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Harvey v. State (9/14/2012) ap-2372

Harvey v. State (9/14/2012) ap-2372

                                             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 



DALE M. HARVEY, 

                                                          Court of Appeals No. A-10569 

                               Appellant,                Trial Court No. 3PA-07-985 Civ 



                       v. 

                                                                  O  P  I N  I  O  N 

STATE OF ALASKA, 



                               Appellee.                 No. 2372    - September 14, 2012 



               Appeal from the Superior Court, Third Judicial District, Palmer, 

               Beverly W. Cutler, Judge. 



               Appearances: Andrew Steiner, Bend, Oregon, for the Appellant. 

               Nancy R. Simel, 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. 



               MANNHEIMER, Judge. 



               Dale M. Harvey petitioned the superior court for post-conviction relief, 



contending that he received ineffective assistance of counsel from Larry A. Wiggins, the 



attorney who represented him in his underlying criminal case. The superior court denied 



Harvey's petition, and Harvey now appeals. 


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

                Although   the   facts   of   Harvey's   case   potentially   raise   several   issues, 



Harvey's claims in this appeal raise questions of a more limited scope.   We are asked to 



define a trial attorney's post-judgement obligations toward a convicted criminal defend- 



ant in cases where the attorney has been retained to represent the defendant solely in the 



trial court proceedings. 



                For thereasons explainedin this opinion, and in accordancewith theUnited 

States Supreme Court's decision in Roe v. Flores-Ortega, 1  we hold that (1) when a 



defendant indicates an interest in pursuing an appeal, or (2) when the defendant's trial 



attorney either knows or reasonably should knowthat arational person in the defendant's 



situation might want to appeal, the trial attorney - whether privately retained or court- 



appointed   - is  obligated   to  engage in   meaningful consultation   with   the defendant 



concerning the defendant's potential post-judgement remedies, the likelihood that the 



contemplated post-judgement litigation would succeed, and the potential consequences 



to the defendant of that post-judgement litigation. 



                (Given   the   facts   of   Harvey's   case,   we   need   not   decide   whether   trial 



attorneys in criminal cases might have these same obligations even in situations that are 



not covered by either of the two Flores-Ortega criteria.) 



                We further hold that if the defendant decides to pursue an appeal, the trial 



attorney must take steps to preserve the defendant's right to appeal -steps such as filing 



a notice of appeal - if the defendant does not yet have a substitute attorney to take these 



needed steps. This duty applies even though it is fully understood by both the defendant 



and the trial attorney that the attorney will not be representing the defendant (or has not 



yet agreed to represent the defendant) in the appellate litigation. 



    1   528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). 



                                                  - 2 -                                              2372 


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

                 As we explain in this opinion, the evidence presented to the superior court 



during the litigation of Harvey's petition for post-conviction relief shows that Harvey 



had at least one colorable ground for pursuing post-judgement litigation.   The evidence 



also shows that Harvey's trial attorney was aware, or reasonably should have been 



aware, that Harvey had this potential post-judgement claim, and that Harvey might want 



to pursue it. 



                 Finally,   even   viewing   the   evidence   in   the   light   most   favorable   to   the 



superior court's denial of Harvey's petition for post-conviction relief, Harvey's trial 



attorney failed to meaningfully consult with Harvey about potential post-judgement 



remedies, and the attorney likewise failed to take any action on Harvey's behalf, other 



than   perhaps   advising   Harvey   to   contact   the   Public   Defender   Agency   if   he   was 



considering an appeal. This was a violation of the trial attorney's obligations to Harvey. 



        Introduction to the underlying facts 



                 The facts described here are drawn from the documents and the testimony 



presented   to   the   superior   court   during   the   litigation   of   Harvey's   petition   for   post- 



conviction   relief.      Our   description   of   Harvey's   case   is   divided   into   separate   parts 



because, for purposes of this appeal, Harvey's litigation involves three distinct stages: 



(1) the events leading up to Harvey's decision to enter into a plea agreement with the 



State,   (2)   the   events   that   occurred   at   Harvey's   sentencing,   and   (3)   the   events   that 



occurred after the superior court sentenced Harvey. 



                 The first two stages of the proceedings are discussed in the section labeled 



"Underlying facts, Part 1."          The third stage of the proceedings - the post-judgement 



stage - is discussed in the section labeled "Underlying facts, Part 2". 



                                                    - 3 -                                               2372
 


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

        Underlying facts, Part 1:   from Harvey's indictment to his sentencing 



                In early 2003, Dale M. Harvey was indicted on two counts of first-degree 



sexual abuse of a minor and two counts of second-degree sexual abuse of a minor (all 



involving the same victim).         Harvey was represented by a private attorney, Larry A. 



Wiggins. 



                The retainer agreement (i.e., the contract between Wiggins and Harvey) 



specified that Wiggins did not do   appeals,   and that   Wiggins was only   agreeing to 



represent Harvey in the trial court proceedings. 



                In August 2003, Wiggins engaged in plea negotiations on Harvey's behalf 



with Assistant District Attorney Rachel Gernat of the Palmer District Attorney's Office. 



Gernat offered to let Harvey plead guilty to a single reduced count of attempted first- 



degree sexual abuse, with an agreed-upon sentence of 5 years to serve. Harvey accepted 



this offer. 



                But before this plea agreement could be formalized in court, the Attorney 



General issued a new policy regarding plea agreements in sexual assault and sexual 



abuse cases. Under this new policy, the local district attorney had to personally approve 



any plea agreement that reduced an unclassified or class A sexual felony to a lesser 



degree of crime. 



