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Benson v. State (4/6/2012) ap-2349

Benson v. State (4/6/2012) ap-2349

                                                  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 



JAMON R. BENSON,                                   ) 

                                                   )         Court of Appeals No. A-9953 

                             Appellant,            )           Trial Court No. 2BA-05-95 CR 

                                                   ) 

              v.                                   )                   O P I N I O N 

                                                   ) 

STATE OF ALASKA,                                   ) 

                                                   ) 

                             Appellee.             )             No. 2349 - April 6, 2012 

                                                   ) 



                 Appeal     from    the  Superior    Court,    Second    Judicial   District, 

                 Barrow, Michael I. Jeffery, Judge. 



                 Appearances:      Robert Lee Griffin, Assistant Public Advocate, 

                 and Rachel Levitt, Public Advocate, Anchorage (opening brief), 

                 and Dan S. Bair, Assistant Public Advocate, and Richard Allen, 

                 Public   Advocate,   Anchorage   (reply   brief),   for   the   Appellant. 

                 Eric    A.  Ringsmuth,      Assistant    Attorney    General,    Office    of 

                 Special     Prosecutions     and  Appeals,     Anchorage,      and  John    J. 

                 Burns, Attorney General, Juneau, for the Appellee. 



                 Before:     Coats,    Chief   Judge,    and   Mannheimer       and  Bolger, 

                 Judges. 



                 COATS,      Chief Judge. 


----------------------- Page 2-----------------------

                Jamon   R.   Benson   applied   to   be   represented   by   an   attorney      at   public 



expense.   The trial court initially appointed an attorney, but later found that Benson was 



not indigent and did not qualify for counsel at public expense.                  Benson represented 



himself at trial and was convicted of misconduct involving a controlled substance in the 

third degree.1    He was sentenced to three years of imprisonment.                On appeal, Benson 



argues that the superior court erred by not acting sua sponte to appoint counsel to assist 



him when the court was deciding whether he qualified for appointment of an attorney at 



public expense.      We conclude that the court did not commit plain error. 



                Factual and procedural background 



                In the spring of 2005, Benson was indicted for misconduct involving a 



controlled substance in the third degree.   At his arraignment, Benson requested a court- 



appointed      attorney.    After    conducting     a  financial    inquiry,   Superior    Court    Judge 



Michael I. Jeffery appointed the Office of Public Advocacy to represent Benson. 



                On May 20, 2005, the Office of Public Advocacy filed a motion to have the 



trial court determine if Benson was eligible for appointment of counsel at State expense. 



The Office of Public Advocacy indicated that it had obtained financial information about 



Benson that it was required to bring to the attention of the court.               The Office of Public 



Advocacy pointed out that it was required to file this information with the court under 



Alaska Administrative Rule 12(d) and (f).            Rule 12(d) states: 



                 [T]he office of public advocacy shall accept appointments 

                only in those cases for which the basis for the appointment is 

                clearly authorized.      If the ... office determines that the basis 

                for   an   appointment   is   not   clearly   authorized,   the   ...   office 



        1   AS 11.71.030(a)(1). 



                                                  - 2 -                                               2349 


----------------------- Page 3-----------------------

                shall   file  with   the  court   a  motion   to  withdraw     from   the 

                appointment. 



Rule 12(f)(2) states: 



                An attorney appointed to represent an indigent person must 

                move to withdraw if the attorney reasonably believes that the 

                person has made a material misrepresentation of the person's 

                financial status to the court. A material misrepresentation is 

                a   misrepresentation   of   facts   that   would   make   the   person 

                financially ineligible for appointed counsel. 



                Superior Court Judge Richard H. Erlich issued an order requiring Benson 



to   complete   and   submit   a   financial   statement   to   the   court. Benson   filed   a   financial 



affidavit listing $7,870 in assets and debts of at least $75,000.            At an omnibus hearing 



on June 15, Judge Erlich ruled that Benson qualified for appointed counsel and ordered 



the Office of Public Advocacy to continue to represent him. 



                On June 16, the Office of Public Advocacy filed a motion under seal to 



withdraw from representation of Benson on the ground that Benson was not financially 



eligible for court-appointed counsel.   The matter was assigned to Superior Court Judge 



Ben Esch.  Judge Esch concluded that Benson possessed the financial resources to hire 



a private attorney and granted the Office of Public Advocacy's motion to withdraw. 



                The matter was referred back to Judge Erlich.              On June 24, Judge Erlich 



informed Benson that Judge Esch had entered an order allowing his court-appointed 



counsel to withdraw. He told Benson that he would have to hire his own attorney. Judge 



Erlich informed Benson that he could challenge Judge Esch's decision that Benson was 



not financially qualified to have the court appoint an attorney to represent him at public 



expense.      Judge   Erlich   also   explained   to   Benson   in   detail   the   advantages   of   being 



represented by an attorney and the dangers of self-representation. 



                                                  - 3 -                                             2349
 


----------------------- Page 4-----------------------

                On July 20, 2005, Benson asked for the presiding judge to review Judge 



Esch's determination that he was ineligible for court-appointed counsel.  Superior Court 



Judge Niesje J. Steinkruger, the presiding judge of the Fourth Judicial District, was 



assigned to review Judge Esch's decision. Judge Steinkruger issued an opinion affirming 



Judge   Esch's   decision   that   Benson   did   not   financially   qualify   for   court-appointed 



counsel.  Benson petitioned this court to review Judge Steinkruger's order.  We denied 



the petition for review. 



