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Coffman v. State (11/2/2007) ap-2122

Coffman v. State (11/2/2007) ap-2122

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


SARAH J. COFFMAN, )
) Court of Appeals No. A-9703
Appellant, ) Trial Court No. 3PA-04-108 Civ
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2122 November 2, 2007
)
          Appeal  from the Superior Court,  Third  Judi
          cial District, Palmer, Eric Smith, Judge.

          Appearances:  Verne E. Rupright, Wasilla, for
          the   Appellant.   Michael  Sean  McLaughlin,
          Assistant Attorney General, Office of Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Sarah J. Coffman was convicted of first-degree burglary
(burglary of a residence) and second-degree murder (felony murder
of  the  homeowner).  She received 25 years  in  prison  for  the
murder, and a consecutive 5 years for the burglary.
          Coffman appealed, raising several claims of evidentiary
and  procedural  error,  and  also asserting  that  she  received
ineffective assistance from the attorney who represented  her  at
trial.   In  Coffman  v.  State, Alaska App.  Memorandum  Opinion
No.  4541  (March  6, 2002), 2002 WL 341988, we rejected  all  of
these claims and affirmed Coffmans convictions.
          For  present  purposes, it is important to  note  that,
although   Coffmans  direct  appeal  presented   several   issues
concerning the lawfulness of her conviction, it did not include a
claim  that her sentence was excessive.  Coffman now seeks  post-
conviction  relief  based on her appellate attorneys  failure  to
pursue an excessive sentence claim.
          Coffman  asserts  that she told her appellate  attorney
(or,  more  precisely,  a  paralegal working  for  her  appellate
attorney) that she wished to appeal her sentence as well  as  her
convictions,  but the appellate attorney nevertheless  failed  to
raise  a  claim of excessive sentence.  Coffman now contends   on
two  alternative bases  that her appellate attorneys decision not
to raise this sentencing claim constituted ineffective assistance
of counsel.
          Coffman first contends that, if she wanted to pursue  a
claim  of  excessive  sentence, and as long  as  this  claim  was
colorable  (i.e.,  non-frivolous),  her  appellate  attorney  was
legally  obliged to pursue this argument on appeal,  even  though
the  attorney may have believed that Coffman had a better  chance
of success on other issues.
          In  the alternative, Coffman contends that even if  her
appellate  attorney had the discretion not to pursue a  claim  of
excessive  sentence if it appeared that other  claims  held  more
promise,  her attorney nevertheless exercised that discretion  in
an incompetent manner, given the facts of Coffmans case.
          For  the  reasons  explained  here,  we  conclude  that
Coffmans  appellate attorney had the discretion to  refrain  from
pursuing  a claim of excessive sentence, and we further  conclude
that,  given the facts of Coffmans case, Coffman failed to  prove
that her appellate attorneys decision was incompetent.

Who has the final word on whether to pursue a claim  of
excessive  sentence:  the defendant, or the  defendants
attorney?

          Coffman asserts that, as a matter of law,  an
attorney  representing a criminal defendant  on  appeal
must  pursue  a  claim  of excessive  sentence  if  the
defendant  wishes to do so, regardless of the attorneys
conclusion  that  it would be better to  pursue  other,
more promising issues on appeal.
          Alaska   Professional  Conduct  Rule   1.2(a)
states   that  an  attorney  representing  a   criminal
defendant shall abide by the clients decision ... as to
...  whether to take an appeal.  But even though it  is
the  defendants decision whether to appeal, it  is  the
attorneys  role  to  decide which issues  to  raise  on
appeal.
          In Tucker v. State, 892 P.2d 832 (Alaska App.
1995),  this  Court held that an appellate attorney  is
not   obliged  to  raise  every  arguable  (i.e.,  non-
frivolous)  issue  that might be  raised  in  a  direct
appeal of a criminal conviction.  Instead, the attorney
has the authority to select the most meritorious issues
and  to  abandon other claims which, although arguable,
stand  a lesser chance of success.  Id. at 836 & n.  7.
We declared that [s]uch strategic choices fall squarely
within    the    sphere   of   competent    [appellate]
representation.  Id. at 836.
          See  also Jones v. Barnes, 463 U.S. 745,  103
S.Ct.  3308,  77 L.Ed.2d 987 (1983), where  the  United
States  Supreme  Court  held that  a  crucial  part  of
appellate  advocacy is to winnow out  weaker  arguments
and  that,  for  this  reason,  an  appellate  attorney
representing an indigent defendant is not  required  to
raise  every colorable claim.  Id., 463 U.S. at 751-54,
103 S.Ct. at 3312-14.
          But  Coffman argues that a claim of excessive
sentence  is  not just another issue,  not  merely  one
issue  among  many  that might  be  raised  on  appeal.
Instead,  she argues that a claim of excessive sentence
is  its  own distinct type of appeal  a type of  appeal
that is separate from a defendants right to attack  the
legality of a criminal conviction (or the legality,  as
opposed to the excessiveness, of the sentence).
          Based  on  this  contention that  a  sentence
appeal  constitutes a separate kind of appeal,  Coffman
asserts  that Alaska Professional Conduct  Rule  1.2(a)
obliges  a  defense  attorney to follow  their  clients
wishes  with  respect  to each kind  of  appeal   merit
appeal and sentence appeal.  That is, Coffman takes the
position that even though her appellate attorney  could
choose  which issues to argue in Coffmans merit appeal,
her   attorney  was  nevertheless  obliged  to   follow
Coffmans wishes and raise a claim of excessive sentence
as well.
          We  acknowledge that both the Alaska statutes
and  the  Alaska court rules draw a distinction between
merit   appeals   and   sentence  appeals.    Different
procedural  requirements and limitations  govern  these
two  types of appeals, and these procedural differences
lend  support  to  Coffmans argument  that  a  sentence
appeal should be treated as a distinct form of appeal.
          Nevertheless, for the reasons explained here,
we  conclude that in the context presented  here   that
is,  for  the  purpose  of  defining  the  division  of
authority  between attorney and client  respecting  the
selection of the issues to be raised on appeal  a claim
of  excessive sentence is simply another issue that can
be  raised in a criminal appeal.  This means  that  the
appellate attorney has the authority (and the duty)  to
decide  whether to pursue an excessive sentence  claim,
regardless  of the defendants contrary wishes  on  this
point.

