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McLaughlin v. State (12/28/2007) ap-2138

McLaughlin v. State (12/28/2007) ap-2138

                             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


MICHEAL L. McLAUGHLIN, )
) Court of Appeals No. A-9971
Petitioner, ) Trial Court No. 3HO-06-506 CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Respondent. ) [No. 2138 - December 28, 2007]
)
Petition  for   Review
          from   the  Superior  Court,  Third  Judicial
          District, Homer, Margaret L. Murphy, Superior
          Court Judge Pro Tem.

          Appearances: Micheal L. McLaughlin,  pro  se,
          Kenai,  for  the  Petitioner.    Kenneth   M.
          Rosenstein,   Assistant   Attorney   General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for the Respondent.

          Real  party  in interest: Joshua P.  Fink,  Public
     Advocate, Anchorage.

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

          COATS,  Chief Judge.

          This  case  raises the question of whether a  defendant
who  is  represented by counsel can file a pro  se  petition  for
review.   We  conclude  that he cannot.   We  conclude  that  the
decision  whether to seek immediate appellate review of  a  trial
courts  non-appealable  order  is a  tactical  decision  that  is
entrusted to the defendants attorney under Alaska law.

          Factual and procedural background
          Micheal  L. McLaughlin was convicted of felony  driving
under  the influence, felony refusal to submit to a breath  test,
and driving while his license was suspended or revoked in a trial
conducted  by  Superior Court Judge Pro Tem Margaret  L.  Murphy.
Following  these  verdicts,  but before  sentencing,  McLaughlins
attorney filed a motion for a new trial.  Judge Murphy denied the
motion.
          Apparently   McLaughlin   asked   his   court-appointed
attorney  (an attorney working under contract with the Office  of
Public  Advocacy) to seek interlocutory appellate review  of  the
superior  courts  denial  of the new trial  motion  by  filing  a
petition  for  review.  When the attorney declined  to  do  this,
McLaughlin,  acting  pro se, attempted to  file  a  petition  for
review  on  this  issue.   McLaughlin  argued  that  he   had   a
constitutional  right to represent himself on the  petition.   We
ordered  the State, the Office of Public Advocacy, and McLaughlin
(personally) to brief the following issues:
          (a)   In  a criminal case, who has the  final
          decision  as to whether to seek interlocutory
          review of a trial courts non-final order  the
          defendant, or the defendants attorney?

          (b)   If  the defense attorney has the  final
          decision  on this matter, and if the  defense
          attorney  decides not to file a petition  for
          interlocutory  review,  does  the   defendant
          nevertheless have a right to proceed  pro  se
          in seeking interlocutory review?

          Now,  having  reviewed the briefs, we conclude  that  a
defense   attorney  has  the  final  decision  whether  to   seek
interlocutory review of a trial courts non-appealable order.   We
also  conclude  that,  if the attorney  decides  not  to  file  a
petition  for  review, the defendant does not  have  a  right  to
proceed pro se in seeking interlocutory review.

          Why  we conclude that the defendants attorney
          has  the  final decision on whether  to  seek
          interlocutory review of a trial  courts  non-
          appealable order
          Based  on the United States Supreme Courts decision  in
Faretta  v.  California,1   McLaughlin  argues  that  he  has   a
constitutional  right  to represent himself  in  a  petition  for
interlocutory  review.   In Faretta, the  United  States  Supreme
Court  held  that  criminal defendants have the right  to  refuse
counsel  so  that they can represent themselves at  trial.2   But
twenty-five  years  later, in Martinez  v.  Court  of  Appeal  of
California,  Fourth  Appellate  District,3   the  Supreme   Court
decided  that the Faretta right of self-representation  does  not
apply  to  appeals.4   It  therefore  appears  that  the  federal
          Constitution does not require this Court to allow McLaughlin to
pursue a pro se petition for review.
          In  1993,  the  Alaska  Supreme Court  promulgated  the
Alaska   Rules  of  Professional  Conduct.5    Alaska   Rule   of
Professional Conduct 1.2(a) provides that:
          In a criminal case, the lawyer shall abide by
          the clients decision, after consultation with
          the  lawyer,  as  to a plea  to  be  entered,
          whether  to  waive  jury trial,  whether  the
          client  will testify, and whether to take  an
          appeal.

This rule controls our decision in this case.
          In  Simeon v. State,6 we concluded that Alaska Rule  of
Professional  Conduct  1.2(a) left to the attorney  all  tactical
decisions that are not set out in the rule:
          [Alaska  Rule of Professional Conduct 1.2(a)]
          specifies clearly those decisions over  which
          the client has the ultimate authority.  Since
          the  rule  limits  the clients  authority  to
          those  decisions, it follows that the  lawyer
          has  the  ultimate authority  to  make  other
          decisions governing trial tactics.[7]

