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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Amos v. State (5/10/2002) sp-5563

Amos v. State (5/10/2002) sp-5563

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     publication  in  the  Pacific  Reporter.   Readers  are
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STEVE E. AMOS,                )
                              )    Supreme Court No. S-9845
               Petitioner,         )
                              )    Court of Appeals No. A-7226
     v.                       )    Superior Court No. 3PA-S96-
2480 Cr
STATE OF ALASKA,              )    O P I N I O N
               Respondent.         )    [No. 5563 - May 10, 2002]

          Petition for Hearing from the Court of
          Appeals of the State of Alaska, on Appeal
          from the Superior Court, Third Judicial
          District, Palmer, Eric Smith, Judge.

          Appearances:  Darrel Gardner, Assistant
          Public Advocate, and Brant McGee, Public
          Advocate, Anchorage, for Petitioner.  Nancy
          R. Simel, Assistant Attorney General,
          Anchorage, and Bruce M. Botelho, Attorney
          General, Juneau, for Respondent.
          Before: Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          EASTAUGH, Justice.
          MATTHEWS, Justice, dissenting.

1.             What remedy is appropriate if a criminal

defendant's appointed appellate attorney fails to brief and argue

the defendant's intended excessive sentence appeal along with his

merit appeal?  Because allowing the sentence appeal to go forward

is the most effective use of judicial resources to correct

counsel's failure, we vacate the order of the court of appeals

denying the defendant's motions seeking an opportunity to brief

his sentence appeal.

2.             Steve Amos entered a plea of no contest to one

count of first degree

robbery and one count of first degree sexual assault on January

22, 1998.  Several weeks later Amos's newly appointed public

advocate, Darrel Gardner, filed a motion to withdraw Amos's plea.

The superior court denied Amos's motion to withdraw his plea and

sentenced him to twenty-five years in prison, fifteen for the

sexual assault and ten for the robbery.

3.             Amos commenced a combined merit and sentence

appeal in the court of appeals on January 4, 1999.  The docketing

statement, notice of appeal, and statement of points on appeal

all indicated that Amos intended to appeal the denial of his

motion to withdraw his plea as well as the sentence imposed.  But

Amos's brief did not address the sentencing issue.  In June 2000

Amos moved for leave to supplement his appeal with an argument

that the sentence was excessive; he supported his argument with

an affidavit from Gardner, who stated that he had neglected to

brief the sentencing issue because he was unaware that his client

wished to appeal his sentence.  The court of appeals denied the

motion for leave to supplement Amos's appeal.  Gardner filed a

second affidavit to accompany Amos's motion for full-court

reconsideration of the motion for leave to supplement.  Gardner's

affidavit revealed that Amos's file showed Amos's intent to

challenge his sentence and admitted that Gardner's own "excusable

neglect" resulted in the failure to brief the sentencing issue.

The court of appeals denied the motion to reconsider.

4.             Amos filed a petition for hearing seeking reversal

of the court of appeals's refusal to allow supplemental briefing

on the sentencing issue.

5.             We hold that it was an abuse of discretion not to

allow Amos to supplement his merit appeal with briefing on the

sentencing issue.1  Amos made out a colorable claim of

ineffective assistance of appellate counsel when his appellate

attorney admitted that he had failed to submit a sentence appeal

as his client expected him to. Ineffective assistance claims must

include evidence sufficient to overcome the strong presumption

that the alleged error was a sound tactical decision.2  In this

case, the appellate attorney's second affidavit is conclusive

evidence that his failure to brief the sentence appeal was the

result of negligence, not tactics.  The attorney admitted that

upon reviewing his files, the docketing statement, the notice of

appeal, the statement of points on appeal, the designation of

transcript, the clerk's opening notice, and his own

correspondence with Amos, Amos's intention to appeal his sentence

was clear.  The attorney further admitted that he "somehow failed

to recognize that the brief should have included a sentencing

argument."  He concluded that

          the failure to brief the sentence issue on
          appeal resulted from counsel's excusable
          neglect.  I certainly intended to brief the
          sentencing issue at the outset, and I never
          intended to abandon the issue by failing to
          brief the argument.  Although in retrospect I
          understand how the error arose, I recognize
          the seriousness of the mistake and assume
          full responsibility for its occurrence.
It is evident from the affidavit that Amos's appellate counsel

was ineffective.  It was therefore an abuse of discretion not to

allow supplemental briefing.

6.             The only remaining issue is whether appellate

counsel's ineffective assistance prejudiced Amos.  Because that

issue requires consideration of the merits of Amos's would-be

sentence appeal, the best use of judicial resources is to remand

to the court of appeals to allow Amos to present his sentence

appeal, rather than to consign the issue to a separate post-

conviction relief proceeding asserting ineffective assistance.

We consequently GRANT the petition for hearing and VACATE the

order denying Amos's motion seeking an opportunity to brief the

sentence appeal and REMAND to the court of appeals.

Matthews, Justice, dissenting.

          Amos appealed on a merit issue and on the grounds that

his sentence was excessive.  His statement of points on appeal

raised the same two issues.  But his brief before the court of

appeals only argued the merit issue.  It met with partial

success, for the court of appeals remanded the merit issue for

further findings by the superior court while retaining

jurisdiction of the appeal.  After the superior court made

findings on remand that were adverse to Amos, he sought leave in

the court of appeals to brief the sentencing issue.  The court

denied this motion.  I believe that the court did not abuse its

discretion in doing so.

          The appellate rules require that briefs actually

discuss points raised on appeal; points that are not discussed

are considered to be abandoned.3  While a court in its discretion

might allow an appellant to present an unbriefed point in a

supplemental brief filed before a case is submitted for decision,

I think the more usual action would be to deny such a request,

especially if it were made after the appellee had prepared a

responding brief.  Here the request was made not only after the

appellee had filed a responding brief, but after the case had

been submitted for decision, after it was actually decided, and,

for that matter, after it was decided on remand.  Refusing to

grant a request for supplemental briefing at this late stage, in

my opinion, cannot be an abuse of discretion.

          The court of appeals decision did not leave Amos

without a remedy on his  claim of ineffective assistance of

counsel.  That claim can be litigated in an orderly fashion in

collateral proceedings as is normally done in claims of

ineffective assistance.4  I would therefore either affirm the

decision of the court of appeals or dismiss the petition as

improvidently granted.

1     We will determine that there was an abuse of discretion if,
after  considering the entire record, we are left with a definite
and  firm  conviction that the lower court erred in  its  ruling.
See  Hallam  v.  Holland America Line, Inc.,  27  P.3d  751,  753
(Alaska 2001) (reviewing denial of leave to amend); see also C.L.
v.  P.C.S., 17 P.3d 769, 771 (Alaska 2001) (reviewing  motion  to
consolidate);  Reese v. Geiermann, 574 P.2d 445,  446-47  (Alaska
1978) (reviewing motion for continuance).
2     State  v.  Jones, 759 P.2d 558, 569-70 (Alaska  App.  1988)
(citation omitted).
3      Appellate Rule 212(c)(1)(i).   See also West v.  Buchanan,
981  P.2d 1065, 1075 n.29 (Alaska 1999); Gates v. City of Tenakee
Springs, 822 P.2d 455, 460 (Alaska 1991); Petersen v. Mutual Life
Ins.  Co.,  803 P.2d 406, 411 n.8 (Alaska 1990); Lewis v.  State,
469 P.2d 689, 691-92 n.2 (Alaska 1970).
4     See  Barry  v. State, 675 P.2d 1292, 1295-96  (Alaska  App.