  (a)   The  distinction between sentence  appeals  and
  other types of criminal appeals

          Under  Alaska  law, the term sentence  appeal
has   a   narrow,  technical  meaning.   Indeed,   most
appellate claims relating to a criminal sentencing fall
outside the definition of a sentence appeal.
          A  sentence  appeal refers to  an  appeal  in
which the lawfulness of the sentence and the sentencing
procedures is conceded, and the sole claim presented on
appeal   is   that   this  lawfully  imposed   sentence
constitutes   an   abuse  of  the   judges   sentencing
discretion.  In contrast, claims regarding the legality
of  a  sentence,  or the lawfulness of  the  procedures
under   which   the  sentence  was  imposed,   or   the
sufficiency  of  the evidence to support  the  findings
that affected the judges sentencing authority, all fall
under the category of merit appeals.1
          (We acknowledge that, as a procedural matter,
this Court often allows defendants to raise such claims
in  appeals filed under Alaska Appellate Rule 215   the
rule  that governs sentence appeals, and that specifies
less formal record-preparation and briefing procedures.
Nevertheless,  in the context of the legal  distinction
between  merit  appeals  and  sentence  appeals,  these
claims are merit appeals.2)
          Alaska  has special statutes dealing  with  a
defendants right of sentence appeal, but the  existence
of  these statutes could in some sense be viewed as  an
accident of history.
          When  the  Alaska  Legislature  enacted   the
statutes  pertaining to the Alaska Supreme  Court,  the
legislature  declared  that  felony  defendants  (i.e.,
defendants  convicted  in  the  superior  court)  could
appeal to the supreme court as a matter of right.3  But
though  a  felony defendants right to appeal a criminal
conviction  was  never questioned, the  Alaska  Supreme
Court  held  in 1968 that a defendant had no  right  to
pursue  a sentence appeal (in the narrow sense  of  the
word).   In Bear v. State, 439 P.2d 432, 435-37 (Alaska
1968),  the  supreme court concluded (by  a  two-to-one
vote) that, absent specific statutory authorization,  a
criminal defendants right of appeal did not include the
right  to  challenge  a lawfully imposed  sentence  for
excessiveness.
          The very next year, the legislature responded
to  Bear  by  enacting a sentence  appeal  statute,  AS
12.55.120, that explicitly gave criminal defendants the
right   to   appeal  a  sentence  on  the   ground   of
excessiveness.4   In the same chapter  of  the  session
laws,   the  legislature  amended  the  supreme  courts
jurisdictional  statute to explicitly  give  the  court
jurisdiction   to   hear  appeals   of   sentences   of
imprisonment  lawfully imposed by the superior  court[]
on  the  grounds that the sentence is excessive or  too
lenient.5
          Thus,  since 1969, Alaska has had a provision
in Title 12 that expressly gives criminal defendants  a
right  of sentence appeal, and a provision in Title  22
          that expressly gives the appellate courts jurisdiction
to entertain sentence appeals from the superior court.6
          However,  in Wharton v. State, 590  P.2d  427
(Alaska 1979), the supreme court declared that  it  had
re-assessed  its decision in Bear, and that  the  court
now  believed that it had the power to review  criminal
sentences  for  excessiveness even in  the  absence  of
special authorizing legislation.
          The issue presented in Wharton was a conflict
between the sentence appeal statute, AS 12.55.120,  and
the  appellate  court rule governing sentence  appeals,
Supreme  Court Rule 21(a)  the rule that has  now  been
superseded  by  Appellate Rule 215(a).   Supreme  Court
Rule  21(a) granted a right of sentence appeal  to  any
felony defendant who was sentenced to serve 45 days  or
more.  However, at that time, AS 12.55.120 limited  the
right  of  sentence  appeal to  felony  defendants  who
received  more than 1 year to serve.  The question  was
which  limit took precedence  the 45 days specified  in
Supreme  Court Rule 21, or the 1 year specified  in  AS
12.55.120?
          The  supreme  court declared that  the  court
rule  took precedence  because the courts general power
of  appellate  review in criminal  cases  included  the
authority to hear a defendants challenge to a  lawfully
imposed  sentence on the ground that it was  excessive.
The court explained:
     
