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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RONALD DEAN SACKETT,
Court of Appeals No. A-13716
Appellant, Trial Court No. 3KN-10-01858 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2733 - September 23, 2022
Appeal from the Superior Court, Third Judicial District, Kenai,
Jason M. Gist, Judge.
Appearances: Elizabeth D. Friedman, Law Office of Elizabeth
D. Friedman, Prineville, Oregon, under contract with the Office
of Public Advocacy, Anchorage, for the Appellant. Ann B.
Black, Assistant Attorney General, Office of Criminal Appeals,
Anchorage, and Treg R. Taylor, Attorney General, Juneau, for
the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judges.
Judge HARBISON.
Ronald Dean Sackett appeals the trial court's denial ofhis motion to correct
an illegal sentence. Sackett argues that he was denied the right to counsel. We agree,
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and we therefore vacate the trial court's order denying Sackett's motion and remand this
case to the trial court for renewed consideration of the motion.
Background facts
Sackett was convicted, following a guilty plea, of one count of attempted
first-degree sexual abuse of a minor. The trial court imposed a sentence of 30 years'
incarceration. Sackett subsequently filed a motion to correct an illegal sentence, arguing
inter alia , that the sentence imposed by the trial court exceeded the maximum sentence
1 2
authorized by law.
He also filed a motion for court-appointed counsel.
In response, the trial court issued an order appointing the Alaska Public
Defender Agency to represent Sackett and holding the underlying motion in abeyance.
The court ordered Sackett's attorney to file, within sixty days, "a statement of intent to
adopt Sackett's Motion [to Correct an Illegal Sentence] as is, an amended motion on
3
Sackett's behalf, or a rule 35(e) certificate that Sackett is not entitled to relief."
After a period of delay during which the Public Defender Agency failed to
comply with this order, the trial court scheduled a hearing and ordered the Agency to
4
appear and show cause as to why it should not be held in contempt of court. An
1 See Alaska R. Crim. P. 35(a) (allowing a court to correct an illegal sentence at any
time).
2 See Alaska R. Crim. P. 35(e).
3 See id.
4 This was the second time the trial court ordered the Public Defender Agency to show
cause. At the outset, the Agency did not comply with the court's order to file a statement of
intent within sixty days, and the court therefore scheduled a show cause hearing. At the
hearing, a representative of the Agency stated that the Agency might not have received the
appointment paperwork. After this, the trial court reissued the appointment paperwork and
(continued...)
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attorney from the Agency appeared at this hearing. This attorney told the court that the
Agency had a conflict of interest and would be withdrawing from representing Sackett.
The lawyer noted that the case would be sent to the Office of Public Advocacy (OPA),
but that he did not know whether the matter would be handled by one of OPA's staff
attorneys or a conflict counsel.
Hearing this, the court announced that once a new attorney was appointed,
it would "re-issue the order [it] issued before, just to . . . tell counsel to meet with Mr.
Sackett to review the filings and . . . figure out where we're going to go on any of this."
The court scheduled another status hearing for approximately one month later,
explaining, "[I]f I just waited for OPA to have somebody enter an appearance, [the case]
would fall off the radar . . . . So I'm going to set [the status hearing] for March 20th.
Hopefully, OPA will have entered their appearance by then and then we can get OPA up
to speed on what needs to be done."
But no substitute attorney filed an entry of appearance on behalf of Sackett,
and no defense attorney appeared at the March 20 hearing. Sackett was also absent. The
court nevertheless conducted an ex parte hearing, telling the district attorney that Sackett
had filed an application for post-conviction relief which raised the same claims that were
at issue in the pending motion to correct an illegal sentence. The court explained that it
was inclined to consolidate the pending motion to correct an illegal sentence into the
post-conviction relief action.
In response, thedistrict attorney asked thecourtto instead deny the pending
motion to correct an illegal sentence, but to note in its denial order that the issues raised
in the motion could be litigated in the post-conviction relief action. The court agreed to
4 (...continued)
scheduled a status hearing. But at the status hearing, no representative of the Agency
appeared, and the court issued the second order to show cause.
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this course of action. The court subsequently issued a written order denying Sackett's
motion to correct an illegal sentence, noting that Sackett was not precluded from
litigating his illegal sentence claim in the post-conviction relief case.
This appeal followed.
Why we reverse the trial court's order denying Sackett's motion
Sackett has framed his appeal as a challenge to the trial court's decision to
deny his motion before his court-appointed attorney had reviewed his case or entered an
appearance. As we are about to explain, we agree with Sackett that the trial court
violated his right to counsel in this case. But we are also troubled by a second aspect of
this case: the trial court's decision to proceed with a substantive hearing on March 20
5
even though neither Sackett nor his counsel was present. We conclude that the trial
court should not have discussed Sackett's motion with the district attorney during a
hearing that was conducted outside the presence of Sackett and his counsel, and it
similarly should not have then denied Sackett's motion without giving him notice of its
intention to do so and an opportunity to be heard.
In his briefing to this court, rather than focusing on the improper ex parte
nature of the court's order, Sackett argues that the trial court violated his right to counsel.
Sackett contends that he was entitled to the assistance of counsel to litigate his illegal
sentence motion and that this right was violated when the trial court appointed the Public
Defender Agency to represent him but then denied his motion before an attorney from
5 See Alaska Code of Judicial Conduct Canon 3B(7) (generally barring ex parte
communications regarding pending litigation); see also State v. Dussault, 245 P.3d 436, 440
(Alaska App. 2011) (noting that, as a general rule, it is improper for a judge to communicate
about pending litigation outside the presence of the parties).
