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THE COURT OF APPEALS OF THE STATE OF ALASKA
MARLIN J. BROECKEL, )
) Court of Appeals No. A-5370
Appellant, ) Trial Court No. 3KN-S92-278CI
) t/w 3KN-S90-140CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1430 - August 18, 1995]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Kenai, Charles K.
Cranston, Judge.
Appearances: A. Lee Petersen,
Anchorage, for Appellant. Kenneth M.
Rosenstein, Assistant Attorney General,
Office of Special Prosecu-tions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Marlin J. Broeckel was convicted by a jury of one count
of sexual assault in the first degree, AS 11.41.410(a)(1).
Superior Court Judge Charles K. Cranston entered judgment against
Broeckel on November 1, 1991. Broeckel's attorney did not file
an appeal. On March 6, 1992, Broeckel filed a pro se application
for post-conviction relief, claiming that his trial counsel had
been ineffective in advising Broeckel to waive his right to
testify and in failing to file a notice of appeal. Broeckel
subsequently obtained the services of a new attorney. Following
an evidentiary hearing at which Broeckel and his trial counsel
both testified, Judge Cranston denied Broeckel's application for
post-conviction relief. Broeckel appeals.
Broeckel first contends that Judge Cranston erred in
concluding that his trial counsel had no duty to file a timely
notice of appeal on Broeckel's behalf. The essential facts are
undisputed. After the jury returned its verdict of conviction,
Broeckel, evidently surprised and disappointed, became
disenchanted with his court-appointed trial counsel. Some time
prior to sentencing, Broeckel's parents contacted a private
attorney about taking over the case. The attorney, however,
advised that it would be best for Broeckel's trial counsel to
continue with representation until sentencing was completed and a
notice of appeal filed. The new attorney wrote Broeckel's trial
counsel a letter, informing trial counsel that the new attorney
had "tentatively" agreed to represent Broeckel on appeal. The
letter also suggested that it would be best if trial counsel
filed the notice of appeal.
After being sentenced, Broeckel instructed his trial
counsel to do nothing further in the case, saying that his
parents had arranged for a private attorney to handle the appeal.
Nevertheless, Broeckel thereafter evidently sent his trial
counsel a letter stating:
I realize you asked that I prepare
a list of appeal points that I felt were
applicable for your use but will not be doing
so at this time. I believe that after you've
filed notice of appeal and the appeal points,
[new counsel] will be appearing as my counsel
shortly afterwards and this will result in
his additional research of appeal points and
an addendum to them. Between [new counsel's]
research and yours, it should be sufficient
enough to bring forth ALL the appeal points
concerning my criminal case. So please do
the best you can in a timely matter.
(Emphasis in original.)
Trial counsel, however, concluded that he had no
further responsibility toward Broeckel. Without any attempt to
withdraw formally from the case or to substitute new counsel, and
without any additional communication with or notice to either
Broeckel or the new attorney Broeckel's parents had tentatively
retained, trial counsel allowed the deadline for the filing of a
notice of appeal to pass and did nothing further in the case.
At the hearing on Broeckel's application for post-
conviction relief, trial counsel explained:
[Broeckel] was informed that he had --
at the sentencing, he had thirty days to
appeal, and he told me at that time, and my
recollection is he told me, "Don't touch it.
I -- my family's hired an attorney. He'll do
the appeal."
When trial counsel was asked if he had received a letter from
Broeckel's retained attorney suggesting that trial counsel file
the notice of appeal, trial counsel replied:
What I recall is that -- is that . . . you'd
written that it would be helpful to have my input
in filing the notice of appeal. The point is
whether -- whether you believed I should do it or
not, my client had told me not to file it, and he
. . . knew exactly what he was getting into. He
knew exactly what the deadlines were, and if he
didn't follow through on it, I don't feel that's
my responsibility.
In denying Broeckel's post-conviction relief
application, Judge Cranston agreed with trial counsel that, upon
being instructed not to file an appeal, counsel owed Broeckel no
further duty. Judge Cranston ruled:
[Trial counsel] testified that after the
sentencing hearing in front of Judge
Cranston, Broeckel informed him not to touch
the case, that his family had retained
private counsel . . . . [Trial counsel]
recalls receiving a letter from [Broeckel's
new attorney] requesting the filing of a
notice of appeal. [Trial counsel] declined
to do so, claiming that the appeal was not
his responsibility, based upon the specific
instruction from Broeckel. The Court
concludes that [trial counsel] had no duty to
file a notice of appeal since Broeckel had
told [trial counsel] to do nothing further
and that he had retained private counsel.
