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Nook v. State (4/8/2011) ap-2304

Nook v. State (4/8/2011) ap-2304

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                                                            Court of Appeals No. A-10311 
                                Appellant,                  Trial Court No. 4BE-05-122 CI 

                                                                    O    P  I  N  I  O  N 

                                Appellee.                      No. 2304 - April 8, 2011 

                Appeal from the Superior Court, Fourth Judicial District, Bethel, 
                Leonard R. Devaney III, Judge. 

                Appearances:     Jane B. Martinez, under contract with the Public 
                Defender     Agency,    and   Quinlan    Steiner,   Public   Defender, 
                Anchorage,      for  the  Appellant.    W.    H.   Hawley,    Assistant 
                Attorney General, Office of Special Prosecutions and Appeals, 
                Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, 
                for the Appellee. 

                Before:    Coats,    Chief  Judge,   and  Mannheimer      and   Bolger, 

                COATS, Chief Judge. 

                In September, 1999, Stanley Nook was tried and found guilty of second- 

degree murder.      He was represented during this litigation by attorney Scott Sidell. 

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

                 Three and a half years later, in February, 2003, the Alaska Bar Association 

and Mr. Sidell asked the Alaska Supreme Court to resolve a disciplinary proceeding 

against Sidell by transferring Sidell to inactive status based on disability.  On March 14, 

2003, the supreme court approved this resolution of Sidell's case; the court transferred 

Sidell   to   inactive   status,   and   the   court   ordered   Sidell   not   to   practice   law   until   he 

successfully applied for reinstatement to active status. The supreme court made its order 

retroactive by five years.  The court's order states that Sidell's transfer to inactive status 

was effective, nunc pro tunc, as of January 1, 1998. 

                 After the supreme court issued this order, Nook filed an application for 

post-conviction relief.       He contended that, because the supreme court made its order 

retroactive   to   January   1,   1998,   Sidell   was   not   authorized   to   practice   law   when   he 

represented Nook in 1999.          Nook argued that he was therefore denied his right to the 

assistance of counsel.       Nook further argued that, because representation by Sidell was 

effectively the same as having no attorney at all, Nook did not have to prove that he was 

prejudiced by any particular aspect of Sidell's actions or decisions in his case. 

                 In   an  extensive     and   well-researched      decision,    Superior    Court    Judge 

Leonard R. Devaney rejected Nook's contention that he was essentially unrepresented 

during the 1999 litigation of his criminal case.             Judge Devaney held that, even if the 

supreme   court's   order   was   interpreted   as   meaning   that   Sidell   was   not   authorized   to 

practice law when he represented Nook, Nook still had to show that he was prejudiced 

by Sidell's actions (or inactions) in one or more ways. 

                 Having   reached this decision, Judge Devaney gave Nook sixty days to 

amend his petition for post-conviction relief to allege specific ways in which he was 

harmed by Sidell's representation. After Nook indicated that he did not intend to amend 

his petition, Judge Devaney dismissed the petition. 

                                                   - 2 -                                              2304

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

                Nook   now   appeals.       We   agree     with   Judge   Devaney   that,   despite   the 

supreme court's decision to retroactively transfer Sidell to inactive status as of January 

1998, Nook was nevertheless required to show that Sidell's representation of him was 

incompetent in one or more ways, and that there is a reasonable possibility that Nook 

was harmed by Sidell's incompetence.                Accordingly, we affirm the superior court's 

dismissal of Nook's petition. 

                Factual background of the Alaska Supreme Court's order placing 
                 Sidell on inactive status due to disability 

                 In   October   2000,   William   Keppel   sued   Sidell   for   legal   malpractice   in 

connection with a personal injury lawsuit in which Sidell represented Keppel.                        After 

Sidell failed to respond to this malpractice claim, the superior court entered judgment 

against him. Additionally, the court concluded that Sidell's conduct had been willful and 

malicious.     The superior court awarded Keppel approximately $675,000 in damages, 

including punitive damages. 

                 In   2002,   Sidell   retained   a   law   firm   to   represent   him   in   attempting   to 

overturn   the   superior   court's   judgment.       Sidell's   attorneys   arranged   for   him   to   be 

evaluated by a psychiatrist and a psychologist.   Both submitted affidavits in which they 

concluded that Sidell was suffering from chronic depression, and one stated that this 

depression had started as early as 1996.            According to them, Sidell's depression made 

him incapable of meeting his responsibilities as a lawyer. 

                 Based on these psychiatric evaluations, Sidell's attorneys filed a motion for 

relief from the judgment in the malpractice case.   They argued that Sidell had not acted 

willfully, and that he had been unable to represent either himself or others because of his 

mental illness. 

                                                   - 3 -                                              2304

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

                 At about the same time, Sidell entered into an agreement with the Discipline 

Counsel for the Alaska Bar Association.   Under the terms of this agreement, and subject 

to the approval of the Alaska Supreme Court, Sidell would be transferred to inactive 
status based on disability retroactive to January 1, 1998.1               The Alaska Supreme Court 

approved this agreement and issued a corresponding order on March 14, 2003. 