                Harvey's   most   serious   offenses   (the   two   counts   of   first-degree   sexual 



abuse) were unclassified felonies, and Harvey's plea agreement with Gernat called for 



these charges to be reduced to a single count of attempted first-degree sexual abuse. 



Accordingly, the Palmer District Attorney, Roman Kalytiak, had to personally approve 



Harvey's plea agreement. 



                When Gernat submitted the proposed plea agreement to Kalytiak for his 



approval, Kalytiak rejected it.        Kalytiak's policy was that, in prosecutions for sexual 



                                                - 4 -                                            2372
 


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

felonies, his office would normally offer either a reduction of the charge, or an agreed- 



upon sentence, but not both. 



                BecauseKalytiak refusedto approvethepleaagreement,theagreement had 



to be renegotiated. 



                (Harvey does not argue that this initial plea agreement became enforceable 



as soon as he accepted the prosecutor's proposal. See Mabry v. Johnson, 467 U.S. 504, 



510-11; 104 S.Ct. 2543, 2548; 81 L.Ed.2d 437 (1984); State v. Jones, 751 P.2d 1379, 



1381-82 (Alaska App. 1988); and Turk v. State, 662 P.2d 997, 999-1000 (Alaska App. 



1983). These cases hold that the government is generally not bound by a plea agreement 



until the defendant detrimentally relies on the agreement - by entering a guilty plea, or 



by giving testimony or providing information to the authorities, or by incurring some 



other sort of legally cognizable prejudice to the defendant's case.) 



                During the second round of plea negotiations, Gernat offered the same 



reduced   charge   (attempted   first-degree   sexual   abuse),   but   now   with   no   ceiling   on 



Harvey's time to serve.        In response, Wiggins suggested an agreed-upon sentence of 



6 years to serve (i.e., one more year to serve than before). But Gernat reminded Wiggins 



that Kalytiak would not accept a plea agreement that called for both a reduced charge and 



an agreed-upon sentence. 



                What happened next is a subject of considerable dispute. 



                According toWiggins, Gernatoffered acompromisesolution. Even though 



Kalytiak had forbidden Gernat from offering both a reduced charge and an agreed-upon 



sentence, Gernat promised Wiggins that, at Harvey's sentencing hearing, she would 



recommend a sentence of no more than 6 years to serve. 



                In his testimony at the post-conviction relief hearing, Wiggins repeatedly 



stated that Gernat's promise did not constitute an "agreement", but it is unclear what 



Wiggins meant by this.   Viewing Wiggins's testimony in light of a letter that he wrote 



                                                - 5 -                                            2372
 


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

to Harvey about the status of the plea negotiations (a letter that we are about to explain), 



and in light of statements that Wiggins made to Harvey at the sentencing hearing itself 



(statements that we are likewise about to explain), it appears Wiggins was saying that 



(1) there was no sentence "agreement" in the sense of an agreed-upon sentence of 6 years 



to   serve,   but   that   (2)   Wiggins   believed   that   Gernat   had   affirmatively   promised   to 



recommend no more than 6 years to serve. 



                Wigginstestified that he asked Gernat to putthis promisein writing, butshe 



refused - apparently because she thought that her boss, Kalytiak, might view even this 



lesser promise as a forbidden "sentence agreement".                 For this reason (according to 



Wiggins),   Gernat   told   Wiggins   that   her   promise   regarding   the   State's   sentencing 



recommendation would remain off the record, and it would not be part of the formal plea 



agreement presented to the superior court at Harvey's change-of-plea hearing. 



                On August 25, 2003, following his conversation with Gernat, Wiggins 



wrote a letter to Harvey in which he described the State's latest proposal.   In this letter, 



Wiggins told Harvey: 



                        As you know[,] I have asked Ms. Gernat to agree to a 

                five[-]year cap on [your] time to serve[.  She] now says she 

                cannot do that, but [she] did say that she would not ask for 

                more than six years.   I asked her to put that in writing[,] but 

                she says she won't because it would amount to a sentence 

                agreement[,]      and   the  DA    will  not   agree   to  a  sentence 

                agreement[.] 



                In addition to Wiggins's testimony (summarized above) and the text of 



Wiggins's letter of August 25th (just quoted), Harvey submitted an affidavit which 



addressed this issue.      In his affidavit, Harvey declared that Wiggins told him "that the 



prosecutor had made an oral commitment to seek a sentence of six years with one 



suspended" [sic], but that "there was some sort of ban on the arrangement [that] he had 



                                                 - 6 -                                            2372
 


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

reached with the state", so "the arrangement could not be put on paper", and Harvey 



"[was] not [to] mention the agreement in court, even if [he] was specifically asked about 



 'promises' when [he] entered his plea." 



                At the evidentiary hearing in the post-conviction relief litigation, Harvey 



took the stand and re-affirmed the assertions in his affidavit.   He testified that Wiggins 



instructed him not to tell the judge about Gernat's promise to recommend no more than 



6 years to serve. According to Harvey, Wiggins told him that he should remain silent on 



this issue because Gernat's promise was just a verbal promise, and not part of the formal 



plea agreement. 