Since [trial counsel] had no duty to
represent Broeckel with respect to any
appeal, Broeckel's ineffective assistance
claim, as to that ground, must fail.
On appeal, the state acknowledges that Judge Cranston
erred in evaluating the scope of trial counsel's duty toward
Broeckel. The state's concession is well taken.
Having been appointed to represent Broeckel at trial,
trial counsel had no authority to withdraw unilaterally from the
representation of his client. Under Appellate Rule 517(b),
withdrawal could have been effected only by motion or by filing,
with the approval of the court, a stipulation for withdrawal or
substitution of attorneys, executed by trial counsel, Broeckel,
and any substituted attorney. Nor does it matter that Broeckel's
original attorney had been appointed to represent Broeckel at the
trial level. Under the express provisions of Appellate Rule
209(b)(4), trial counsel had an ongoing duty toward his client
and was expressly precluded from withdrawing from the case until
a notice of appeal had been filed:
Counsel appointed to represent a
defendant in the trial court pursuant to
Criminal Rule 39 shall remain as appointed
counsel throughout an appeal at public
expense authorized under this paragraph and
shall not be permitted to withdraw except
upon the grounds authorized in Administrative
Rule 12. An attorney appointed by the court
under Administrative Rule 12(b)(1)(B) will be
permitted to withdraw upon a showing that
either the public defender agency or the
office of public advocacy is able to
represent defendant on appeal. If an appeal
is to be taken, trial counsel will not be
permitted to withdraw until the notice of
appeal and the documents required to be filed
with the appeal by Rule 204 have been
accepted for filing by the clerk of the
appellate courts. (Emphasis added.)
These rules touch upon concerns that are inherent in
and fundamental to traditional notions of an attorney's duties
toward a client. DR 2-110(A)(2) of the Code of Professional
Responsibility, which was in effect during Broeckel's case,
states:
In any event, a lawyer shall not
withdraw from employment until he has taken
reasonable steps to avoid foreseeable
prejudice to the rights of his client,
including giving due notice to his client,
allowing time for employment of other
counsel, delivering to the client all papers
and property to which the client is entitled,
and complying with applicable laws and rules.
An attorney ordinarily has no duty to preserve a
client's right to appeal when the attorney has been advised that
the client has no wish to appeal. See, e.g., United States v.
Mosley, 967 F.2d 242, 243 (7th Cir. 1992). In the present case,
however, there is no question that Broeckel at all times intended
to pursue an appeal. Although Broeckel instructed trial counsel
do nothing further in the case, the instruction was expressly
based on Broeckel's representation that a new attorney would be
handling the matter. Trial counsel's unilateral and unformalized
withdrawal of representation violated Appellate Rules 209 and
517, as well as DR 2-110(A)(2) of the Code of Professional
Responsibility. Particularly in view of trial counsel's failure
to inform either Broeckel or Broeckel's tentatively retained new
counsel of his functional withdrawal from the case, we conclude
that trial counsel failed to provide Broeckel with a minimally
competent level of representation. Risher v. State, 523 P.2d 421
(Alaska 1974).
In an effort to show that he was prejudiced by his
trial counsel's failure to file a notice of appeal, Broeckel has
advanced and briefed several issues that he claims might have
been meritorious had he been allowed to raise them. The state
addresses the merits of these issues, arguing that in actuality
they have no legal merit. Although essentially conceding that
Broeckel received ineffective assistance of counsel, the state
argues that he has failed to show prejudice.
Federal courts, however, appear almost unanimous in
concluding that no prejudice need be shown when ineffective
assistance of counsel consists of an attorney's failure to
preserve the right of a client to appeal; these cases hold that
upon a showing of ineffective assistance, the automatic remedy
should be restoration of the right to appeal. See, e.g.,
Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994);
see also United States v. Peak, 992 F.2d 39, 42 (4th Cir. 1993);
United States v. Horodner, 993 F.2d 191, 195 (9th Cir. 1993);
Bonneau v. United States, 961 F.2d 17, 23 (1st Cir. 1992); United
States v. Davis, 929 F.2d 554, 557 (10th Cir. 1991); Williams v.
