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Nelson v. State (4/21/2017) ap-2549

Nelson v. State (4/21/2017) ap-2549

                                                     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
 
 

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                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



JUSTIN A.D. NELSON,  

                                                                    Court of Appeals No. A-11259  

                                    Appellant,                      Trial Court No. 3DI-11-216 CR  



                           v.  

                                                                             O  P  I  N  I  O  N  

STATE OF ALASKA,                                                           Order on Rehearing  



                                    Appellee.                         No. 2549 - April 21, 2017  



                  Appeal   from  the  Superior  Court,  Third  Judicial   District,  

                                                                                        

                  Dillingham, Fred Torrisi, Judge.  



                  Appearances:  Brooke Berens, Assistant Public Advocate, and  

                                                            

                  Richard Allen, Public Advocate, Anchorage, for the Appellant.  

                  Timothy  W.  Terrell,  Assistant  Attorney  General,  Office  of  

                                                                          

                  Criminal  Appeals,  Anchorage,  and  Michael  C.  Geraghty,  

                                                                                      

                  Attorney General, Juneau, for the Appellee.  



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

                                                         

                  District Court Judge. *  

                                                



                  Judge ALLARD.  



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



Constitution and Administrative Rule 24(d).  


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

                       As part of a plea agreement with the State, Justin A.D. Nelson pleaded                                             



                                                                                                      1  

guilty to attempted first-degree sexual abuse of a minor.                                                                           

                                                                                                           Later, before sentencing,  



                                                                                                                                                 

Nelson sought to withdraw his plea.   Nelson alleged that he entered his guilty plea  



                                                                                                                                                    

without fully understanding the terms of the plea agreement. Nelson also alleged that he  



                                                                                                                                                 

had received ineffective assistance of counsel from the assistant public defender who  



                                                                    

represented him at the change of plea hearing.  



                                                                                                                                           

                       Nelson asked the superior court to delay his scheduled sentencing hearing  



                                                                                                                                                     

and to appoint him conflict counsel so that he could fully litigate his alleged claim of  



                                                                                                                                                    

ineffective assistance of counsel.  The superior court ruled that Nelson had shown no  



                                                                                                                                        

"fair and just reason" to withdraw his plea.  The superior court also denied Nelson's  



                                                                                                                                                          

requests for a delay of sentencing and for the immediate appointment of conflict counsel.  



                                                                                                                          

Instead, the court appointed Nelson conflict counsel after sentencing occurred.  



                                                                                           

                       In our earlier decision in this case - Nelson v. State, 2016 WL 7422690  



                                                                                                                                         

(Alaska App. Dec. 21, 2016) (unpublished) - we upheld the superior court's handling  



                                                                                                                                                  

of these matters and we affirmed Nelson's conviction.  Following the issuance of our  



                                                                                                                                               

decision, Nelson filed a petition for rehearing in which he asked us to reconsider these  



                                                                               

matters.  We now announce our decision on rehearing.  



                                                                                                                                               

                       In Nelson's case, the question facing the trial judge was whether to delay  



                                                                                                                                            

the sentencing proceedings, appoint conflict counsel, and permit Nelson to fully litigate  



                                                                                                                                                    

his claim of ineffective assistance of counsel before holding the sentencing hearing -  



                                                                                                                                                          

or, instead, to deny Nelson's request for the immediate appointment of conflict counsel.  



                                                                                                                                     

This  second  option  would  effectively  delay  any  litigation  of  Nelson's  ineffective  



                                                                                                                                            

assistance of counsel claim until after Nelson's sentencing, when Nelson could pursue  



                                                                                               

any such claims in an application for post-conviction relief.  



      1     AS 11.41.434(a)(1) and AS 11.31.100(a).  



                                                                        - 2 -                                                                 2549
  

                                                                                                                                                          


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

                               Before making this decision, the superior court undertook considerable                                                                       



efforts to obtain a clearer understanding of Nelson's ineffective assistance of counsel                                                                                                 



claim.   When Nelson proved unable to articulate or substantiate any specific assertions                                                                                            



of how he had been incompetently represented, the trial judge chose to rule on Nelson's                                                                                               



involuntariness claim and proceed with sentencing (which had already been delayed                                                                                                       



multiple times), thereby deferring the litigation of Nelson's ineffective assistance of                                                                                                              



                                                          2  

counsel claim until later.                                                                                                                                                                         

                                                               On this record, we concluded that the superior court did not  



                                                                                                                                                                                                      

abuse its discretion when it denied Nelson's request for the immediate appointment of  



                                       3  

                    

conflict counsel. 



                                                                                                                                                                                                  

                               In his petition for rehearing, Nelson appears to advocate a bright-line rule  



                                                                                                                                         

which would require trial judges to automatically appoint conflict counsel whenever a  



                                                                                                                                                                                                     

defendant files a presentencing motion to withdraw their plea based on allegations of  



                                                                                                                                                                         

ineffective assistance of counsel.  Such a bright-line approach certainly has benefits in  



                                                                                                                                                                                         

terms of judicial economy and efficiency. We also agree that the appointment of conflict  



                                                                                                                                                                                        

counsel will often be the appropriate action in these circumstances, particularly because  



                                                                                                                                                                                                      

a different standard applies to a presentencing motion to withdraw a plea as opposed to  



                                                                                                         4  

                                                                                              

a post-sentencing motion to withdraw a plea. 



