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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| SARAH J. COFFMAN, | ) |
| ) Court of Appeals No. A-9703 | |
| Appellant, | ) Trial Court No. 3PA-04-108 Civ |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2122 November 2, 2007 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Palmer, Eric Smith, Judge.
Appearances: Verne E. Rupright, Wasilla, for
the Appellant. Michael Sean McLaughlin,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Sarah J. Coffman was convicted of first-degree burglary
(burglary of a residence) and second-degree murder (felony murder
of the homeowner). She received 25 years in prison for the
murder, and a consecutive 5 years for the burglary.
Coffman appealed, raising several claims of evidentiary
and procedural error, and also asserting that she received
ineffective assistance from the attorney who represented her at
trial. In Coffman v. State, Alaska App. Memorandum Opinion
No. 4541 (March 6, 2002), 2002 WL 341988, we rejected all of
these claims and affirmed Coffmans convictions.
For present purposes, it is important to note that,
although Coffmans direct appeal presented several issues
concerning the lawfulness of her conviction, it did not include a
claim that her sentence was excessive. Coffman now seeks post-
conviction relief based on her appellate attorneys failure to
pursue an excessive sentence claim.
Coffman asserts that she told her appellate attorney
(or, more precisely, a paralegal working for her appellate
attorney) that she wished to appeal her sentence as well as her
convictions, but the appellate attorney nevertheless failed to
raise a claim of excessive sentence. Coffman now contends on
two alternative bases that her appellate attorneys decision not
to raise this sentencing claim constituted ineffective assistance
of counsel.
Coffman first contends that, if she wanted to pursue a
claim of excessive sentence, and as long as this claim was
colorable (i.e., non-frivolous), her appellate attorney was
legally obliged to pursue this argument on appeal, even though
the attorney may have believed that Coffman had a better chance
of success on other issues.
In the alternative, Coffman contends that even if her
appellate attorney had the discretion not to pursue a claim of
excessive sentence if it appeared that other claims held more
promise, her attorney nevertheless exercised that discretion in
an incompetent manner, given the facts of Coffmans case.
For the reasons explained here, we conclude that
Coffmans appellate attorney had the discretion to refrain from
pursuing a claim of excessive sentence, and we further conclude
that, given the facts of Coffmans case, Coffman failed to prove
that her appellate attorneys decision was incompetent.
Who has the final word on whether to pursue a claim of
excessive sentence: the defendant, or the defendants
attorney?
Coffman asserts that, as a matter of law, an
attorney representing a criminal defendant on appeal
must pursue a claim of excessive sentence if the
defendant wishes to do so, regardless of the attorneys
conclusion that it would be better to pursue other,
more promising issues on appeal.
Alaska Professional Conduct Rule 1.2(a)
states that an attorney representing a criminal
defendant shall abide by the clients decision ... as to
... whether to take an appeal. But even though it is
the defendants decision whether to appeal, it is the
attorneys role to decide which issues to raise on
appeal.
In Tucker v. State, 892 P.2d 832 (Alaska App.
1995), this Court held that an appellate attorney is
not obliged to raise every arguable (i.e., non-
frivolous) issue that might be raised in a direct
appeal of a criminal conviction. Instead, the attorney
has the authority to select the most meritorious issues
and to abandon other claims which, although arguable,
stand a lesser chance of success. Id. at 836 & n. 7.
We declared that [s]uch strategic choices fall squarely
within the sphere of competent [appellate]
representation. Id. at 836.
See also Jones v. Barnes, 463 U.S. 745, 103
S.Ct. 3308, 77 L.Ed.2d 987 (1983), where the United
States Supreme Court held that a crucial part of
appellate advocacy is to winnow out weaker arguments
and that, for this reason, an appellate attorney
representing an indigent defendant is not required to
raise every colorable claim. Id., 463 U.S. at 751-54,
103 S.Ct. at 3312-14.
But Coffman argues that a claim of excessive
sentence is not just another issue, not merely one
issue among many that might be raised on appeal.
