Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Justin A. D. Nelson v. State of Alaska (4/19/2019) sp-7355

Justin A. D. Nelson v. State of Alaska (4/19/2019) sp-7355

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  


           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                      

JUSTIN  A.  D.  NELSON,                                          )  

                                                                 )    Supreme  Court  No.  S-16719  

                                Petitioner,                      )  


                                                                 )    Superior Court No. 3DI-11-00216 CR  

           v.                                                    )  


                                                                 )    O P I N I O N  


STATE OF ALASKA,                                                 )  


                                                                 )    No. 7355 - April  19, 2019  

                                Respondent.                      )  




                        etition for Hearing from the Court of Appeals of the State of  


                     Alaska, on appeal from the Superior Court of the State of  


                     Alaska,  Third  Judicial  District,  Dillingham,  Fred  Torrisi,  



                     Appearances: J. Adam Bartlett, Anchorage, for Petitioner.  


                     Timothy W. Terrell, Assistant Attorney General, Anchorage,  


                      and   Jahna   Lindemuth,   Attorney   General,   Juneau,   for  


                     Respondent.   Douglas O. Moody, Deputy Public Defender,  


                      and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  


                     Amicus Curiae Public Defender Agency.  


                     Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  


                      and Carney, Justices.  


                     MAASSEN, Justice.  



                     A defendant pleaded guilty to attempted first-degree sexual abuse of a  


minor. On the day of sentencing he moved to withdraw his plea, arguing that he had not  

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

understood theterms oftheagreement and had                                                    received ineffective assistanceofcounsel.                                             

The superior court declined to appoint a different lawyer to represent him on the motion                                                                            

to   withdraw   his   plea   and   denied  the   motion.     The   court   of appeals                                                              affirmed   these  



                            We accepted Nelson's petition for review on the question whether he was  


entitled to conflict-free counsel on the motion to withdraw his plea.  We adopt a per se  


rule requiring conflict-free counsel in the context of plea withdrawals and therefore  


reverse the decision of the court of appeals.  We remand to the superior court to decide  


Nelson's plea-withdrawal motion while he is represented by conflict-free counsel.  




                            In 2011 Justin A. D. Nelson was indicted on three felony counts of sexual  


abuse of a minor.   He was initially represented by attorneys Patricia Douglass and  


Alexander Foote, both of the Dillingham office of the Alaska Public Defender Agency.  


                           At the start of the first day of trial, Douglass informed the court that Nelson  


"want[ed] to take the deal" that the State had offered him.2  


                                                                                                                        The court took a brief recess  


so Nelson could confer with his attorneys.  After the break the court talked about the  


details of the plea agreement and the applicable sentencing ranges. Douglass confirmed  


that she had gone over the plea agreement with Nelson; she believed he understood the  


situation and was competent to proceed.   In a brief allocution, Nelson said he was  

              1            Nelson v. State                , 397 P.3d 350 (Alaska App. 2017).                           

              2             The agreement - made pursuant to Alaska Rule of Criminal Procedure 11                                                                             

-  required Nelson to plead guilty to one reduced count of attempted sexual abuse of a                                                                                          

minor in the first degree, in exchange for which the State would dismiss the other two  


counts.     The   agreed   sentence   was   30   years   imprisonment   with   ten   suspended;   the  

agreement also included terms of probation.  


                                                                                      -2-                                                                               7355

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


accepting the Alaska Criminal Rule 11 offer because he was "trying to look for the  


minimum time possible . . . and it just looks like this is it."  The court accepted Nelson's  




                    On the day set for sentencing, Foote, on Nelson's behalf, filed a combined  


motion seeking to withdraw the plea and asking that the Public Defender Agency be  


allowed  to  withdraw  from representing  Nelson.                             According  to  the  motion,  Nelson  


believed  that  the  Public  Defender  Agency  had  "been  ineffective  as  counsel,"  that  


Douglass "was not supportive of his defense," and that Nelson had not understood "the  


full ramifications of the Rule 11 agreement" at the time he agreed to it. The motion also  


informed the court that Nelson "may have additional argument he wishes to make that  


counsel  is  unaware  of,  as  our  office  was  only  recently  informed  of  Mr.  Nelson's  


objective, and communication has proven difficult due to Mr. Nelson's incarceration."  