     In  promulgating Rule 21, this court accepted
     Justice Rabinowitzs [dissenting] position  in
     Bear  [v.  State]  that  review  of  criminal
     sentences is inherent in [this courts]  power
     as  the court of final appellate jurisdiction
     [under the] Alaska Constitution, art. IV,  2.
     
     Wharton, 590 P.2d at 429.
          The  Wharton decision rests on  the
concept  that  was  rejected  in  Bear:   the
concept   that,  even  in  the   absence   of
authorizing  legislation, the  supreme  court
has the power to review any judicial decision
made  in  a  criminal  case   including   the
sentencing   judges  exercise  of  sentencing
discretion,  even when there is no  claim  of
illegality  in the sentence or the sentencing
proceedings.
          In  other  words, even  though  the
Alaska  statutes  governing sentence  appeals
were  originally thought to confer a  special
right  of  appeal (and to expand the  supreme
courts    jurisdiction    accordingly),     a
defendants   substantive   right   to    seek
appellate  review of a sentence  for  alleged
excessiveness,   and   the   supreme   courts
authority to hear that claim, actually  exist
          irrespective of these statutes.  The sentence
appeal  statutes are in fact addressed solely
to  matters of procedure  or, in the case  of
the  sentence  appeal  provisions  found   in
AS  22.07,  the  issue  of  the  division  of
appellate jurisdiction between this Court and
the supreme court.
          This Courts decision in Rozkydal v.
State,  938 P.2d 1091 (Alaska App. 1997),  is
expressly premised on this view of  the  law.
As we explained in Rozkydal, 938 P.2d at 1094-
95,  Alaskas  sentence appeal statutes  place
restrictions on a defendants right to  appeal
a  sentence to this Court on the sole  ground
that  it is excessive.  However, even when  a
defendant is barred from appealing a sentence
to  this  Court, the defendant still has  the
right  to pursue an excessive sentence  claim
in  a  petition  for  discretionary  sentence
review  to the Alaska Supreme Court.  Id.  at
1095.
          Thus,  the  truth of the matter  is
that  every defendant in Alaska has the right
to seek appellate review of their sentence on
the  ground that it is excessive.  The effect
of  our  sentence appeal statutes is  not  to
confer or withhold this right, but rather  to
define  the  manner  in which  the  appellate
review  is invoked and conducted.   In  other
words,  even  though special rules  apply  to
sentence appeals, the supreme courts decision
in  Wharton means that the right of  sentence
review  can  no  longer  be  viewed  as   sui
generis.   It is not a unique type of  appeal
unto  itself,  requiring special  legislative
authorization.

  (b)   Why  we  conclude  that  an  attorney  has  the
  discretion  to include or omit a claim  of  excessive
  sentence when arguing a criminal appeal, despite  the
  defendants wish to pursue this claim