Instead, she argues that a claim of excessive sentence
is its own distinct type of appeal a type of appeal
that is separate from a defendants right to attack the
legality of a criminal conviction (or the legality, as
opposed to the excessiveness, of the sentence).
Based on this contention that a sentence
appeal constitutes a separate kind of appeal, Coffman
asserts that Alaska Professional Conduct Rule 1.2(a)
obliges a defense attorney to follow their clients
wishes with respect to each kind of appeal merit
appeal and sentence appeal. That is, Coffman takes the
position that even though her appellate attorney could
choose which issues to argue in Coffmans merit appeal,
her attorney was nevertheless obliged to follow
Coffmans wishes and raise a claim of excessive sentence
as well.
We acknowledge that both the Alaska statutes
and the Alaska court rules draw a distinction between
merit appeals and sentence appeals. Different
procedural requirements and limitations govern these
two types of appeals, and these procedural differences
lend support to Coffmans argument that a sentence
appeal should be treated as a distinct form of appeal.
Nevertheless, for the reasons explained here,
we conclude that in the context presented here that
is, for the purpose of defining the division of
authority between attorney and client respecting the
selection of the issues to be raised on appeal a claim
of excessive sentence is simply another issue that can
be raised in a criminal appeal. This means that the
appellate attorney has the authority (and the duty) to
decide whether to pursue an excessive sentence claim,
regardless of the defendants contrary wishes on this
point.
(a) The distinction between sentence appeals and
other types of criminal appeals
Under Alaska law, the term sentence appeal
has a narrow, technical meaning. Indeed, most
appellate claims relating to a criminal sentencing fall
outside the definition of a sentence appeal.
A sentence appeal refers to an appeal in
which the lawfulness of the sentence and the sentencing
procedures is conceded, and the sole claim presented on
appeal is that this lawfully imposed sentence
constitutes an abuse of the judges sentencing
discretion. In contrast, claims regarding the legality
of a sentence, or the lawfulness of the procedures
under which the sentence was imposed, or the
sufficiency of the evidence to support the findings
that affected the judges sentencing authority, all fall
under the category of merit appeals.1
(We acknowledge that, as a procedural matter,
this Court often allows defendants to raise such claims
in appeals filed under Alaska Appellate Rule 215 the
rule that governs sentence appeals, and that specifies
less formal record-preparation and briefing procedures.
Nevertheless, in the context of the legal distinction
between merit appeals and sentence appeals, these
claims are merit appeals.2)
Alaska has special statutes dealing with a
defendants right of sentence appeal, but the existence
of these statutes could in some sense be viewed as an
accident of history.
When the Alaska Legislature enacted the
statutes pertaining to the Alaska Supreme Court, the
legislature declared that felony defendants (i.e.,
defendants convicted in the superior court) could
appeal to the supreme court as a matter of right.3 But
though a felony defendants right to appeal a criminal
conviction was never questioned, the Alaska Supreme
Court held in 1968 that a defendant had no right to
pursue a sentence appeal (in the narrow sense of the
word). In Bear v. State, 439 P.2d 432, 435-37 (Alaska
1968), the supreme court concluded (by a two-to-one
vote) that, absent specific statutory authorization, a
criminal defendants right of appeal did not include the
right to challenge a lawfully imposed sentence for
excessiveness.
The very next year, the legislature responded
to Bear by enacting a sentence appeal statute, AS
12.55.120, that explicitly gave criminal defendants the
right to appeal a sentence on the ground of
excessiveness.4 In the same chapter of the session
laws, the legislature amended the supreme courts
jurisdictional statute to explicitly give the court
jurisdiction to hear appeals of sentences of
imprisonment lawfully imposed by the superior court[]
on the grounds that the sentence is excessive or too
lenient.5
Thus, since 1969, Alaska has had a provision
in Title 12 that expressly gives criminal defendants a
right of sentence appeal, and a provision in Title 22
that expressly gives the appellate courts jurisdiction
to entertain sentence appeals from the superior court.6
However, in Wharton v. State, 590 P.2d 427
(Alaska 1979), the supreme court declared that it had
re-assessed its decision in Bear, and that the court
now believed that it had the power to review criminal
sentences for excessiveness even in the absence of
special authorizing legislation.