                    Nelson was not present at the sentencing hearing, apparently due to a  


transportation glitch.  Before discussing rescheduling, the court asked about Nelson's  


motion, focusing first on the assertion that Nelson might have "additional argument" as  


to why he should be allowed to withdraw his plea. Foote explained the difficulty he and  


Douglass were having communicating with their client.  The court observed that the  


defense motion seemed "insufficient at this point," asked that it be supplemented within  


two weeks (and "[i]f you need more time, ask for it"), and postponed the sentencing  


hearing until further notice. The motion was never supplemented.  The court denied the  


request to withdraw the guilty plea on March 8 and the request that the Public Defender  


Agency be allowed to withdraw as counsel on March 13.  The court set sentencing for  


March 16.  


                    On March 14 the court received a handwritten letter from Nelson dated  


February  25.            In  the  letter,  Nelson  told  the  court  that  he  had  no  productive  


communication withhis PublicDefender Agency attorneys, thathedid not "knowwhat's  

                                                               -3-                                                         7355

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


going on," and that he was "confused about a lot of things in [his] case." He complained  


that Douglass often hung up on him "while [he] was trying to explain [his] case," that he  


did not know if any motions had been filed on his behalf, and that all he "wanted [was]  


a fair trial, a fair attorney that will listen to what [he had] to say."  


                     In response, the court provided Nelson with "[c]opies of all 2012 pleadings  


and orders" and ordered defense counsel to meet with him within the next two days. On  


March 16, the day set for sentencing, a response to the court's order was filed by Robert  


Meachum, another attorneyintheDillinghamPublicDefender Agency office. Meachum  


reported that Nelson did "not want to proceed with sentencing as scheduled" and asked  

that the court consider his February 25 letter "as reasons why he should be allowed to  


withdraw his plea."  


                    Nelson was present at the hearing that afternoon, represented by Meachum.  


The court explained that it had reviewed Nelson's February 25 letter but saw "nothing  


that justifies a change of plea or a withdrawal of the change of plea," though "[i]t may  


justify withdrawal of counsel."  According to the court, the most the letter showed was  


"a change in [Nelson's] mind" about the plea agreement, which fell short of "a fair and  


just reason to withdraw his plea."  The court reiterated its denial of Nelson's motion to  


withdraw his plea.   The court was willing, however, to allow Nelson "to move for  


reconsideration, . . . to delay sentencing, . . . [or] to renew his motion for a different  


attorney." But Meachumsuggested that the appropriate procedural route was for Nelson  


to wait and allege ineffective assistance of counsel in a motion for post-conviction relief,  


and in the meantime "perhaps [they] ought to just go ahead with sentencing."  


                     The court next heard a statement read by the victim's father. The court then  


reiterated its intent to deny Nelson's motion to withdraw his plea, finding that there was  


not "a fair reason, a just reason" for withdrawal, that it "would prejudice the State," and  


that "it would harm the victims."  At Nelson's request, the court agreed to postpone  

                                                                -4-                                                         7355

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


sentencing another week to give him time to talk to his attorney, though Meachum told  


the court that he had already spoken with Nelson in February and "twice in the past  


week" and did not know what Nelson could tell him that he did not know already.  The  


court again noted that "it may be that [Nelson] need[s] another attorney appointed sooner  


rather than later," but it did not again address the Agency attorneys' request to withdraw.  


                    When the superior court held the sentencing hearing the following week,  


Meachum informed the court, "I was ready to go last week, I'm ready to go today," and  


said he had not spoken to Nelson since the last hearing because he thought they had  


nothing new to say to each other. Nelson told the court he had been expecting Meachum  


to visit him because he had "some things that [he] needed for [Meachum] to say"; he also  


complained that he had not seen any discovery, transcripts, or other documents related  


to his case.  He said, "[T]he reason I took a deal is because of ineffective assistance, and  


the reason why I took it back is because of ineffective assistance." The court explained,  


however, that it had gone back over the record of the plea agreement and remained  


unconvinced that there was any reason to allow the plea's withdrawal.  And Meachum  


reiterated his view that a claim of ineffective assistance of counsel should be "litigated  


in post-conviction relief."  


                    The court proceeded with sentencing over Nelson's continued objections  


that  he  wanted  a  representation  hearing  instead.                          The  court  recognized  the  Public  


Defender Agency's conflict, however, and after sentencing it relieved the Agency of its  


duty to represent Nelson any further; the court said it was "appointing new counsel at  


this time, OPA or OPA contractor, for purposes of reviewing for appeal or  post[-]  


conviction relief."  


