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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stone v. State (4/22/2011) sp-6556

Stone v. State (4/22/2011) sp-6556

        Notice:   This opinion is subject to correction before publication in the PACIFIC REPORTER. 
        Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 
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DAVID F. STONE,                                     ) 
                                                    )    Supreme Court No. S-13524 
                        Petitioner,                 )    Court of Appeals No. A-10174 
        v.                                          )    Superior Court No. 3PA-06-01251 CI 
STATE OF ALASKA,                                    )    O P I N I O N 
                        Respondent.                 )   No. 6556 - April 22, 2011 

                Petition for Hearing from the Court of Appeals of the State of 
                Alaska, on appeal from the Superior Court, Third Judicial 
                District, Palmer, Beverly W. Cutler, Judge. 

                Appearances:          Beth    Lewis    Trimmer,      Assistant    Public 
                Advocate,   and   Rachel   Levitt,   Acting   Director,   Office   of 
                Public Advocacy, Anchorage, for Petitioner.             Michael Sean 
                McLaughlin, Assistant Attorney General, Office of Special 
                Prosecutions & Appeals, Anchorage, and Daniel S. Sullivan, 
                Attorney General, Juneau, for Respondent. 

                Before:      Carpeneti,      Chief   Justice,   Fabe,    Winfree,    and 
                Stowers, Justices.   [Christen, Justice, not participating.] 

                WINFREE, Justice. 


                We granted this petition to consider the narrow question of whether under 

the Federal Constitution a criminal defendant's court-appointed counsel must, upon the 

defendant's demand after lawful sentencing pursuant to a plea agreement, file a petition 

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

for   discretionary   sentence   review   by   this   court   when   AS   12.55.120(a)   precludes   an 

appeal of right to the court of appeals.  We now answer "yes" to that question. 


                David Stone was charged with manslaughter, two counts of assault, and 

driving   under   the   influence.    Because   Stone  was   already   on   probation   from   earlier 

unrelated   convictions,   the   State   also   filed   petitions   to   revoke   his   probation   (PTRs). 

Represented   by   an   attorney   from   the   Public   Defender   Agency,   Stone   reached   an 

agreement   with   the   State   reducing   the   manslaughter   charge   to   criminally   negligent 

homicide and then pleaded no contest to the four charges and the PTRs.  The maximum 
term   for   Stone's   most   serious   offense   was   10   years   of   incarceration,1  and   the   plea 

agreement required a composite sentence between 5 and 12 years.                    The superior court 

entered judgment and sentenced Stone to a total of 13 years with 4 years suspended for 

the four charges and to an additional 350 days for the PTRs, leaving Stone 9 years and 

350 days to serve. 

                Soon after judgment was entered anotherattorney from the Public Defender 

Agency asked Stone if he wished to appeal his conviction or sentence.  Stone responded 
that he wanted the attorney to file a Criminal Rule 352 motion and to appeal on the 

ground that his sentence violatedBlakely v. Washington.3  The attorney reviewed Stone's 

        1       See AS 11.41.130(b) (categorizing criminally negligent homicide as class 

B felony); AS 12.55.125(d) (establishing 10-year maximum sentence for most class B 
felonies including criminally negligent homicide). 

        2       Alaska   Criminal   Rule   35   allows  the   court,   with   certain   limitations,   to 

"modify or reduce a sentence within 180 days of the distribution of the written judgment 
upon a motion made in the original criminal case."  Alaska R. Crim. P. 35(b)(1). 

        3       542 U.S. 296, 313-14 (2004) (requiring facts used to increase sentence 


                                                   -2-                                                6556 

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file, spoke with Stone's previous counsel, advised Stone that given the suspended portion 
of his sentence it did not exceed his plea agreement cap,4 and concluded, "I do not 

believe you can appeal your sentence."   The attorney took no further action. 

