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Murray v. State (3/20/2015) ap-2445

Murray v. State (3/20/2015) ap-2445


         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:   

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                                                                   Court of Appeals No. A-11191  

                                   Appellant,                     Trial Court No. 2NO-09-321 CI  


                                                                           O  P  I  N  I  O  N 


                                   Appellee.                         No. 2445 -March 20, 2015  

                  Appeal  from  the  Superior  Court,  Second  Judicial  District,  

                  Nome, Ben Esch, Judge.  

                  Appearances:  Dan S. Bair, Assistant Public Advocate, Appeals  


                  and  Statewide  Defense  Section,  and  Richard  Allen,  Public  

                  Advocate,  Anchorage,  for  the  Appellant.    Mary  A.  Gilson,  

                  Assistant Attorney General, Office of Special Prosecutions and  


                  Appeals,   Anchorage,   and   Michael   C.   Geraghty,   Attorney  

                  General, Juneau, for the Appellee.  

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


                  District Court Judge. *  


                  Judge MANNHEIMER.  

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

Constitution and Administrative Rule 24(d).  

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

                    The defendant in this case, Clifford F. Murray, was indicted on two counts   

of first-degree sexual assault.  He ultimately agreed to plead guilty to one count of the  

lesser offense of second-degree sexual assault.  But now Murray seeks post-conviction  


relief, contending that his decision to enter this plea was contrary to his best interests.  


More particularly, Murray contends that his decision was the product of mental illness,  


and that his attorney acted ineffectively - that is, in violation of her ethical duty under  


Alaska Professional Conduct Rule 1.14 - by failing to prevent him (or at least trying  


to prevent him) from entering this guilty plea.  

                    For the reasons explained here, we conclude that Murray has failed to set  


out a prima facie case that his attorney acted incompetently.  

          The events leading up to Murray's guilty plea and sentencing  

                    Because the question to be decided on appeal is whether Murray set forth  


a prima facie case of ineffective assistance of counsel, the following is a description of  


all the well-pleaded facts contained in his petition for post-conviction relief.  

                    In early 2007, Clifford Murray was charged with two counts of first-degree  


sexual assault in connection with the rape of an elderly woman in the village of Elim.  


Because Murray had two prior felony convictions (for non-sexual offenses), he faced a  


presumptive sentencing range of 40 to 60 years' imprisonment for these sexual assault  




     1    AS 12.55.125(i)(1)(E).  

                                                              - 2 -                                                          2445

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

                    In addition, Murray was on felony parole at the time he committed these   

assaults, so aggravating factor AS 12.55.155(c)(20) applied to his case.  This meant that  

Murray faced a maximum sentence of 99 years' imprisonment. 2  


                    The State offered Murray two favorable plea bargains.  Murray, who has  

an extensive history of mental illness and aberrant behavior, rejected both of these offers.  


                    The State initially offered a plea bargain that called for Murray to receive  


a sentence of 20 years to serve.  This sentence - fifty percent of the low end of the  


applicable presumptive range - was the absolute minimum term of imprisonment that  

the  superior  court  could  impose  under  AS  12.55.155(a)(2),  assuming  one  or  more  


mitigating factors were proved.  

                    Murray's  attorney  advised  him  to  accept  the  State's  offer,  but  Murray  

refused.  He insisted on going to trial, despite the considerable evidence against him, and  


he  told  his  attorney  that  he  did  not  care  if  he  ended  up  serving  99  years  in  prison.  


According to the attorney's later affidavit, she "[did] everything within her power to  

dissuade [Murray] from this decision", but Murray was adamant.  

                    Then, in December 2008, Murray told his attorney that he wanted to plead  

guilty  to  both  counts  of  first-degree  sexual  assault,  without  the  benefit  of  any  plea  


bargain. Murray insisted that he wanted to change his plea immediately and go "straight  


to sentencing".  

                    In response, Murray's attorney hurriedly negotiated a second plea bargain  

with the State.  Under the terms of this second bargain, the State offered to let Murray  

plead  guilty  to  the  class  C  felony  of  attempted  second-degree  sexual  assault  (i.e.,  

attempted  non-consensual  sexual  contact),  with  sentencing  left  "open"  -  i.e.,  with  

     2    See AS 12.55.125(i) (providing a 99-year maximum term of imprisonment for all  

felony  forms  of  sexual  assault)  and  AS  12.55.155(a)  (providing  that  when  one  or  more  


aggravating factors are proved, a sentencing judge may impose any term of imprisonment up  

to the statutory maximum).   

