Nelson v. State

          Petition for Hearing from the Court of Appeals of the State of Alaska, on appeal from the Superior Court No. 3DI-11-00216 CR of the State of Alaska, Third Judicial District, Dillingham, Fred Torrisi, Judge.

          J. Adam Bartlett, Anchorage, for Petitioner. Timothy W. Terrell, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Respondent.

          Douglas O. Moody, Deputy Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Amicus Curiae Public Defender Agency.

          Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and Carney, Justices.

          OPINION

          MAASSEN, JUSTICE

         I. INTRODUCTION

         A defendant pleaded guilty to attempted first-degree sexual abuse of a minor. On the day of sentencing he moved to withdraw his plea, arguing that he had not understood the terms of the agreement and had received ineffective assistance of counsel. The superior court declined to appoint a different lawyer to represent him on the motion to withdraw his plea and denied the motion. The court of appeals affirmed these decisions.^[1]

         We accepted Nelson's petition for review on the question whether he was entitled to conflict-free counsel on the motion to withdraw his plea. We adopt a per se rule requiring conflict-free counsel in the context of plea withdrawals and therefore reverse the decision of the court of appeals. We remand to the superior court to decide Nelson's plea-withdrawal motion while he is represented by conflict-free counsel.

         II. FACTS AND PROCEEDINGS

         In 2011 Justin A. D. Nelson was indicted on three felony counts of sexual abuse of a minor. He was initially represented by attorneys Patricia Douglass and Alexander Foote, both of the Dillingham office of the Alaska Public Defender Agency.

         At the start of the first day of trial, Douglass informed the court that Nelson "want[ed] to take the deal" that the State had offered him.^[2] The court took a brief recess so Nelson could confer with his attorneys. After the break the court talked about the details of the plea agreement and the applicable sentencing ranges. Douglass confirmed that she had gone over the plea agreement with Nelson; she believed he understood the situation and was competent to proceed. In a brief allocution, Nelson said he was accepting the Alaska Criminal Rule 11 offer because he was "trying to look for the minimum time possible... and it just looks like this is it." The court accepted Nelson's plea.

         On the day set for sentencing, Foote, on Nelson's behalf, filed a combined motion seeking to withdraw the plea and asking that the Public Defender Agency be allowed to withdraw from representing Nelson. According to the motion, Nelson believed that the Public Defender Agency had "been ineffective as counsel," that Douglass "was not supportive of his defense," and that Nelson had not understood "the full ramifications of the Rule 11 agreement" at the time he agreed to it. The motion also informed the court that Nelson "may have additional argument he wishes to make that counsel is unaware of, as our office was only recently informed of Mr. Nelson's objective, and communication has proven difficult due to Mr. Nelson's incarceration."

         Nelson was not present at the sentencing hearing, apparently due to a transportation glitch. Before discussing rescheduling, the court asked about Nelson's motion, focusing first on the assertion that Nelson might have "additional argument" as to why he should be allowed to withdraw his plea. Foote explained the difficulty he and Douglass were having communicating with their client. The court observed that the defense motion seemed "insufficient at this point," asked that it be supplemented within two weeks (and "[i]f you need more time, ask for it"), and postponed the sentencing hearing until further notice. The motion was never supplemented. The court denied the request to withdraw the guilty plea on March 8 and the request that the Public Defender Agency be allowed to withdraw as counsel on March 13. The court set sentencing for March 16.

         On March 14 the court received a handwritten letter from Nelson dated February 25. In the letter, Nelson told the court that he had no productive communication with his Public Defender Agency attorneys, that he did not "know what's going on," and that he was "confused about a lot of things in [his] case." He complained that Douglass often hung up on him "while [he] was trying to explain [his] case," that he did not know if any motions had been filed on his behalf, and that all he "wanted [was] a fair trial, a fair attorney that will listen to what [he had] to say."