                    Represented by new counsel from the Office of Public Advocacy, Nelson  

                                                                -5-                                                         7355

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


appealed to the court of appeals.                                            The court held in an unpublished opinion that while                                                        

Nelson should not have been required to wait until after sentencing to litigate his claim                                                                                               

of ineffective assistance of counsel, the superior court did not err by denying his motion                                                                                           


to withdraw his plea because he had not articulated a "colorable basis" for withdrawal.                                                                                                                

Nelson petitioned for rehearing.5   On rehearing the court of appeals held that, while "the  


appointment  of  conflict  counsel  will  often  be  the  appropriate  action  in  these  


circumstances,  particularly  because  a  different  standard  applies  to  a  presentencing  


motion to withdraw a plea as opposed to a post-sentencing motion to withdraw a plea,"  


deference to the superior court's discretion was appropriate given Nelson's inability "to  


articulate or substantiate any specific assertions of how he had been incompetently  


represented" and the fact that sentencing "had already been delayed multiple times."6  


                              Nelson filed a petition for hearing, which we granted.  




                              "We review constitutional questions using our independent judgment, . . .  


adopting  the  rule  of  law  that  is  most  persuasive  in  light  of  precedent,  reason,  and  


policy."7              Whether a conflict of interest exists under the Alaska Rules of Professional  


Conduct is an issue of law also reviewed de novo under the independent judgment  


               3              Nelson v. State, No. A-11259, 2016 WL 7422690  (Alaska App. Dec. 21,  


               4              Id.  at  *4.  

               5              See  Nelson,  397  P.3d  350.  

               6              Id.  at  351-52.  

               7               Treacy  v.  Municipality  of  Anchorage ,  91  P.3d  252,  260  (Alaska  2004).  

                                                                                               -6-                                                                                               7355  

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


standard.   Finally, whether to grant or deny a motion to withdraw a plea is within the                                                


trial court's discretion, and we review its decision for abuse of discretion.                                                            

IV.	        DISCUSSION  


                        In thediscussion that follows,wefirst identify theconflict ofinterest shared  


by Nelson's three Public Defender Agency lawyers. We next conclude that Nelson was  



entitled to conflict counsel                         immediately after the conflict of interest arose - that is,  


when Nelson first raised his claim, in the context of his plea-withdrawal motion, that his  


Agency lawyers provided ineffective assistance of counsel.  Finally, we conclude that  


it  was  an  abuse  of  discretion  to  deny  the  plea-withdrawal  motion  under  these  



            A.	         Nelson's PublicDefenderAgency Lawyers HadAConcurrentConflict  


                        Of Interest Under Rule Of Professional Conduct 1.7.  


                        At the sentencing hearing the superior court recognized that the Public  


Defender Agency had a conflict of interest which required the appointment of a lawyer  


without that conflict - though the superior court applied the new counsel remedy only  


to appellate and post-conviction proceedings.  As the first step in our analysis of the  


issues raised in this petition, we agree there was a conflict of interest.  


                        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  

            8           See Burrell v. Disciplinary Bd. of Alaska Bar Ass'n                                         , 702 P.2d 240, 242-43         

(Alaska   1985)   (reviewing   record   in  attorney   disciplinary   proceedings   de   novo   and  

holding   that   attorney   had   a   conflict   of   interest   and   violated   applicable   rules   of  

professional conduct).   

            9           McClain v. State, 742 P.2d 269, 271 (Alaska App. 1987).  


            10          We follow the shorthand convention by which conflict-free counsel is  


referred to as "conflict counsel."  


                                                                            -7-	                                                                    7355

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

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                                                                     

                                                                                                                                                            11   One  

client, a former client, or a third person                                   or by a personal interest of the lawyer                                    ."     

such "personal interest" that may risk "materially limit[ing]" the lawyer's representation  


is the lawyer's interest in defending the professional competency of that representation.  


