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Sakar v. State (9/7/2018) ap-2617

Sakar v. State (9/7/2018) ap-2617

                                                    NOTICE
  

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                IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



HAROLD SAKAR,  

                                                                   Court of Appeals No. A-11603  

                                   Appellant,                     Trial Court No. 4BE-98-124 CR  



                           v.  

                                                                           O  P  I  N  I  O  N 

STATE OF ALASKA,  



                                   Appellee.                        No. 2617 - September 7, 2018  



                  Appeal f                                  

                            rom the Superior Court, Fourth Judicial District, Bethel,  

                  Dale O. Curda, Judge.  



                  Appearances:        Kelly Taylor,  Assistant  Public  Defender,  and  

                                                                      

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

                              

                  Diane  L.  Wendlandt,  Assistant  Attorney  General,  Office  of  

                                                                         

                  Criminal Appeals, Anchorage, and Craig W. Richards, Attorney  

                  General, Juneau, for the Appellee.  



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

                                                       

                  Superior Court Judge. *  

                                                 



                  Judge MANNHEIMER.  



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



Constitution and Administrative Rule 24(d).  


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

                                     In 1999, Harold Sakar was brought to trial on charges of kidnapping and   



two counts of first-degree sexual assault. He was defended by attorney Scott Sidell, who                                                                                                                                             



was the contract attorney for the Office of Public Advocacy in the Bethel area.                                                                                                                                               



                                      Sakar was found guilty, and in June 2000 he was sentenced for these                                                                                                                         



crimes. Sidell told Sakar that he would file an appeal, but (unbeknownst to Sakar) Sidell                                                                                                                                        



failed to do so.                  



                                      Sidell had apparently been suffering fromdepression. In                                                                                                   early 2003 (about  



two and a half years after Sakar's sentencing), Sidell and discipline counsel for the                                                                                                                                                  



Alaska Bar Association entered into a stipulation that Sidell would be placed on inactive                                                                                                                                  



                                                                                                                                                                   1  

status because of disability, retroactive to January 1, 1998.                                                                                                                                                                 

                                                                                                                                                                       In March 2003, the Alaska  



                                                                                                                                                                               

Supreme Court approved this resolution of Sidell's bar status.  



                                                                                                                                                   

                                     Also in 2003, Sakar learned that Sidell had not filed the promised appeal  



                                                                                                                                                                                                                         

of  his  convictions.                                        Sakar  filed  an  application  for  post-conviction  relief,  alleging  



                                                                                                                                                                                                                                    

ineffective assistance of counsel. The superior court ultimately ruled that Sidell had been  



                                                                                                                                                                                                                             

ineffective when he failed to appeal Sakar's convictions, and that Sakar was now entitled  



                                                               

to file a belated direct appeal.  



                                                                                                                                                                                                                                

                                     In  this  belated  appeal,  Sakar  argues  that  the  supreme  court's  order  



                                                                                                                                                                                                                                          

retroactively placing Sidell on disability status as of January 1, 1998 entitles him to an  



                                                                                                                                                                                                                           

automatic reversal of his conviction, even though Sakar has not shown that Sidell's  



                                                                                                                                                                              

performance in his case was deficient in any identifiable way.  



                                                                                                                                                                                                                       

                                      Sakar acknowledges that this Court previously rejected this same argument  



                                                                                                                                                       2  

                                                                                                                                                                                                                                      

(raised by a different client of Sidell) in Nook v. State.                                                                                                   However, Sakar contends that  



          1        See Nook v. State                             , 251 P.3d 358, 359 (Alaska App. 2011).  



         2         251 P.3d 358 (Alaska App. 2011).  



                                                                                                                  - 2 -                                                                                                              2617
  


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

Nook  was wrongly decided. Alternatively, he argues that his case is distinguishable from                                                                    



Nook.    



                          For the reasonsexplained                        inthis decision,weconcludethatSakar has                                          failed  



to show either that                 Nook  was originally erroneous or that Sakar's case is distinguishable                                



from  Nook.   



                          Sakar raises one more claim on appeal:  he asserts that the superior court   



enhanced   his   sentence   in   violation   of   his   Sixth   Amendment   right  to   jury   trial   as  



                                                                      3  

construed in  Blakely v. Washington                                 .                                                                             

                                                                          We reject this claim because Sakar's conviction  



                                                                                                                                                                

was entered approximately four years before Blakely  was decided, and because the  



                                                                                                                        4  

                                                                                                                           

Alaska Supreme Court has held that Blakely is not retroactive.  