                When Wiggins was questioned at the evidentiary hearing as to whether he 



instructed Harvey not to tell the judge about the purported under-the-table sentencing 



agreement, Wiggins denied that he had done this - but then he conceded that Harvey 



might reasonably have inferred, from what Wiggins told him, that he should not tell the 



judge about Gernat's promise if he wanted the judge to accept the plea bargain: 



                        Post-Conviction Relief Attorney :           Mr. Wiggins, did 

                you ever tell Mr. Harvey, at the change-of-plea hearing, to 

                keep silent aboutMs. Gernat's [promise that] she [was] going 

                to recommend 6 years? 



                         Wiggins: No, I - I never told him to keep silent about 

                it. But ... he may have [inferred] from what I told him that he 

                shouldn't say anything.   Because I made it very clear to him 

                that [this] was not part of the plea agreement. 



                        PCR Attorney :   Okay. 



                         Wiggins:  And I may have had a discussion with him 

                that   when   he   tells   the   judge   that   he   agrees   to   [the   plea 

                agreement], and he's doing it knowingly   and voluntarily, 

                [and] that if he [expresses] any doubt ... , or the court even 



                                                 - 7 -                                             2372
 


----------------------- Page 8-----------------------

               senses some doubt, then we may not [be able to] go through 

               with it. 



               Gernat, for her part, offered a very different account of her conversation 



with Wiggins.   Gernat flatly denied that she had promised Wiggins that she would limit 



her sentencing recommendation to 6 years to serve.   She declared that "[she] would not 



have made a secret agreement behind Mr. Kalytiak's back", nor would she have said to 



Wiggins, "This is our agreement - wink, wink - [even though] I'm not going to put 



it in writing." 



               Regardless of exactly what was said between Wiggins and Gernat, and 



regardless of exactly what Gernat promised or did not promise, two things are not 



disputed. 



               First, when Harvey appeared before Superior Court Judge Beverly W. 



Cutler on September 12, 2003 to formally confirm the plea bargain, and to enter a guilty 



plea to the reduced charge of attempted first-degree sexual abuse, neither Harvey nor 



Wiggins told Judge Cutler that Gernat had made a promise to them concerning the 



State's sentencing recommendation - even though Judge Cutler pressed the parties to 



put every aspect of their agreement on the record.            (Gernat was not present at this 



change-of-plea hearing; it was handled by another attorney in her office.) 



               Second, when Harveylaterappearedforsentencing in frontofJudgeCutler, 



Gernat recommended a sentence of 7 years to serve (10 years' imprisonment with 3 years 



suspended). Judge Cutler ultimately followed Gernat's recommendation and sentenced 



Harvey to serve 7 years. 



               At the evidentiary hearing in the post-conviction relief litigation, Wiggins 



testified that he was "surprised and upset" when Gernat recommended that the court 



sentence Harvey to serve 7 years.   Wiggins's testimony on this issue is corroborated by 



the audio record of the sentencing hearing itself.   This audio record shows that, shortly 



                                              - 8 -                                         2372
 


----------------------- Page 9-----------------------

after Gernat recommended a sentence of 7 years to serve, Wiggins and Harvey engaged 



in the following whispered conversation at counsel table: 



                       Wiggins:     She [is] recommending 7 years to serve.         I 

               may have grounds for appeal on that.  I've got to go look at 

               something. 



                       Harvey :   I heard her say 7 years. 



                       Wiggins:   I know.   That's what she said.   And I've got 

               notes from her that she wouldn't ask for more than 6, even 

               though she couldn't make it part of the agreement. 



        Underlying facts, Part 2:   after Harvey's sentencing 



               As we just explained, shortly after Gernat recommended a sentence of 



7 years to serve, Wiggins held a whispered conversation with Harvey at counsel table. 



In this conversation, Wiggins reiterated that Gernat had promised not to recommend 



more than 6 years to serve - and that Harvey "[might] have grounds for appeal on that". 



Wiggins then told Harvey that he "[had] to go look at something" in order to investigate 



this possible appeal issue. 



               But according to Wiggins's testimony at the post-conviction relief eviden- 



tiary hearing, he never engaged in follow-up discussions with Harvey on this issue. 



Wiggins simply let the matter die. 



               WhenWigginswasasked (atthepost-conviction reliefevidentiaryhearing) 



how   he   perceived   his   responsibility   to   Harvey   following   the   sentencing,   Wiggins 



testified that he was not required to assist Harvey with respect to any potential appeal. 



Rather, his only obligation was "to inform [Harvey that] he [had] a right to an appeal." 



                                               - 9 -                                          2372
 


----------------------- Page 10-----------------------

                When Harvey's post-conviction relief attorney pressed Wiggins regarding 



Harvey's potential grounds for seeking some form of post-judgement relief, Wiggins's 



answers suggest that he gave the matter little thought: 



                        Post-Conviction       Relief   Attorney :      Was    it  your 

                understanding [that] Mr. Harvey had a right to something 

                more than a sentence appeal [under these circumstances]? 



                        Wiggins:       I  don't   know   what    he   had   a   right   to. 

                I honestly don't - because I don't know what his arguments 

                are on appeal.     And [in] my discussions with Mr. Harvey, I 

                don't think the word "appeal" was [ever] used. ... The only 

                thing I think I've ever heard [about] was [this action for] 

                post-conviction relief. 



                According to Wiggins, Harvey never directly asked him to file an appeal. 



But Wiggins also testified that, in any event, he believed he was powerless to seek 



judicial enforcement of Gernat's promise - because Gernat had refused to put the 



promise in writing, or to otherwise make the promise a formal part of the plea agreement: 



                        Post-Conviction Relief Attorney :         Do you remember 

                any discussion of taking an appeal on that [i.e., the issue of 

                Gernat's alleged promise regarding the State's sentencing 

                recommendation]?         Do you remember discussing an appeal 

                that day? 



