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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-4555
Appellant, ) Trial Court No. 3AN-91-8998CI
) t/w 3AN-85-8908CR
v. )
) O P I N I O N
MEFAIL CELIKOSKI, )
)
Appellee. ) [No. 1329 - January 7, 1994]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Milton Souter,
Judge.
Appearances: W.H. Hawley, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellant. Ben
Esch, Anchorage, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
On October 1, 1991, Mefail Celikoski filed an
application for post-conviction relief, alleging that he had been
denied conflict-free representation as guaranteed by the United
States and Alaska Constitutions.1 Following a hearing, Superior
Court Judge Milton Souter granted post-conviction relief. The
state appeals. We affirm.
On January 9, 1986, Mefail Celikoski, Ajradin
Celikoski, and Medzait Ramadanoski were indicted on six counts of
third-degree misconduct involving a controlled substance. An
Illinois attorney, Robert Novelle, was hired as counsel for
Ramadanoski. Beginning in January of 1986, an Alaskan attorney,
Bill Bryson, acted as Novelle's local co-counsel in Ramadanoski's
case. Novelle testified that he consulted Bryson for advice
concerning appropriate statutes, sentencing, and plea bargaining
procedures. Novelle's testimony concerning the substance of the
conversations was vague and he did not remember whether he and
Bryson had discussed a strategy for Ramadanoski's defense.
On March 4, Mr. Bryson entered an appearance for
Celikoski. Celikoski testified that Bryson did not tell him that
he was also acting as co-counsel for Ramadanoski.2 Bryson
testified that he did not remember telling Celikoski that he
(Bryson) was also acting as co-counsel for Ramadanoski. Bryson
recalled discussing the strength of the state's case with Novelle
and whether each defendant was going to change his plea. Bryson
also testified that both he and Novelle may have sat in on
discussions with both defendants concerning whether or not the
defendants were going to change their pleas. Bryson recalled
being present on at least one occasion when Novelle met with
Ramadanoski before Ramadanoski changed his plea. Bryson further
testified that he and Novelle had discussed some strategy
concerning Ramadanoski's defense. On April 22, both Celikoski and
Ramadanoski changed their pleas to guilty.
During the post-conviction relief hearing, Judge Souter
inquired of Bryson, "Was any of the advice that you gave Mr.
Celikoski tempered by your concern for Mr. Ramadanoski's fate in
the criminal system?" Bryson responded:
I don't have specific recall of that. As I
recall the case, both of them were in a situa
tion where they would not have a very good
chance at trial. And so at that point the
advice was negotiate for the best disposition
we could get. And that was to be done on
behalf of each of them. And Mr. Novelle
advised Mr. Ramadanoski, I advised Mr. Celiko
ski. As I previously stated, because they
tended to trust Mr. Novelle because of his
connection with family members, I believed
that they each spoke with Mr. Novelle.
Bryson later stated, "I suppose that's the ultimate problem here
in that none of us have a recall as to whether or not there were
strategic advantages gained. I mean from what I remember of the
case my advice would have been the same regardless of the
role. . . ."
At the post-conviction relief hearing, Celikoski
testified that the judge who accepted his plea did not explain to
him that Bryson was representing Ramadanoski, and that Celikoski
never waived his right to conflict-free representation.
Celikoski stated that no one had explained the dangers of dual
representation to him.
Judge Souter granted Celikoski's application for post-
conviction relief. Judge Souter found that Bryson's
representation of Ramadanoski was more than a technical
representation; he found that Bryson had advised Ramadanoski and
provided practical representation. Therefore, he found that
Celikoski had established dual representation by a preponderance
of the evidence. Judge Souter stated that, under Moreau v.
State, 588 P.2d 275, 284 (Alaska 1978), the burden of showing
that Celikoski suffered no substantive harm then shifted to the
state. Judge Souter concluded the state failed to meet this
burden. Judge Souter emphasized that Bryson had been unable to
declare, with certainty, that his representation of Ramadanoski
did not influence his representation of Celikoski.