             Why   we   re-affirm   our   decision   in   Nook,   and   why   we   reject   Sakar's  

             argument that his case is distinguishable from Nook  

                                                                                                                   



                          In Nookv.State, werejected theargumentthatSidell'sretroactivedisability  

                                                                                                                                                     



status entitled all defendants who were represented by Sidell after January 1, 1998 to  

                                                                                                                                                                  



                                                                                       5  

claim automatic reversals of their convictions.  

                                                                                                                                                        

                                                                                          Our opinion in Nook sets out the reasons  



                                                                                                                                                      

why a rule of automatic reversal was both unmerited and contrary to the Alaska Supreme  



                                                                                                                                                               

Court's intent when it approved the disability stipulation between Sidell and the Bar  



                         6  

Association.    



       3     542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).  



       4     State v. Smart, 202 P.3d 1130, 1135 (Alaska 2009).  



       5     Nook, 251 P.3d at 362.  



       6     Ibid.  



                                                                              - 3 -                                                                          2617
  


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

                                          Sakar argues that our decision in                                                                     Nook  was originally erroneous, and that                                                                          



we should now overrule                                                      Nook.   We have considered Sakar's arguments, and we remain                                                                                                                 



convinced that                                 Nook  is good law.                                          



                                          Sakar argues in the alternative that the                                                                            Nook  decision has been undermined                                        



by the testimony given by several witnesses at the evidentiary hearing in Sakar's post-                                                                                                                                                                      



conviction relief action - witnesses who were critical of Sidell's general performance                                                                                                                                                



during his tenure as an OPA contract attorney.                                                                                                     



                                          Butthetestimony ofthesewitnesses does not underminetheconclusion                                                                                                                                                       that  



we reached in                                  Nook   - the conclusion that, regardless of what might be said about                                                                                                                                        



 Sidell's   performance   in   general,   any   individual   defendant   who   asserts   a   claim   of  



ineffective assistance of counsel against Sidell must show (1) that Sidell's performance                                                                                                                                              



in their specific case                                          fell below the minimum standard of competence that we expect of                                                                                                                                        



criminal  defense   attorneys,   and   (2)   that   there   is   a   reasonable   possibility   that   this  



                                                                                                                                                                                                                               7  

incompetent performance affected the outcome of the defendant's trial.                                                                                                                                                             



                                                                                                                                                                                                                                                                    

                                          At oral argument in this case, Sakar's appellate attorney conceded that the  



                                                                                                                                                                                                               

record of Sakar's trial does not reveal any obvious attorney error.  We therefore reject  



                                                                                                                                                                                                                                                                 

 Sakar's claim that he is entitled to reversal of his convictions simply because he was  



                                                                      

represented by Sidell.  



                                                                                                                                                                                                                                                                 

                                          In his brief to this Court, Sakar raises one more claim:  he contends that  



                                                                                                                                                                                                                                                                 

 Sidell was incompetent for failing to file a pre-trial motion under a local Bethel court rule  



that allowed expansion of the geographic jury selection area up the Kuskokwim River  



                                                                                                                                                                                                                                        

to the Athabascan villages situated upriver from Bethel, if one of those Athabascan  



                                                                                                    

villages is the site of the crime.  



           7         Ibid.  



                                                                                                                               - 4 -                                                                                                                            2617
  


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

                            This issue was not raised in the trial court, and the current record contains                                                           



no inquiry or findings regarding the reasons why Sidell did not pursue the suggested                                                                            



motion.   Accordingly, this claim cannot be raised on direct appeal.                                                                           Rather, it must be               



                                                                                               8  

raised in a petition for post-conviction relief.                                                   



                                                                                                 

              Because Sakar's case became final for purposes of retroactivity analysis  

              years before  Blakely  was decided, Blakely 's holding does not apply to  

                                                                                                                                                                   

              Sakar's case  

                                



                            In June 2004, almost four years after the superior court entered judgement  

                                                                                                                                                               

 againstSakar, theUnited States Supreme Courtdecided Blakelyv.Washington. 9  

                                                                                                                                        

                                                                                                                                                                      

                                                                                                                                                                     Blakely  



                                                                                                                                                                 

 announced a new interpretation of the Sixth Amendment right to jury trial - enlarging  



                                                                                                                                                                           

that right so that it applies to certain sentencing proceedings. Under Blakely, if the State  



                                                                                                                                                                      

proposes an aggravating factor that will expand the court's sentencing authority beyond  



                                                                                                                                                                           

the maximum sentence that would otherwise apply, and if that aggravating factor rests  



                                                                                                                                                                                   

 on facts other than the defendant's prior convictions, the defendant is entitled to have a  



                                                                                                                                                                              

jury decide the aggravating factor, and the defendant is entitled to demand that the  



                                                                                                                                  10  

                                                                                                                                      

 government prove the aggravator beyond a reasonable doubt.  