The issue presented in Wharton was a conflict
between the sentence appeal statute, AS 12.55.120, and
the appellate court rule governing sentence appeals,
Supreme Court Rule 21(a) the rule that has now been
superseded by Appellate Rule 215(a). Supreme Court
Rule 21(a) granted a right of sentence appeal to any
felony defendant who was sentenced to serve 45 days or
more. However, at that time, AS 12.55.120 limited the
right of sentence appeal to felony defendants who
received more than 1 year to serve. The question was
which limit took precedence the 45 days specified in
Supreme Court Rule 21, or the 1 year specified in AS
12.55.120?
The supreme court declared that the court
rule took precedence because the courts general power
of appellate review in criminal cases included the
authority to hear a defendants challenge to a lawfully
imposed sentence on the ground that it was excessive.
The court explained:
In promulgating Rule 21, this court accepted
Justice Rabinowitzs [dissenting] position in
Bear [v. State] that review of criminal
sentences is inherent in [this courts] power
as the court of final appellate jurisdiction
[under the] Alaska Constitution, art. IV, 2.
Wharton, 590 P.2d at 429.
The Wharton decision rests on the
concept that was rejected in Bear: the
concept that, even in the absence of
authorizing legislation, the supreme court
has the power to review any judicial decision
made in a criminal case including the
sentencing judges exercise of sentencing
discretion, even when there is no claim of
illegality in the sentence or the sentencing
proceedings.
In other words, even though the
Alaska statutes governing sentence appeals
were originally thought to confer a special
right of appeal (and to expand the supreme
courts jurisdiction accordingly), a
defendants substantive right to seek
appellate review of a sentence for alleged
excessiveness, and the supreme courts
authority to hear that claim, actually exist
irrespective of these statutes. The sentence
appeal statutes are in fact addressed solely
to matters of procedure or, in the case of
the sentence appeal provisions found in
AS 22.07, the issue of the division of
appellate jurisdiction between this Court and
the supreme court.
This Courts decision in Rozkydal v.
State, 938 P.2d 1091 (Alaska App. 1997), is
expressly premised on this view of the law.
As we explained in Rozkydal, 938 P.2d at 1094-
95, Alaskas sentence appeal statutes place
restrictions on a defendants right to appeal
a sentence to this Court on the sole ground
that it is excessive. However, even when a
defendant is barred from appealing a sentence
to this Court, the defendant still has the
right to pursue an excessive sentence claim
in a petition for discretionary sentence
review to the Alaska Supreme Court. Id. at
1095.
Thus, the truth of the matter is
that every defendant in Alaska has the right
to seek appellate review of their sentence on
the ground that it is excessive. The effect
of our sentence appeal statutes is not to
confer or withhold this right, but rather to
define the manner in which the appellate
review is invoked and conducted. In other
words, even though special rules apply to
sentence appeals, the supreme courts decision
in Wharton means that the right of sentence
review can no longer be viewed as sui
generis. It is not a unique type of appeal
unto itself, requiring special legislative
authorization.
(b) Why we conclude that an attorney has the
discretion to include or omit a claim of excessive
sentence when arguing a criminal appeal, despite the
defendants wish to pursue this claim
Our analysis of Wharton and Rozkydal is a
partial answer to the question posed in this appeal:
whether it is the defendant or the defendants attorney
who has the final authority to decide whether to pursue
a claim of excessive sentence on appeal.
The normal rule under Alaska law in
particular, the rule under this Courts decision in
Tucker v. State, 892 P.2d 832 (Alaska App. 1995) is
that a defendants appellate attorney has the
responsibility of deciding which issues to raise on
appeal. Coffman asserts that this normal rule does not
govern the decision whether to pursue an excessive
sentence claim because, according to Coffman, the
right to raise a claim of excessive sentence is a
special right, conferred by a separate statute and
distinct from a defendants right to pursue other claims
on appeal.
