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Alexiadis v. State (2/26/2016) ap-2493

Alexiadis v. State (2/26/2016) ap-2493

                                                                                  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@ akcourts.us  



                              IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                         



DIMITRIOS  NICKOLAOS  ALEXIADIS,  

                                                                                                                                                      

                                                                                                          Court of Appeals No. A-12101  

                                                                                                                                                                    

                                                        Petitioner,                                    Trial Court No. 3AN-14-1088 CR  



                                          v.  

                                                                                                                           O  P  I  N  I  O  N  

STATE  OF  ALASKA,  



                                                        Respondent.                                      No.  2493  -  February  26,  2016  



                            O                                                                                                                        

                               bjection and request for judicial review of a decision made by  

                                                                                 

                            the Clerk of the Appellate Courts.  



                                                                                                                                                   

                            Appearances:  Josie W. Garton, Assistant Public Defender, and  

                                                                                                                                                           

                            Quinlan Steiner, Public Defender, Anchorage, for the Petitioner.  

                                                                                                                                   

                            David T. Jones, Senior Assistant Attorney General, Anchorage,  

                                                                                                                                                 

                            and  Craig  W.  Richards,  Attorney  General,  Juneau,  for  the  

                                                      

                            Respondent.  



                                                                                                                                        

                            Before:  Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                                       *  

                                                                           

                            Superior Court Judge. 



                                         

                            Judge MANNHEIMER.  



                            This case involves an indigent criminal defendant who is receiving                                                                               the  



services of court-appointed counsel (                                          i.e.,   counsel at public expense).                                     The question   



       *  

              Sitting   by   assignment    made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  

Constitution and Administrative Rule 24(d).                                


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

                                                                                                                              

before us is whether the defendant must pay attorney's fees under Alaska Appellate Rule  



                                                                                                                               

209(b)(6)  if  their  attorney  pursues  an  interlocutory  petition  for  review  during  the  



                                                                                                                     

litigation of the case in the trial court, before the trial court has entered a final judgement  



                                                                                                                          

in the case.  For the reasons explained here, we conclude that the answer is no.  



                                                                                                                         

                    Dimitrios Nickolaos Alexiadis was charged with three counts of second- 



                                                                                                                               

degree assault, and he reached a plea agreement with the State.  Under the terms of this  



                                                                                                               

agreement, Alexiadis would plead guilty to a single consolidated count of second-degree  



                                                                                                                   

assault, with open sentencing, but the State would refrain from pursuing any aggravating  



                                                                                                                            

factors - thus ensuring that Alexiadis would receive no more  than  3  years to serve  



                                                                                                   

(the upper end of the applicable presumptive sentencing range).  



                                                                                                                                

                    When this plea agreement was initially presented to the superior court, the  



                                                                                                                    

court accepted Alexiadis's guilty plea.  But after the superior court reviewed Alexiadis's  



                                                                                                                            

pre-sentence  report,  the  court  rejected  the  plea  agreement  as  too  lenient.                                        More  



                                                                                                                               

specifically, the court found that the agreement was too lenient because the State had  



                                                                                                                                     

agreed not to pursue aggravating factors.   In essence, the court  directed the State to  



                                                                                                                      

pursue aggravating factors or otherwise modify the charge to increase the allowable  



                             

sentencing range.  



                                                                                                                          

                    Alexiadis petitioned this Court to review and reverse the superior court's  



                                                                                                                            

rejection of the plea agreement, arguing that the superior court had no authority to reject  



                                                                                                                                

the agreement on this ground.   The State initially opposed Alexiadis's petition, but the  



                                                                                                                             

State later decided to support Alexiadis's position and to concede that the superior court  



                                  

had committed error.  