The state argues that the trial court applied the wrong
legal standard to Celikoski's application. In ruling on Celiko
ski's application, Judge Souter relied on the standard announced
in Moreau. The Moreau court addressed the issue of joint
representation of defendants in criminal trials, stating:
We do, however, recognize the dangers of
joint representation to a defendant's right
to counsel protected under both the United
States and Alaska Constitutions. Minnesota
has recently emphasized its disapproval of
joint representation, and has established
procedures to assure that any waiver of the
sixth amendment right to conflict-free
representa-tion meets constitutional
standards. State v. Olsen, 258 N.W.2d 898,
903-08 (Minn. 1977). Henceforth, in that
state, the trial judge must personally advise
the defendant of potential dangers inherent
in dual representation. If the record fails
to establish a "satisfactory" inquiry, the
burden shifts to the state to prove beyond a
reasonable doubt that a prejudicial conflict
did not exist. We approve this standard
adopted by the Minnesota court, and it will
be applied to Alaska cases tried after the
mandate is issued in the instant appeal.
Id. at 284 (footnotes omitted). Judge Souter ruled as follows:
[T]he applicant, under Moreau, has to bear
the burden of proof by a preponderance to
show the ground for post conviction relief.
Here the ground for post conviction relief is
the improper joint representation not
inquired into by the court, not waived by the
defendant, Mr. Celikoski. And that ground
has certainly been established here. There
is absolutely no question in this record that
Mr. Celikoski was represented by the same
counsel who was representing a codefendant.
[Celikoski] has therefore established a
sufficient ground for post conviction relief
unless -- unless under the Moreau case the
state has shown beyond a reasonable doubt
that the defendant suffered no substantive
harm in the situation.
The state asserts that Judge Souter applied Moreau
incorrectly because "[u]nder Moreau, Celikoski is entitled to
relief if and only if Bryson had a 'prejudicial conflict' of
interest due to his concurrent representation of Ramadanoski."
However, the language in Moreau indicates that Celikoski does not
bear the burden of proving prejudicial conflict. Once Celikoski
establishes dual representation and the failure of the trial
court to make an appropriate inquiry, the state bears the burden
of proving an absence of prejudicial conflict.
The state also argues that Judge Souter should not have
applied the Moreau standard, but rather should have applied the
standard set out by the United States Supreme Court in Cuyler v.
Sullivan, 446 U.S. 335 (1980).3 Cuyler holds that:
In order to establish a violation of the
Sixth Amendment, a defendant who raised no
objection at trial must demonstrate that an
actual conflict of interest adversely
affected his lawyer's performance.
Id. at 348 (footnote omitted).
Unlike the instant case, however, Cuyler deals with a
situation where the defendant was aware of his attorney's
representation of his co-defendants. Moreover, in Moreau the
Supreme Court of Alaska appears to have adopted a standard which
is more favorable to defendants. We recogize that Moreau was
decided before Cuyler. Although we cannot be sure that the
Alaska Supreme Court would continue to apply the Moreau test in
light of developments in the law since that decision, the Moreau
opinion appears to have adopted a rule specifically for Alaska
based on policy considerations. The court did not appear to be
merely attempting to apply federal law and we, therefore, believe
that we must follow Moreau in this case.
The state argues that Celikoski has the burden of
establishing all facts necessary to his claim by a preponderance
of the evidence because he is the petitioner in a post-conviction
relief action. Therefore, the state claims, he must prove by a
preponderance of the evidence both the existence of a conflict
and that the conflict adversely affected his representation.
Only then would the state be required to demonstrate that
Celikoski's dual representation was harmless beyond a reasonable
doubt.
Consistent with Moreau, however, in order to qualify
for post-conviction relief, Celikoski need only establish that
Bryson had undertaken the dual representation and that the trial
judge did not "personally advise the defendant of potential
dangers inherent in dual representation." Moreau at 284. Once
Celikoski proved this, and it is undisputed that he did,4 he had
met his burden of establishing all facts necessary to his claim
and "the burden [then shifted] to the state to prove beyond a
reasonable doubt that a prejudicial conflict did not exist." Id.
