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Alaska Public Defender Agency v. Superior Court, Third Judicial District, Anchorage (2/27/2015) ap-2444

Alaska Public Defender Agency v. Superior Court, Third Judicial District, Anchorage (2/27/2015) ap-2444


         The text of this opinion can be corrected before the opinion is published in the  

        Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:   

                                 303 K Street, Anchorage, Alaska  99501

                                           Fax:  (907) 264-0878

                                    E-mail:  corrections @



                                                                   Court of Appeals No. A-12053  

                                  Applicant,                     Trial Court No. 3AN-14-3122 CR  


                                                                           O  P  I  N  I  O  N  



                                                                  No. 2444 - February 27, 2015  


                Original Application for Relief from the Superior Court, Third  

                Judicial District, Anchorage, Kevin M. Saxby, Judge.  

                Appearances:  Douglas O. Moody, Assistant Public Defender, and  

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

                Dani Crosby, Dani Crosby Law Office, Inc., Anchorage, for the  


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


                District Court Judge. *  


                Judge ALLARD.  


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

Constitution and Administrative Rule 24(d).  

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

                  In this original application for relief, we are asked to interpret AS 18.85.- 

100(a), the Alaska Public Defender Agency's "enabling" statute - i.e., the statute that  

defines the Agency's authority to provide counsel to indigent litigants.  The question is  


whether the Agency can be appointed to serve as "standby" or "advisory"  counsel in  


criminal cases in which defendants have waived their constitutional right to counsel and  


chosen to represent themselves.  

                  For the reasons explained here, we conclude that this enabling statute does  

not authorize the appointment of the Public Defender Agency for this purpose.  We  

therefore vacate the superior court's order directing the Public Defender Agency to serve  


as standby counsel in this case.  

          Factual background and procedural history  

                  The defendant in this case, Grant Matthisen, is charged with two counts of  

criminal non-support.1 

                                  Although Matthisen is indigent and qualifies for the appointment  


of counsel at public expense, he has chosen to waive his constitutional right to counsel  

and to represent himself.  

                  To assist Matthisen in representing himself, the superior court appointed the  


Alaska Public Defender Agency to "act in a consultative capacity."  Specifically, the  

superior court ordered the Agency to provide an attorney to sit through Matthisen's trial  


"to provide ongoing legal advice and to ensure that [Matthisen] follows appropriate rules  


and makes appropriate objections and arguments."  


               AS 11.51.120(d).  

                                                           - 2 -                                                      2444  

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

                            The Public Defender Agency objected to this appointment, arguing that it   

exceeded the scope of representation permitted by the Agency's enabling statute.                                                                                                  2   The  


superior  court  disagreed,  finding  that  the  appointment  was  within  the  scope  of  the  


Agency's authority and that the appointment was properly based on considerations of  

fairness and due process.  

                            The  Agency  then  filed  this  original  application  for  relief  under  Alaska  


Appellate Rule 404(a).3  

              A note on terminology  

                            To begin our analysis of this case, we wish to clarify the terminology that  


we will be using.  We will use the term "standby counsel" to describe an attorney who  


assists  or  advises  a  criminal  defendant  who  has  waived  his  right  to  counsel  and  is  

representing himself.  

                           We have previously referred to this type of arrangement as a form of "hybrid  


                                       But this is a misleading term because an attorney serving as standby  

               2     See AS 18.85.100(a).  


                   Appellate Rule 404(a) provides that "[a]n original application for relief may be  

filed ... whenever relief is not available from any other court and cannot be obtained through                    

the process of appeal, petition for review, or petition for hearing."  This procedure was   

approved as the proper vehicle for the Agency to seek relief from a judgment it considers   

adverse to its statutory obligations in Alaska Public Defender Agency v. Superior Court , 584  

P.2d 1106, 1108-09 (Alaska 1978).  In that case, the issue was whether the Agency had   


statutory  authority  to  represent  an  indigent  criminal  defendant  charged  with  violating  a  

municipal ordinance (as opposed to a state statute). 