                                                            - 3 -                                                       2445

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

Murray's  sentence  to  be  determined  by  the  court,   without  any  constraints  on  the  

sentencing judge's decision.               3  

                                              Because of his two prior felony convictions, Murray  


would face a presumptive sentencing range of 15 to 25 years if he was convicted of  

attempted  second-degree  sexual  assault 4  

                                                               (and,  because  of  the  aggravating  factor,  a  

maximum of 99 years).  

                   But  when  Murray's  attorney  explained  this  new  plea  bargain,  Murray  

became angry with her and refused to accept the bargain.  He then demanded to go to  



                   Then,  the  next  day,  Murray  changed  his  mind  again.    He  directed  his  

attorney to propose a new plea bargain to the State - one that was less advantageous to  


him than the offer he had just rejected.  Under Murray's proposal, he would plead guilty  

to  second-degree  sexual  assault  (not  just  the  attempted  crime),  again  with  open  

sentencing, upon the condition that his sentencing would take place immediately.  

                   Although pleading guilty to second-degree sexual assault was obviously not  

as advantageous to Murray as pleading guilty to attempted second-degree sexual assault,  


Murray's proposal did reduce the applicable presumptive sentencing range to 20 to 35  


years' imprisonment - down from the 40- to 60-year range he would have faced if he  


was convicted of first-degree sexual assault. 5  



                   Although Murray's attorney thought that Murray was acting against his  


own best interest, the attorney promptly contacted the superior court and scheduled a  

change-of-plea  hearing.    At  this  hearing,  Murray's  attorney  informed  the  court  that  


Murray was entering this guilty plea against her advice, but the court ultimately accepted  

     3    See  AS  11.41.420(b)  (second-degree  sexual  assault  is  a  class  B  felony)  and  

AS 11.31.100(d)(4) (an attempt to commit a class B felony is a class C felony).  

     4    AS 12.55.125(i)(4)(D).  

     5    AS 12.55.125(i)(3)(D).  

                                                           - 4 -                                                      2445

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

Murray's plea to second-degree sexual assault.  The court imposed a sentence of 38  


years' imprisonment with 3 years suspended - i.e., 35 years to serve.   

          The post-conviction relief litigation  

                   In November 2009, Murray initiated post-conviction relief proceedings.  

In his petition for post-conviction relief (as ultimately amended), Murray asserted that  

his assistant public defender had represented him incompetently.   

                   More specifically, Murray claimed that his attorney should have known that  

he  was  "irrational  and  impulsive",  that  he  was  "prone  to  making  self-destructive  


decisions", and that his decision to plead guilty to second-degree sexual assault was  

likely "the product of his mental illness", and "neither knowing nor voluntary".  Thus,  

Murray concluded, his attorney was ethically required to prevent Murray from pleading  


guilty to the reduced charge of second-degree sexual assault, or at least to warn the  


superior court that Murray was probably incompetent to enter this plea.  

                   Murray's trial attorney, Assistant Public Defender Michele Murphy, filed  


an affidavit responding to Murray's claims.  She acknowledged that she knew Murray  


suffered from mental illness and that his behavior was at times erratic.  For this reason,  


Murphy secured the services of a mental health professional "to counsel Mr. Murray on  


a regular basis during the time leading up to his ... decision to [plead guilty]."  Murphy  


declared that "at no time" did this mental health professional indicate that Murray was  


mentally incompetent.  

                   According to the attorney's affidavit, when Murray told her that he had  

decided to plead guilty and that he wished to demand an immediate sentencing hearing,  

the attorney "adamantly opposed Mr. Murray's decision".  But after seeing that she could  


                                                           - 5 -                                                      2445

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

not dissuade him, the attorney concluded that she should fulfill her role "as an advocate  


for [his] wishes".  

                    Based on the foregoing record, the State filed a motion asking the superior  


court to dismiss Murray's petition for post-conviction relief for failing to state a prima  


facie case for relief.  