As we explained earlier, the supreme courts
decision in Wharton appears to undercut Coffmans view
of this matter. Nevertheless, it is true that Alaska
law draws several procedural distinctions between a
claim of excessive sentence and other claims of error
in a criminal appeal.
Under AS 12.55.120 and AS 22.07.020, not all
defendants have the right to appeal their sentences on
the ground of excessiveness (as opposed to the right to
petition for review of their sentences on this ground).
Moreover, Alaska Appellate Rule 215 establishes special
rules for the administration and briefing of sentence
appeals that is, appeals in which the sole claim is
the excessiveness of the defendants sentence.
However, Appellate Rule 215(j) states that
when a defendant files a merit appeal which, as
explained above, means an appeal that raises any issue
other than the narrow issue of the purported
excessiveness of the defendants sentence then the
defendant must combine any claim of excessive sentence
with the defendants other claims of error, and the
entire appeal will be governed by the procedures that
apply to merit appeals. In other words, when a
defendant pursues a merit appeal, the defendants
appellate attorney is not entitled to file separate
briefs, one on the merit issues and one on the claim of
excessive sentence. Rather, the attorney must combine
the discussion and argument of all of the defendants
claims of error in a unified brief.
This requirement of a unified brief (and
unified oral argument, if argument is requested) means
that a defense attorney must make the kinds of advocacy
decisions that this Court discussed in Tucker and that
the United States Supreme Court discussed in Jones v.
Barnes. The question in Tucker and in Jones was
whether a court-appointed appellate attorney is obliged
to raise every colorable issue that might be raised on
appeal or whether, instead, the attorney could properly
choose to pursue the most meritorious issues and
abandon other claims that, although arguable, stood a
lesser chance of success.
In Tucker, 892 P.2d at 836, we held that
[s]uch strategic choices fall squarely within the
sphere of competent representation. In support of this
conclusion, we relied on what the United States Supreme
Court said in Jones: that a crucial part of appellate
advocacy is to jettison weaker arguments and focus on
stronger ones:
Experienced advocates since time beyond
memory have emphasized the importance of
winnowing out weaker arguments on appeal and
focusing on one central issue if possible, or
at most on a few key issues. Justice
Jackson, after observing appellate advocates
for many years, stated:
... Legal contentions, like currency,
depreciate through over-issue. The mind
of an appellate judge is habitually re
ceptive to the suggestion that a lower
court committed an error. But receptive
ness declines as the number of assigned
errors increases. ... Experience on
the bench convinces me that multiplying
assignments of error will dilute and
weaken a good cause and will not save a
bad one. Jackson, Advocacy Before the
United States Supreme Court, 25 Temple
L.Q. 115, 119 (1951).
Jones v Barnes, 463 U.S. at 751-52, 103 S.Ct.
at 3313. See also Smith v. Murray, 477 U.S.
527, 536; 106 S.Ct. 2661, 2667; 91 L.Ed.2d
434 (1986) (declaring that the process of
winnowing out weaker arguments on appeal, and
focusing on those arguments more likely to
prevail, is the hallmark of effective
appellate advocacy).
These considerations strongly
suggest that an appellate attorney must have
the authority to omit a claim of excessive
sentence if, in the attorneys judgement, the
attorneys efforts on appeal would be more
productively focused on other claims of
error. And, indeed, this is the result we
reached in an unpublished opinion: Samskar
v. State, Alaska App. Memorandum Opinion No.
4908 (August 11, 2004), 2004 WL 1783554. In
Samskar, slip opinion at pp. 4-5, 2004 WL
1783554 at *2-3, we concluded that it was the
attorneys decision whether to pursue a claim
of excessive sentence, and that the attorneys
decision would be upheld absent proof that
the decision was incompetent. But
unpublished opinions do not create precedent,
so we must treat this issue as previously
undecided in Alaska.
Because there is no published
Alaska case deciding this issue, we have
researched the case law of other
jurisdictions. There is relatively little
case law directly on point, but all of the
cases we have found support the view that a
claim of excessive sentence is simply one
issue among many that the appellate attorney
may choose to pursue or omit.