         In response, the court provided Nelson with "[c]opies of all 2012 pleadings and orders" and ordered defense counsel to meet with him within the next two days. On March 16, the day set for sentencing, a response to the court's order was filed by Robert Meachum, another attorney in the Dillingham Public Defender Agency office. Meachum reported that Nelson did "not want to proceed with sentencing as scheduled" and asked that the court consider his February 25 letter "as reasons why he should be allowed to withdraw his plea."

         Nelson was present at the hearing that afternoon, represented by Meachum. The court explained that it had reviewed Nelson's February 25 letter but saw "nothing that justifies a change of plea or a withdrawal of the change of plea," though "[i]t may justify withdrawal of counsel." According to the court, the most the letter showed was "a change in [Nelson's] mind" about the plea agreement, which fell short of "a fair and just reason to withdraw his plea." The court reiterated its denial of Nelson's motion to withdraw his plea. The court was willing, however, to allow Nelson "to move for reconsideration, ... to delay sentencing, . . . [or] to renew his motion for a different attorney." But Meachum suggested that the appropriate procedural route was for Nelson to wait and allege ineffective assistance of counsel in a motion for post-conviction relief, and in the meantime "perhaps [they] ought to just go ahead with sentencing."

         The court next heard a statement read by the victim's father. The court then reiterated its intent to deny Nelson's motion to withdraw his plea, finding that there was not "a fair reason, a just reason" for withdrawal, that it "would prejudice the State," and that "it would harm the victims." At Nelson's request, the court agreed to postpone sentencing another week to give him time to talk to his attorney, though Meachum told the court that he had already spoken with Nelson in February and "twice in the past week" and did not know what Nelson could tell him that he did not know already. The court again noted that "it may be that [Nelson] need[s] another attorney appointed sooner rather than later," but it did not again address the Agency attorneys' request to withdraw.

         When the superior court held the sentencing hearing the following week, Meachum informed the court, "I was ready to go last week, I'm ready to go today," and said he had not spoken to Nelson since the last hearing because he thought they had nothing new to say to each other. Nelson told the court he had been expecting Meachum to visit him because he had "some things that [he] needed for [Meachum] to say"; he also complained that he had not seen any discovery, transcripts, or other documents related to his case. He said, "[T]he reason I took a deal is because of ineffective assistance, and the reason why I took it back is because of ineffective assistance." The court explained, however, that it had gone back over the record of the plea agreement and remained unconvinced that there was any reason to allow the plea's withdrawal. And Meachum reiterated his view that a claim of ineffective assistance of counsel should be "litigated in post-conviction relief."

         The court proceeded with sentencing over Nelson's continued objections that he wanted a representation hearing instead. The court recognized the Public Defender Agency's conflict, however, and after sentencing it relieved the Agency of its duty to represent Nelson any further; the court said it was "appointing new counsel at this time, OPA or OPA contractor, for purposes of reviewing for appeal or post[-] conviction relief."

         Represented by new counsel from the Office of Public Advocacy, Nelson appealed to the court of appeals.^[3] The court held in an unpublished opinion that while Nelson should not have been required to wait until after sentencing to litigate his claim of ineffective assistance of counsel, the superior court did not err by denying his motion to withdraw his plea because he had not articulated a "colorable basis" for withdrawal.^[4]Nelson petitioned for rehearing.^[5] On rehearing the court of appeals held that, while "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," deference to the superior court's discretion was appropriate given Nelson's inability "to articulate or substantiate any specific assertions of how he had been incompetently represented" and the fact that sentencing "had already been delayed multiple times."^[6]

         Nelson filed a petition for hearing, which we granted.

         III. STANDARD OF REVIEW

         "We review constitutional questions using our independent judgment, ... adopting the rule of law that is most persuasive in light of precedent, reason, and policy."^[7] Whether a conflict of interest exists under the Alaska Rules of Professional Conduct is an issue of law also reviewed de novo under the independent judgment standard.^[8] Finally, whether to grant or deny a motion to withdraw a plea is within the trial court's discretion, and we review its decision for abuse of discretion.^[9]

         IV. ...