                    The State acknowledged that Murray had presented a sufficient case that  


he was mentally ill, but the State argued that the real issue was whether Murray was so  


ill that he lacked the mental competence to enter a guilty plea.                                      On  the  question of  


Murray's competence to enter a plea, the State asserted that Murray had failed to present  


specific details showing that he lacked a basic understanding of his choices, or that he  


lacked the mental capacity to evaluate those choices. Instead, Murray had presented only  


conclusory  assertions  -  assertions  that  the  court  could  lawfully  disregard  when  

assessing whether Murray had set forth a litigable claim for relief.  See LaBrake v. State ,  


152 P.3d 474, 481 (Alaska App. 2007).   

                    In his opposition to the State's motion to dismiss, Murray's post-conviction  

relief attorney, David Allen, backed away from the earlier suggestions that Murray was  


not  competent  to  change  his  plea.    Allen  now  told  the  court  that  the  issue  was  not  


whether Murray was competent or incompetent to enter his plea.  Rather, Allen argued,  


the question was whether Murray was so noticeably impaired that his former attorney  


(Murphy) was ethically required to take "protective action" under Alaska Professional  

Conduct Rule 1.14 to prevent Murray from "compromising his own ... rights".   

                    Allen pointed out that Murray's petition set forth a prima facie case that  

Murphy "knew ... that her client was impaired in his decision-making".  Thus, Allen  

argued, even though Murray may not have been "formally incompetent" to assist in his  


own defense or to enter a guilty plea, Murray's mental difficulties were so obvious that  


Murphy  violated  Rule  1.14  by  "surrender[ing]  her  critical  judgment  and  her  legal  

                                                              - 6 -                                                          2445

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

responsibility [toward her client]", and by "simply [throwing] up her hands" when she  


was "unable to deal effectively with a difficult client."  Allen argued that, at the very  

least, Murphy should have asked the superior court to delay the change-of-plea hearing  


so that Murray could have a "cooling-off period".   

                    Allen then cited several death-penalty cases where defendants refused to  


appeal their death sentence, or tried to have their habeas corpus petitions dismissed, and  


the courts found that the defendants' lawyers had a duty to disobey their clients' wishes  


(to ensure that the validity of the death sentences would be fully litigated).  Relying on  

these court decisions, Allen argued that Murray's case presented an analogous situation  


- because, by pleading guilty, Murray surrendered his most important procedural rights  


against his attorney's advice.  

                    The superior court rejected these arguments and granted the State's motion  

to dismiss Murray's petition for post-conviction relief.   

                    The superior court noted that Murray (through his attorney, Allen) was not  


claiming  that  he  had  been  incompetent  to  enter  the  guilty  plea  -  only  that  he  was  


impaired, and that Murphy (knowing of this impairment) had been under an ethical duty  


to prevent him from entering his guilty plea.  And the superior court rejected Murray's  

contention that, under these circumstances, his attorney was ethically required to act  


contrary to his wishes.   

                    The court noted that, at the change-of-plea hearing, Murphy informed the  


court that Murray was acting contrary to her advice.  But the court rejected the notion  

that Murphy was required to actively thwart Murray's desire to plead guilty.  The court  

declared that "[if] a defendant is competent to proceed, [then] he is able to make the  


decision to enter a plea of guilty regardless [of] whether his attorney thinks it is a good  


[or] bad ... choice."  

                                                             - 7 -                                                         2445

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

                    With respect to Allen's argument that Murphy should have asked for a  


delay of the change-of-plea hearing, to give Murray a "cooling off" period, the superior  


court noted that Murray failed to offer any evidence that he would have reconsidered his  


decision if his attorney had succeeded in getting the court to delay the hearing.  

          Why we uphold the superior court's ruling  

                    At the heart of this case is the question of how far an attorney must go in  


respecting the autonomy of a client, even when the attorney is convinced that the client  


is making bad choices - and, conversely, to what extent an attorney has a duty to take  

action to protect a client from himself.  More technically, this case presents a question  

regarding the relationship between two ethical rules that govern the legal profession.   

                    The first of these rules, Alaska Professional Conduct Rule 1.2(a), directs  


defense attorneys to abide by their clients' decisions "as to [the] plea to be entered", and  


"whether to offer or accept a [plea bargain]".   

                    But the Comment to Rule 1.2 declares that "[when a] client appears to be  


suffering impaired [mental] capacity, the lawyer's duty to abide by the client's decisions  

is to be guided by [Professional Conduct] Rule 1.14."   

                    This second rule, Professional Conduct Rule 1.14, addresses an attorney's  


ethical obligations when a client's decision-making capacity is impaired by youth, or by  


mental deficiency, or for any other reason.  

                    Subsection (a) of Rule 1.14 echoes the principle codified in Rule 1.2(a):  

even when a defendant has impaired capacity to make "adequately considered decisions"  


in  connection  with  the  case,  the  defense  attorney  must  still,  "as  far  as  reasonably  


possible, maintain a normal [attorney-client] relationship with the [defendant]."  