The most straightforward statement
of this rule is found in an unpublished
Nebraska case, State v. Gardner, 2003 WL
22533177 (Neb. App. 2003). In Gardner, the
defendant claimed that he had received
ineffective assistance of counsel in his
direct appeal, based in part on the attorneys
failure to raise a claim of excessive
sentence. The Nebraska Court of Appeals
answered this claim by holding that it was
the attorneys decision whether or not to
include a claim of excessive sentence. Here
is the Nebraska courts discussion:
There is no evidence on the record that
Gardner instructed his appellate counsel to
file an appeal based on excessive sentences.
[But] [e]ven if Gardner had given such an
instruction, his appellate counsel was not
obligated to raise that particular issue ...
. The Nebraska Supreme Court has recognized
the opinion of Jones v. Barnes, 463 U.S. 745,
103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), which
held that an indigent defendant has no
constitutional right to control the matters
argued by counsel on appeal. State v.
Williams, 217 Neb. 539, 548, 352 N.W.2d 538,
543 (1984). The court in Williams stated:
Usually ... if you cannot win on a few
major points, the others are not likely
to help, and to attempt to deal with a
great many in the limited number of
pages allowed for briefs will mean that
none may receive adequate attention.
The effect of adding weak arguments will
be to dilute the force of the stronger
ones.
[Williams,] 217 Neb. at 549, 352 N.W.2d at
544 [quoting R. Stern, Appellate Practice in
the United States 266 (1981)].
Gardner, 2003 WL 22533177 at *7. Thus, the
Nebraska court held, the defendants appellate
counsel had the discretion whether to raise
the excessive sentence claim although the
defendant retained the right to attack that
decision on the ground of purported
incompetence. Id.
In addition to Gardner, we have
found a few cases from Ohio where the
appellate courts decision is implicitly
premised on the concept that a claim of
excessive sentence is simply one more
potential issue that might be raised on
appeal and that the appellate attorneys
decision is binding, absent proof that this
decision was incompetent.
In State v. Rice, unpublished, 2005
WL 1541007 at *5-6 (Ohio App. 2005), the
defendant claimed that his appellate attorney
was incompetent for failing to argue that the
defendants sentence (five consecutive terms
of 10 years to life) was excessive, and that
this sentence was inconsistent with the way
similarly situated offenders had been treated
in the past. The Ohio court held that the
appellate attorney could reasonably decide
that it would not be fruitful to pursue these
arguments. Similarly, in State v. Loyed,
unpublished, 2005 WL 977833 (Ohio App. 2005),
the defendant argued that his appellate
attorney was incompetent for failing to
challenge the length of his sentence. The
Ohio court declared that appellate counsel is
not required to raise and argue assignments
of error which are meritless[,] nor can
appellate counsel be considered ineffective
for failing to raise every conceivable
assignment of error on appeal. ... More
importantly, we find no prejudice to Loyed as
a result of the [choice of claims made] by
appellate counsel upon appeal. Id. at *3.
The trial courts sentence conformed with the
sentencing guidelines provided in [our
statutes]. Loyeds ... sentence would not
have been reversed had the issue of
sentencing been raised on appeal. Id.
The same result was reached in
State v. Gross, unpublished, 2005 WL 793141
at *3-4 (Ohio App. 2005). The defendant
argued that his appellate attorney should
have argued that the trial judge did not
comply with the sentencing statutes in
imposing the maximum sentence for rape[,] and
in ordering consecutive sentences. Gross
also argued that his appellate attorney was
incompetent for failing to argue that Grosss
two convictions for rape and gross sexual
imposition were allied offenses basically,
Ohios version of a Whitton argument (i.e.,
that the two offenses were so similar that
only one conviction and sentence should have
been imposed).7 The Ohio court concluded
that it was understandable why appellate
counsel would[,] in the exercise of
professional judgment[,] decline to raise
[these sentencing] argument[s].