                Stone petitioned pro se for post-conviction relief, alleging that his sentence 

was illegal and excessive, and that the attorney's failure to object to or appeal from his 

sentence constituted ineffective assistance of counsel.  But Stone abandoned hisBlakely 

argument and instead argued that (1) all of the four charges against him should have 
merged   into   one   charge   under   Whitton   v.   State,5  thereby   precluding   his   composite 

sentence, and (2) the sentence of 13 yearswith 4 suspended was "clearly excessive under 

the totality of the circumstances" of his case.  Stone also argued that his attorney had 

been ineffective for failing to contest his sentence in the superior court and for failing to 

appeal the sentence after it was imposed. 

                An   attorney   was   appointed   to   represent   Stone,   and   Stone   amended   his 

petition.   In this petition Stone abandoned his Whittonargument and instead argued that 

his composite sentence exceeded both the plea agreement range and the maximum 10- 

year sentence he could have received for the most serious charge against him, the latter 

        3       (...continued) 

above statutory maximum to be determined by jury). 

        4       The attorney mistakenly considered only three out of the four counts against 

Stone.   However, the analysis would be the same even if the attorney had considered all 
four   counts   because   the   four-year   suspension   brings   the   sentence   below   the   plea 
agreement cap. 

        5       479   P.2d   302,   314   (Alaska   1970)   (merging   robbery   and   robbery   with 

firearm into single offense for double jeopardy purposes). 

                                                  -3-                                           6556

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

of which violatedMutschler v. State.6  The State answered the petition by pointing to the 

four-year   suspended   portion   of   Stone's   sentence   and   arguing   that   Stone   was   not 

sentenced in excess of either the plea agreement range or the statutory maximum for the 

most   serious   charge   against   him.      Stone   replied   that   it   was   nonetheless   ineffective 

assistance of counsel to fail to appeal the sentence when Stone requested it, regardless 

of his arguments' merits. 

                 The superior court denied Stone's application for post-conviction relief. 

The   court   first   rejected   Stone's Mutschler  argument,   concluding   that   the   suspended 

portion of a sentence is not counted when measuring a composite sentence against a 

statutory maximum - only time served is considered.  The court then concluded it was 

"unwilling to find that an attorney is ineffective on the sole basis that the attorney did not 

advance   a   meritless   argument"   because   attorneys   have   an   "ethical   duty   not   to   file 

frivolous pleadings." 

                 Stone   appealed   to   the   court   of   appeals,   arguing   that   it   was   ineffective 

assistance per se for his attorney to fail to file the requested appeal after entry of his 

sentence, and it was error for the superior court to deny his petition based on the merits 

of the arguments that would have been raised on appeal.  Stone requested the restoration 

of his right to appeal his sentence. 

                 The State argued that because Stone no longer questioned the legality of his 

sentence, it could not have been ineffective assistance of counsel to fail to appeal his 

sentence on that basis.   But the State itself then raised a somewhat different question - 

        6        560 P.2d 377, 380 (Alaska 1977) (citing Cleary v. State, 845 P.2d 952, 956 

(Alaska   1976)   (precluding   imposition   of   consecutive   sentences   totaling   more   than 
maximum   sentence   for   most   serious   offense   without   specifically   finding   extended 
confinement        was    necessary     to  protect    public   from    further    criminal    conduct     by 

                                                     -4-                                               6556

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

whether, aside from questions about the legality of a sentence, it would be ineffective 

assistance of counsel to fail to file a sentence appeal limited narrowly to a claim of 

excessiveness. The State first noted that because Stone's sentence was entered under the 

terms of a plea agreement and the sentence was less than a specified maximum sentence, 

under   AS   12.55.120(a)   Stone   had   no   right  to   appeal   his   sentence   on   the   ground   of 
excessiveness.7      The State conceded that Stone could have petitioned this court for our 

discretionary review of his sentence for excessiveness,8 but argued that (1) whether to file 

a petition for discretionary sentence review was a decision left to counsel, not the client, 

and (2) Stone had not shown that the failure to file a petition for discretionary sentence 

review rose to the level of ineffective assistance of counsel. 

                 Stone replied by acknowledging the difference between the right to appeal 

and the right to petition, but claimed he was entitled to appellate review regardless of the 

terminology that he had used.          He further countered that the decision whether to seek 

appellate review belonged to the client, not the attorney. 