Lockhart, 849 F.2d 1134, 1137 n.3 (8th Cir. 1988); accord Davis
v. State, 877 S.W.2d 93, 94 (Ark. 1994).
The approach taken by these cases makes sense, for an
attorney who incompetently fails to file a notice of appeal
deprives the client of the right to an appeal, not just the right
to a successful appeal. Moreover, insisting on a showing of
prejudice before allowing an appeal seems a fruitless exercise,
since any determination of prejudice in this context will
necessarily entail almost the same analysis that would be
required in deciding the appeal on its merits. Finally,
requiring that prejudice be shown as a condition of allowing an
untimely appeal would be of questionable value, since it would
impose on the trial court the essentially circular task of
reviewing the propriety of its own legal decisions. We agree
with the federal cases and hold that Broeckel, having shown that
his trial counsel acted ineffectively in failing to file a timely
notice of appeal, is under no obligation to establish prejudice.
Broeckel is entitled to the appeal of which he was earlier
deprived.1
Broeckel raises one additional argument: that Judge
Cranston erred in rejecting Broeckel's claim that his trial
counsel acted ineffectively in advising Broeckel not to testify.
Broeckel does not maintain that his trial counsel usurped
Broeckel's decision by advising him not to testify. See LaVigne
v. State, 812 P.2d 217 (Alaska 1991). And he concedes that his
trial counsel had a tactical reason for advising Broeckel not to
take the stand. Broeckel nevertheless maintains that trial
counsel was ineffective because the tactic he pursued was
unsound.
The standard for ineffective assistance is one of
minimal competence; to establish ineffective assistance, the
defendant must show "a level of performance that no reasonably
competent attorney would provide." State v. Jones, 759 P.2d 558,
568 (Alaska App. 1988)(citations omitted). Thus, to prevail on
his claim, Broeckel would have to establish that his trial
counsel's tactic was so unreasonable that no reasonably competent
attorney would have employed it. At the evidentiary hearing
below, trial counsel explained at length his decision to advise
Broeckel not to testify and the factors he considered in reaching
that decision. Judge Cranston found counsel's explanation
credible and concluded that counsel had not performed
ineffectively. The record supports Judge Cranston's decision.
Having reviewed the record, we conclude that trial counsel's
reasons for advising Broeckel not to testify fall well within the
permissible zone of competent representation.
The superior court's order rejecting Broeckel's claim
of ineffective assistance of counsel at trial is AFFIRMED. The
superior court's order rejecting Broeckel's claim of ineffective
assistance of counsel for failure to file a notice of appeal is
REVERSED.
_______________________________
1. Because Broeckel has raised and briefed issues
that he might have raised and briefed had he been accorded his
right to appeal at the outset, and because the state has
responded to the merits of Broeckel's proposed appellate
arguments, we could conceivably provide Broeckel his remedy by
simply deciding on their merits the issues he has raised in his
current briefs. However, as we have already observed, Broeckel
has raised and briefed these issues in an effort to meet the
requirement of showing prejudice resulting from his trial
counsel's ineffective assistance. To establish prejudice under
the Risher standard -- which both parties assumed applicable to
this case -- Broeckel needed only to create a reasonable doubt as
to the existence of a potentially meritorious issue. Since the
current briefing represents Broeckel's attempt to create a
reasonable doubt as to prejudice, it is not altogether clear that
the issues he has briefed are the only ones he desires to raise
on appeal or that he has briefed them as comprehensively as he
might in the context of an appeal on the merits. Accordingly, we
deem it necessary to restore Broeckel's right to appeal in toto.
Broeckel will be allowed thirty days after the return of
jurisdiction to the superior court to file a notice of appeal and
may thereafter pursue the appeal in the manner prescribed by the
appellate rules. Nevertheless, if Broeckel does not seek to
raise any additional issues and wishes to rely on the currently
submitted briefing, he may simply request this court, within the
thirty-day period for filing a notice of appeal, to treat the
current briefing as his appeal. If Broeckel elects to have this
court consider his current briefing to be his appeal, the state
may also elect to submit its case based on its current briefing.