          Our  analysis  of Wharton and Rozkydal  is  a
partial  answer to the question posed in  this  appeal:
whether  it is the defendant or the defendants attorney
who has the final authority to decide whether to pursue
a claim of excessive sentence on appeal.
          The   normal  rule  under  Alaska   law    in
particular,  the  rule under this  Courts  decision  in
Tucker  v. State, 892 P.2d 832 (Alaska App.  1995)   is
that   a   defendants  appellate   attorney   has   the
responsibility  of deciding which issues  to  raise  on
appeal.  Coffman asserts that this normal rule does not
govern  the  decision  whether to pursue  an  excessive
sentence  claim   because, according  to  Coffman,  the
right  to  raise  a claim of excessive  sentence  is  a
special  right,  conferred by a  separate  statute  and
distinct from a defendants right to pursue other claims
on appeal.
          As  we  explained earlier, the supreme courts
decision  in Wharton appears to undercut Coffmans  view
of  this matter.  Nevertheless, it is true that  Alaska
law  draws  several procedural distinctions  between  a
claim  of excessive sentence and other claims of  error
in a criminal appeal.
          Under AS 12.55.120 and AS 22.07.020, not  all
defendants have the right to appeal their sentences  on
the ground of excessiveness (as opposed to the right to
petition for review of their sentences on this ground).
Moreover, Alaska Appellate Rule 215 establishes special
rules  for the administration and briefing of  sentence
appeals   that is, appeals in which the sole  claim  is
the excessiveness of the defendants sentence.
          However,  Appellate Rule 215(j)  states  that
when  a  defendant  files  a merit  appeal   which,  as
explained above, means an appeal that raises any  issue
other   than   the  narrow  issue  of   the   purported
excessiveness  of  the defendants  sentence   then  the
defendant must combine any claim of excessive  sentence
with  the  defendants other claims of  error,  and  the
entire  appeal will be governed by the procedures  that
apply  to  merit  appeals.   In  other  words,  when  a
defendant   pursues  a  merit  appeal,  the  defendants
appellate  attorney is not entitled  to  file  separate
briefs, one on the merit issues and one on the claim of
excessive sentence.  Rather, the attorney must  combine
the  discussion  and argument of all of the  defendants
claims of error in a unified brief.
          This  requirement  of a  unified  brief  (and
unified oral argument, if argument is requested)  means
that a defense attorney must make the kinds of advocacy
decisions that this Court discussed in Tucker and  that
the  United States Supreme Court discussed in Jones  v.
Barnes.   The  question  in Tucker  and  in  Jones  was
whether a court-appointed appellate attorney is obliged
to  raise every colorable issue that might be raised on
appeal or whether, instead, the attorney could properly
choose  to  pursue  the  most  meritorious  issues  and
abandon  other claims that, although arguable, stood  a
lesser chance of success.
          In  Tucker,  892 P.2d at 836,  we  held  that
[s]uch  strategic  choices  fall  squarely  within  the
sphere of competent representation.  In support of this
conclusion, we relied on what the United States Supreme
Court  said in Jones:  that a crucial part of appellate
advocacy  is to jettison weaker arguments and focus  on
stronger ones:
     
          Experienced advocates since time  beyond
     memory  have  emphasized  the  importance  of
     winnowing out weaker arguments on appeal  and
     focusing on one central issue if possible, or
     at   most  on  a  few  key  issues.   Justice
     Jackson,  after observing appellate advocates
     for many years, stated:
     
     ...   Legal  contentions, like currency,
     depreciate through over-issue.  The mind
     of  an appellate judge is habitually  re
     ceptive  to the suggestion that a  lower
     court committed an error.  But receptive
     ness  declines as the number of assigned
     errors  increases.  ...   Experience  on
     the  bench convinces me that multiplying
     assignments  of  error will  dilute  and
     weaken a good cause and will not save  a
     bad  one.  Jackson, Advocacy Before  the
     United  States Supreme Court, 25  Temple
     L.Q. 115, 119 (1951).

Jones v Barnes, 463 U.S. at 751-52, 103 S.Ct.
at  3313.  See also Smith v. Murray, 477 U.S.
527,  536;  106 S.Ct. 2661, 2667; 91  L.Ed.2d
434  (1986)  (declaring that the  process  of
winnowing out weaker arguments on appeal, and
focusing  on those arguments more  likely  to
prevail,   is   the  hallmark  of   effective
appellate advocacy).
          These    considerations    strongly
suggest that an appellate attorney must  have
the  authority to omit a claim  of  excessive
sentence if, in the attorneys judgement,  the
attorneys  efforts on appeal  would  be  more
productively  focused  on  other  claims   of
error.   And, indeed, this is the  result  we
reached  in an unpublished opinion:   Samskar
v.  State, Alaska App. Memorandum Opinion No.
4908 (August 11, 2004), 2004 WL 1783554.   In
Samskar,  slip opinion at pp.  4-5,  2004  WL
1783554 at *2-3, we concluded that it was the
attorneys decision whether to pursue a  claim
of excessive sentence, and that the attorneys
decision  would be upheld absent  proof  that
the    decision    was   incompetent.     But
unpublished opinions do not create precedent,
so  we  must  treat this issue as  previously
undecided in Alaska.
          Because   there  is  no   published
Alaska  case  deciding this  issue,  we  have
researched    the   case   law    of    other
jurisdictions.   There is  relatively  little
case  law directly on point, but all  of  the
cases  we have found support the view that  a
claim  of  excessive sentence is  simply  one
issue  among many that the appellate attorney
may choose to pursue or omit.
          The  most straightforward statement
of  this  rule  is  found in  an  unpublished
Nebraska  case,  State v.  Gardner,  2003  WL
22533177  (Neb. App. 2003).  In Gardner,  the
defendant   claimed  that  he  had   received
ineffective  assistance  of  counsel  in  his
direct appeal, based in part on the attorneys
failure   to  raise  a  claim  of   excessive
sentence.   The  Nebraska  Court  of  Appeals
answered  this claim by holding that  it  was
the  attorneys  decision whether  or  not  to
include a claim of excessive sentence.   Here
is the Nebraska courts discussion:

