JUSTIN A. D. NELSON, Petitioner,
v.
STATE OF ALASKA, Respondent.
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.
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