                                                                                                                           

                    In Alexiadis v. State , 355 P.3d 570 (Alaska App. 2015), this Court agreed  



                                                                                                                                

with Alexiadis (and the State) that the superior court lacked the authority to order the  



                                                                                                                            

State to pursue aggravating factors if those factors would require  a  jury trial under  



                                                               - 2 -                                                          2493
  


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

                                                                                                                               

Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).   We  



                                                                                                                              

therefore reversed the decision of the superior court.  Alexiadis , 355 P.3d at 573.  



                                                                                                                         

                    After we issued our decision, the Clerk of the Appellate  Courts notified  



                                                                                                                                

Alexiadis that she intended to enter judgement against  him for attorney's fees in the  



                                                                                                            

amount of $1000.  The Clerk's action gave rise to a new controversy.  



                                                                                                                         

                    Alaska Appellate Rule 209(b)(6) establishes a schedule of fees that indigent  



                                                                                                                     

defendants must pay toward the cost of their court-appointed attorney if the defendant  



                                                                                                                      

pursues various specified types of appellate litigation.   The fourth clause of Appellate  



                                                                                                                                

Rule 209(b)(6) is a residual clause that specifies the attorney's fee to be assessed for  



                                                                                                                   

"other appellate actions" -  i.e.,  types of appellate litigation that are not specifically  



                                                                                                                         

covered  by any other clause of the rule.   Petitions for review fall within this residual  



             

clause.  



                                                                                                                          

                     In  felony  cases  (like  Alexiadis's  case),  the  attorney's  fee  for  "other  



                                                                                                                                 

appellate  actions"  is  $1000.                This  is  why,  after  this  Court  issued  our  decision  in  



                                                                                                                        

Alexiadis's case, the Clerk of the Appellate Courts notified Alexiadis that she intended  



                                                                                                                              

to enter a monetary judgement against him in the amount of $1000.  Alexiadis has filed  



                                          

an objection to the Clerk's decision.  



                                                                                                                            

                    Alexiadis's  objection  is  premised  on  the  assertion  that  Appellate  Rule  



                                                                                                                              

209(b) is based on, and is intended to implement, AS 18.85.120(c) - the statute that  



                                                                                                                                  

authorizes the State of Alaska to enter judgement against indigent defendants for a  



                                                                                                                              

portion of the cost of their court-appointed counsel.  See State v. Albert, 899 P.2d 103,  



                                                                                                                    

 104 (Alaska 1995), which describes Appellate Rule 209(b) as "set[ting] forth procedures  



                                                                                                                       

which implement the recoupment system" established by AS 18.85.120(c).  



                                                               - 3 -                                                          2493
  


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

                             Alexiadis notes that AS 18.85.120(c) speaks only of defendants who have                                                                               



                                                               2  

been   convicted   of   a   crime.                                                                                                                                                 

                                                                      Likewise,  Alaska  Criminal Rule  39(c)  (the  rule  that  



                                                                                                                                                                             

implements AS 18.85.120(c) in trial court proceedings) authorizes trial courts to impose  



                                                                                                                                                                                      

attorney's fees on indigent defendants  only  if the trial court proceeding results in the  



                                                                                                                                                                                          

entry  of  judgement  against  the  defendant  or  (in  the  case  of  collateral attacks  on  a  



                                                                                                                                              3  

                                                                                                                                                 

conviction) the re-affirmation of a previously entered judgement.  



                             Based on this, Alexiadis argues that Appellate Rule  209(b)  must not be  

                                                                                                                                                                                        



interpreted  to  impose  fees  on  defendants  who,  like  Alexiadis,  pursue  interlocutory  

                                                                                                                                                                



litigation - that is, litigation that takes place before any judgement of conviction has  

                                                                                                                                                                                     



been entered.  