                                                            - 8 -                                                       2445

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

                    But subsection (b) of the rule authorizes the attorney to take "reasonably  


necessary protective action" if the attorney reasonably believes that, as a result of the  

defendant's impaired capacity, (1) "the [defendant] is at risk of substantial physical,  

financial,  or  other  harm  unless  action  is  taken",  and  (2)  "the  [defendant]  cannot  

adequately act in [their] own interest".  

                     Subsection (b) then suggests two types of "protective actions" that an  

attorney might take when a client's decision-making capacity is substantially impaired.  


First, the lawyer may "consult[] with individuals or entities that have the ability to take  

action to protect the client" - and the lawyer is authorized to divulge client confidences  


and secrets for this purpose under subsection (c) of the rule.  Second, "in appropriate  


cases," the lawyer may "seek[] the appointment of a guardian ad litem, conservator[,] or  


guardian [for the defendant]."   

                    As we have explained, Murray's trial attorney responded to his mental  

impairment by taking action that was similar in nature to the first suggestion listed in  


Rule 1.14(b):  she secured the services of a mental health professional to counsel Murray  


on a regular basis during the course of the representation.  

                    Murray argues that this was not enough to satisfy the trial attorney's duty  


to him under Rule 1.14 - that the attorney should have actively impeded Murray after  


he announced that he wished to plead guilty to second-degree sexual assault.   

                    Murray's argument rests on two premises:   (1) that his lawyer failed to  


abide by a duty imposed by Rule 1.14, and (2) that Rule 1.14 establishes the standard of  

competent representation in these circumstances.  Both of these premises are question- 



                    With  regard  to  Murray's  first  premise,  the  only   duty   imposed   by  


Professional Conduct Rule 1.14 is the duty prescribed in subsection (a) of the rule:  a  


                                                            - 9 -                                                       2445

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

lawyer "shall" maintain a normal attorney-client relationship with the impaired client as  


far as reasonably possible.   

                    By comparison, the types of protective action listed in subsection (b) of the  


rule are not described as mandatory.  They are instead described as permissible  responses  

to  the  problem  of  an  impaired  client:    "the  lawyer  may  take  reasonably  necessary  

protective action".  (Emphasis added)  Similarly, the fifth paragraph of the Comment to  

Rule 1.14 states that "paragraph (b) [of the rule] permits  the lawyer to take protective  

measures deemed necessary."  (Emphasis added)  

                    This, in turn, casts doubt on Murray's second premise:  that Professional  


Conduct Rule 1.14 was intended to establish the standard for competent representation  


of an impaired client.  Rule 1.14 does not, on its face, prescribe a mandatory course of  


conduct or define a standard of competent representation.  Rather, the apparent purpose  


of Rule 1.14 is to address an issue of professional ethics.  The wording of Rule 1.14 and  


its accompanying Comment indicates that Rule 1.14 was mainly intended to insulate a  


lawyer from professional discipline when a lawyer decides to take action to protect an  

impaired client in circumstances where the attorney's action might arguably be viewed  


as antagonistic to the client's wishes or interests.   

                    But even if we assume that Rule 1.14 at least helps to define the scope of  


competent  representation  in  situations  where  a  criminal  defendant  has  an  impaired  

capacity to make decisions, the record in this case indicates that Murray's trial attorney  

did  comply  with  Rule  1.14:    she  recognized  that  Murray  was  mentally  ill,  and  she  


retained a mental health professional to counsel Murray.  

                    In the superior court, Murray's post-conviction relief attorney relied on  

several court decisions holding that defense attorneys are sometimes ethically required  


to act directly contrary to their clients' wishes, even in matters where Rule 1.2(a) says  

that the client's decision governs.  But all of the cases cited by the post-conviction relief  


                                                           - 10 -                                                       2445

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attorney involved defendants who were sentenced to death, and who wished to acquiesce  


in that sentence even though they still had legal avenues for challenging it.  

                    Cases of this type are addressed separately in the American Bar Associa- 

tion's  annotation  to  Model  Rule  of  Professional  Conduct  1.14.    See  American  Bar  


Association, Annotated Model Rules of Professional Conduct (Seventh Edition, 2011),  

Annotation  to  Model  Rule  1.14,  p.  237  ("Criminal  Proceedings")  and  pp.  237-38  

("Client's Refusal to Contest Death Penalty").   

