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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DALE M. HARVEY,
Court of Appeals No. A-10569
Appellant, Trial Court No. 3PA-07-985 Civ
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2372 - September 14, 2012
Appeal from the Superior Court, Third Judicial District, Palmer,
Beverly W. Cutler, Judge.
Appearances: Andrew Steiner, Bend, Oregon, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and John J. Burns,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
Dale M. Harvey petitioned the superior court for post-conviction relief,
contending that he received ineffective assistance of counsel from Larry A. Wiggins, the
attorney who represented him in his underlying criminal case. The superior court denied
Harvey's petition, and Harvey now appeals.
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Although the facts of Harvey's case potentially raise several issues,
Harvey's claims in this appeal raise questions of a more limited scope. We are asked to
define a trial attorney's post-judgement obligations toward a convicted criminal defend-
ant in cases where the attorney has been retained to represent the defendant solely in the
trial court proceedings.
For thereasons explainedin this opinion, and in accordancewith theUnited
States Supreme Court's decision in Roe v. Flores-Ortega, 1 we hold that (1) when a
defendant indicates an interest in pursuing an appeal, or (2) when the defendant's trial
attorney either knows or reasonably should knowthat arational person in the defendant's
situation might want to appeal, the trial attorney - whether privately retained or court-
appointed - is obligated to engage in meaningful consultation with the defendant
concerning the defendant's potential post-judgement remedies, the likelihood that the
contemplated post-judgement litigation would succeed, and the potential consequences
to the defendant of that post-judgement litigation.
(Given the facts of Harvey's case, we need not decide whether trial
attorneys in criminal cases might have these same obligations even in situations that are
not covered by either of the two Flores-Ortega criteria.)
We further hold that if the defendant decides to pursue an appeal, the trial
attorney must take steps to preserve the defendant's right to appeal -steps such as filing
a notice of appeal - if the defendant does not yet have a substitute attorney to take these
needed steps. This duty applies even though it is fully understood by both the defendant
and the trial attorney that the attorney will not be representing the defendant (or has not
yet agreed to represent the defendant) in the appellate litigation.
1 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).
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As we explain in this opinion, the evidence presented to the superior court
during the litigation of Harvey's petition for post-conviction relief shows that Harvey
had at least one colorable ground for pursuing post-judgement litigation. The evidence
also shows that Harvey's trial attorney was aware, or reasonably should have been
aware, that Harvey had this potential post-judgement claim, and that Harvey might want
to pursue it.
Finally, even viewing the evidence in the light most favorable to the
superior court's denial of Harvey's petition for post-conviction relief, Harvey's trial
attorney failed to meaningfully consult with Harvey about potential post-judgement
remedies, and the attorney likewise failed to take any action on Harvey's behalf, other
than perhaps advising Harvey to contact the Public Defender Agency if he was
considering an appeal. This was a violation of the trial attorney's obligations to Harvey.
Introduction to the underlying facts
The facts described here are drawn from the documents and the testimony
presented to the superior court during the litigation of Harvey's petition for post-
conviction relief. Our description of Harvey's case is divided into separate parts
because, for purposes of this appeal, Harvey's litigation involves three distinct stages:
(1) the events leading up to Harvey's decision to enter into a plea agreement with the
State, (2) the events that occurred at Harvey's sentencing, and (3) the events that
occurred after the superior court sentenced Harvey.
The first two stages of the proceedings are discussed in the section labeled
"Underlying facts, Part 1." The third stage of the proceedings - the post-judgement
stage - is discussed in the section labeled "Underlying facts, Part 2".
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Underlying facts, Part 1: from Harvey's indictment to his sentencing
In early 2003, Dale M. Harvey was indicted on two counts of first-degree
sexual abuse of a minor and two counts of second-degree sexual abuse of a minor (all
involving the same victim). Harvey was represented by a private attorney, Larry A.
Wiggins.
The retainer agreement (i.e., the contract between Wiggins and Harvey)
specified that Wiggins did not do appeals, and that Wiggins was only agreeing to
represent Harvey in the trial court proceedings.
In August 2003, Wiggins engaged in plea negotiations on Harvey's behalf
with Assistant District Attorney Rachel Gernat of the Palmer District Attorney's Office.