          McLaughlin argues that the language in Alaska  Rule  of
Professional Conduct  1.2(a) requiring the lawyer to abide by the
clients  decision whether to take an appeal includes the decision
to  petition for interlocutory review of a non-appealable  order.
But  we do not think this is a proper interpretation of the rule.
The  word appeal has a precise meaning under the Alaska Rules  of
Appellate Procedure.  Under Appellate Rule 202, an appeal to  the
court of appeals is from a final judgment entered by the superior
court  or  the district court.8  Appellate Rule 402 provides  for
review   of  non-appealable  orders  or  decisions.    The   rule
authorizes  the court of appeals to review any order or  decision
of  the  trial court, not appealable under Rule 202.9     We  are
certain  that  the  Alaska  Supreme  Court  was  aware   of   the
distinction between an appeal and a petition for review  when  it
promulgated  Alaska  Rule  of Professional  Conduct  1.2(a).   It
therefore seems clear that, when the Alaska Supreme Court  stated
that  the  client had the ultimate authority whether to  take  an
appeal,  the Alaska Supreme Court meant what it said.  And  since
the Alaska Supreme Court did not include a petition for review as
a  decision over which the client has the ultimate authority,  it
follows  that  the  attorney has the final  authority  to  decide
whether  to petition an appellate court for interlocutory  review
of   a   non-appealable  order.          This  conclusion   seems
consistent with other appellate decisions.  In Jones v. Barnes,10
the  United States Supreme Court held that the attorney  has  the
final  decision  regarding what arguments to raise  on  appeal.11
The  Court  noted that experienced advocates emphasize  winnowing
out  weaker arguments on appeal.12   We adopted the reasoning  of
Jones in Tucker v. State13 and Coffman v. State.14  In Taylor  v.
Illinois,15  the  United  States Supreme  Court  stated  that  an
attorney  has  the final decision at trial to decide  whether  to
          forego cross-examination of a witness or whether to call
witnesses.16   In  Martin v. State,17 we held  that  [t]he  trial
court is not required to allow a defendant who is represented  by
counsel  to  file his own motions.  This could cause considerable
confusion.   The  trial  court therefore  has  the  authority  to
require  a defendant who is represented by counsel to act through
counsel.18
          These  decisions are consistent with the premise  that,
except  for  the decisions set out in Alaska Rule of Professional
Conduct  1.2(a) (the plea to be entered, whether  to  waive  jury
trial, whether to testify, and whether to take an appeal),  other
strategic  and tactical decisions are the ultimate responsibility
of the attorney.
          Appellate Rule 402, which provides for review  of  non-
appealable orders or decisions, points out that there  are  sound
policy  reasons  that   require appeals to be  taken  from  final
judgments.19    We are to grant a petition for review  only  when
the  petitioner  establishes substantial reasons to  depart  from
this  policy.  In general, once a defendants conviction is final,
he  can obtain review of any ruling made by the trial court.   In
the present case, McLaughlin has attempted to petition for review
of  Judge Murphys denial of his motion for a new trial.  It seems
clear  that, after his conviction is final, McLaughlin can  raise
this issue in an appeal.
          Of   course,   the  decision  whether  to   appeal   is
McLaughlins,  not  the attorneys.  But under  Jones  and  Tucker,
McLaughlins attorney has the final decision about what issues  to
raise.  It would be inconsistent to hold that McLaughlin has  the
right  to file a pro se petition for review asking this court  to
review Judge Murphys denial of McLaughlins motion for a new trial
when  the attorney certainly has the authority to determine that,
for  tactical reasons, it is not in McLaughlins interest to raise
this issue on appeal.
          We   therefore  conclude  that  under  Alaska  Rule  of
Professional  Conduct 1.2(a), a  defendants authority  to  decide
whether  to take an appeal is limited to an  appeal from a  final
judgment as set out in Appellate Rule 202.  The decision  whether
to  petition an appellate court to review a decision that is  not
appealable under Appellate Rule 202 is the responsibility of  the
attorney, not the client.
          This distinction is based on sound policy.  Whether  to
petition   for  review is generally a complicated  strategic  and
tactical  decision that is best left to the attorney. In general,
if  a  client  is convicted, the attorney can then challenge  any
ruling   made  by  the  trial  court.    Allowing  a  client   to
independently file a petition for review would raise the distinct
possibility  that  such a procedure would  cause  the  client  to
undermine  his  counsels trial tactics and would cause  an  undue
burden   on  his  attorney,  the  courts,  and  the  State.    We
accordingly conclude that McLaughlin has no right to file  a  pro
se  petition for review.  McLaughlins pro se petition for  review
is therefore rejected for filing.

_______________________________
     1 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

     2 Id. at 807, 821, 95 S. Ct. at 2527, 2534.

     3 528 U.S. 152, 120 S. Ct. 684, 145 L. Ed. 2d 597 (2000).

     4 Id. at 154, 120 S. Ct. at 687.

5 Alaska Supreme Court Order No. 1123 (eff. July 15, 1993).

     6 90 P.3d 181 (Alaska App. 2004).

     7 Id. at 184.

     8 Alaska R. App. P. 202(b).

     9 Alaska R. App. P. 402(a)(1).

     10   463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983).

     11   Id. at 750, 103 S. Ct. at 3312.

     12   Id. at 751, 103 S. Ct. at 3313.

     13   892 P.2d 832, 836 & n.7 (Alaska App. 1995).

     14     ___ P.3d ___, Alaska App. Opinion No. 2122 at 3-4, 9-
14 (Nov. 2, 2007), 2007 WL 3227568 at *1-2, *5-8.

     15   484 U.S. 400, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988).

     16   Id. at 418, 108 S. Ct. at 658.

     17   797 P.2d 1209 (Alaska App. 1990).

     18   Id. at 1217.

     19   Alaska R. App. P. 402(b).

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