                Subsequently, Benson represented himself at trial and was convicted of 



misconduct involving a controlled substance in the third degree.  This appeal followed. 



                The superior court did not commit plain error by not appointing 

                counsel to assist Benson when it determined his eligibility for court- 

                appointed counsel 



                Benson points out that, when the Office of Public Advocacy determined 



that it was obligated to bring the information it had discovered about Benson's financial 



eligibility for court-appointed counsel, he was no longer represented by counsel and that 



the Office of Public Advocacy's interests were adverse to his.  He argues that under this 



circumstance, the superior court should have, sua sponte, appointed counsel to represent 



him when the court was determining whether he qualified for court-appointed counsel. 



                Under both the Sixth Amendment of the U.S. Constitution and article I, 



section   11   of   the   Alaska   Constitution,   indigent   defendants   enjoy   the   right   to   court- 

appointed   counsel   for   every   "critical   stage"   of   the   proceedings   against   them.2   But 



Benson has not presented any authority for his position that the determination of his 



        2   Rothgery v. Gillespie County , 554 U.S. 191, 211-12 (2008); Gideon v. Wainwright, 



372 U.S. 335, 343-45 (1963); Roberts v. State , 458 P.2d 340, 342-43 (Alaska 1969). 



                                                  - 4 -                                               2349 


----------------------- Page 5-----------------------

eligibility for counsel at public expense was a "critical stage," and the authority which 

we are aware of is contrary to that position.                For instance, in State v. Wickstrom ,3 the 



defendant was initially represented by an assistant public defender who asked the court 

to review whether he was financially qualified for representation at public expense.4  The 



court     concluded      that   Wickstrom       did   not   qualify.5    Wickstrom         obtained     a  private 



            6 

attorney.       After   Wickstrom   was   convicted,   he   alleged   that   the   court   erred            in   not 



appointing independent counsel to represent him during the time when the court was 



deciding whether he qualified for the appointment of counsel at public expense.  He 

argued   that   the   public   defender   had   a   conflict   of   interest   on   this   issue.7    The   court 



concluded that this appellate issue was moot, because Wickstrom was able to obtain 

counsel to represent him at trial.8   But the court concluded that the issue had sufficient 



importance for it to find an exception to the mootness doctrine.9                      The court defined the 



issue as follows:       "[w]hether a defendant, whose appointed counsel seeks review of an 



initial indigency determination, is entitled to separate representation for purposes of that 

review." 10 



         3   348 N.W.2d 183 (Wis. App. 1984).
 



         4   Id. at 187. 
 



         5   Id.
 



         6   Id.
 



         7   Id. at 188. 



         8   Id. at 187. 



         9   Id. at 187-88. 



         10  Id. 



                                                      - 5 -                                                  2349
 


----------------------- Page 6-----------------------

                 The Wickstrom court recognized that a defendant "is entitled to counsel at 

any critical stage of the prosecution."11            But the court concluded that: 



                 Wickstrom had no right to counsel at the hearing on review 

                  of the indigency determination.           The purpose of the hearing 

                 was to determine if Wickstrom was indigent.                    The court's 

                 review of an initial determination does not change the nature 

                  of    the   proceeding.         No     witness     testified    concerning 

                 Wickstrom's   guilt.        The   indigency   proceeding   was   not   a 

                  critical   stage   in   the   prosecution   at   which   Wickstrom   was 

                  entitled to counsel.12 



                 In Johnson v. State ,13       Carolyn Johnson was charged with  driving while 



intoxicated.14     She was represented by a retained attorney at trial.15             After her conviction, 



her trial counsel withdrew and Johnson asked to have an attorney appointed at public 



            16 

expense.       The trial court determined that Johnson was not indigent and therefore was 

not entitled to court-appointed counsel to represent her on appeal.17                   On appeal, Johnson 



argued that she was entitled to court-appointed counsel during the indigency hearing.18 



The court concluded that the indigency hearing was not a critical stage of the judicial 



         11  Id. at 188. 



         12  Id. 



         13  894 S.W.2d 529 (Tex. App. 1995).
 



         14  Id. at 531.
 



         15  Id. at 531.
 



         16  Id. at 531-32.
 



         17  Id. at 532.
 



         18  Id. 
 



                                                      - 6 -                                                2349
 


----------------------- Page 7-----------------------

process where Johnson was entitled to be represented by counsel. 19               Therefore, the most 



applicable     case   law   available    establishes    that  the  determination      of  eligibility  for 



appointed counsel is not a critical stage of the case. 



                Benson   never   argued   to   the   superior   court   that   he   was   constitutionally 



entitled to have conflict counsel appointed to litigate the issue of his indigency.  Thus, 



Benson has not preserved the argument that he now makes on appeal, the argument that 



he was constitutionally entitled to conflict counsel.           Because this issue is raised for the 



first time on appeal, it may only be reviewed for plain error. In order to show plain error, 



an appellant must establish that an error occurred and that the error "(1) was not the 



result of intelligent waiver or   a   tactical decision not to object; (2) was obvious; (3) 

affected substantial rights; and (4) was prejudicial."20 



                Because the only authority that we have found undercuts Benson's position, 



it follows that the superior court did not commit plain error when it did not, sua sponte, 



appoint conflict counsel to represent Benson to aid him when the court was determining 



whether he financially qualified for the appointment of an attorney at court expense. 



                 Conclusion 



                The judgment of the superior court is AFFIRMED. 



        19  Id. at 533. 



        20  Adams v. State , 261 P.3d 758, 764 (Alaska 2011). 



                                                  - 7 -                                               2349 

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