We have found no cases to the
contrary. But see People v. Smith, 820
N.Y.S.2d 162 (N.Y. App. 2006), where the
court held that when a defendant pleads
guilty (so that only sentencing issues remain
available on appeal), and the defendant
wishes to appeal, an appellate attorney must
either pursue one or more sentencing issues
or (alternatively) must file an Anders brief
explaining why there are no non-frivolous
issues to be raised. Id. at 165-66.
In light of our analysis of the
status of sentence appeals under Alaska law,
and given the established law regarding the
division of authority between an appellate
attorney and a criminal defendant, and given
the results of our research, we conclude that
a defendant has no right to insist that their
appellate attorney pursue a claim of
excessive sentence if the attorney is
pursuing other issues on appeal. Rather, the
attorney has the authority to decide which
claims of error are likely to be most
fruitful, and to omit a claim of excessive
sentence if that claim will detract from the
argument of other points on appeal.
Coffmans alternative argument that her attorneys
decision to omit a claim of excessive sentence was
incompetent
Although an attorney is not required to raise
every colorable (i.e., non-frivolous) issue on appeal,
the attorneys choice of issues is subject to a later
challenge for incompetency.8 Here, Coffman argues in
the alternative that even if it was properly her
appellate attorneys decision whether to pursue an
excessive sentence claim, nevertheless her attorney was
incompetent for not including a claim of excessive
sentence among the other issues presented in Coffmans
direct appeal.
Coffmans appellate attorney, Pamela D. Scott,
raised five major issues in Coffmans appeal; her
opening brief was 64 pages long. Moreover, these
issues were not frivolous, as can be seen by our
discussion of those issues in Coffman v. State, Alaska
App. Memorandum Opinion No. 4541 (March 6, 2002), 2002
WL 341988.
The law presumes that an attorneys tactical
and strategic choices are competent. In other words, a
defendant who later attacks their attorneys choices
bears the burden of proving that the attorneys
decisions fell below the range of competence expected
of criminal law practitioners, and that the defendant
suffered prejudice as a result of their attorneys
incompetent decisions.9
In this case, Coffman raises a specialized
claim of incompetence: she asserts that her appellate
attorney incompetently selected the issues to be
pursued on appeal. Courts from around the country are
in basic agreement concerning the test that governs a
claim of attorney incompetence in this situation. To
establish the incompetence of an appellate counsels
choice of issues, the defendant must establish (1) that
the proposed additional issue is significantly stronger
than the issues that were raised in the appeal;
(2) that the appellate attorney had no valid tactical
reason for failing to include this particular issue;
and (3) that, if the proposed issue had been included,
there is a reasonable possibility that the outcome of
the appeal would have been different.10
During the post-conviction relief proceedings
in the superior court, Scott submitted an affidavit
responding to Coffmans assertion that she should have
pursued an excessive sentence claim. In her affidavit,
Scott declared that [t]he record [in Coffmans case] did
not appear to [suggest] any statutory grounds for [an]
appeal of the sentence. In fact, Scott asserted that
the record affirmatively demonstrated that the
sentencing judge (Superior Court Judge Eric Smith) went
to great lengths to consider many relevant factors in
imposing [Coffmans] sentence, and that the superior
courts sentencing decision m[ight] be motivated by
compassion.
In the same affidavit, however, Scott stated
that she believed [that] the length of [Coffmans]
sentence [in] comparison with ... the [sentences
imposed on the other participants in the burglary/
murder] might be interpreted by the general public as
indicating a possible retaliation for Sarah Coffman
exercising her right to trial. Based on this statement
in Scotts affidavit, Coffman argued that Scott was
clearly incompetent for failing to pursue an excessive
sentence claim or, at least, that Scotts explanation
of her decision was internally inconsistent, and that
an evidentiary hearing was needed to clarify matters.
When Judge Smith ruled on this issue, he
acknowledged that Scotts affidavit is admittedly
somewhat confusing. As Judge Smith noted, Scott
declared on the one hand that Coffmans sentence was
neither illegal nor statutorily excessive, that the
sentencing judge (i.e., Judge Smith) went to great
length to consider many relevant factors in imposing
the sentence, and that the judges sentencing decision
could be attributed to compassion while on the other
hand, Scott stated that the length of [Coffmans]
sentence might be interpreted by the general public as
retaliation for insisting on going to trial.