                                                                                                                                                            

                            However, this rule applies only to cases that were tried after Blakely was  



                                                                                                                                                                                  11  

                                                                                                                                                         

 announced or that were pending on direct review at the time Blakely was announced.  



        8     See Burton v. State                    , 180 P.3d 964, 968-69 (Alaska App. 2008);                                               Sharp v. State, 837  



P.2d 718, 722 (Alaska App. 1992);                                        Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App.  

 1984).  



       9       542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).  



        10    Blakely, 542 U.S. at 303-04, 124 S.Ct. at 2537-38.  



        11    State v. Smart, 202 P.3d 1130, 1147 (Alaska 2009); Haag v. State, 117 P.3d 775, 783  

                                                                                                                                                  

 (Alaska App. 2005).  



                                                                                      -  5 -                                                                               2617
  


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

                        Sakar was sentenced in August 2000, well before the                                         Blakely  decision was   



announced.   However, Sakar argues that, because he was granted the right to pursue the                                                            



present lateappeal,hisconviction                          retroactivelybecame(and currently remains) non-final                           



-  thus entitling him to the benefit of the holding in                                      Blakely.   



                        There are few cases that address this issue, but those cases reject Sakar's  



                                                                                12  

position.   For instance, in                 Gutermuth v. State                ,                                                                       

                                                                                    the Indiana Supreme Court ruled that a  



                                                                                                                                                  

defendant who was allowed to file a late appeal was nevertheless subject to the law that  



                                                                                                                              13  

                                                                                                                                           

would have governed the defendant's appeal if it had been timely filed.                                                            The Indiana  



                             

Supreme Court reasoned:  



                         

                                                                                                                        

                       Belated  appeals  are  filed  by  defendants  who  have  been  

                                                                                                                             

                        diligent in requesting permission to file belated notices of  

                                                                                                                              

                        appeal and have no fault in failing to file a timely notice of  

                                                                                                                          

                        appeal.  If they have been found faultless and diligent, they  

                                                                                                                          

                        should not be penalized for filing a belated appeal.  But they  



                                                                                                     14  

                                                                                          

                        also should not be rewarded for their delay. 



                                                                                                                                             15  

                                                                                                                                                  

                        The Sixth Circuit reached the same conclusion in Wheeler v. Jones.                                                       The  



                                                                                                                                                    

defendant in  Wheeler filed a federal petition for writ of habeas corpus pursuant to 28  



                                                                                                                                                 

U.S.C.  2254, arguing (among other things) that the jury instructions at his trial in state  



                                                                                                                                              

court contained an improper presumption that violated his right to due process under  



                                          16  

                                                

Sandstrom v. Montana.  



      12    868 N.E.2d 427 (Ind. 2007).  



      13    Gutermuth, 868 N.E.2d at 433.  



      14    Id. , 868 N.E.2d at 434 (citations omitted).  



      15    226 F.3d 656 (6th Cir. 2000).  



      16    Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).  



                                                                        -  6 -                                                                  2617
  


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

                         Wheeler was convicted before                            Sandstrom  was decided, and Wheeler did                                 



not originally appeal his conviction -thus                                    allowing the conviction to become final. But    



 after  Sandstrom  was decided, the Michigan Supreme Court granted Wheeler leave to file                                                                 



                                                                                                                        17  

 a late appeal (an appeal that was ultimately denied in state court).                                                         



                         In his federal habeas petition, Wheeler made the same argument that Sakar  

                                                                                                                                                    



makes here:  the claim that, because he was granted the right to pursue a late appeal, his  

                                                                                                                                                         



 conviction should no longer be considered final, and thus he should be able to claim the  

                                                                                                                                                         

benefit of any intervening developments in the law. 18  

                                                                                                      



                                                                                                                                                

                         The  Sixth  Circuit  rejected  this  argument,  holding  that  even  though  



                                                                                                                                                          

Wheeler's right of appeal was revived as a result of his successful collateral attack on his  



                                                                                                                                                    

 conviction, Wheeler's revived appeal was not the exact equivalent of a timely direct  



                                                                                19  

                                                                                                                                           

                                                                                      Instead, the court held that Wheeler's  

 appeal,  at least for retroactivity purposes.  