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----------------------- Page 5-----------------------
the Agency or OPA reviewed his case, conferred with him, or made an appearance on
his behalf.
The State does not dispute that Sackett had a right to court-appointed
6
counsel to litigate his illegal sentence motion. Instead, the State claims that Sackett's
right to counsel was satisfied when the trial court appointed the Public Defender Agency
to represent him, and then transferred the case to OPA when the Agency informed the
court that it had a conflict. Under these circumstances, the State contends, Sackett's
constitutional right to counsel was satisfied, and, if Sackett takes issue with the quality
of his representation (i.e., the fact that neither agency ever assigned an attorney to
represent Sackett or review his case), he must file an application for post-conviction
relief arguing that his "attorney" (i.e., the agency assigned to represent him) was
ineffective.7
But Sackett was completely denied the right to counsel. While it is true that
a claim of ineffective assistance of counsel must generally be raised in an application for
post-conviction relief, a claim that a defendant was completely denied the right to
counsel can be raised on direct appeal and, if successful, requires reversal regardless of
8
prejudice.
As the United States Supreme Court wrote more than eighty years ago,
"TheConstitution's guaranteeofassistanceofcounsel cannotbesatisfiedbymereformal
6 See Alaska R. Crim. P. 35(e); Belknap v. State, 426 P.3d 1156, 1160 (Alaska App.
2018) (holding that the right to counsel in a criminal case extends to post-judgment motions).
7 See Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App.1984) (noting that ineffective
assistance of counsel claims generally cannot be effectively reviewed on direct appeal).
8 See Weaver v. Massachusetts, 137 S. Ct. 1899, 1908 (2017) (explaining that it is
structural error when an indigent defendant is denied an attorney (citing Gideon v.
Wainwright, 373 U.S. 335, 343-45 (1963))).
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----------------------- Page 6-----------------------
9
appointment." Thus, a trial court's duty to appoint counsel "is not discharged by an
assignment at such a time or under such circumstances as to preclude the giving of
10
effective aid in the preparation and trial of the case."
Denying appointed counsel the
opportunity to consult with the accused and to prepare a defense may "convert the
appointment of counsel into a sham and nothing more than a formal compliance with the
11
Constitution's requirement that an accused be given the assistance of counsel."
In this case, the trial court denied Sackett's motion to correct an illegal
sentence at an ex parte hearing - after the Public Defender Agency told the court that
OPA would be substituting as counsel for Sackett and before any attorney had entered
an appearance on Sackett's behalf. Although the court stated that it would require
Sackett's new attorney to meet with Sackett to review the filings and determine an
appropriate course of action, the court instead denied the motion without any notice to
Sackett or his new attorney. This was nothing more than "mere formal appointment" of
counsel. In fact, given the ex parte nature of the hearing, it barely qualifies as that. We
accordingly must vacate the trial court's denial of Sackett's motion.
As we have explained, this would be necessary even in the absence of
prejudice to Sackett. But here, there was the potential for prejudice. Under Alaska
Criminal Rule 35(e), an attorney appointed to represent a defendant on an illegal
sentence motion must either pursue the motion or certify to the court that the attorney has
reviewed the facts and law related to the sentence and has determined that a motion
9 Avery v. Alabama , 308 U.S. 444, 446 (1940).
10 Powell v. Alabama, 287 U.S. 45, 71 (1932).
11 Avery , 308 U.S. at 446. Thus, the Alaska Supreme Court has determined that the right
to assistance of counsel of necessity includes the concomitant right for counsel "to have a
reasonable time in which to prepare." Klockenbrink v. State, 472 P.2d 958, 965 (Alaska
1970).
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would not warrant relief by the court. By contrast, Criminal Rule 35.1(e)(2) allows a
court-appointed attorney to file an amended application for post-conviction relief,
abandoning any or all claims identified by the client and substituting any stronger claims
that have been identified by the attorney.
Thus, the attorney appointed to represent Sackett in his post-conviction
relief claim is free to abandon his illegal sentence claims in favor of other stronger
claims, while an attorney appointed to represent him for purposes of pursuing an illegal
sentence claim under Criminal Rule 35(a) would not have been free to abandon any and
all illegal sentence claims without preparing a no-merit certificate. In other words, the
trial court's denial of Sackett's motion to correct an illegal sentence could have
prevented Sackett from obtaining a ruling on the merits of an illegal sentence claim. 12
For these reasons, we conclude that the trial court's actions deprived
Sackett of his right to counsel, and we accordingly vacate the trial court's order and
remand for further proceedings.
Conclusion
We VACATE the trial court's order denying Sackett's motion to correct an
illegal sentence and closing the case, and we REMAND this case to the trial court for
renewed consideration of Sackett's motion in conformity with this opinion.
12 While at least one of the claims Sackett raises in his pro se motion appears to be an
illegal sentence claim properly brought under Criminal Rule 35(a), several of his claims may
not fall within the this rule and instead should be pursued in a post-conviction relief
proceeding. Because we are remanding this matter for further proceedings, the question of
which of Sackett's claims may be pursued under Criminal Rule 35(a) may be litigated during
the trial court proceedings.
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