Prejudice is not a part of a defendant's claim under Moreau.
To support its position, the state also cites two
Minnesota cases, Mercer v. State, 290 N.W.2d 623 (Minn. 1980) and
Lundin v. State, 430 N.W.2d 675 (Minn.App. 1988). In these post-
Moreau cases, Minnesota courts denied post-conviction relief to
defendants who claimed prejudice resulting from dual
representation. However, in each of these cases, the appellants
were aware of the dual representation at the time it occurred.
Mercer at 626; Lundin at 678. In fact, in Mercer, the court
found that Mercer suggested the joint representation in spite of
his attorney's previous warning about the potential conflict.
Furthermore, in both Mercer and Lundin, appellate courts affirmed
trial court decisions that appellants had not been prejudiced by
dual representation.
Celikoski testified that he was never aware of Bryson's
conflict of interest. Bryson testified that he did not recall
advising Celikoski of the conflict. Although Judge Souter never
made any specific factual findings concerning Celikoski's
awareness of the conflict, we believe that on this record we must
accept Celikoski's allegation that he knew nothing of Bryson's
involvement in Ramadanoski's defense until years later.
We may reverse Judge Souter's finding, that the state
failed to prove the absence of a prejudicial conflict beyond a
reasonable doubt, only if that finding is clearly erroneous. The
state has relied on the testimony of Celikoski's former attorney
to establish that Celikoski was not prejudiced. Bryson recalled
that the case against Celikoski was "a fairly strong case."
Bryson stated that, to the best of his recollection, the charges
against Celikosky resulted from alleged hand-to-hand drug
transactions with an undercover police officer who had been
involved in a prior prosecution of Celikoski. Bryson recalled
that several of these transactions were recorded. Although
Bryson stated that he thought his advice would have been the same
regardless of the dual representation, he was unable to recall
the case and was very equivocal in his responses. We believe
that the evidence is such that Judge Souter could find that the
state did not "prove beyond a reasonable doubt that a prejudicial
conflict did not exist." Moreau at 234.
We accordingly AFFIRM Judge Souter's decision granting
Celikoski's application for post-conviction relief.
_______________________________
1. U.S. Const. Amend. VI; Alaska Const. Art. I 11.
2. Rule of Professional Conduct 1.7 (formerly DRS-
105) provides in pertinent part:
(a) A lawyer shall not represent a
client if the representation of that client
will be directly adverse to another client in
the same or a substantially related matter,
unless:
(1) the lawyer reasonably believes the
representation will not adversely affect the
relationship with the other client; and
(2) each client consents after consul-
tation.
(b) A lawyer shall not represent a
client if the representation of that client
may be materially limited by the lawyer's
responsibilities to another client or to a
third person, or by the lawyer's own
interests, unless:
(1) the lawyer reasonably believes the
representation will not be adversely
affected; and
(2) the client consents after
consultation. When representation of
multiple clients in a single matter is
undertaken, the consultation shall include
explanation of the implications of the common
representation and the advantages and risks
involved.
3. Shortly after Cuyler was decided, Federal Rule
44(c) was adopted. Federal Rule 44(c) provides:
Joint representation. Whenever two or
more defendants have been jointly charged and
are represented by the same retained or
appointed counsel the court shall promptly
inquire with respect to such joint repesenta-
tion and shall personally advise each
defendant of his right to the effective
assistance of counsel, including separate
representation. Unless it appears that there
is good cause to believe no conflict of
interest is likely to arise, the court shall
take such measures as may be appropriate to
protect each defendant's right to counsel.
4. The record suggests that the trial judge before
whom Celikoski entered his plea was aware that Bryson was
representing both Ramadanoski and Celikoski since Bryson filed an
appearance for both defendants. Yet the trial court did not
comply with the mandate of Moreau by advising Celikoski "of
potential dangers inherent in dual representation." Moreau at
284.