                        Wiggins:   No. 



                        PCRAttorney : Do you remember discussingan appeal 

                [at] any time in the 30 days following [the imposition of] that 

                sentence? 



                        Wiggins:   I never discussed an appeal. 



                                                -  10 -                                          2372
 


----------------------- Page 11-----------------------

                        PCR Attorney :       You never discussed an appeal?           Do 

                you ... 



                        Wiggins:      I - I discussed that he certainly had the 

                possibility for an appeal, [and] I did have a discussion with 

                him about what I was going to do, but it wasn't along the 

                lines of an appeal. 



                        PCR Attorney :   What was it along the lines of? 



                        Wiggins:       I   was   going   to   go   talk   to   [the   district 

                attorney,] Roman Kalytiak, and find out what was going on. 

                First - the whole idea of the [State's] withdrawing of the 

                [initial] plea [offer].     I'd already had that discussion with 

                him. And now, I have representations from an assistant D.A., 

                and they're not standing by it, and - even though it was not 

                part of the deal.     But at the same time, I knew that I didn't 

                have anything that I could argue on, because it was - it was 

                not part of a plea agreement. 



                In other   words,   Wiggins apparently reached   the conclusion   that,   even 



though Gernat had made a promise to him, that promise was unenforceable.   Wiggins 



reached this conclusion even though he knew that Harvey had relied on this promise - 



or, more   precisely,   that Harvey had   relied on   Wiggins's description of the alleged 



promise - when Harvey changed his plea to guilty: 



                        Wiggins:   I know that [Harvey] was relying on what I 

                had told him that Ms. Gernat had told me - that she was 

                going to ask for [no more] than 6 years. But it was very clear 

                - it had to be very clear[, because] I put it in writing to him 

                - ... that [this promise] was not part of the plea agreement. 



                Harvey, for his part, presented a significantly different version of his post- 



sentencing discussions with Wiggins.   Harvey testified that he and Wiggins repeatedly 



                                                 -  11 -                                           2372
 


----------------------- Page 12-----------------------

discussed     the  possibility   of  filing  an   appeal   based   on   the  fact  that  Gernat    had 



recommended   more   than   6   years   to   serve   -   but,   according   to   Harvey,   Wiggins 



ultimately refused to do anything: 



                        Harvey :   I had numerous discussions with [Wiggins]. 

                I called him, and we talked about the appeal issue.            I mean, 

                he was ... starting to prepare [the appeal].           As the weeks 

                progressed, he assured me he was working on it, and getting 

                it ready.   Finally, within the last week [before the deadline] 

                - because I knew that it was due within 30 days - and 

                within the last week before the deadline, he informed me that 

                ... he wasn't going to do it, that he didn't think it was in my 

                best interest.   ...  I asked him to go forward anyway, and he 

                refused [to do] it. 



                In sum, Wiggins and Harvey offered starkly contradictory versions of their 



discussions   following   Harvey's   sentencing.          Wiggins   testified   that   he   never   held 



substantive discussions with Harvey about whether Harvey should appeal or should seek 



some alternative kind of post-judgement relief. Harvey testified that he and Wiggins had 



repeated discussions concerning the possibility of an appeal (based on the fact that 



Gernat recommended more than 6 years to serve), and that Wiggins assured Harvey that 



he was "working on it" - but Wiggins ultimately refused to file the appeal because he 



concluded   (apparently   unilaterally)   that   an   appeal   would   not   be   in   Harvey's   best 



interests. 



                When Harvey litigated this issue in his petition for post-conviction relief, 



Superior Court Judge Beverly W. Cutler rejected Harvey's claimthat Wiggins had failed 



to provide effective assistance of counsel in connection with a potential appeal.   Judge 



Cutler declared that Harvey had "[no] reasonable expectation or reasonable belief that 



Mr. Wiggins would file an appeal for him" - because Wiggins's retainer agreement 



                                                -  12 -                                          2372
 


----------------------- Page 13-----------------------

with Harvey specified that Wiggins did not do appeals, and that he would represent 



Harvey only in the trial court proceedings. 



                 Judge   Cutler   later   added   that   Harvey   had   failed   to   prove   that   "[he] 



reasonably believed that [he] had some contractual relationship with Mr. Wiggins that 



included him filing an appeal ... for [Harvey], as opposed to being willing as an attorney 



to give [Harvey] his two cents' worth about what might be able to be done in regard to 



an appeal, but not by him." 



                 As   we   explain   in   the   next   section   of   this   opinion,   these   findings   are 



premised on a misunderstanding of the applicable law.                    Regardless of whether one 



creditsWiggins'stestimony orHarvey'stestimony, Wiggins violatedhis duty to Harvey: 



either by failing to meaningfully consult with Harvey concerning his potential post- 



judgement remedies, or by failing to abide by Harvey's decision concerning whether to 

appeal. 2 



                 JudgeCutler certainly had amplegroundsfor concluding that Harvey could 



not reasonably expect Wiggins to represent him on appeal. But as we explain in the next 



section of this opinion, thefiling  of an appeal - i.e., the filing of a notice of appeal, or 



the filing of a motion to extend the time for filing an appeal, so that a client's right of 



appeal is preserved - is part of a trial attorney's duties if the attorney is aware that the 



client might want to appeal, and that the client will otherwise not be able to obtain and 



consult with substitute counsel before the filing deadline. 



