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Sakar v. State

Court of Appeals of Alaska

September 7, 2018

HAROLD SAKAR, Appellant,

          Appeal from the Superior Court, Trial Court No. 4BE-98-124 CR Fourth Judicial District, Trial Court No. 4BE-98-124 CRBethel, Dale O. Curda, Judge.

          Kelly Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

          Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. [*]



         In 1999, Harold Sakar was brought to trial on charges of kidnapping and two counts of first-degree sexual assault. He was defended by attorney Scott Sidell, who was the contract attorney for the Office of Public Advocacy in the Bethel area.

         Sakar was found guilty, and in June 2000 he was sentenced for these crimes. Sidell told Sakar that he would file an appeal, but (unbeknownst to Sakar) Sidell failed to do so.

         Sidell had apparently been suffering from depression. In early 2003 (about two and a half years after Sakar's sentencing), Sidell and discipline counsel for the Alaska Bar Association entered into a stipulation that Sidell would be placed on inactive status because of disability, retroactive to January 1, 1998.[1]In March 2003, the Alaska Supreme Court approved this resolution of Sidell's bar status.

         Also in 2003, Sakar learned that Sidell had not filed the promised appeal of his convictions. Sakar filed an application for post-conviction relief, alleging ineffective assistance of counsel. The superior court ultimately ruled that Sidell had been ineffective when he failed to appeal Sakar's convictions, and that Sakar was now entitled to file a belated direct appeal.

         In this belated appeal, Sakar argues that the supreme court's order retroactively placing Sidell on disability status as of January 1, 1998 entitles him to an automatic reversal of his conviction, even though Sakar has not shown that Sidell's performance in his case was deficient in any identifiable way.

         Sakar acknowledges that this Court previously rejected this same argument (raised by a different client of Sidell) in Nook v. State.[2] However, Sakar contends that Nook was wrongly decided. Alternatively, he argues that his case is distinguishable from Nook.

         For the reasons explained in this decision, we conclude that Sakarhas failed to show either that Nook was originally erroneous or that Sakar's case is distinguishable from Nook.

         Sakar raises one more claim on appeal: he asserts that the superior court enhanced his sentence in violation of his Sixth Amendment right to jury trial as construed in Blakely v. Washington.[3] We reject this claim because Sakar's conviction was entered approximately four years before Blakely was decided, and because the Alaska Supreme Court has held that Blakely is not retroactive.[4]

         Why we re-affirm our decision in Nook, and why we reject Sakar's argument that his case is distinguishable from Nook

         In Nook v. State, we rejected the argument that Sidell's retroactive disability status entitled all defendants who were represented by Sidell after January 1, 1998 to claim automatic reversals of their convictions.[5] Our opinion in Nook sets out the reasons why a rule of automatic reversal was both unmerited and contrary to the Alaska Supreme Court's intent when it approved the disability stipulation between Sidell and the Bar Association.[6]

         Sakar argues that our decision in Nook was originally erroneous, and that we should now overrule Nook. We have considered Sakar's arguments, and we remain convinced that Nook is good law.

         Sakar argues in the alternative that the Nook decision has been undermined by the testimony given by several witnesses at the evidentiary hearing in Sakar's post-conviction relief action - witnesses who were critical of Sidell's general performance during his tenure as an OPA contract attorney.

         But the testimony of these witnesses does not undermine the conclusion that we reached in Nook - the conclusion that, regardless of what might be said about Sidell's performance in general, any individual defendant who asserts a claim of ineffective assistance of counsel against Sidellmust show (1) that Sidell's performance in their specific case fell below the minimum standard of competence that we expect of criminal defense attorneys, and (2) that there is a reasonable possibility that this incompetent performance affected the outcome of the defendant's trial.[7]

         At oral argument in this case, Sakar's appellate attorney conceded that the record of Sakar's trial does not reveal any obvious attorney error. We therefore reject Sakar's claim that he is entitled to ...

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