     There is no evidence on the record  that
Gardner  instructed his appellate counsel  to
file  an appeal based on excessive sentences.
[But]  [e]ven  if Gardner had given  such  an
instruction,  his appellate counsel  was  not
obligated to raise that particular issue  ...
.   The Nebraska Supreme Court has recognized
the opinion of Jones v. Barnes, 463 U.S. 745,
103  S.Ct. 3308, 77 L.Ed.2d 987 (1983), which
held  that  an  indigent  defendant  has   no
constitutional right to control  the  matters
argued  by  counsel  on  appeal.   State   v.
Williams, 217 Neb. 539, 548, 352 N.W.2d  538,
543 (1984).  The court in Williams stated:

     Usually ... if you cannot win on  a  few
     major  points, the others are not likely
     to  help, and to attempt to deal with  a
     great  many  in  the limited  number  of
     pages allowed for briefs will mean  that
     none  may  receive  adequate  attention.
     The effect of adding weak arguments will
     be  to  dilute the force of the stronger
     ones.

[Williams,]  217 Neb. at 549, 352  N.W.2d  at
544 [quoting R. Stern, Appellate Practice  in
the United States 266 (1981)].

Gardner,  2003 WL 22533177 at *7.  Thus,  the
Nebraska court held, the defendants appellate
counsel  had the discretion whether to  raise
the  excessive sentence claim   although  the
defendant  retained the right to attack  that
decision   on   the   ground   of   purported
incompetence.  Id.
          In  addition  to Gardner,  we  have
found  a  few  cases  from  Ohio  where   the
appellate   courts  decision  is   implicitly
premised  on  the  concept that  a  claim  of
excessive   sentence  is  simply   one   more
potential  issue  that  might  be  raised  on
appeal   and  that  the  appellate  attorneys
decision  is binding, absent proof that  this
decision was incompetent.
          In State v. Rice, unpublished, 2005
WL  1541007  at  *5-6 (Ohio App.  2005),  the
defendant claimed that his appellate attorney
was incompetent for failing to argue that the
defendants  sentence (five consecutive  terms
of  10 years to life) was excessive, and that
this  sentence was inconsistent with the  way
similarly situated offenders had been treated
in  the  past.  The Ohio court held that  the
appellate  attorney could  reasonably  decide
that it would not be fruitful to pursue these
arguments.   Similarly, in  State  v.  Loyed,
unpublished, 2005 WL 977833 (Ohio App. 2005),
the   defendant  argued  that  his  appellate
attorney  was  incompetent  for  failing   to
challenge  the  length of his sentence.   The
Ohio court declared that appellate counsel is
not  required to raise and argue  assignments
of  error  which  are  meritless[,]  nor  can
appellate  counsel be considered  ineffective
for   failing   to  raise  every  conceivable
assignment  of  error on appeal.   ...   More
importantly, we find no prejudice to Loyed as
a  result  of the [choice of claims made]  by
appellate  counsel upon appeal.  Id.  at  *3.
The  trial courts sentence conformed with the
sentencing   guidelines  provided   in   [our
statutes].   Loyeds  ... sentence  would  not
have   been   reversed  had  the   issue   of
sentencing been raised on appeal.  Id.
          The  same  result  was  reached  in
State  v. Gross, unpublished, 2005 WL  793141
at  *3-4  (Ohio  App. 2005).   The  defendant
argued  that  his  appellate attorney  should
have  argued  that the trial  judge  did  not
comply   with  the  sentencing  statutes   in
imposing the maximum sentence for rape[,] and
in  ordering  consecutive  sentences.   Gross
also  argued that his appellate attorney  was
incompetent for failing to argue that  Grosss
two  convictions  for rape and  gross  sexual
imposition  were allied offenses   basically,
Ohios  version  of a Whitton argument  (i.e.,
that  the  two offenses were so similar  that
only  one conviction and sentence should have
been  imposed).7   The Ohio  court  concluded
that  it  was  understandable  why  appellate
counsel   would[,]   in   the   exercise   of
professional  judgment[,]  decline  to  raise
[these sentencing] argument[s].
          We  have  found  no  cases  to  the
contrary.   But  see  People  v.  Smith,  820
N.Y.S.2d  162  (N.Y. App.  2006),  where  the
court  held  that  when  a  defendant  pleads
guilty (so that only sentencing issues remain
available   on  appeal),  and  the  defendant
wishes to appeal, an appellate attorney  must
either  pursue one or more sentencing  issues
or  (alternatively) must file an Anders brief
explaining  why  there are  no  non-frivolous
issues to be raised.  Id. at 165-66.
          In  light  of our analysis  of  the
status of sentence appeals under Alaska  law,
and  given the established law regarding  the
division  of  authority between an  appellate
attorney and a criminal defendant, and  given
the results of our research, we conclude that
a defendant has no right to insist that their
appellate   attorney  pursue   a   claim   of
excessive   sentence  if  the   attorney   is
pursuing other issues on appeal.  Rather, the
attorney  has  the authority to decide  which
claims  of  error  are  likely  to  be   most
fruitful,  and to omit a claim  of  excessive
sentence if that claim will detract from  the
argument of other points on appeal.