        7        AS 12.55.120(a) provides in part: 

                 A sentence of imprisonment lawfully imposed by the superior 
                 court for a term or for aggregate terms exceeding two years 
                 of   unsuspended        incarceration     for   a   felony    offense    or 
                 exceeding   120   days   for   a   misdemeanor   offense   may   be 
                 appealed   to   the   court   of   appeals   by   the   defendant   on   the 
                 ground that the sentence is excessive, unless the sentence was 
                 imposed   in   accordance   with   a   plea   agreement   under   the 
                 applicable   Alaska   Rules   of   Criminal   Procedure   and   that 
                 agreement provided for imposition of a specific sentence or 
                 a   sentence    equal    to  or  less   than   a  specified    maximum 

        8        See Alaska R. App. P. 215(a)(5) (allowing discretionary review by supreme 

court of sentence's excessiveness if not appealable to court of appeals). 

                                                    -5-                                               6556

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

                 The court of appeals affirmed the superior court's decision, noting that 

throughout the course of the post-conviction-relief proceedings Stone had relied on, and 

then   abandoned,   a   number   of   different   substantive   challenges   to   the   legality   of   his 

sentence.       The   court   also   noted   that   Stone   lacked   the   right   to   appeal   the   alleged 

excessiveness of his sentence because under AS 12.55.120(a), defendants who plead no 
contest and are sentenced according to a plea agreement "often lose" that right.9                       The 

court   declined   to   decide   whether   any   and   all   appellate   attacks   on the   severity   of   a 

sentence imposed under a plea agreement are foreclosed, holding only that reasonable 

judges and attorneys could have concluded that Stone had no right to appeal his sentence 
on   the   ground   of   excessiveness.10       Taking   up   the   issue   of   a   possible   petition   for 

discretionary review, the court likewise held that because it was reasonably debatable 

whether all competent judges and attorneys would have known that Stone's attorney had 

no   right   to   refuse   Stone's   request   for   appellate   review   of   his   sentence,   it   was   not 

incompetence per se to do so.  It concluded that Stone "failed to establish that the Public 

Defender Agency acted incompetently or otherwise violated its professional duty to 

Stone merely because the Agency declined to file the petition for sentence review that 
Stone requested."11 

         9       See note 7, above. 

         10      See Risher v. State, 523 P.2d 421, 424 (Alaska 1974) ("All that is required 

of   counsel   is   that   [counsel's]   decisions,   when   viewed   in   the   framework   of   the   trial 
pressures, be within the range of reasonable actions which might have been taken by an 
attorney skilled in the criminal law, regardless of the outcome of such decisions."). 

         11      See id. at 424-25 (describing standard for ineffective assistance of counsel 


                                                     -6-                                               6556

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

               Stone petitioned us for hearing, arguing that a petition for discretionary 

sentence    review    by  this  court  is  first-tier  appellate  review   invoking   the   federal 

constitutional right to appointed counsel and the related right to require counsel to seek 

appellate review.      We granted Stone's petition to consider that narrow issue without 

deciding whether the court of appeals correctly applied the ineffective assistance of 

counsel standards to Stone's case. 

               We apply our independent judgment to constitutional questions12 including 

questions about the extent of a criminal defendant's right to counsel.13   We interpret 

Alaska Appellate Rules de novo.14        We adopt "the rule of law most persuasive in light 

of precedent, reason, and policy."15 


               The federal constitution affords criminal defendants the right to counsel for 
first-tier appellate review.16  "[F]irst-tier review differs from subsequent appellate stages 

'at which the claims have once been presented by [appellate counsel] and passed upon 

        12     Diaz v. State, Dep't of Corr., 239 P.3d 723, 727 (Alaska 2010). 

        13     See    Risher,  523   P.2d   at  423  (discussing   federal  right  to  counsel   as 

constitutional right). 

        14     Cameron   v.   Hughes,   825   P.2d   882,   884   n.2   (Alaska   1992)   (holding 

interpretation of appellate rule is "a purely legal question" reviewed "de novo"). 