But Judge Smith did not find that Scotts
statements on this point were hopelessly in conflict.
Judge Smith concluded that, when Scotts affidavit was
read as a whole, it showed that Ms. Scott was concerned
about the length of [Coffmans] sentence, but made a
tactical decision that there were insufficient grounds
to appeal the sentence on that basis. The judge noted
that Scotts latter comments as to how the general
public might perceive Coffmans sentence were prefaced
by a statement that the court should review the
sentence on grounds of compassion rather than as a
matter of law. Judge Smith concluded that Scotts
affidavit demonstrated that [she] thought that a
lighter sentence would be more appropriate as a moral
matter, but that there was no legal basis to revisit
the sentence. For this reason, the judge concluded
that [t]here [was] no real contradiction in [Scotts]
affidavit ... .
Based on the record as a whole, Judge Smith
found that [Scott] was aware that a sentence appeal had
to be filed at the same time as the merits appeal, that
Scott carefully evaluated whether to appeal the
sentence, and that she decided that there were no
grounds to do so.
On appeal, Coffman renews the argument that
she presented to Judge Smith: the argument that, if
Scott believed that Coffmans sentence might be
perceived as inordinately severe when compared to the
sentences imposed on the other participants in the
burglary/ murder, then Scott was incompetent when she
concluded that there were no grounds for pursuing a
sentence appeal. But as Judge Smith pointed out, this
argument is based on a single statement in a lengthy
affidavit that must be read as a whole. Judge Smith
interpreted Scotts affidavit as saying that an
excessive sentence argument might be theoretically
possible, but that Scott did not believe that such an
argument would be successful. This appears to be a
fair reading of the affidavit.
Moreover, as we pointed out above, the fact
that an argument is colorable (that is, non-frivolous)
does not mean that an attorneys failure to pursue this
argument amounts to incompetence. An attorney need not
raise every colorable claim on appeal. In fact, an
attorney is expected to cull the most promising claims
of error from among the larger group of colorable
claims. Thus, the fact that Scott recognized that
there might be some argument to be made in favor of an
excessive sentence claim does not provide prima facie
evidence that Scott was incompetent for deciding that
such a claim would fail, and that it should therefore
be omitted in favor of other more promising claims.
As we further pointed out above, when a
defendant contends that their appellate attorney was
incompetent in the choice of claims to argue on appeal,
the defendant must show that their proposed additional
or substitute claim of error is significantly stronger
than the claims that the attorney chose to pursue.
Coffman made no attempt to satisfy this burden in the
post-conviction relief litigation in the superior
court, and she makes no attempt to do so here. That
is, Coffman makes no attempt to compare the likely
success of her proposed excessive sentence claim to the
likely success of the five claims that Scott actually
presented on appeal. In fact, Coffman presents
absolutely no discussion of the likely success of an
excessive sentence claim.
On the face of it, it appears unlikely that
Coffmans proposed excessive sentence claim would
succeed. Coffman received a sentence of 25 years
imprisonment for second-degree murder (felony murder),
and a consecutive 5-year sentence for first-degree
burglary (burglary of a residence). As the State
points out in its brief, Coffmans composite sentence of
30 years to serve for these two crimes is still within
the Page benchmark range for Coffmans second-degree
murder conviction alone.
(In Page v. State, 657 P.2d 850, 854-55
(Alaska App. 1983), this Court adopted a benchmark
sentencing range of 20 to 30 years to serve for typical
instances of first felony offenders convicted of second-
degree murder.)
In the superior court, Coffman made no
attempt to show that a claim of excessive sentence
would have had a significantly better chance of success
than the claims of error that Scott raised. Coffman
offered no discussion of the facts of her offense or
her background, nor did she offer any argument as to
why this Court might conclude that her 30-year
composite sentence was clearly mistaken. Her briefs to
this Court are similarly silent with regard to these
matters.