        2       In his petition for rehearing, Nelson asserts that he alleged multiple bases for a claim  



                                                                                                                  

of ineffective assistance of counsel.  But the most substantive basis that he lists - that he  

                                                                                                                                                                       

had been told he would only serve one-third of his time - was raised only after sentencing  

had occurred.  



        3      Nelson v. State, 2016 WL 7422690, at *4 (Alaska App. Dec. 21, 2016) (unpublished).  



        4  

                                                                                                                                                                                       

                Compare Alaska R. Crim. P. 11(h)(2) with Alaska R. Crim. P. 11(h)(3).  Criminal  

                                                                                                                                                          

Rule 11(h)(2) addresses presentencing motions to withdraw a guilty plea; it requires a trial  

                                                                                                                                                                                                    

court to allow a defendant to withdraw a plea if the defendant proves that withdrawal of the  

                                       

plea is necessary to correct a manifest injustice, and it grants a trial court discretion to allow  

                                                                                                          

withdrawal of a plea prior to sentencing for any "fair and just reason" unless the prosecution  

                                                                                                                                                                             (continued...)  



                                                                                                                                                                                                             

                                                                                                - 3 -                                                                                        2549
  


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

                          But we are also concerned that an inflexible rule would invite abuse by                                                                  



defendants who simply want to delay or disrupt the sentencing proceedings.                                                                            The vast  



majority of jurisdictions hold that the question of whether to appoint conflict counsel in                                                                           



                                                                                                                                                 5  

these circumstances is a matter entrusted to the discretion of the trial court.                                                                      Although  



                                                                                                                                                              

an immediate appointment of conflict counsel will often be the proper action, we agree  



                                                                                                                                                                   

with these jurisdictions that deference to the trial court is appropriate.  And based on the  



                                                                                                                                                           

totality of circumstances presented by Nelson's case, we do not find that the trial court's  



                                                              

actions constituted an abuse of discretion.  



                                                                                                                                                                    

                          In his petition for rehearing, Nelson also argues that this Court failed to  



                                                                                                                                                        

address his claim that he received ineffective assistance of counsel from the assistant  



                                                                                                                                                                          

public defenders who represented him in the post-plea and presentencing proceedings.  



                                                                                                                                                               

Nelson is correct that we did not directly address this claim, and we therefore do so now.  



       4     (...continued)  



has been substantiallyprejudiced byreliance on the defendant's plea. Criminal Rule 11(h)(3)  

                                                                                                                               

addresses post-sentencing motions to withdraw a guiltyplea; it requires a defendant to pursue  

                                                                                                                                     

the  motion  in  the  form  of  an  application  for  post-conviction  relief,  and  it  requires  the  

                                                                                                                                    

defendant to prove that withdrawal of the plea is necessary to correct a manifest injustice.  

                                                                                                                                      

Ineffective  assistance  of  counsel  constitutes  manifest  injustice  under  Criminal  Rule  

                                                  

 11(h)(4)(A).  



       5  

                                                                

             See, e.g., People v. Smith, 863 P.2d 192, 200 (Cal. 1993), as modified on denial of  

                                                                                                                             

reh'g  (Feb. 3, 1994) (applying an abuse of discretion standard of review and requiring a  

                                                                                                                      

defendant to make a "proper showing" that there are adequate grounds for the ineffective  

                                                                                       

assistance of counsel claims); State v. Cooper, 738 A.2d 1125, 1132-33 (Conn. App. 1999)  

(declaring  that  whether  to  appoint  conflict  counsel  in  connection  with  plea-withdrawal  

                                                                                  

proceedings rests in the sound discretion of the trial court); State v. Millett, 718 A.2d 1100,  

 1102 (Me. 1998); Brunsen v. State, 281 P.3d 1157 (Nev. 2009) (holding that a defendant is  

entitled to an evidentiary hearing and the immediate appointment of conflict counsel if the  

                                                                                                                                                    

defendant's  plea-withdrawal  motion  includes  specific  factual  allegations  of  ineffective  

assistance of counsel).  



                                                                                                                                                                          

                                                                               - 4 -                                                                         2549
  


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

                          In his briefing on appeal,                      Nelsonacknowledges that                           Alaskaappellate courts            



normally will not consider an ineffective assistance of counsel claim for the first time on                                                                         



appeal because "the record of the trial proceedings will seldom conclusively establish                                                                  



                                                        6  

                                                                                                                                                                      

incompetent representation."                                However, Nelson contends that the record in his case is  



                                                                                                                                                   

sufficient, as it stands, to establish that the assistant public defenders who represented  



                                                                                                                                  7  

                                                                                                                                                                

him post-plea provided him with ineffective assistance of counsel.                                                                    We disagree with  



                                                                                                                                                                 

Nelson that the record is adequate to support such a conclusion.  We also disagree with  



                                                                                                                                                            

Nelson's underlying contention that these attorneys were required to proceed as though  



                                                                                                                                                                           

they had been appointed to fully litigate his ineffective assistance of counsel claim.  



                                                                                                                                                                

Separate conflict counsel would need to be appointed if the claim was going to be fully  

litigated.8  



                                                                                                                                                              

                          Accordingly, we DENY Nelson's petition for rehearing, and we again  



                                                                             

AFFIRM the judgment of the superior court.  



       6     Burton v. State, 180 P.3d 964, 969 (Alaska App. 2008).  



       7     See, e.g., Tazruk v. State, 67 P.3d 687, 688 (Alaska App. 2003).  



       8     See, e.g.,  Cole v. State, 1994 WL 16196666, at *2 (Alaska   App. Dec. 14, 1994)  



(unpublished).  



                                                                                - 5 -                                                                              2549    

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