                 Moreover, with regard to advising Harvey about a potential appeal or other 



post-judgement litigation, Wiggins was obligated to give Harvey more than simply 



"his   two   cents'   worth".      Rather,   Wiggins   was   obligated   to   provide   Harvey   with 



    2   See Alaska Professional Conduct Rule 1.2(a); McLaughlin v. State , 173 P.3d 1014, 



 1015-16 (Alaska App. 2007); Coffman v. State, 172 P.3d 804, 807 (Alaska App. 2007); 

Simeon v. State, 90 P.3d 181, 184 (Alaska App. 2004). 



                                                  -  13 -                                             2372 


----------------------- Page 14-----------------------

meaningful consultation concerning Harvey's post-judgement options:   the claims that 



Harvey might pursue, Harvey's likelihood of success, and the consequences of pursuing 



this post-judgement litigation. 



       A trial attorney's duty to advise a criminal defendant regarding potential 

       post-judgement remedies, and the attorney's duty to take action to protect 

       the defendant's rights before stopping work on the case 



              Most criminal defendants in this state are represented by court-appointed 



counsel who provide their services at public expense through either the Public Defender 



Agency or the Office of Public Advocacy.         For these defendants, Alaska law clearly 



states that their trial attorneys have a continuing obligation to represent them after the 



trial court has entered its judgement. 



              Under AlaskaAppellateRule209(b)(4),when thePublicDefender Agency 



or the Office of Public Advocacy (either through a salaried attorney or through contract 



counsel) has represented a defendant in the trial court, the agency "shall remain as 



appointed counsel throughout an appeal or petition for review at public expense ... and 



shall not be permitted to withdraw except upon the grounds authorized in [Alaska] 



Administrative Rule 12." Moreover, even when the defendant's trial counsel is justified 



in withdrawing, no withdrawal is permitted until the defendant's appellate rights are 



preserved:  "If an appeal is to be taken, trial counsel will not be permitted to withdraw 



until the notice of appeal and the documents required to be filed with the appeal by 



[Appellate] Rule 204 have been accepted for filing by the clerk of the appellate courts." 



Ibid. 



              But the foregoing rule does not apply to Harvey's case.        Harvey was not 



represented by court-appointed counsel, but rather by a privately retained attorney, and 



                                            -  14 -                                      2372
 


----------------------- Page 15-----------------------

this   attorney's   retainer   agreement   with   Harvey   specified   that   the   attorney   would 



represent Harvey only in the trial court proceedings, and not on appeal. 



                Thus, Harvey's casepresents theissue of whether, in the days following the 



sentencing, Harvey's trial attorney, Wiggins, had a duty to meaningfully advise Harvey 



about his potential post-judgement remedies, and a duty to take steps to protect Harvey's 



ability to pursue those remedies, even though Wiggins had agreed only to represent 



Harvey in the trial court. 



                (a) Harvey's proposal:   a rule of universal application 



               Harvey asks us to adopt the rule that attorneys in this situation (whether 



privately retained or court-appointed) must always engage in meaningful consultation 



with their convicted client about the possibility of pursuing an appeal or seeking other 



post-judgement remedies. Under this proposed rule, a defense attorney whose client was 



convicted would always be required to advise the client regarding their potential grounds 



for appeal, the likelihood of success, and the potential consequences of seeking or 



obtaining post-judgement relief. 



               Harvey'sposition is supportedby AlaskaProfessional ConductRule1.2(a) 



and the American Bar Association's standards relating to the defense attorney's function 



in criminal prosecutions. 



                TheABAstandards recognizethataprivatelyretainedlawyermaystructure 



their retainer agreement so that the lawyer's obligation to the client extends only through 



the trial court proceedings - so that the defendant must either negotiate a new retainer 



with the lawyer for the appeal, or the defendant must seek another attorney to handle the 



appeal.   Indeed, under ABA Defense Function Standard 4-3.1(a), one of the things that 



                                               -  15 -                                         2372
 


----------------------- Page 16-----------------------

a defense attorney should discuss with a client at the outset of their relationship is 



"whether ... counsel will continue to represent the accused if there is an appeal." 



                But even so, if a lawyer's client is convicted, both Alaska Professional 



Conduct Rule 1.2(a) and the ABA Standards require the lawyer to engage in meaningful 



consultation with the defendant about the possibilities for an appeal, and the likely 



outcomes of an appeal. 



                Professional Conduct Rule 1.2(a) declares that an attorney representing a 



defendant      in  a  criminal    prosecution     "shall   abide   by   the  client's   decision,  after 



consultation   with   the   lawyer,   as   to   ...   whether   to   take   an   appeal."  This   italicized 



language implicitly requires the trial lawyer to fully advise the defendant about the 



defendant's options for appeal, as well as the likely success and potential consequences 



of those options, so that the defendant can make an informed decision. 



                We note that Alaska's Professional Conduct Rule 1.2(a) is based on the 



corresponding provision of the ABA Model Rules of Professional Conduct - rules 



crafted for nationwide applicability. In most American jurisdictions, the notice of appeal 



is among the last pleadings filed in the trial court.   Before the summer of 1995, it used 

to be that way in Alaska, too. 3      Under current Alaska procedure, the notice of appeal is 



an appellate court pleading rather than a trial court pleading. See Criminal Rule 32.5(a). 