The  District  of  Columbia  Court  of  Appeals  found  a  violation  of  Rule  1.7  under  


circumstances  similar  to  those  presented  here:                                               A  lawyer  continued  representing  a  


defendant on his motion to withdraw a guilty plea following allegations that the lawyer  


had  coerced  the  defendant  into  pleading  guilty.12                                                   The  court  agreed  with  the  bar  


disciplinary body that the lawyer's representation of his client "was materially limited  


by his own interests."13  The court explained: "Because [the defendant] alleged coercion  


and ineffective assistance of counsel as grounds for his motion to withdraw his guilty  


plea, [the lawyer] could not argue the motion to withdraw without possibly admitting  



serious ethical violations and subjecting himself to possible liability for malpractice."                                                                                  


This left the client "unrepresented by counsel on the issue relating to the request to  


withdraw the guilty plea."15  


             11           Alaska  R.  Prof.  Conduct   1.7(a)(2)  (emphasis  added).  

             12           In  re  Ponds,  888  A.2d  234,  236,  239  (D.C.  2005).   

             13           Id.  at  239.  

             14           Id.  

             15           Id. ;  see  also  People  v.  Lepe,  211  Cal.  Rptr.  432,  433  n.1,  434-35  (Cal.  App.  

 1985)  (affirming  order  disqualifying  entire  county  prosecutor's  office  from  prosecuting  

defendant  whom  lead  prosecutor  had  defended while  in  private  practice,  when  issues  

included   "constitutional  infirmity"  of  earlier  guilty  plea  "for  lack  of  proper  lawyering");  

Carey  v.  State,  902  P.2d   1116,   1118  (Okla.  Crim.  App.   1995)  (holding that requiring  


                                                                                  -8-                                                                           7355

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

                                  The same conflict existed in this case for Douglass and Foote, Nelson's                                                                                             

original attorneys from the Dillingham office of the Public Defender Agency. Although                                                                                                               

Nelson's specific complaints were directed primarily at Douglass, his more general                                                                                                                       

complaints - confusion, poor communication, and lack of information - involved his                                                                                                                                   

representation as a whole, thus necessarily including Foote.                                                                                               Had Douglass and Foote   

represented Nelson on his motion to withdraw his plea, they would have been required                                                                                                                   

to argue their own ineffectiveness and lapses of professional duty, against their own                                                                                                                            

personal interest.   We recognize a "significant risk" that this personal interest would                                                                                                                    


"materially limit[]" their representation of Nelson in that context.                                                                                                        

                                  As explained above, however, it was another attorney in the  Dillingham  

office, Meachum, who took up Nelson's representation after Foote filed the motion to  


withdraw the guilty plea and to allow the Public Defender Agency's withdrawal from  


representation. But public defenders may be conflicted even when, like Meachum, they  


did not take part in the challenged proceedings and were not themselves alleged to be  


                                                                                                                                                                         17  lawyers who "are  

ineffective.  Under Alaska Rule of Professional Conduct 1.10(a),                                                                                                                                                  


associated in a firm" should not "knowingly represent a client when any one of them  


                 15               (...continued)  


attorney to represent defendant in evidentiary hearing on motion to withdraw plea, in  


which petitioner testified that attorney "tried to coerce himinto pleading guilty," unfairly  


forced attorney "to proceed in representing [defendant] against his own interests").  

                 16               See Alaska R. Prof. Conduct 1.7(a)(2).  


                 17               Public defenders' potential conflicts of interest are governed by Rule 1.10  


rather than Alaska Rule of Professional Conduct 1.11 - relating to conflicts of interest  


of  former  and  current  government  employees  -  because,  although  paid  by  the  


government, "public defenders do not represent the government or a public agency" but  


rather "work on behalf of private individuals."  Richard B. v. State, Dep't of Health &  


Soc. Servs., Div. of Family & Youth Servs., 71 P.3d 811, 822-23 (Alaska 2003).  


                                                                                                           -9-                                                                                                  7355

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

 practicing alone would be prohibited from doing so by Rule[] 1.7" except under the                                                                                                                                                    

 following condition:                                       "the prohibition is based on a personal interest of the prohibited                                                                           

 lawyer and does not present a significant risk of materially limiting the representation of                                                                                                                                               

 the client by the remaining lawyers in the firm." The next question to answer, therefore,                                                                                                                            

 is whether there was "a significant risk" that Meachum's representation of Nelson would                                                                                                                                       

 be "materially limited" by the personal interest of his prohibited colleagues.                                                                                                                                       

                                                                                                                                                                                   18   Some, including the  

                                      Courts have taken different approaches to this issue.                                                                                                                                             

 United States Court of Appeals for the Tenth Circuit and state courts in Illinois, New  