                                



                             Because this Court had not previously considered this question, we asked  

                                                                                                                                                                                 



the State to respond to Alexiadis's argument.   In its response, the State discusses both  

                                                                                                                                                                                   



the wording and the legislative history of AS 18.85.120, and the State concludes that the  

                                                                                                                                                                                       



statute is ambiguous on the question of whether attorney's fees can  be imposed on  

                                                                                                                                                                                       



       2  

               AS 18.85.120(c) declares, in pertinent part:                                     



               Upon [a] person's conviction, the court may enter                                                         a judgment that a person for                           

       whom   counsel   is   appointed   pay   for   services   of   representation   and   court   costs.   

       Enforcement of a judgment under this subsection may be stayed by the trial court or                                                                                        

       the appellate court during the pendency of an appeal of the person's conviction.                                                                                      



       3  

                                                                                                    

               Alaska Criminal Rule 39(c)(1)(A) reads:  



                                                                                                                                                                                         

               Entry of Judgment.  ...  At the time of sentencing, revocation of probation, denial of  

                                                                                                                                                                                   

       a motion to withdraw plea,  [or] denial of an application brought under Criminal Rule  

                                                                                                                                                                                   

        35.1, the court shall inquire whether there is good cause why the court should not enter  

                                                                                                                                                                                      

       judgment for the cost of appointed counsel in the amount set out in subsection (d) of this  

                                                                                                                                                                                       

       rule.  If no one asserts good cause to reduce the amount called for in subsection (d), the  

                                                                                                                                                                                   

       court shall enter judgment against the defendant in that amount.  If it is alleged that there  

                                                                                                                                                                                      

       is good cause to reduce the normal amount, the court may either decide the issue at that  

                                                                                                                                                                               

       time and enter judgment accordingly or schedule another hearing to consider the issue.  



                                                                                          - 4 -                                                                                     2493
  


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

                                                                                                                             

defendants who pursue appellate litigation before any judgement of conviction has been  



                                   

entered against them.  



                                                                                                                                

                    To resolve this ambiguity, the State suggests that we should assume the  



                                                                                                                               

correctness  of  Alexiadis's  interpretation  of  the  statute  (that  it  only  authorizes  the  



                                                                                                                            

imposition of attorney's fees after a defendant is convicted), and that we should adopt  



                                                                                                                    

a novel procedure to delay any imposition of attorney's fees until it can be ascertained  



                                                        

whether the defendant is convicted.  



                                                                                                                

                     Specifically, the State proposes that, with respect to every interlocutory  



                                                                                                                         

petition for review filed by an indigent defendant, this Court should hold the petition  



                                                                                                                                 

open for an indefinite period of time - even after the Court has decided the petition -  



                                                                                                                                

until we finally know (1) whether the defendant  was convicted, and (2) whether the  



                                                                                                                         

defendant's conviction became final, either because it was affirmed on appeal or because  



                                                                                                                                

the defendant declined to file an appeal.  Under the State's proposal, final action in the  



                                                                                                                    

case would be deferred - for however long it took - to see whether the defendant  



                                                                                                                     

ended up being convicted.   Then, if the defendant was convicted (and the conviction  



                                                                                                                   

became final), the Clerk would impose attorney's fees in connection with the defendant's  



                                                   

interlocutory petition for review.  



                                                                                                                                

                    The procedure envisioned by the State would be awkward at best.  But we  



                                                                                                                 

believe that the State's general approach to this problem - i.e., viewing interlocutory  



                                                                                                                             

petitions for review as simply one aspect of the underlying criminal litigation - does  



                                                                                           

indeed suggest the proper resolution of the issue before us.  



                                                                                                                                 

                    As  we  noted earlier,  Alaska Criminal Rule 39(c) authorizes a court to  



                                                                                                                            

impose  attorney's  fees  on  an  indigent  defendant  only  at  the  end  of  the  trial court  



                                                                                                                                

proceeding (and only if that proceeding ends in the entry of  judgement  against the  



                    

defendant).  