However,this procedurewas apparently amended purely for administrativeconvenience 



    3   Until July 15, 1995, Alaska Criminal Rule 32.1(a) stated that when a defendant was 



convicted of a crime, the judge or magistrate who entered the judgement was to advise the 

defendant that "he [had] the right to appeal ... by filing a notice of appeal with the clerk of 

court" - that is, the clerk of the trial court.         This provision was superseded by current 

Criminal Rule 32.5(a), which states that the judge or magistrate shall advise the defendant 

that they have the right to appeal "by filing a notice of appeal with the clerk of the appellate 

courts".  See Supreme Court Order No. 1184, issued December 16, 1994, and effective July 

15, 1995. 



                                                 -  16 -                                            2372
 


----------------------- Page 17-----------------------

- because, in Alaska (as opposed to most states), the appellate courts and the trial courts 



are all part of one unified court system. 



               The obligation of a trial attorney to meaningfully advise their convicted 



client about a potential appeal is echoed in ABA Defense Function Standard 4-5.2. 



Subsection (a)(v) of this standard declares that the decision whether to appeal is "[among 



the] decisions which are to be made by the accused after full consultation with counsel". 



The accompanying Commentary emphasizes that "the accused should have the full and 



careful advice of counsel" on this matter. 



               This obligation of the trial attorney, described generally in Professional 



Conduct Rule 1.2(a) and ABA Defense Function Standard 4-5.2, is described in greater 



detail in ABA Defense Function Standard 4-8.2, "Appeal": 



                       (a) After conviction, defensecounselshould explain to 

               the defendant the meaning and consequences of the court's 

               judgment   and   the   defendant's   right   of   appeal.  Defense 

               counsel should give the defendant his or her professional 

               judgment as to whether there are meritorious grounds for 

               appeal [as well as] the probable results of an appeal. Defense 

               counsel should also explain to the defendant the advantages 

               and disadvantages of an appeal.         The decision whether to 

               appeal must be the defendant's own choice. 



                       (b) Defense counsel should take whatever steps are 

               necessary to protect the defendant's rights of appeal. 



               The accompanying Commentary explains that the duty of meaningfully 



advising the defendant about potential post-judgement remedies falls to the trialattorney 



because "[a] defendant needs effective representation and advice in the relatively short 



period immediately following conviction[,] when the decision whether to appeal must 



be made." 



                                             -  17 -                                        2372
 


----------------------- Page 18-----------------------

                The ABA Commentary notes that, in cases where the trial attorney is not 



obligated to represent the defendant on appeal, there can be a gap in the defendant's legal 



representation, "sometimes for months", at a time when the defendant's right of appeal 



is at stake.   For this reason, the trial attorney should not be permitted to walk away from 



thecasewithoutgivingthedefendant meaningfuladviceabout post-judgementremedies: 



                        Lawyers, whether retained or assigned [only for] trial, 

                sometimes take the view that their responsibilities end with 

                the final judgment of the trial court[,] and communication 

                between defendant and attorney frequently ceases.                 ...  To 

                make the right to counsel meaningful, representation must be 

                continuous       throughout     the   criminal    process.     [Further, 

                because] of the intimate familiarity with the record of the trial 

                court   proceedings,   trial   counsel   is   in   the   best   position   to 

                advise the defendant concerning the factors to be weighed in 

                reaching the decision whether to appeal. 



                         [C]ounsel [must] discuss frankly and objectively ... the 

                possible errors that could be [raised] on appeal, their relative 

                strengths and weaknesses, and the probable outcome of an 

                appeal.      ...  To   make   the   defendant's   ultimate   choice   a 

                meaningful one, counsel's evaluation of the case must be 

                communicated         in  a  comprehensible       manner.       ...  [The 

                defendant's] decision is a critical one[,] since claims of trial 

                error   are   ordinarily   lost   if   they   are   not   raised   on   appeal. 

                Because of the importance of [this] decision, trial counsel 

                should always consult promptly with the defendant[.] 



Commentary         to  ABA      Defense     Function     Standard    4-8.2,    "Advising      Defendant 



Concerning Appeal". 



                For this same reason (the need for speedy action to preserve a defendant's 



post-judgement rights), ABA Defense Function Standard 4-8.2(b) requires the trial 



attorney to take the steps necessary to preserve the defendant's right of appeal - steps 



                                                 -  18 -                                            2372
 


----------------------- Page 19-----------------------

such as filing a notice of appeal, or filing a motion for an extension of time to file the 



appeal - if it appears that the defendant will not otherwise have an attorney to do this. 



As the accompanying Commentary explains, "Frequently, this [obligation] may include 



perfecting the appeal itself, even though arrangements [will] have to be made for other 



counsel to represent the defendant before the appellate court." 



                This duty to take action to preserve the defendant's post-judgement rights 



is echoed in the Commentary to ABA Sentencing Standard 18-5.19, which declares that 



"defense counsel, even if retained ... only for the trial court phase of a prosecution, ... 



[has] the minimal professional responsibility to take the necessary steps to protect the 



[defendant's] right to appeal [if the defendant decides to appeal]." 



                (b) The current law: the United States Supreme Court's decision in 

            Roe v. Flores-Ortega 



                In Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 



(2000),   the   United   States   Supreme   Court   addressed   the   scope   of   a   trial   attorney's 



obligation to discuss a potential appeal with a defendant when the defendant has not 



affirmatively indicated, one way or another, whether they wish to appeal. The Supreme 



Court rejected the rule that defense attorneys must always discuss a potential appeal with 



their client in these circumstances - because (as the Court explained), under Strickland 

v. Washington,4  the question of whether a defendant received ineffective assistance of 



counsel must be answered based on the specific facts of the case.  Flores-Ortega, 528 



U.S. at 479-480, 120 S.Ct. at 1035-36. 