                                                                                                                                                         

revived appeal should be viewed (for retroactivity purposes) as a continuation of his  



                                                                                                                                                  

 collateral attack on his judgement.  Thus, despite Wheeler's new opportunity to pursue  



                                                                                                                                                         

 an appeal, Wheeler's criminal judgement still became final (and remained final) for  



                                                                                                                                                    20  

                                                                                                                                     

retroactivity purposes when Wheeler's original time for filing an appeal expired.      



                                                                                                                                                    

                         The  court  noted  that  if  Wheeler's  position  were  adopted,  "state  court  



                                                                                                                                                          

judgments  would  never  attain  finality  because  they  would  always  be  subject  to  



                                                                                             21  

                                                                              

reconsideration on a motion for a delayed appeal."  



       17    Wheeler, 226 F.3d at 658.  



       18   Id. at 659.  



       19   Id. at 659-660.  



      20    Ibid .  



      21    Id. at 660.  



                                                                           -  7 -                                                                     2617
  


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

                         Sakar does not cite any contrary authority.                                       Instead, he argues that the                  



relevant question is whether, if Sidell                            had  filed the appeal he promised, Sakar's appellate                       



attorney might have been alerted to a potential                                            Blakely   claim   at some point before                



Sakar's hypothetical appeal was resolved                                    .    



                                                                                                                                    22  

                                                                                                                                                

                         Sakarnotesthat              Blakely 'sprecursor,                Apprendi v. NewJersey                    ,    was decided  



                                                                                                                                                    

on June 26, 2000, shortly before the superior court distributed Sakar's judgement. Sakar  



                                                                                                                                                     

argues that, if Sidell had filed an appeal, Sakar's appellate counsel might have read  



                                                                                                                                                          

Apprendi  while the appeal was pending, and might have realized that the holding in  



                                                                                                                                                         

Apprendi  could potentially be expanded to give defendants the right to jury trial on  



                                                                                                                                              

aggravating factors - as the Supreme Court held four years later in Blakely.  



                                                                                                                                                     

                         Sakar further speculates that, if a timely appeal had been filed in his case,  



                                                                                                                                                      

there is even a possibility that this appeal would still have been pending four years later  



                                                                                                                                                          

when Blakely was decided.  Sakar suggests that it might have taken this Court two or  



                                                                                                                              

three years to decide his appeal, and then the Alaska Supreme Court might have taken  



                                                                                                                                                      

another several months to decide his petition for hearing.  Sakar also points out that  



                                                                                                                                                     

either this Court or the supreme court might have remanded his case to the superior court  



                                                                                                                                                     

for further proceedings - thus keeping his conviction from becoming final for an even  



                                              

greater amount of time.  



                                                                                                                                                    

                        Finally,  Sakar  suggests  that  his  appellate  counsel  might  have  been  



                                                                                                                                                    

following developments in the criminal law, that his counsel might have learned when  



                                                                                                                                 

the petition for certiorari in Blakely was first filed (in May 2003), and that his counsel  



                                                                                                                                               

might have then asked this Court or the Alaska Supreme Court to stay his case pending  



                                                                                                         

the United States Supreme Court's resolution of Blakely.  



      22    530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).  



                                                                          -  8 -                                                                     2617
  


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

                    Sakar's arguments hinge on  speculation  and  hypothetical possibilities.  

                                                                                                                                     



Having considered those arguments, we agree with the decisions reached in Gutermuth  

                                                                                                                    



and Wheeler: Even when a defendant pursues post-conviction relief and obtains the right  

                                                                                                                             



to file a late appeal, the defendant's conviction should still be considered "final" for  

                                                                                                                               



retroactivity purposes when the defendant's original time for filing an appeal expired.  

                                                                                                                                     



                    Thus, if a later appellate decision effects a change in the law, and if that  

                                                                                                                              



change is only applicable to cases that were on direct appeal when that decision was  

                                                                                                                              



issued, the pertinent question is whether the defendant's original time for filing an appeal  

                                                                                                                           



had expired when the new decision was issued.  This rule of retroactivity is not altered  

                                                                                                                          



by the fact that the defendant later pursues a collateral attack and is granted the remedy  

                                                                                                                         



of pursuing a late appeal.  

                                        



                    Accordingly,  we  conclude  that  Sakar  is  not  entitled  to  retroactive  

                                                                                                                   



application of Blakely.  

                                    



          Conclusion  



                    We AFFIRM the judgement of the superior court.  

                                                                                        



                                                              -  9 -                                                         2617
  

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