                                                               - 5 -                                                          2493
  


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

                                                                                                                                 

                    The applicable amount of attorney's fees is set forth in subsection (d) of  



                                                                                                                                

Criminal Rule 39.  This schedule establishes fees in various amounts, depending on the  



                                                                                                                                 

type of proceeding and how that proceeding was resolved (e.g., with a plea bargain as  



                                                                                                                           

opposed to a trial).             But the amounts set out in Criminal Rule 39(d) are only rough  



                                                                                                                              

approximations of the time and effort that a court-appointed defense attorney might have  



                                                                                                                               

spent on the defendant's case.   The amounts specified in the rule do not hinge on the  



                                                                                                                                 

details of how the defense attorney litigated the case - for example,  the  number of  



                                                                                                                                 

motions filed by the defense attorney,  or the number of hours the attorney spent in  



                                                                                                                          

negotiation with the prosecutor, or the number of days the attorney spent in trial.  Rather,  



                                                                                                                          

the defendant is ordered to pay a "package" fee that covers all of the individual actions  



                                                                              

that their attorney undertook in litigating the case.  



                                                                                                                              

                    In McLaughlin v. State, 173 P.3d 1014 (Alaska App. 2007), this Court held  



                                                                                                                        

that the decision whether to pursue an interlocutory petition for review - "the decision  



                                                                                                                                      

whether to seek immediate appellate review of a trial court's non-appealable order" -  



                                                                                                                             

is a tactical decision to be made by the defense attorney.  Id.  at 1014, 1016-17.  In other  



                                                                                                                                 

words, filing (or not filing) an interlocutory petition for review is simply one aspect of  



                                                                                                                             

litigating the case.  It is akin to the attorney's decision to file (or not file) any of the other  



                                               

potential motions in the case.  



                                                                                                                         

                    We acknowledge that there is one obvious distinction between a petition  



                                                                                                                                

for interlocutory appellate review and other potential trial court motions:  a petition for  



                                                                                                                            

review creates work for another level of court.  But the attorney's fees established under  



                                                                                                                      

AS 18.85.120(c) and the corresponding court rules (Criminal Rule 39(c) and Appellate  



                                                                                                                           

Rule 209(b)) are not intended to compensate the State for the work of judges, law clerks,  



                                                                                                                                 

and Court System administrative and clerical staff.   Rather, these fees are intended to  



                                                                                                                                    

compensate the State for the work of defense attorneys employed at public expense.  



                                                               - 6 -                                                          2493
  


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

                                                                                                                   

                    An  appeal that  challenges  an  already-entered  conviction  is  reasonably  



                                                                                                                                

categorized as a separate proceeding - a separate unit of attorney work, for which the  



                                                                                                                           

State can impose a separate attorney's fee on a defendant who is represented at public  



                                                                                                                                

expense.  But our decision in McLaughlin implicitly holds that interlocutory petitions for  



                                                                                                                                

review should be regarded as an aspect of the work done by the attorneys who are  



                                                                                                                           

appointed  to  represent  indigent  criminal  defendants  in  the  trial  court.                                   And  under  



                                                                                                                                

Criminal Rule 39(c), if the defendant is later convicted, the trial court will order the  



                                                                                                                                      

defendant  to  pay  the  appropriate  scheduled  amount  for  their  attorney's  services.  



                                                                                                                       

                    For these reasons, we agree with Alexiadis that the Clerk of the Appellate  



                                                                                                                              

Courts should not enter judgement against him for an attorney's fee under Appellate Rule  



                                                                                                                            

209(b)(6).  Indigent defendants should not pay an additional attorney's fee if the court- 



                                                                                                                                 

appointed attorney or law firm who is representing them in  the trial court chooses to  



                                                                                                                                     

pursue an interlocutory petition for review in the middle of the trial court proceedings.  



                                                                                                                     

                    The Clerk's decision to enter judgement against Alexiadis  for attorney's  



                                                                                  

fees under Appellate Rule 209(b)(6) is REVERSED.  



                                                               - 7 -                                                          2493
  

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