Coffmans  alternative argument that her  attorneys
decision to omit a claim of excessive sentence was
incompetent

          Although an attorney is not required to raise
every  colorable (i.e., non-frivolous) issue on appeal,
the  attorneys choice of issues is subject to  a  later
challenge  for incompetency.8  Here, Coffman argues  in
the  alternative  that  even if  it  was  properly  her
appellate  attorneys  decision  whether  to  pursue  an
excessive sentence claim, nevertheless her attorney was
incompetent  for  not including a  claim  of  excessive
sentence  among the other issues presented in  Coffmans
direct appeal.
          Coffmans appellate attorney, Pamela D. Scott,
raised  five  major  issues  in  Coffmans  appeal;  her
opening  brief  was  64  pages long.   Moreover,  these
issues  were  not  frivolous, as can  be  seen  by  our
discussion of those issues in Coffman v. State,  Alaska
App.  Memorandum Opinion No. 4541 (March 6, 2002), 2002
WL 341988.
          The  law  presumes that an attorneys tactical
and strategic choices are competent.  In other words, a
defendant  who  later attacks their  attorneys  choices
bears   the   burden  of  proving  that  the  attorneys
decisions fell below the range of competence   expected
of  criminal law practitioners, and that the  defendant
suffered  prejudice  as  a result  of  their  attorneys
          incompetent decisions.9
          In  this  case, Coffman raises a  specialized
claim  of incompetence:  she asserts that her appellate
attorney  incompetently  selected  the  issues  to   be
pursued on appeal.  Courts from around the country  are
in  basic agreement concerning the test that governs  a
claim  of attorney incompetence in this situation.   To
establish  the  incompetence of an  appellate  counsels
choice of issues, the defendant must establish (1) that
the proposed additional issue is significantly stronger
than  the  issues  that  were  raised  in  the  appeal;
(2)  that  the appellate attorney had no valid tactical
reason  for  failing to include this particular  issue;
and  (3) that, if the proposed issue had been included,
there  is a reasonable possibility that the outcome  of
the appeal would have been different.10
          During the post-conviction relief proceedings
in  the  superior court, Scott submitted  an  affidavit
responding  to Coffmans assertion that she should  have
pursued an excessive sentence claim.  In her affidavit,
Scott declared that [t]he record [in Coffmans case] did
not  appear to [suggest] any statutory grounds for [an]
appeal  of the sentence.  In fact, Scott asserted  that
the   record   affirmatively  demonstrated   that   the
sentencing judge (Superior Court Judge Eric Smith) went
to  great lengths to consider many relevant factors  in
imposing  [Coffmans] sentence, and  that  the  superior
courts  sentencing  decision m[ight]  be  motivated  by
compassion.
          In  the same affidavit, however, Scott stated
that  she  believed  [that] the  length  of  [Coffmans]
sentence   [in]  comparison  with  ...  the  [sentences
imposed  on  the  other participants in  the  burglary/
murder]  might be interpreted by the general public  as
indicating  a  possible retaliation for  Sarah  Coffman
exercising her right to trial.  Based on this statement
in  Scotts  affidavit, Coffman argued  that  Scott  was
clearly  incompetent for failing to pursue an excessive
sentence  claim  or, at least, that Scotts  explanation
of  her decision was internally inconsistent, and  that
an evidentiary hearing was needed to clarify matters.
          When  Judge  Smith ruled on  this  issue,  he
acknowledged   that  Scotts  affidavit  is   admittedly
somewhat  confusing.   As  Judge  Smith  noted,   Scott
declared  on  the one hand that Coffmans  sentence  was
neither  illegal  nor statutorily excessive,  that  the
sentencing  judge  (i.e., Judge Smith)  went  to  great
length  to  consider many relevant factors in  imposing
the  sentence, and that the judges sentencing  decision
could  be attributed to compassion  while on the  other
hand,  Scott  stated  that  the  length  of  [Coffmans]
sentence might be interpreted by the general public  as
retaliation for insisting on going to trial.
          But  Judge  Smith  did not find  that  Scotts
statements  on this point were hopelessly in  conflict.
          Judge Smith concluded that, when Scotts affidavit was
read as a whole, it showed that Ms. Scott was concerned
about  the  length of [Coffmans] sentence, but  made  a
tactical decision that there were insufficient  grounds
to  appeal the sentence on that basis.  The judge noted
that  Scotts  latter  comments as to  how  the  general
public  might perceive Coffmans sentence were  prefaced
by  a  statement  that  the  court  should  review  the
sentence  on  grounds of compassion rather  than  as  a
matter  of  law.   Judge  Smith concluded  that  Scotts
affidavit  demonstrated  that  [she]  thought  that   a