 Jersey, New Mexico, Ohio, and Rhode Island, follow a case-by-case rule:  whether one  


 public defender's conflict is imputed to others in the same office "will turn on the  


 specific circumstances."19  Relevant circumstances include such things as the physical  

 proximity of the lawyers' offices, office culture, and the individual lawyer's history of  


 raising ineffective assistance claims.20                                                                       The State endorses this case-by-case rule.   It  


 argues that a presumption of conflict in the public defender context is unwarranted for  


 several reasons:  (1) public defenders have less financial incentive than private lawyers  


 to avoid ineffective assistance claims because their pay is not dependent on the results  


 of individual cases; (2) the agency's reputation is in fact bolstered when one employee  


 pursues ineffective assistance allegations against another; and (3) loyalty to colleagues  


                   18                 See  Christopher M. Johnson,                                                    Not for Love or Money: Appointing a Public                                                            

 Defender   to   Litigate   a   Claim   of   Ineffective   Assistance   Involving   Another   Public  

 Defender, 78 M                              ISS. L. J. 79, 80 (2008).                   

                   19                 See Cannon v. Mullin                                       , 383 F.3d 1152, 1173 (10th Cir. 2004),                                                                    abrogated in   


part on other grounds , Simpson v. Carpenter, 912 F.3d 542 (10th Cir. 2018); see also  

 People v. Banks, 520 N.E.2d 617, 621 (Ill. 1987);                                                                                          State v. Bell, 447 A.2d 525, 528-29  


 (N.J. 1982); Morales v. Bridgforth, 100 P.3d 668, 669 (N.M. 2004); State v. Lentz, 639  


 N.E.2d 784, 786 (Ohio 1994); Simpson v. State, 769 A.2d 1257, 1271 (R.I. 2001).  

                   20                 See Cannon, 383 F.3d at 1173-74.  


                                                                                                                   -10-                                                                                                           7355

----------------------- Page 11-----------------------

 is unlikely to cloud public defenders' judgment, as they have a "unique duty of loyalty                                                                                                                                                                                                                

 to their clients."                                           

                                                   Other   states   follow   a   per   se   rule,   under   which   a   "mere   allegation   of  

 ineffective assistance is sufficient to create a conflict of interest disqualifying the public                                                                                                                                                                                                            

                                        21        It is this rule that Nelson endorses, and it is the rule we prefer.  


                                                  We  recognize  that  public  defenders,  like  any  other  lawyers,  may  feel  


 strongly loyal to individual colleagues; public defenders, like any other lawyers, may  


 fear  social or  bureaucratic consequences in the workplace from their  pursuit of  an  


 argument that acoworker or supervisor acted incompetently. Individuals vary, ofcourse,  


 but none should be asked to face "the dilemma of [either] vigorously asserting the  


 petitioner's claim or defending the professional reputation of [their] office."22   And trial  


judges would be placed in a difficult position if they were required to decide on a case- 


                          21                      State v. Veale                                     , 919 A.2d 794, 799 (N.H. 2007),                                                                                           abrogated in part on other                                                     

grounds,  State v. Thompson                                                                            , 20 A.3d 242 (N.H. 2011);                                                                        see also Hill v. State                                                    , 566 S.W.2d        

  127, 127 (Ark. 1978) (deciding that regardless of merit of post-conviction petition, when                                                                                                                                                                                                                   

 allegations of ineffective assistance of counsel are raised, the "better practice" is to                                                                                                                                                                                                                                 

 appoint counsel "who does not practice law on a day to day basis with the lawyer against                                                                                                                                                                                                               

 whom the allegations are made");                                                                                              Angarano v. United States                                                                          , 329 A.2d 453, 458 (D.C.                                                   

  1974) (stating it is "obvious" that if there is a hearing on allegations of ineffectiveness,                                                                                                                                                                          

 non-public defender service attorney "should be appointed if the original trial counsel                                                                                                                                                                                           

 was with that agency");                                                                 Adams v. State                                         , 380 So. 2d 421, 422 (Fla. 1980) (observing that                                                                                                                    

 attorney has "a hopeless conflict of interest" where appeal is predicated on ineffective   

 assistance of another public defender in same office);                                                                                                                                               Ryan v. Thomas                                               , 409 S.E.2d 507,                              

 509 (Ga. 1991) (holding that different attorney in same public defender's office cannot                                                                                                                                                                                                                 

 reasonably be expected to properly assert ineffectiveness of another member; to hold                                                                                                                                                                                                                            

 otherwise would "permit one member of the firm to shield his fellow member against                                                                                                                                                                                                                    

 accusations   of   ineffectiveness   at   the   expense   of   the   rights   of   the   defendant");  