        15     Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 

177 P.3d 1181, 1184 (Alaska 2008) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 
(Alaska 1979)). 

        16     Halbert v. Michigan, 545 U.S. 605, 609-10 (2005). 

                                                -7-                                          6556

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

by an appellate court.' "17  Defendants have no federal right to counsel for subsequent 

appellate proceedings.18 

              Alaska Statute 12.55.120(a) provides that when a criminal defendant enters 

into a plea agreement and receives a sentence in accordance with that agreement, the 

defendant may not appeal the sentence as excessive. Consistent with that statute, Alaska 

Appellate Rule 215(a)(1) takes away a  defendant's right to appeal felony sentences 

exceeding two years if "the sentence was imposed in accordance with a plea agreement 

that provided for imposition of a specific sentence or a sentence equal to or less than a 

specified maximum sentence." But Appellate Rule 215(a)(5) allows a defendant to seek 

discretionary review by this court "for any sentence not appealable under Appellate Rule 

215(a)(1)."    A petition under Rule 215(a)(5) is a defendant's first chance to have an 

appellate court "pass upon" the superior court's sentence, even if we deny the petition, 

and therefore review of that petition is first-tier appellate review. 

              Because     Stone  pleaded   no  contest  and   his  sentence  was   within  the 

agreement's maximum range, the appellate review available to him for his excessive 

sentence claim was to petition this court under Appellate Rule 215(a)(5). Stone therefore 

had a right under the Federal Constitution to the assistance of counsel in filing such a 
petition.19 The right to counsel "requires that [an attorney] support [a] client's appeal to 

the best of [the attorney's] ability."20 If after receiving the attorney's advice the client 

is not convinced to give up the right to petition for sentence review, the attorney must file 

       17     Id. at 611 (quoting Douglas v. California, 372 U.S. 353, 356 (1963)). 

       18     Ross v. Moffitt, 417 U.S. 600, 610, 618-19 (1974). 

       19     See Halbert, 545 U.S.76 at 610 (holding criminal defendants have right to 

counsel for first-tier appellate procedures). 

       20     Anders v. California, 386 U.S. 738, 744 (1976). 

                                             -8-                                        6556

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

the petition.   An attorney who refuses to file a petition for review at the client's request 

essentially denies that client the assistance of counsel for the client's first-tier appellate 
procedure.21    If the attorney believes the client's requested petition only raises issues that 

are "wholly frivolous," the attorney may file a brief with the court and seek permission 
to withdraw.22 

                 Stone's     attorney    neither   filed  a  petition    nor  took    any   precautionary 

procedures.       Stone   did   have   the   benefit   of   counsel   in   filing   his   petition   for   post- 

conviction relief and therefore had the opportunity to raise all of his specific claims that 

his sentence was illegal both in the superior court and in the court of appeals.  But at no 

time   did   the   superior   court   or   court   of   appeals   consider   whether   Stone's   sentence, 

although within the plea agreement range, was excessive.  Stone is therefore entitled to 

require his court-appointed counsel to file a petition for our discretionary review of his 
sentence for examination.23 

        21       This is unlike when the attorney decides not to raise selected issues on 

appeal in order to pursue a different appellate strategy.             See Jones v. Barnes, 463 U.S. 
745, 751-53 (1983) (holding appellate counsel may elect to ignore potential issues on 
appeal to focus court's attention on other arguments). 

        22       SeeAnders, 386 U.S. at 744 (outlining procedures for attorney's withdrawal 

when issues on appeal are wholly frivolous).  We do not need to decide here whether the 
attorney has other options. 

        23       Earlier in this case the State took the position that if Stone files a petition 

for our review of his sentence, the State will have the right to file a cross-petition on a 
number of issues, such as (1) whether seeking review would be a breach allowing the 
State to repudiate the plea agreement and prosecute Stone on the original charges, or 
(2) whether the sentence was too lenient.   These issues are not before us at this time. 

                                                    -9-                                                 6556 

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


              Having answered the question raised by the petition and clarified Stone's 

federal constitutional right to require his court-appointed counsel to file a petition under 

Alaska Appellate Rule 215(a)(5) for our review of his sentence for excessiveness, we 

GRANT Stone leave to file such a petition within 30 days.       No further proceedings on 

Stone's petition for post-conviction relief are necessary. 

                                            -10-                                       6556
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