               4     See Ortberg v. State , 751 P.2d 1368, 1375 (Alaska App. 1988).  


                                                                                          - 3 -                                                                                    2444

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

counsel is not engaged in the "representation" of a criminal defendant as that term is  

generally understood.5  

                  The  term  "hybrid  representation"  more  accurately  describes  an  entirely  

different arrangement, one in which a criminal defendant is represented by counsel but  


acts as co-counsel in a subordinate role to his or her court-appointed attorney.  In this  


sort of arrangement, the attorney's role is accurately described as "representation" of the  


defendant  because  the  attorney  is  still  in  charge  of  the  case,  and  the  defendant  


participates in the defense only in limited ways with the attorney's acquiescence - for  


instance, by filing supplemental motions or by cross-examining certain witnesses.6  


                  We have previously recognized the crucial legal distinction between this  

form  of  co-counsel  "hybrid  representation"  and  true  self-representation.    Before  

defendants are allowed to represent themselves, the  trial court must obtain a formal  

waiver of their right to counsel - after advising them of their right to counsel, the  

benefits of counsel, and the dangers of self-representation.7  

                                                                                        But in cases of co-counsel  

hybrid representation, the trial court does not necessarily need to obtain the defendant's  


waiver of the right to counsel because the attorney remains in charge of the litigation,  

and the defendant remains represented.8  

          5    See id.  

          6    See Christian v. State , 276 P.3d 479, 484-85 (Alaska App. 2012).  

          7    See   Gladden v. State, 110 P.3d 1006, 1009-12 (Alaska App. 2005).  


               See Ortberg , 751 P.2d at 1375.  

                                                           - 4 -                                                       2444

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

           Why  we   conclude  that  appointment  of  the  Public  Defender  Agency  as  

          standby counsel is not authorized under AS 18.85.100(a)  

                   We have previously held that an indigent defendant has no constitutional  

right to the assistance of standby counsel.9                                                                        

                                                                     But we have never resolved the issue of  

whether a trial court is authorized to appoint the Public Defender Agency, over the  

Agency's objection, to serve as standby counsel for a defendant who has waived his right  


to counsel and elected to represent himself.  

                   The Public Defender Agency's enabling statute declares that an indigent  

criminal defendant is "entitled ... to be represented, in connection with the crime or  

proceeding,  by  an  attorney  to  the  same  extent  as  a  person  retaining  an  attorney  is  



                   Alaska Administrative Rule 12(d) further provides that the Public Defender  

Agency may only accept a court appointment to represent an indigent defendant if "the  


basis of the appointment is clearly authorized"; otherwise, the Agency must move to  



                   The Public Defender Agency argues that AS 18.85.100(a) does not authorize  

the appointment of the Agency to serve as standby counsel because, when serving as  

standby counsel, the Agency does not "represent" the defendant.  We agree.  

                   The  Alaska  Supreme  Court  has  stated  (in  the  context  of  a  claim  of  

ineffective  assistance  of  counsel)  that  a  lawyer  who  assists  a  pro  se  litigant  by  

functioning as standby counsel "does not serve the function of representing the litigant  


as an attorney" - at least not unless the lawyer "oversteps his limited role and assumes  

a degree of control consistent with legal representation."11  

          9    See id. ; Annas v. State , 726 P.2d 552, 557 (Alaska App. 1986).  


                AS 18.85.100(a)(1).  