                 The effect of the supreme court's order 

                 Our   primary   task   in   this   appeal   is   to   determine   the   legal   effect   of   the 

supreme court's order with respect to Nook's case and all other litigation in which Sidell 

served as an attorney between January 1, 1998 (the retroactive effective date of Sidell's 

disability status) and March 14, 2003 (the day the supreme court issued the order that 

formally divested Sidell of his privilege to practice law). 

                 As we explained earlier, Nook argues that because the supreme court placed 

Sidell   on   disability   status   retroactively   as   of   January   1,   1998,   any   client   who   was 

represented by Sidell after January 1, 1998 was effectively in the position of having 

no attorney. Based on this premise, Nook argues that he is exempt from having to prove 

that   Sidell   represented   him   incompetently.        Rather,   Nook   asserts,   he   is   entitled   to 

automatic reversal of his criminal convictions, just as if he had been forced to go to trial 

without a lawyer. 

                 We reject Nook's position for two reasons. 

                 First, we disagree with Nook's assertion that being represented by Sidell 

in 1999 was the legal equivalent of having no lawyer at all. 

    1   See Alaska Bar Rule 30. 

                                                   - 4 -                                                2304 

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

                 There are, indeed, some circumstances where a defendant is excused from 

making a specific showing of attorney incompetence - i.e., excused from proving that 

their attorney committed specific errors, and showing those errors might have prejudiced 

the   defendant's   case.     One   circumstance   is   where   the   defendant   is   represented   by 
someone who has never properly been admitted to the practice of law.2 

                 For instance, in Solina v. United States,   the Second Circuit held that where 

the defendant's attorney had not finished law school and had not been admitted to any 

bar, this alone was sufficient to establish that the attorney was ineffective.  The court 

reasoned that an individual who is fraudulently acting as an attorney is committing an 

ongoing crime, and that "such a person cannot be wholly free from fear of what might 

happen if a vigorous defense should lead the prosecutor or the trial judge to inquire into 
his background and discover his lack of credentials."4               Other courts have followed this 


    2   See,   e.g., United     States  v.   Bergman,   599   F.3d   1142,   1147-48     (10th  Cir.  2010) 

(adopting narrow per se rule where criminal defendant was represented by someone who was 
never admitted to practice law);  United States v. Novak, 903 F.2d 883, 890 (2d Cir. 1990) 
(applying a per se rule of ineffective assistance where purported attorney's admission to bar 
was fraudulent). 

    3   709 F.2d 160 (2d Cir. 1983). 

    4   Solina, 709 F.2d at 162, 164. 

    5   Bergman, 599 F.3d at 1147-48; United States v. Watson, 479 F.3d 607, 611 (8th Cir. 

2007).   See generally 3 Wayne R. LaFave, Criminal Procedure  11.8(c), at 862-63 (3d ed. 

                                                   - 5 -                                               2304

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

                 But courts have refused to extend this analysis to cases where the defendant 

was     represented     by  a  licensed    attorney    who,    unbeknownst       to  himself,    had   been 
suspended or disbarred before or during the defendant's trial.6 

                 United States v. Stevens, a Tenth Circuit case, presents circumstances which 
appear similar to Nook's case.7  In Stevens, "[everyone] present in the courtroom at the 

time of trial thought that ... counsel was a member of the bar of that court."8                  But after 

trial, it turned out that the defendant's counsel had been disbarred, without notice, at the 

time of trial.    The Stevens court held that even though the defendant's attorney was 

technically not licensed to practice law at the time of trial, this fact did not relieve the 

defendant   of   the   burden   of   proving   specific   instances   where   his   attorney   had   acted 

incompetently and he had been prejudiced. 

                 Even     if  Nook    is  correct  that   the  supreme     court's   order   retroactively 

deprived Sidell of the authority to practice law in 1998 and 1999, Nook's case would be 

similar to the facts of Stevens.       As in Stevens, there was absolutely no indication at the 

time of Nook's trial that Sidell was unauthorized to practice law.                 Indeed, Nook's case 

presents even stronger facts than Stevens - because even the most assiduous inquiry 

conducted at the time of Nook's trial (September 1999) would not have revealed any 

defect in Sidell's authority to practice law. 

    6   See United States v. Mitchell, 216 F.3d 1126, 1132 (D.C. Cir. 2000); United States v. 

Stevens, 978 F.2d 565, 567-68 (10th Cir. 1992); Waterhouse v. Rodriguez, 848 F.2d 375, 383 
(2d Cir. 1988); see also Young v. Runnels, 435 F.3d 1038, 1043 (9th Cir. 2006) (declining 
a per se rule where counsel was disbarred post-trial for pre-trial conduct). 

    7   Stevens, 978 F.2d at 568. 

    8   Id. 

                                                   - 6 -                                               2304

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

                We previously dealt with a related aspect of Sidell's disability in Mute v. 
State,9 an unpublished decision.         Mute had been represented by Sidell, and he argued, 

based     upon   the  supreme     court's   order,   that  Sidell   must   have    provided    him   with 

ineffective assistance of counsel.  Mute's case was different than Nook's, because Sidell 

represented   Mute   before   January   1,   1998   (the   effective   date   of   the   supreme   court's 

order).  Still, Mute relied on the affidavits filed by the mental health professionals whose 

evaluations     of   Sidell   strongly  suggested     that   Sidell   was  depressed    at   the  time  he 

represented Mute. 