                In other words, even though it might be preferable for defense attorneys to 



engage in these discussions whenever their client is convicted, and even if defense 



    4   466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 



                                                 -  19 -                                             2372 


----------------------- Page 20-----------------------

attorneys might be ethically bound to engage in these discussions with every convicted 



client, an attorney's failure to perform this task in a particular case does not necessarily 



amount to ineffective assistance of counsel, if there is no reason to believe that the 



defendant was disadvantaged by the lack of legal consultation. 



                 However, the Supreme Court held that a defense attorney does violate a 



defendant's right to effective assistance of counsel if the attorney fails to engage in 



meaningful discussions with the defendant about the possibility of an appeal in either of 



two situations:      (1) when the defendant has given the attorney a reasonable indication 



that they are interested in appealing, or (2) when there are objective reasons to think that 



a rational person in the defendant's position might want to appeal. Id., 528 U.S. at 480, 



 120 S.Ct. at 1036. 



                 Under the Flores-Ortega rule, Harvey's attorney, Wiggins, was obligated 



to engage in meaningful consultation with Harvey about the possibility of seeking post- 



judgement remedies.   This is true regardless of whether one credits Harvey's testimony 



or, alternatively, Wiggins's testimony at the post-conviction relief evidentiary hearing. 



                 According to Harvey, he affirmatively asked Wiggins to pursue an appeal, 



and Wiggins refused.           This satisfies the first of the Flores-Ortega  criteria:            that the 



defendant indicated an interest in appealing. 



                 According   to   Wiggins,   he   and   Harvey   never   engaged   in   substantive 



discussions   of   a   potential   appeal,   and   Harvey   never   directly   told   him   that   he   was 



interested in pursuing an appeal.   But even under Wiggins's version of events, the fact 



remains   that   the   prosecutor   recommended   7   years to   serve   at   Harvey's sentencing 



hearing when, according to Wiggins, she had earlier promised to recommend no more 



than 6 years to serve. 



                 Viewing      the   evidence     in  the   light   most    favorable    to   Harvey,    the 



prosecutor's   promise   concerning   the   sentencing   recommendation   may   have   been 



                                                  - 20 -                                              2372
 


----------------------- Page 21-----------------------

enforceable against the State, and Harvey may have been entitled either to withdraw his 



plea or to demand specific performance of that promise (in the form of a new sentencing 



hearing   where   the   State   could   recommend   no   more   than   6   years   to   serve). See 



Santobello v. New York, 404 U.S. 257, 261-63; 92 S.Ct. 495, 498-99; 30 L.Ed.2d 427 



(1971), holding that a defendant's right to due process is violated when the government 



induces the defendant to accept a plea bargain by promising to recommend a particular 



type of sentence, or to refrain from making any sentencing recommendation, and then 



the government fails to abide by its promise. See also Puckett v. United States, 556 U.S. 



129, 137; 129 S.Ct. 1423, 1430; 173 L.Ed.2d 266 (2009). 



               Moreover,Wiggins'swhisperedconversationwithHarveyatthesentencing 



hearing - a conversation on this very issue - demonstrates that Wiggins immediately 



recognized that this was a potential ground for post-judgement litigation. (Wiggins told 



Harvey, "I may have grounds for appeal on that.")   Thus, Wiggins knew that there were 



objective reasons to think that a rational person in Harvey's situation might want to 



appeal or to seek some other post-judgement remedy. 



               Accordingly, under either version of the facts, Wiggins was obligated by 



the Flores-Ortega rule to engagein meaningful consultation with Harvey about potential 



post-judgement remedies.  And because this is so, we have no need to decide whether 



to adopt the universal rule that Harvey proposes. 



                (c) Does Flores-Ortega apply to privately retained attorneys? 



                In its brief to this Court, the State suggests that the Flores-Ortega rule does 



not apply, and that Wiggins had a lesser obligation to Harvey, because Wiggins was a 



privately retained attorney rather than a court-appointed attorney.              (Remember that, 



under AlaskaAppellateRule209(b)(4),court-appointed attorneys aregenerally required 



                                               - 21 -                                          2372
 


----------------------- Page 22-----------------------

to continue representing a defendant on appeal, but the rule does not impose a similar 



obligation on privately retained attorneys.) 



                 We note, at the outset, that the State's suggestion appears to be inconsistent 



with both Alaska Professional Conduct Rule 1.2(a) and the two ABA Defense Function 



Standards      we    have    been   discussing,     Standards     4-5.2(a)(v)     and    4-8.2.      Under 



Professional   Conduct   Rule   1.2(a),  all  attorneys   who   represent   criminal   defendants 



must provide their convicted clients with meaningful consultation regarding a potential 



appeal. And the ABA's Defense Function standards likewise apply to all trial attorneys, 



whether court-appointed or privately retained. 



                 It is true that, in Flores-Ortega, the Supreme Court rejected a rule that 



defense attorneys would automatically be deemed ineffective if, following their client's 



conviction, they failed to consult with the client about a possible appeal.                   Instead, the 



Supreme Court held that, under the federal constitution, a court must engage in a fact- 



specific inquiry in order to determine whether a defense attorney's failureto consult with 



their client about a potential appeal amounted to ineffective assistance of counsel.   But 



the Supreme Court never suggested that one of the facts to be considered is whether the 



attorney was privately retained.           Instead, the two-part Flores-Ortega test focuses on 



whether the attorney knew, or had reason to know, that the defendant might potentially 



be interested in pursuing an appeal. 