 Commonwealth v. Moore                                                                          , 805 A.2d 1212, 1215 (Pa. 2002) (restating rule that, so as to                                                                                                                                                            

 ensure   zealous   advocacy   on   defendant's   behalf,   public   defender   may   not   assert  

 ineffective assistance claim against another public defender in same office).                                                                                                                                                                                                              

                          22                      Adams, 380 So. 2d at 422.  


                                                                                                                                                          -11-                                                                                                                                                  7355

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

by-case basis whether individual public defenders were detached enough from their                                                                                                                                                

colleagues to zealously pursue ineffective assistance claims without being "materially                                                                                                                         

limited" under Rule 1.10(a).                                                     

                                     We therefore hold that a public defender has a conflict of interest when the                                                                                                                     

petitioner   raises a claim of ineffective assistance of counsel against                                                                                                                             another   public  

defender in the same office.                                                   Under this per se rule, Meachum had an imputed conflict                                                           

of interest because he worked in the same office of the Public Defender Agency as                                                                                                                                                       


Douglass and Foote.                                            

                  B.	                Nelson Should Have Been Appointed Conflict Counsel After He Filed  


                                     A Motion Arguing Ineffective Assistance Of Counsel.  


                                     Wenowexaminewhether thesuperior courtshould haveappointed conflict  


counsel immediately rather than first sentencing Nelson and appointing conflict counsel  


only  for  purposes of appellate or  post-conviction review.                                                                                                             The State concedes that  


conflict counsel will be necessary "[i]f a trial court opts to fully litigate a plea-withdrawal  


motion predicated on ineffective assistance of counsel," that is, if it decides that there are  


disputed issues of material fact that need to be aired in an evidentiary hearing.  But the  


State contends that a plea-withdrawal motion will only reach that stage if the motion  


states a prima facie claim of ineffective assistance - raising "specific, non-conclusory  


allegations that if credited would permit the court to find facts by a preponderance of the  


evidence that support the conclusion that counsel was ineffective and that this was a  


significant factor in the defendant's decision to enter a plea."  It is only if the motion  


survives  this  preliminary  inquiry  that  original  counsel  is  "suspended"  and  conflict  


                  23                 We do not preclude the possibility that a public defender may have a                                                                                                                                 

conflict   of   interest   based  on  the   representation   by   a   public   defender   in   a   different  

geographic location.                                      On the case before us, however, we are not prepared to apply the                                                                                                            

per se rule to the Public Defender Agency statewide.                                                                  

                                                                                                                  -12-	                                                                                                         7355

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

 counsel is appointed for purposes of the evidentiary hearing.                                                                                                                                                                    The State suggests that                                                   

 original counsel must withdraw only if and when "the court finds ineffective assistance                                                                                                                                                                                              

 and grants plea withdrawal."                                                                              

                                                 Nelson,   in   contrast,   argues   that   the   right  to  conflict   counsel   arises  

immediately when a motion based on ineffective assistance of counsel is filed "because                                                                                                                                                                                                    

the right to counsel is a fundamental right."                                                                                                                   He argues that whenever the appointment                                                                      

 of conflict counsel                                                       "requires that a defendant meet a specific burden                                                                                                                                             of proof,                            the  

 defendant   necessarily   finds   himself   acting   pro   se   and   advocating  against   his   own  

 attorney"in                                contraventionoftheSixthAmendment'sright-to-counselguarantee. Nelson                                                                                                                                                                                  

 argues that the State's proposed two-step process requires that a defendant proceed on                                                                                                                                                                                                                          

 a complex topic essentially without counsel, and that this will ensure that "only the most                                                                                                                                                                                                              

 articulate   and   eloquent   of   defendants   will   be   able   to   assert   their   rights."     Nelson  

minimizes the procedural downside of an immediate and automatic appointment of                                                                                                                                                                                                                                   

 conflict counsel.                                             

                                                 The Sixth Amendment guarantees the right to the assistance of counsel in                                                                                                                                                                                          

                                                        24   This guarantee applies to state proceedings by virtue of the Fourteenth  

 a criminal case.                                                                                                                                                                                                                                                                  

Amendment.25                                              "Once [the] right attaches, the defendant is entitled to the presence of  


 counsel at 'any "critical stage" of postattachment proceedings.' "26                                                                                                                                                                                  A proceeding on a  


motion to withdraw a guilty plea is a "critical stage."27   We must agree with those courts  


                         24                      U.S.  Const.  Amend.  VI;  Risher  v.  State,  523  P.2d  421,  423  (Alaska  1974).  

                         25                      Risher,   523   P.2d   at   423   (citing   Gideon   v.   Wainwright,   372   U.S.   335  


                         26                     Forster   v.   State,   236   P.3d   1157,   1168   (Alaska   App.   2010)   (quoting  

Rothgery  v.  Gillespie  Cty.,  Texas,  554  U.S.   191,  212  (2008)).  