                We held that even if the psychiatric evaluations were accepted as true, Mute 

was not entitled to automatic reversal of his criminal case: 

                Even though Mute put forth evidence that Sidell may have 
                been clinically depressed at the time he represented Mute, 
                Mute still had to prove (1) that counsel's conduct fell below 
                the minimal range of competence required of an attorney with 
                ordinary training and skill in the criminal law, and (2) that 
                this lack of competency contributed to his conviction.[10] 

In other words, we required Mute to show both that there were specific flaws in Sidell's 

performance       as  an  attorney,    and   that  Sidell's   deficiencies    resulted   in  identifiable 

prejudice to Mute's defense. 

                Despite the fact that Nook's case was tried in 1999 (i.e., after the January 

1, 1998 retroactive starting date of Sidell's inactive status), we likewise conclude that 

Nook is not entitled to automatic reversal of his conviction, but he is instead required to 

prove specific acts of attorney incompetence and resulting prejudice. 

    9   Mute v. State, Memorandum Opinion & Judgment No. 5282 (Alaska App., Dec. 12, 

2007), 2007 WL 4323004. 

    10  Mute, 2007 WL 4323004 at *3. 

                                                  - 7 -                                               2304 

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

                We reach this conclusion for a second reason as well. 

                When   the Alaska Supreme Court issued   its order transferring   Sidell   to 

inactive status, the court was acting in its role as the ultimate regulator of the practice of 
law in Alaska.11     The only two parties in front of the supreme court were Sidell and the 

Bar Association (through its discipline counsel), and the matter before the court was a 

bar discipline matter. 

                Given the nature of that legal proceeding, it is unlikely that the supreme 

court intended its order to have the effect of automatically overturning all of the court 

judgments and settlement agreements in every case that Sidell participated in, going back 

five years to January 1, 1998.        Moreover, even if the supreme court had intended such 

a result, we believe that the constitutional guarantee of due process of law would prevent 

the supreme court from achieving this result. 

                As we have explained, the only two parties in front of the supreme court 

were Sidell and the Bar Association. None of Sidell's clients - and, just as importantly, 

none   of   those   clients'   opponents   -   were   in   front   of   the   court. Without   personal 

jurisdiction over the litigants whose interests were at stake, the supreme court could not 

set aside the results of every civil and criminal case that Sidell participated in for the 
preceding five years.12 

                Indeed, we note that after the supreme court issued its order, the superior 

court judge who was handling the malpractice lawsuit against Sidell refused to give that 

order preclusive effect. 

    11  See In re Stephenson, 511 P.2d 136, 141 (Alaska 1973). 

    12  See Alaska Marine Pilots v. Hendsch, 950 P.2d 98, 112 (Alaska 1997). 

                                                 - 8 -                                              2304 

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

                As we explained earlier, after Sidell defaulted in the malpractice case, he 

sought to have the judgment set aside on the ground that his mental problems disabled 

him from mounting a proper defense to the lawsuit.  Sidell relied on the supreme court's 

order for the proposition that he was incompetent from 1998 onward, but the superior 

court   rejected   Sidell's   assertion.   The   superior   court   found   that   Sidell's   "degree   of 

participation in this [malpractice] suit indicates more than periodic competency," and the 

court    noted    that  several   attorneys    had   filed  affidavits   "asserting    that  Mr.   Sidell 

competently represented other clients ... during this period." 

                When Judge Devaney issued his decision in Nook's case, he adopted a 

similar interpretation of the supreme court's order: 

                        The Alaska Supreme Court is well aware that Bethel 
                is a high volume trial venue ... , and that the [Office of Public 
                Advocacy, for whom Sidell worked under contract,] routinely 
                and frequently represents clients as conflict counsel.  It could 
                not    have    been    the   intent   of   the   [supreme]     court    to 
                retroactively reverse every case handled by Mr. Sidell from 
                 1998 to 2003, including the entirety of the period he held the 
                OPA contract. 

                We     agree   that  the  supreme     court's   order   did  not   have   the  effect   of 

automatically reversing the result of all litigation conducted on or after January 1, 1998 

in which Sidell participated. 


                Despite Sidell's mental health problems, and despite the supreme court's 

order placing Sidell on inactive status retroactively starting January 1, 1998, Nook was 

not entitled to automatic reversal of his conviction.  Instead, Nook was required to prove 

that Sidell represented him incompetently in one or more respects, and that there was a 

                                                  - 9 -                                             2304

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

reasonable possibility that Nook was prejudiced by this incompetent representation. 

When the superior court gave Nook the opportunity to amend   his petition for post- 

conviction relief to allege specific ways in which Sidell represented him incompetently, 

Nook declined to amend his petition.  Accordingly, the superior court properly dismissed 

Nook's petition.   The judgment of the superior court is AFFIRMED. 

                                            -  10 -                                      2304
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