                 Subsequent   court   decisions   on   this   topic   support   the   proposition   that 



privately     retained   attorneys    have    the  same     duty   as  court-appointed       attorneys    to 



meaningfully   advise   their   clients   about   a   possible   appeal,   and   a   duty   to   take   any 



necessary steps to preserve their clients' right of appeal.                 As the Supreme Court of 



Kentucky explained in Hiatt v. Clark, 194 S.W.3d 324, 330 (Ky. 2006), 



                 Although   the   ABA   Standards   contemplate   that   [not   all] 

                 defense attorneys may represent the same client at trial and 



                                                  - 22 -                                              2372
 


----------------------- Page 23-----------------------

                throughout the appeals process, ... the resounding message is 

                that defense attorneys, because of their intimate knowledge 

                of   the   trial   proceedings   and   their  possession   of   unique 

                information regarding possible post-conviction claims, have 

                an   obligation   to   cooperate   with   their   clients'   attempts   to 

                challenge their convictions. 



                A trial attorney's duty to protect the client's right of appeal "may include 



perfecting the appeal, even though arrangements may have been made for other counsel 



to represent the defendant before the appellate court." Commonwealth v. Ross, 432 A.2d 



1073, 1075 (Penn. App. 1981), quoting the Commentary to ABA Defense Function 



Standard 4-8.2. See also United States v. Ruth, 768 F.Supp. 1428, 1435 (D. Kan. 1991). 



                For other cases where courts have applied the Flores-Ortega standard to 



privately retained counsel who informed their clients that they would not continue to 



represent them on appeal, see Raney v. State, 986 So.2d 468 (Ala. Crim. App. 2007); 



Esters v. State, 894 So.2d 755 (Ala. Crim. App. 2003); and Wallace v. State, 121 S.W.3d 



652 (Tenn. 2003); Cabinatan v. United States, unpublished, 2011 WL 255691, *5 (D. 



Haw. 2011) (rejecting the contention that, because the defendant'strial attorney "was not 



retained or paid to prosecute an appeal, he therefore owed no duty to Cabinatan to file 



a notice of appeal."); Richardson v. United States, 612 F.Supp.2d 709, 715-16 (N.D. 



W.Va. 2009) (holding that trial counsel owes a criminal defendant a duty to file a notice 



of appeal, regardless of whether the attorney was retained for the appeal or not); Schaefer 



v.  United States, unpublished, 2008 WL 6138029, *1, *3 (S.D. Ga. 2008) (finding 



ineffective assistance of counsel when, following sentencing, the defendant expressed 



a desire to appeal and his retained counsel told him, "Don't drag me into it; you're on 



your own."). 



                We thereforeconclude that Flores-Ortega governstheconductof privately 



retained attorneys.   And as we have already explained, the Flores-Ortega test was met 



                                                - 23 -                                            2372
 


----------------------- Page 24-----------------------

in Harvey's case, regardless of whether one accepts Harvey's or Wiggins's version of 



events.   Accordingly, Wiggins had an obligation to engage in meaningful consultation 



with Harvey about his potential post-judgement remedies, and an obligation to take 



action to preserve Harvey's appellate rights. 



        Application of this law to Harvey's case 



                The evidence presented during Harvey's post-conviction relief litigation 



shows that Harvey had at least one plausible post-judgement claim, and that either 



Wiggins refused to file an appeal despite Harvey's request (Harvey's version of events), 



or Wiggins failed to meaningfully advise Harvey concerning his post-judgement options 



(Wiggins's version of events).   Under either version of events, Wiggins failed to honor 



his   post-judgement   obligations   to     Harvey,    and   Harvey    was   denied    the  effective 



assistance of counsel in this regard.        Accordingly, this portion of the superior court's 



ruling is REVERSED. 



                We conclude that Harvey is entitled to return to the status quo ante.   That 



is, Harvey should be placed in the same situation he was in following the superior court's 



entry of judgement against him in his underlying criminal case.   Harvey must be given 



the   opportunity   to   consult   with   an   attorney   concerning   his   post-judgement   options 



(including the likely success and potential consequences of post-judgement litigation), 



and then decide what he wishes to do. 



                We wish to make it clear, both to the superior court and the parties, that we 



express no opinion on the other disputes in this case - in particular, the factual dispute 



as to whether Gernat made a promise to Wiggins concerning the State's sentencing 



recommendation, and the legal dispute as to whether that promise (if made) would be 



enforceable against the State under Santobello v. New York, 404 U.S. 257, 261-63; 



                                               - 24 -                                           2372
 


----------------------- Page 25-----------------------

92 S.Ct. 495, 498-99; 30 L.Ed.2d 427 (1971), andPuckett v. United States, 556 U.S. 129, 



137; 129 S.Ct. 1423, 1430; 173 L.Ed.2d 266 (2009), either by allowing Harvey to 



withdraw his plea or by requiring specific performance. 



              Harvey shall have 60 days from the issuance of this opinion to consult an 



attorney and to file an appeal in his underlying criminal case or to pursue other remedies 



as he may see fit. 



              We do not retain jurisdiction over this case. 



                                          - 25 -                                      2372
 

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