lighter  sentence would be more appropriate as a  moral
matter,  but that there was no legal basis  to  revisit
the  sentence.   For this reason, the  judge  concluded
that  [t]here [was] no real contradiction  in  [Scotts]
affidavit ... .
          Based   on the record as a whole, Judge Smith
found that [Scott] was aware that a sentence appeal had
to be filed at the same time as the merits appeal, that
Scott   carefully  evaluated  whether  to  appeal   the
sentence,  and  that  she decided that  there  were  no
grounds to do so.
          On  appeal, Coffman renews the argument  that
she  presented to Judge Smith:  the argument  that,  if
Scott   believed  that  Coffmans  sentence   might   be
perceived as inordinately severe when compared  to  the
sentences  imposed  on the other  participants  in  the
burglary/ murder, then Scott was incompetent  when  she
concluded  that  there were no grounds for  pursuing  a
sentence appeal.  But as Judge Smith pointed out,  this
argument  is based on a single statement in  a  lengthy
affidavit  that must be read as a whole.   Judge  Smith
interpreted   Scotts  affidavit  as  saying   that   an
excessive  sentence  argument  might  be  theoretically
possible, but that Scott did not believe that  such  an
argument  would be successful.  This appears  to  be  a
fair reading of the affidavit.
          Moreover, as we pointed out above,  the  fact
that  an argument is colorable (that is, non-frivolous)
does  not mean that an attorneys failure to pursue this
argument amounts to incompetence.  An attorney need not
raise  every  colorable claim on appeal.  In  fact,  an
attorney is expected to cull the most promising  claims
of  error  from  among the larger  group  of  colorable
claims.   Thus,  the  fact that Scott  recognized  that
there might be some argument to be made in favor of  an
excessive  sentence claim does not provide prima  facie
evidence  that Scott was incompetent for deciding  that
such  a  claim would fail, and that it should therefore
be omitted in favor of other more promising claims.
          As  we  further  pointed out  above,  when  a
defendant  contends that their appellate  attorney  was
incompetent in the choice of claims to argue on appeal,
the  defendant must show that their proposed additional
or  substitute claim of error is significantly stronger
than  the  claims  that the attorney chose  to  pursue.
Coffman made no attempt to satisfy this burden  in  the
post-conviction  relief  litigation  in  the   superior
court,  and  she makes no attempt to do so here.   That
is,  Coffman  makes  no attempt to compare  the  likely
success of her proposed excessive sentence claim to the
likely  success of the five claims that Scott  actually
presented   on  appeal.   In  fact,  Coffman   presents
absolutely  no discussion of the likely success  of  an
excessive sentence claim.
          On  the face of it, it appears unlikely  that
Coffmans   proposed  excessive  sentence  claim   would
succeed.   Coffman  received a  sentence  of  25  years
imprisonment for second-degree murder (felony  murder),
and  a  consecutive  5-year sentence  for  first-degree
burglary  (burglary  of  a residence).   As  the  State
points out in its brief, Coffmans composite sentence of
30  years to serve for these two crimes is still within
the  Page  benchmark  range for Coffmans  second-degree
murder conviction alone.
          (In  Page  v.  State, 657  P.2d  850,  854-55
(Alaska  App.  1983),  this Court adopted  a  benchmark
sentencing range of 20 to 30 years to serve for typical
instances of first felony offenders convicted of second-
degree murder.)
          In   the  superior  court,  Coffman  made  no
attempt  to  show  that a claim of  excessive  sentence
would have had a significantly better chance of success
than  the  claims of error that Scott raised.   Coffman
offered  no  discussion of the facts of her offense  or
her  background, nor did she offer any argument  as  to
why   this  Court  might  conclude  that  her   30-year
composite sentence was clearly mistaken.  Her briefs to
this  Court are similarly silent with regard  to  these
matters.
          In  other  words, although Coffman  may  have
shown  that there was something that might be  said  in
favor  of an excessive sentence claim, she still failed
to present a prima facie case of attorney incompetence.
In  particular, Coffman failed to offer any  reason  to
believe that her proposed excessive sentence claim  had
a  significantly  better chance  of  success  than  the
several  claims of error that Scott pursued on  appeal,
and  Coffman  further  failed to offer  any  reason  to
believe that the outcome of her appeal would have  been
different  if  Scott  had raised an excessive  sentence
claim.
          For  these reasons, we conclude that Coffmans
petition for post-conviction relief failed to  state  a
prima  facie  case  for relief, and  that  Judge  Smith
properly dismissed Coffmans petition on this basis.