                         27                     E.g.,  Fortson  v.  State,  532  S.E.2d   102,   104  (Ga.  2000).  

                                                                                                                                                      -13-                                                                                                                                               7355

----------------------- Page 14-----------------------

that have found a violation of a defendant's Sixth Amendment right to counsel when the                                                                                                                                                                                                                   

defendant has had to pursue a plea withdrawal motion based on ineffective assistance of                                                                                                                                                                                                                      

                                                                                                                                                               28        And we reject the idea that the right to  

counsel without the help of conflict counsel.                                                                                                                                                                                                                                            

conflict counsel depends on the defendant's ability to first cross a "prima facie case"  


threshold while essentially unrepresented.  


                                                Finally, fairness favors a per se approach to the appointment of conflict  


counsel in this context because of the different standards of proof required before and  


after  sentencing.                                                   Alaska  Rule  of  Criminal  Procedure  11(h)  addresses  motions  to  


withdraw guilty pleas. Under Rule 11(h)(2), the court must grant a presentencing motion  


                        28                     See   United   States   v.   Gonzalez,   113   F.3d   1026,   1029  (9th   Cir.   1997)  

(holding   that,   when   trial   court   questioned   defendant's   attorney   about   merits   of  

defendant's claim that plea was coerced, defendant's Sixth Amendment rights were                                                                                                                                                                                                                 

violated   because   "the   court   invited   [the   attorney]   to   contradict   his   client   and   to  

undermine his veracity, [and the defendant] in effect 'was left to fend for himself,                                                                                                                                                                                                 

without                           representation                                            by              counsel'                              "          (emphasis                                  omitted));                                 United                         States                       v.  

Sanchez-Barreto, 93 F.3d 17, 22 (1st Cir. 1996) ("[T]he views expressed by [defense                                                                                                                                                                                                  

counsel] at the plea-withdrawal hearing directly contradicted the position advocated by                                                                                                                                                                                                                    

 [the defendant] in the pro se motion to withdraw his guilty plea.                                                                                                                                                                    Thus, the . . . hearing                    

record   leaves   no   doubt   that   [the   defendant]   was   left   to   fend   for   himself,   without  

representationby counsel."(emphasis                                                                                                   omitted));  United States v.Ellison                                                                                   , 798 F.2d 1102,  

 1106-08 (7th Cir. 1986)                                                            ("[D]efendant was effectively without counsel                                                                                                                     atthehearing                                    and  

was   forced   to   present   his   motion   without   the   assistance   of   counsel.     Defendant's  

testimony    was    unclear    and,    because    he    was    without    counsel,    there    was    no  

cross-examination of his attorney.  Thus, defendant not only was without conflict-free   

representation at the hearing but also was in effect without the assistance of counsel at                                                                                                                                                                                                                    

all . . . .");                       Carey v. State                                      , 902 P.2d 1116, 1118 (Okla. Crim. App. 1995) ("Petitioner's                                                                                                              

interests at the evidentiary hearing were to testify against his lawyer to establish that his                                                                                                                                                                                                            

guilty plea was given involuntarily . . . . During the evidentiary hearing, Petitioner had                                                                                                                                                                                                            

no attorney taking part in promoting his interests which were in actual conflict with the                                                                                                                                                                                                                

interests of [his attorney].                                                                   An attorney representing Petitioner's interests would have                                                                                                                                         

placed [his attorney] under cross-examination.                                                                                                                                 Petitioner's  own appointed defense                                                                     

counsel acted as his adversary.").                                      

                                                                                                                                                   -14-                                                                                                                                           7355

----------------------- Page 15-----------------------

to withdraw a guilty plea if "withdrawal is necessary to correct manifest injustice," but                                                                          

the   court   may   grant   the   motion   for   "any   fair   and   just   reason"   provided   that   the  

prosecution has not been substantially prejudiced.  Under Rule 11(h)(3), in contrast, a                                      

defendant may withdraw a guilty plea                                       after  sentencing only through an application for                                       

post-conviction   relief,   which   may   be   granted   only   if   the   defendant   proves   that  

                                                                                                                                              29     Given the  

"withdrawal [of the plea] is necessary to correct a manifest injustice."                                                                                          

significantly higher burden post-sentencing, the appointment of conflict counsel only for  


purposes of appeal and post-conviction relief cannot make up for a lack of conflict  


counsel before sentencing.  