                    The ABA's discussion of Rule 1.14 (as it applies to criminal cases) focuses  


on the problem of what a defense attorney should do when the attorney has good reason  


to believe that their client is incompetent.  The annotation suggests that death penalty  


cases  fall  into  a  special  category  because,  when  a  client  decides  to  forego  legal  


challenges to a death sentence, that very decision (by itself) may potentially provide the  

lawyer with good reason to conclude that the client is incompetent and suicidal.  Ibid.  


Thus, the lawyer may have an ethical duty to disregard the client's expressed wishes.  

                    But, as we have explained, Murray is not claiming that he was incompetent  


to make decisions about the plea agreement.   

                    Nor is this a situation where Murray's attorney ignored his mental illness  


or disregarded the principles codified in Rule 1.14(b). Murray's trial attorney was aware  


that Murray was mentally ill - and, for this reason, she followed the precept of Rule  


1.14(b) by "consulting ... individuals ... [who had] the ability to take action to protect  


[her] client".  Specifically, she retained a mental health professional to observe and aid  


Murray during the criminal case.   

                    The record shows that Murray's trial attorney strongly disputed the wisdom  

of her client's decision to plead guilty, and that she did her best to dissuade him from a  


course of action that was seemingly so contrary to his interests - but Murray insisted.  

Murray does not now assert that he was incompetent to make  this  decision.  And if  


                                                             - 11 -                                                        2445

----------------------- Page 12-----------------------

Murray  was  competent,  both  Rule  1.2(a)  and  Rule  1.14(a)  directed  Murray's  trial  

attorney to honor his wishes with respect to what plea to enter, and whether to offer or  


accept a plea bargain.  

                    See, e.g., People v. Howard , 824 P.2d 1315, 1346-47 (Cal. 1992) (rejecting  


a claim of ineffective assistance of counsel when, in a capital case, the defense attorney  


honored the defendant's decision not to present a mitigation case during  the penalty  


phase, since there was no doubt that the defendant was competent, and because the  

defendant's preference for a death sentence does not, by itself, raise a reasonable doubt  

as to the defendant's competence); People v. Medina , 799 P.2d 1282, 1300-01 (Cal.  

 1990) (holding that there was no error where a competent defendant first withdrew an  

insanity plea, then reinstated this plea against the advice of counsel; the court held that  


a  presently  sane  defendant  has  control  over  this  decision);  Ancona  v.  Warden ,  


unpublished, 2009 WL 1958728, *8-12 (Conn. Super. 2009) (rejecting a claim that the  


attorney representing a mentally ill defendant who faced up to 120 years' imprisonment  


on sexual assault charges violated Connecticut Professional Conduct Rule 1.14 by failing  

to petition the court to appoint a guardian for the defendant, after the defendant rejected  


a plea agreement that would have allowed him to serve only 2 years (10  years with  


8 years suspended)).  

                    (But see Christopher Slobogin & Amy Mashburn,  The Criminal Defense  

Lawyer's Fiduciary Duty to Clients with Mental Disability , 68 Fordham Law Review  


 1581 (1999).  The authors suggest that there may be "narrow circumstances" in which  


a lawyer should disregard or override a competent client's decision - circumstances  

where an admittedly competent defendant's decision-making is so impaired and so self- 


defeating as to jeopardize "compelling state interests in assuring the reliability or dignity  


of the proceedings".  Id. at 1585.)  

                                                           - 12 -                                                       2445

----------------------- Page 13-----------------------

                    Thus, even assuming that Professional Conduct Rule 1.14 helps to define  


the pertinent standard of competent representation, and viewing the record in the light  


most favorable to Murray's claim, Murray's attorney abided by Rule 1.14(b) when she  


retained a mental health professional to help Murray cope with his mental illness and to  


give her insight into Murray's level of competence.  Murray does not claim that he  


lacked competence to plead guilty.  Accordingly, his attorney was not required to go  

further and affirmatively prevent him from entering his plea.  Even if we were to adopt  


the view of the authors cited in the preceding paragraph, this is not a situation where  

Murray's decision was so nonsensical or outrageous as to jeopardize the fundamental  


reliability or dignity of the judicial proceedings.  

                    We therefore uphold the superior court's ruling that Murray's petition for  


post-conviction relief failed to state a prima facie case for relief.  


                    The judgement of the superior court is AFFIRMED.  

                                                           - 13 -                                                       2445

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