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NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| MICHEAL L. McLAUGHLIN, | ) |
| ) Court of Appeals No. A-9971 | |
| Petitioner, | ) Trial Court No. 3HO-06-506 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Respondent. | ) [No. 2138 - December 28, 2007] |
| ) | |
Petition for Review
from the Superior Court, Third Judicial
District, Homer, Margaret L. Murphy, Superior
Court Judge Pro Tem.
Appearances: Micheal L. McLaughlin, pro se,
Kenai, for the Petitioner. Kenneth M.
Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for the Respondent.
Real party in interest: Joshua P. Fink, Public
Advocate, Anchorage.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
This case raises the question of whether a defendant
who is represented by counsel can file a pro se petition for
review. We conclude that he cannot. We conclude that the
decision whether to seek immediate appellate review of a trial
courts non-appealable order is a tactical decision that is
entrusted to the defendants attorney under Alaska law.
Factual and procedural background
Micheal L. McLaughlin was convicted of felony driving
under the influence, felony refusal to submit to a breath test,
and driving while his license was suspended or revoked in a trial
conducted by Superior Court Judge Pro Tem Margaret L. Murphy.
Following these verdicts, but before sentencing, McLaughlins
attorney filed a motion for a new trial. Judge Murphy denied the
motion.
Apparently McLaughlin asked his court-appointed
attorney (an attorney working under contract with the Office of
Public Advocacy) to seek interlocutory appellate review of the
superior courts denial of the new trial motion by filing a
petition for review. When the attorney declined to do this,
McLaughlin, acting pro se, attempted to file a petition for
review on this issue. McLaughlin argued that he had a
constitutional right to represent himself on the petition. We
ordered the State, the Office of Public Advocacy, and McLaughlin
(personally) to brief the following issues:
(a) In a criminal case, who has the final
decision as to whether to seek interlocutory
review of a trial courts non-final order the
defendant, or the defendants attorney?
(b) If the defense attorney has the final
decision on this matter, and if the defense
attorney decides not to file a petition for
interlocutory review, does the defendant
nevertheless have a right to proceed pro se
in seeking interlocutory review?
Now, having reviewed the briefs, we conclude that a
defense attorney has the final decision whether to seek
interlocutory review of a trial courts non-appealable order. We
also conclude that, if the attorney decides not to file a
petition for review, the defendant does not have a right to
proceed pro se in seeking interlocutory review.
Why we conclude that the defendants attorney
has the final decision on whether to seek
interlocutory review of a trial courts non-
appealable order
Based on the United States Supreme Courts decision in
Faretta v. California,1 McLaughlin argues that he has a
constitutional right to represent himself in a petition for
interlocutory review. In Faretta, the United States Supreme
Court held that criminal defendants have the right to refuse
counsel so that they can represent themselves at trial.2 But
twenty-five years later, in Martinez v. Court of Appeal of
California, Fourth Appellate District,3 the Supreme Court
decided that the Faretta right of self-representation does not
apply to appeals.4 It therefore appears that the federal
Constitution does not require this Court to allow McLaughlin to
pursue a pro se petition for review.
In 1993, the Alaska Supreme Court promulgated the
Alaska Rules of Professional Conduct.5 Alaska Rule of
Professional Conduct 1.2(a) provides that:
In a criminal case, the lawyer shall abide by
the clients decision, after consultation with
the lawyer, as to a plea to be entered,
whether to waive jury trial, whether the
client will testify, and whether to take an
appeal.
This rule controls our decision in this case.
In Simeon v. State,6 we concluded that Alaska Rule of
Professional Conduct 1.2(a) left to the attorney all tactical
decisions that are not set out in the rule:
[Alaska Rule of Professional Conduct 1.2(a)]
specifies clearly those decisions over which
the client has the ultimate authority. Since
the rule limits the clients authority to
those decisions, it follows that the lawyer
has the ultimate authority to make other
decisions governing trial tactics.[7]
McLaughlin argues that the language in Alaska Rule of
Professional Conduct 1.2(a) requiring the lawyer to abide by the
clients decision whether to take an appeal includes the decision
to petition for interlocutory review of a non-appealable order.
But we do not think this is a proper interpretation of the rule.
The word appeal has a precise meaning under the Alaska Rules of
Appellate Procedure. Under Appellate Rule 202, an appeal to the
court of appeals is from a final judgment entered by the superior
court or the district court.8 Appellate Rule 402 provides for
review of non-appealable orders or decisions. The rule
authorizes the court of appeals to review any order or decision
of the trial court, not appealable under Rule 202.9 We are
certain that the Alaska Supreme Court was aware of the
distinction between an appeal and a petition for review when it
promulgated Alaska Rule of Professional Conduct 1.2(a). It
therefore seems clear that, when the Alaska Supreme Court stated
that the client had the ultimate authority whether to take an
appeal, the Alaska Supreme Court meant what it said. And since
the Alaska Supreme Court did not include a petition for review as
a decision over which the client has the ultimate authority, it
follows that the attorney has the final authority to decide
whether to petition an appellate court for interlocutory review
of a non-appealable order. This conclusion seems
consistent with other appellate decisions. In Jones v. Barnes,10
the United States Supreme Court held that the attorney has the
final decision regarding what arguments to raise on appeal.11
The Court noted that experienced advocates emphasize winnowing
out weaker arguments on appeal.12 We adopted the reasoning of
Jones in Tucker v. State13 and Coffman v. State.14 In Taylor v.
Illinois,15 the United States Supreme Court stated that an
attorney has the final decision at trial to decide whether to
forego cross-examination of a witness or whether to call
witnesses.16 In Martin v. State,17 we held that [t]he trial
court is not required to allow a defendant who is represented by
counsel to file his own motions. This could cause considerable
confusion. The trial court therefore has the authority to
require a defendant who is represented by counsel to act through
counsel.18
These decisions are consistent with the premise that,
except for the decisions set out in Alaska Rule of Professional
Conduct 1.2(a) (the plea to be entered, whether to waive jury
trial, whether to testify, and whether to take an appeal), other
strategic and tactical decisions are the ultimate responsibility
of the attorney.
Appellate Rule 402, which provides for review of non-
appealable orders or decisions, points out that there are sound
policy reasons that require appeals to be taken from final
judgments.19 We are to grant a petition for review only when
the petitioner establishes substantial reasons to depart from
this policy. In general, once a defendants conviction is final,
he can obtain review of any ruling made by the trial court. In
the present case, McLaughlin has attempted to petition for review
of Judge Murphys denial of his motion for a new trial. It seems
clear that, after his conviction is final, McLaughlin can raise
this issue in an appeal.
Of course, the decision whether to appeal is
McLaughlins, not the attorneys. But under Jones and Tucker,
McLaughlins attorney has the final decision about what issues to
raise. It would be inconsistent to hold that McLaughlin has the
right to file a pro se petition for review asking this court to
review Judge Murphys denial of McLaughlins motion for a new trial
when the attorney certainly has the authority to determine that,
for tactical reasons, it is not in McLaughlins interest to raise
this issue on appeal.
We therefore conclude that under Alaska Rule of
Professional Conduct 1.2(a), a defendants authority to decide
whether to take an appeal is limited to an appeal from a final
judgment as set out in Appellate Rule 202. The decision whether
to petition an appellate court to review a decision that is not
appealable under Appellate Rule 202 is the responsibility of the
attorney, not the client.
This distinction is based on sound policy. Whether to
petition for review is generally a complicated strategic and
tactical decision that is best left to the attorney. In general,
if a client is convicted, the attorney can then challenge any
ruling made by the trial court. Allowing a client to
independently file a petition for review would raise the distinct
possibility that such a procedure would cause the client to
undermine his counsels trial tactics and would cause an undue
burden on his attorney, the courts, and the State. We
accordingly conclude that McLaughlin has no right to file a pro
se petition for review. McLaughlins pro se petition for review
is therefore rejected for filing.
_______________________________
1 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
2 Id. at 807, 821, 95 S. Ct. at 2527, 2534.
3 528 U.S. 152, 120 S. Ct. 684, 145 L. Ed. 2d 597 (2000).
4 Id. at 154, 120 S. Ct. at 687.
5 Alaska Supreme Court Order No. 1123 (eff. July 15, 1993).
6 90 P.3d 181 (Alaska App. 2004).
7 Id. at 184.
8 Alaska R. App. P. 202(b).
9 Alaska R. App. P. 402(a)(1).
10 463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983).
11 Id. at 750, 103 S. Ct. at 3312.
12 Id. at 751, 103 S. Ct. at 3313.
13 892 P.2d 832, 836 & n.7 (Alaska App. 1995).
14 ___ P.3d ___, Alaska App. Opinion No. 2122 at 3-4, 9-
14 (Nov. 2, 2007), 2007 WL 3227568 at *1-2, *5-8.
15 484 U.S. 400, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988).
16 Id. at 418, 108 S. Ct. at 658.
17 797 P.2d 1209 (Alaska App. 1990).
18 Id. at 1217.
19 Alaska R. App. P. 402(b).
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