                          In its helpful amicus brief, the Public Defender Agency explains that the  


Agency and OPA "have a system in place for dealing with the imputation of conflicts  




[from one Agency attorney to others in the Agency] under Richard B.                                                                          " but that "the  



system broke down in this case."  According to the Agency, "[w]hen a client wants to  


withdraw his plea prior to sentencing, the Agency transfers the case to OPA for the  


limited purpose of representing the client on that issue."   If the client abandons the  


motion or loses it, then "the Agency will take the case back from OPA and reassign it to  


the original trial attorney."  But if "the client pursues his motion and wins," then "the  


Agency will take the case back and assign it to a new attorney."  In any scenario, the  


client's expressed wish to withdraw the plea prompts a change in counsel for purposes  


of litigating at least that issue. As explained, the system appears to be consistent with the  


per se approach and demonstrates the approach's feasibility in practice.  

             29           See  AS 12.72.010-.040.   



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


Servs., 71 P.3d 811, 822-23 (Alaska 2003).  

                                                                                -15-                                                                           7355

----------------------- Page 16-----------------------

                                     We hold that a defendant is entitled to conflict counsel immediately after                                 

raising an ineffective assistance of counsel claimin the context of an attempt to withdraw                                                                                                                           

a plea.   

                   C.	               Reversal   For   Reconsideration   Of   The   Plea-Withdrawal   Motion   Is  

                                     Automatic Under These Circumstances.                                     

                                     Nelson   argues   that   because   his   ineffective   assistance   claims   were   not  

investigated   by   a   conflict-free   attorney,   we   should   presume   prejudice   - and                                                                                                                                     that,  

because the superior court was aware of the conflict but failed to remedy the situation,                                                                                                                             

reversal should be automatic. This is consistent with our case law. In                                                                                                                        Risher v. State                         we  

noted that "where there is ineffective assistance of counsel due to the deliberate conduct                                                                                                                               

of the trial judge, as in the appointment of counsel where there is a known conflict of                                                                                                                                                  


interest, the deterrence rationale remains applicable, and reversal will be automatic."                                                                                                                                                           


Here the superior court did not "appoint" counsel known to have a conflict of interest (as  


the conflict arose some time after the appointment), but the court accurately identified  


the  conflict and yet failed  to  appoint conflict counsel except for  purposes of post- 


conviction relief and appeal.  


                                     The United States Supreme Court has similarly held that "[i]n certain Sixth  


Amendment  contexts,  prejudice  is  presumed.                                                                                         Actual  or  constructive  denial  of  the  

                                                                                                                                                                                                                     32       In the  


assistance of counsel altogether is legally presumed to result in prejudice." 

context  of  plea  withdrawals  specifically,  "[t]he  vast  majority  of  courts  that  have  


addressed the denial of the right to counsel at this critical stage in a criminal proceeding  


have reversed and remanded to the trial court with instructions to appoint counsel and  


                  31                 523  P.2d  421,  425  n.19  (Alaska   1974)  (citations  omitted).  

                  32                 Strickland  v.   Washington,  466  U.S.  668,  692  (1984).  

                                                                                                                  -16-                                                                                                                      7355  

----------------------- Page 17-----------------------


conduct   a   new   hearing."                     Consistent   with   Risher   and   the   majority   approach,   we  

presume   prejudice   in   this   case   and   remand   for   reconsideration   of   Nelson's   plea- 

withdrawal motion with the involvement of conflict counsel.                                              

V.         CONCLUSION  

                      We REVERSE the decision of the court of appeals and REMAND to the  


superior court for the appointment of conflict counsel and reconsideration of Nelson's  


motion for withdrawal of his plea.  


           33         Fortson  v.  State,  532  S.E.2d  102,  105  & n.3  (Ga.  2000)  (footnotes  omitted).  

                                                                     -17-                                                                     7355  

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights