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John Clint Sherwood v. State of Alaska (6/25/2021) ap-2705

John Clint Sherwood v. State of Alaska (6/25/2021) ap-2705


           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-13411  

                                            Appellant,                           Trial Court No. 1KE-16-00272 CI  


                                                                                                 O P I N I O N  


                                            Appellee.                                 No. 2705 - June 25, 2021  


                                    from   the   Superior   Court,   First   Judicial   District,  

                      Ketchikan, Kevin G. Miller, Judge.  

                      Appearances:  Dan Bair, Law Office of Dan Bair, Anchorage,  


                      under  contract  with  the  Office  of  Public  Advocacy,  for  the  


                      Appellant.  Nancy R. Simel, Assistant Attorney General, Office  


                      of  Criminal  Appeals,  Anchorage,  and  Kevin  G.  Clarkson,  


                      Attorney General, Juneau, for the Appellee.  

                      Before:  Allard, Chief Judge, and Harbison and Terrell, Judges.  


                      Judge ALLARD.  

                      John Clint Sherwood was convicted, following a jury trial, of second-                                       

                                                                    1   Sherwood appealed his convictions to this  

degree assault and fourth-degree assault.                                                                                                

      1    AS 11.41.210(a)(1) and AS 11.41.230(a)(1), respectively.  

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

Court.    Attorney Jason Weiner represented Sherwood in his direct appeal through a                                                                                                           

contract with the Office of Public Advocacy.                                                          

                              Whiletheappeal was pending,                                        Sherwood filed a    pro  se  application forpost-  

conviction relief. Sherwood                                    was appointed counsel fromthe                                         Office of Public Advocacy,   

who moved to stay the application for post-conviction relief pending the resolution of                                                                                                      

Sherwood's direct appeal.                                   This Court subsequently affirmed Sherwood's convictions                                                    


in an unpublished memorandum decision.                                                           


                              After this Court denied Sherwood's appeal, the Office of Public Advocacy  


assigned  Weiner  to  represent  Sherwood  in  the  post-conviction  relief  proceedings.  


Weiner later filed a certificate of no arguable merit, asserting that Sherwood had no non- 


frivolous claims for post-conviction relief. As part of the certificate of no arguable merit,  


Weiner  was  required  to  affirm  under  oath  that  he  had  no  conflict  of  interest  in  



representing Sherwood in his application for post-conviction relief.                                                                                     Weiner made this  


claim under oath, despite his prior role as Sherwood's attorney in the direct appeal.  


                              After thesuperior court initiallyreturned thecertificateofnoarguablemerit  


to Weiner with instructions to correct technical insufficiencies, it accepted the certificate  


and subsequently dismissed Sherwood's post-conviction relief application.  Sherwood  


now  appeals  that  dismissal,  arguing  that  the  superior  court  erred  in  accepting  the  


certificate of no arguable merit because (1) Weiner had a conflict of interest; and (2) the  



certificate was deficient in various ways. 

       2       Sherwood v. State, 2018 WL 1357345 (Alaska App. Mar. 14, 2018) (unpublished).  

        3      See Alaska R. Crim. P. 35.1(e)(2)(C)(i).  

       4       Because  we  find  that  the  superior  court's  order  must  be  vacated  on  the  issue  of  

counsel's conflict of  interest, we do not reach Sherwood's other claims in this appeal.  

                                                                                           - 2 -                                                                                       2705

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

                      On appeal, the State concedes that Weiner had a conflict of interest.                                              This  


concession is well-founded.                                                                                                                   

                                                 Alaska Rule of Professional Conduct 1.7 mandates that "a  


lawyer shall not represent a client if the representation involves a concurrent conflict of  


interest."         A  concurrent  conflict  exists  when  "there  is  a  significant  risk  that  the  


representation  of  one  or  more  clients  will  be  materially  limited  by  the  lawyer's  


responsibilities to another client, a former client, or a third person  or by a personal  



interest  of  the  lawyer."                  As  a  general  matter,  a  lawyer  has  a  personal  interest  in  



defending the professional competency of their own representation. 


                      In the current case, Weiner represented Sherwood in his application for  


post-conviction relief after representing Sherwood in his direct appeal.  This created an  


obvious concurrent conflict of interest.  As the lawyer representing Sherwood in the  


post-conviction  relief  application,  Weiner  had  a  duty  to  review  the  entire  case  -  


including  both  the  trial  and  the  appeal  -  to  determine  whether  there  were  any  


cognizable claims for relief based on the ineffective assistance of trial counsel or the  



ineffective assistance of appellate counsel.                                  But Weiner's ability to conduct such a  


review was hampered by his own personal interest in defending his representation in the  


direct appeal.  

      5    See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (holding that an appellate court  

must independently evaluate any concession of error by the State in a criminal case).  


      6    Nelson v. State, 440 P.3d 240, 244 (Alaska 2019) (quoting Alaska R. Prof. Conduct  

1.7(a)(2) (emphasis added in Nelson)).  

      7    Id. at 245.  

      8    Cf. Griffin v. State, 18 P.3d 71, 77 (Alaska App. 2001) (explaining that, in order for  

the superior court to carry out its duty to independently review a certificate of no arguable  


merit, the assigned attorney seeking to withdraw from the case "must provide the court with  


a  full  explanation  of  all  the  claims  the  attorney  has  considered  and  why  the  attorney  


concluded that the claims are frivolous").  

                                                                     -  3 -                                                               2705

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

                              Alaska  Rule  of  Professional  Conduct   1.7(b)  provides:   

                              Notwithstanding   the   existence   of   a   concurrent   conflict   of  

                              interest  under  paragraph  (a),  a  lawyer  may  represent  a  client  


                                              (1)  the  lawyer  reasonably  believes  that  the  lawyer  will  

                              be  able  to  provide  competent  and  diligent  representation  to  

                              each  affected  client;  

                                              (2)  the  representation  is  not  prohibited  by  law;  

                                              (3)  the  representation  does  not  involve  the  assertion  of  

                              a  claim  by  one  client  against  another  client  represented  by  the  

                              lawyer   in   the   same   litigation   or   other  proceeding  before   a  

                              tribunal;  and  

                                               4)  each    affected    client    gives    informed    consent,  


                              confirmed in writing.          

Here,              the         representation                         is        prohibited                    by         law           under              Alaska                Criminal  

Rule 35.1(e)(2)(C)(i) because Weiner filed a certificate of no merit in Sherwood's post-                                                                                                  

conviction relief case.                             

                              An attorney who has been appointed to represent an indigent client in a                                                                                       

post-conviction relief case has the authority to file a certificate of no arguable merit if the                                                                                              

attorney determines, after a thorough review of matters insideand outside the                                                                                              record, that   


there are no non-frivolous claims for relief.                                                                                                                                   

                                                                                                          But, as part of the certificate, Criminal  


Rule 35.1(e)(2)(C) requires that the attorney affirmunder oath that the attorney (1) "does  



not have a conflict of interest;"                                       (2) "has reviewed the facts of the underlying proceeding  



or action challenged in the application, and the pertinent law;"                                                                                (3) "has consulted with  

        9      See Alaska R. Crim. P. 35.1(e)(2)(C).  

        10     Alaska R. Crim. P. 35.1(e)(2)(C)(i).  

        11     Alaska R. Crim. P. 35.1(e)(2)(C)(ii).                                             This review includes matters both inside and                                                


                                                                                             - 4 -                                                                                        2705

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


the applicant and, if appropriate, with trial counsel;"                                               and (4) "has determined that the                       

claims presented in the application have no arguable merit and that the applicant has no                                                                      


other colorable claims for post-conviction relief."                                                                                                        

                                                                                                 Thus, the plain language of the rule  


prohibits post-conviction relief attorneys from filing certificates of no merit if they have  


a conflict of interest, regardless of whether such a conflict could otherwise be considered  




                         On appeal, Sherwood argues that the superior court erred when it accepted  


the certificate of no arguable merit because Weiner had a conflict of interest.  The State  


agrees that it was error to accept the certificate under these circumstances, but argues that  


the remedy should be limited to a remand in which a conflict-free attorney evaluates any  


potential ineffective assistance of appellate counsel claims that Sherwood may have. We  


disagree that the remand should be limited in this manner.  

       11    (...continued)  

outside the record.  See Vizcarra-Medina v. State, 195 P.3d 1095, 1097-99 (Alaska App.  


2008) (holding that even a weak or implausible claim is not necessarily "frivolous," but  


otherwise approving of the scope of evidence reviewed by post-conviction relief attorney,  


including off-record plea negotiation discussions and statements made during a change-of- 

plea hearing); see also Belluomini v. State, 2020 WL 2551859, at *1(Alaska App. May 20,  


2020) (unpublished) ("[A] certificate of no merit must include a full description of the claims  


the attorney considered, the materials the attorney reviewed, the investigations the attorney  


conducted,  and  the  reasons  why  the  attorney  has  concluded  that  all  of  the  applicant's  


potential claims have no arguable merit.").  

       12   Alaska  R.  Crim.  P.  35.1(e)(2)(C)(iii).                                The  attorney  is  also  required  to  provide  


affidavits from trial counsel and appellate counsel, when appropriate, or explain why those  


affidavits could not be provided.  Tazruk v. State, 67 P.3d 687, 689-90 (Alaska App. 2003).  


       13   Alaska R. Crim. P. 35.1(e)(2)(C)(iv); see also Vizcarra-Medina, 195 P.3d at 1099  

("[E]ven though the factual basis of  a claim for post-conviction  relief  may be weak or  


implausible - even so weak or implausible that the claim appears virtually certain to fail -  


this      does        not       mean          that      the       claim        is     'frivolous'            for      purposes            of      Criminal  


Rule 35.1(e)(2)(C).").  

                                                                             -  5 -                                                                       2705

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

                    We come to this conclusion for two reasons. First, it was plain error for the  


superior court to accept Weiner's certificate of no arguable merit when the record clearly  


showed that Weiner had aconflict ofinterest arisingfromhisrepresentation of Sherwood  


in the direct appeal.   Second, Weiner's failure to recognize the obvious conflict of  


interest raises serious concerns about his representation as a whole.   (The alternate  


explanation - that he did recognize the conflict and yet still affirmed under oath that he  


had no conflict - would be even more troubling.)   Under these circumstances, we  


conclude that Sherwood is entitled to new, conflict-free counsel who can competently  


assess whether there are non-frivolous claims for relief that can be raised or whether a  


certificate of no arguable merit is justified.  


                    Accordingly, the superior court's order is VACATED and this case is  


remanded to the superior court for further proceedings consistent with this opinion.  


                                                              -  6 -                                                         2705

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