing, Nelson appears to advocate a
bright-line rule which would require trial judges to
automatically appoint conflict counsel whenever a defendant
files a presentencing motion to withdraw their plea based on
allegations of ineffective assistance of counsel. Such a
bright-line approach certainly has benefits in terms of
judicial economy and efficiency. We also agree that the
appointment of conflict counsel will often be the appropriate
action in these circumstances, particularly because a
different standard applies to a presentencing motion to
withdraw a plea as opposed to a post-sentencing motion to
withdraw a plea.[4]
But we
are also concerned that an inflexible rule would invite abuse
by defendants who simply want to delay or disrupt the
sentencing proceedings. The vast majority of jurisdictions
hold that the question of whether to appoint conflict counsel
in these circumstances is a matter entrusted to the
discretion of the trial court.[5] Although an immediate appointment
of conflict counsel will often be the proper action, we agree
with these jurisdictions that deference to the trial court is
appropriate. And based on the totality of circumstances
presented by Nelson's case, we do not find that the trial
court's actions constituted an abuse of discretion.
In his
petition for rehearing, Nelson also argues that this Court
failed to address his claim that he received ineffective
assistance of counsel from the assistant public defenders who
represented him in the post-plea and presentencing
proceedings. Nelson is correct that we did not directly
address this claim, and we therefore do so now.
In his
briefing on appeal, Nelson acknowledges that Alaska appellate
courts normally will not consider an ineffective assistance
of counsel claim for the first time on appeal because
"the record of the trial proceedings will seldom
conclusively establish incompetent
representation."[6] However, Nelson contends that the record
in his case is sufficient, as it stands, to establish that
the assistant public defenders who represented him post-plea
provided him with ineffective assistance of
counsel.[7] We disagree with Nelson that the record is
adequate to support such a conclusion. We also disagree with
Nelson's underlying contention that these attorneys were
required to proceed as though they had ...