In other words, although Coffman may have
shown that there was something that might be said in
favor of an excessive sentence claim, she still failed
to present a prima facie case of attorney incompetence.
In particular, Coffman failed to offer any reason to
believe that her proposed excessive sentence claim had
a significantly better chance of success than the
several claims of error that Scott pursued on appeal,
and Coffman further failed to offer any reason to
believe that the outcome of her appeal would have been
different if Scott had raised an excessive sentence
claim.
For these reasons, we conclude that Coffmans
petition for post-conviction relief failed to state a
prima facie case for relief, and that Judge Smith
properly dismissed Coffmans petition on this basis.
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 See Bear v. State, 439 P.2d 432, 435-37 (Alaska 1968);
Hillman v. Anchorage, 941 P.2d 211, 213, 215 (Alaska App.
1997); Rozkydal v. State, 938 P.2d 1091, 1093-94 (Alaska
App. 1997); Alaska Appellate Rule 215(a)(2).
2 See Rozkydal, 938 P.2d at 1094.
3 See SLA 1959, ch. 50, 1 (later codified as AS 22.05.010)
(the pre-1980 version): Appeals to the supreme court [from
the superior court] shall be a matter of right, except that
the State shall have no right of appeal in criminal cases,
except to test the sufficiency of the indictment or
information.
4 SLA 1969, ch. 117, 4.
5 AS 22.05.010(b) (pre-1980 version), enacted by SLA 1969, ch.
117, 1.
6 A felony defendants right of sentence appeal is now to this
Court rather than to the supreme court. See AS
22.07.020(b).
7See Whitton v. State, 479 P.2d 302 (Alaska 1970).
8 See, e.g., Gaddy v. State, 952 So.2d 1149, 1171-72 (Ala.
Crim. App. 2006); Anderson v. State, unpublished, 2006 WL
62225 at *2 (Ark. 2006); People v. Rodriguez, 914 P.2d 230,
303 (Colo. 1996); Peterka v. State, 890 So.2d 219, 241-42
(Fla. 2004); Briones v. State, 848 P.2d 966, 978 (Haw.
1993); Benson v. State, 780 N.E.2d 413, 421-23 (Ind. App.
2002); State v. Reed, 660 N.E.2d 456, 458 (Ohio 1996);
Williamson v. State, 852 P.2d 167, 169 (Okla. Crim. App.
1993); Commonwealth v. May, 898 A.2d 559, 573-75 (Pa. 2006);
Carpenter v. State, 126 S.W.3d 879, 887-89 (Tenn. 2004);
State v. Bathe, unpublished, 2004 WL 344183 at *1 (Wis. App.
2004).
See also Wayne R. LaFave, Jerold H. Israel, Nancy J. King,
Criminal Procedure (2nd ed. 1999), 11.6(a), Vol. 3, p. 596.
9 See, e.g., Newby v. State, 967 P.2d 1008, 1016 (Alaska App.
1998) (The law presumes that an attorney has acted
competently, and that the attorneys decisions were prompted
by sound tactical considerations. To prevail in a
post-conviction relief action based on [an] ineffective
assistance of counsel claim, the defendant must rebut this
presumption.); Risher v. State, 523 P.2d 421, 424 (Alaska
1974) (holding that the test for ineffective assistance of
counsel in criminal cases is whether the attorneys conduct
fell below the minimal range of competence required of an
attorney who has ordinary training and skill in the criminal
law); State v. Jones, 759 P.2d 558, 567-68 (Alaska App.
1988) (explaining that even when the defendant establishes
the attorneys incompetence, there must [also] be a showing
that [there is at least] a reasonable [possibility] that the
incompetence contributed to the outcome [of the case]).
10See, e.g., Benson v. State, 780 N.E.2d 413, 421-23 (Ind.
App. 2002); Commonwealth v. May, 898 A.2d 559, 573-76 (Pa.
2006); Carpenter v. State, 126 S.W.3d 879, 887-89 (Tenn.
2004).
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