Conclusion

          The  judgement  of  the  superior  court   is
AFFIRMED.

_______________________________
1  See  Bear  v. State, 439 P.2d 432, 435-37 (Alaska  1968);
Hillman  v.  Anchorage, 941 P.2d 211, 213, 215 (Alaska  App.
1997);  Rozkydal  v. State, 938 P.2d 1091,  1093-94  (Alaska
App. 1997); Alaska Appellate Rule 215(a)(2).

2 See Rozkydal, 938 P.2d at 1094.

3  See SLA 1959, ch. 50,  1 (later codified as AS 22.05.010)
(the  pre-1980 version):  Appeals to the supreme court [from
the  superior court] shall be a matter of right, except that
the  State shall have no right of appeal in criminal  cases,
except  to  test  the  sufficiency  of  the  indictment   or
information.

4 SLA 1969, ch. 117,  4.

5 AS 22.05.010(b) (pre-1980 version), enacted by SLA 1969, ch.
117,  1.

6 A felony defendants right of sentence appeal is now to this
Court   rather   than  to  the  supreme   court.    See   AS
22.07.020(b).

7See Whitton v. State, 479 P.2d 302 (Alaska 1970).

8  See, e.g., Gaddy v. State, 952 So.2d 1149, 1171-72  (Ala.
Crim.  App. 2006); Anderson v. State, unpublished,  2006  WL
62225 at *2 (Ark. 2006); People v. Rodriguez, 914 P.2d  230,
303  (Colo.  1996); Peterka v. State, 890 So.2d 219,  241-42
(Fla.  2004);  Briones v. State, 848  P.2d  966,  978  (Haw.
1993);  Benson v. State, 780 N.E.2d 413, 421-23  (Ind.  App.
2002);  State  v.  Reed, 660 N.E.2d 456,  458  (Ohio  1996);
Williamson  v.  State, 852 P.2d 167, 169 (Okla.  Crim.  App.
1993); Commonwealth v. May, 898 A.2d 559, 573-75 (Pa. 2006);
Carpenter  v.  State, 126 S.W.3d 879, 887-89  (Tenn.  2004);
State v. Bathe, unpublished, 2004 WL 344183 at *1 (Wis. App.
2004).

See  also Wayne R. LaFave, Jerold H. Israel, Nancy J.  King,
Criminal Procedure (2nd ed. 1999),  11.6(a), Vol. 3, p. 596.

9 See, e.g., Newby v. State, 967 P.2d 1008, 1016 (Alaska App.
1998)   (The  law  presumes  that  an  attorney  has   acted
competently, and that the attorneys decisions were  prompted
by   sound  tactical  considerations.   To  prevail   in   a
post-conviction  relief  action based  on  [an]  ineffective
assistance  of counsel claim, the defendant must rebut  this
presumption.);  Risher v. State, 523 P.2d 421,  424  (Alaska
1974)  (holding that the test for ineffective assistance  of
counsel  in criminal cases is whether the attorneys  conduct
fell  below the minimal range of competence required  of  an
attorney who has ordinary training and skill in the criminal
law);  State  v.  Jones, 759 P.2d 558, 567-68  (Alaska  App.
1988)  (explaining that even when the defendant  establishes
the  attorneys incompetence, there must [also] be a  showing
that [there is at least] a reasonable [possibility] that the
incompetence contributed to the outcome [of the case]).

10See,  e.g., Benson v. State, 780 N.E.2d 413, 421-23  (Ind.
App.  2002); Commonwealth v. May, 898 A.2d 559, 573-76  (Pa.
2006);  Carpenter  v. State, 126 S.W.3d 879,  887-89  (Tenn.
2004).

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