                 Alyssa B. v. State, Dep't of Health and Soc. Servs., Div. of Family & Youth Servs.                                  ,  


                                                               - 5 -                                                          2444  

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

                     We acknowledge that in Cano v. Anchorage  we stated that trial courts had   

broad discretion under Alaska Criminal Rule 39 to appoint standby counsel.                                           12  

                                                                                                                         But this  


statement in Cano was based on language that has since been deleted from Criminal Rule  



         Prior to this change, Criminal Rule 39(b)(4) gave courts the discretion to appoint  

counsel "in any case in which appointment best serves the interest of justice."14  



language was deleted from the rule after the director of the Office of Public Advocacy  

objected  that  the  provision  opened  the  door  "to  a  myriad  of  appointments  not  now  

specified in the Public Defender and Office of Public Advocacy statutes."15  


                   In its brief to this Court, the Superior Court argues that even if the Public  


Defender Agency's statutory obligation is limited to "representing" indigent defendants,  

we should construe the word "represent" broadly.  The Superior Court points to a Florida  

Supreme Court decision that held that trial judges have the authority (under Florida's  

public defender statute) to appoint standby counsel for an unrepresented defendant in  

"the limited circumstances where such action is necessary to preserve orderly and timely  

proceedings." 16  

                          The Florida statute in question states that "[t]he public defender shall  



165 P.3d  605, 613 (Alaska 2007); see S.B. v. State, Dep't of Health and Soc. Servs., Div. of  

Family & Youth Servs. , 61 P.3d 6, 15 (Alaska 2002). 

           12   Cano v. Anchorage , 627 P.2d 660, 663 & n.5 (Alaska App. 1981).  

           13  See Supreme Court Order No. 1088 (eff. July 1, 1992).  

           14    Cano , 627 P.2d at 663 n.5; see Supreme Court Order No. 157 (eff. Feb. 15, 1973).   


                 Memorandum    from  Christine  Johnson,  Court  Rules  Attorney,  Alaska  Court  

System, to the Justices of the Alaska Supreme Court.                          (Oct. 29, 1990) (on file with the Office   

of the Court Rules Attorney) (summarizing comments on proposed revisions to Criminal  

Rule 39). 


                Behr v. Bell, 665 So.2d 1055, 1056 (Fla. 1996).  

                                                               - 6 -                                                         2444

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


represent ... any person who is determined by the court to be indigent."                                            Thus, the  

Florida Supreme Court gave a broad interpretation to the word "represent."18  

                   We find the Florida court's statutory analysis unpersuasive.  As previously  


explained, the Alaska Supreme Court has already determined that a lawyer serving as  

standby counsel does not represent a litigant.19  Thus, although we recognize that having  


standby  counsel  present  in  the  courtroom  to  assist  pro  se  defendants  may  facilitate  


orderly and efficient proceedings, and that trial judges (and prosecutors) might view the  

attorney's presence as a benefit, nothing in the Alaska Public Defender Act authorizes  


the appointment of the Agency's attorneys for any purpose other than representation.20  



                   Furthermore, we note that requiring the Public Defender Agency to provide  


standby counsel for pro se litigants could adversely affect the Agency's mission - its  

obligation under the statute to provide representation to indigent defendants who exercise  

their right to counsel - by apportioning scarce resources to defendants who do not want  


to be represented by the Agency's attorneys.  

                   For these reasons, we VACATE the superior court's order appointing the  

Public Defender Agency as standby counsel in this case.  

          17   Id. (quoting former Fla. Stat.  27.51 (1996)).

          18   See Behr, 665 So.2d. at 1056.


                Alyssa B. v. State, Dep't of Health and Soc., Servs., Div. of Family & Youth Servs.                               ,

165 P.3d 605, 613 (Alaska 2007). 

          20   See   AS 18.85.010-.180;  cf. Harris v. State, 687 A.2d 970, 975-77 (Md. 1997)  

(holding that standby counsel for pro se defendant is not authorized by Maryland's Public  

Defender Act, which is limited to appointments for "representation" of indigent defendants).  

                                                              - 7 -                                                         2444

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

                  We wish to clarify that the only decision we reach in this case is that the  

Public Defender Act does not authorize a trial court to appoint an Agency attorney to  


serve as standby counsel to assist a defendant who has chosen to represent himself.  We  


express no opinion as to whether trial judges have the authority to appoint non-Agency  

lawyers to serve as standby counsel for self-represented defendants.  

                                                           -  8 -                                                     2444

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