Gernat offered to let Harvey plead guilty to a single reduced count of attempted first-
degree sexual abuse, with an agreed-upon sentence of 5 years to serve. Harvey accepted
this offer.
But before this plea agreement could be formalized in court, the Attorney
General issued a new policy regarding plea agreements in sexual assault and sexual
abuse cases. Under this new policy, the local district attorney had to personally approve
any plea agreement that reduced an unclassified or class A sexual felony to a lesser
degree of crime.
Harvey's most serious offenses (the two counts of first-degree sexual
abuse) were unclassified felonies, and Harvey's plea agreement with Gernat called for
these charges to be reduced to a single count of attempted first-degree sexual abuse.
Accordingly, the Palmer District Attorney, Roman Kalytiak, had to personally approve
Harvey's plea agreement.
When Gernat submitted the proposed plea agreement to Kalytiak for his
approval, Kalytiak rejected it. Kalytiak's policy was that, in prosecutions for sexual
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felonies, his office would normally offer either a reduction of the charge, or an agreed-
upon sentence, but not both.
BecauseKalytiak refusedto approvethepleaagreement,theagreement had
to be renegotiated.
(Harvey does not argue that this initial plea agreement became enforceable
as soon as he accepted the prosecutor's proposal. See Mabry v. Johnson, 467 U.S. 504,
510-11; 104 S.Ct. 2543, 2548; 81 L.Ed.2d 437 (1984); State v. Jones, 751 P.2d 1379,
1381-82 (Alaska App. 1988); and Turk v. State, 662 P.2d 997, 999-1000 (Alaska App.
1983). These cases hold that the government is generally not bound by a plea agreement
until the defendant detrimentally relies on the agreement - by entering a guilty plea, or
by giving testimony or providing information to the authorities, or by incurring some
other sort of legally cognizable prejudice to the defendant's case.)
During the second round of plea negotiations, Gernat offered the same
reduced charge (attempted first-degree sexual abuse), but now with no ceiling on
Harvey's time to serve. In response, Wiggins suggested an agreed-upon sentence of
6 years to serve (i.e., one more year to serve than before). But Gernat reminded Wiggins
that Kalytiak would not accept a plea agreement that called for both a reduced charge and
an agreed-upon sentence.
What happened next is a subject of considerable dispute.
According toWiggins, Gernatoffered acompromisesolution. Even though
Kalytiak had forbidden Gernat from offering both a reduced charge and an agreed-upon
sentence, Gernat promised Wiggins that, at Harvey's sentencing hearing, she would
recommend a sentence of no more than 6 years to serve.
In his testimony at the post-conviction relief hearing, Wiggins repeatedly
stated that Gernat's promise did not constitute an "agreement", but it is unclear what
Wiggins meant by this. Viewing Wiggins's testimony in light of a letter that he wrote
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----------------------- Page 6-----------------------
to Harvey about the status of the plea negotiations (a letter that we are about to explain),
and in light of statements that Wiggins made to Harvey at the sentencing hearing itself
(statements that we are likewise about to explain), it appears Wiggins was saying that
(1) there was no sentence "agreement" in the sense of an agreed-upon sentence of 6 years
to serve, but that (2) Wiggins believed that Gernat had affirmatively promised to
recommend no more than 6 years to serve.
Wigginstestified that he asked Gernat to putthis promisein writing, butshe
refused - apparently because she thought that her boss, Kalytiak, might view even this
lesser promise as a forbidden "sentence agreement". For this reason (according to
Wiggins), Gernat told Wiggins that her promise regarding the State's sentencing
recommendation would remain off the record, and it would not be part of the formal plea
agreement presented to the superior court at Harvey's change-of-plea hearing.
On August 25, 2003, following his conversation with Gernat, Wiggins
wrote a letter to Harvey in which he described the State's latest proposal. In this letter,
Wiggins told Harvey:
As you know[,] I have asked Ms. Gernat to agree to a
five[-]year cap on [your] time to serve[. She] now says she
cannot do that, but [she] did say that she would not ask for
more than six years. I asked her to put that in writing[,] but
she says she won't because it would amount to a sentence
agreement[,] and the DA will not agree to a sentence
agreement[.]
In addition to Wiggins's testimony (summarized above) and the text of
Wiggins's letter of August 25th (just quoted), Harvey submitted an affidavit which
addressed this issue. In his affidavit, Harvey declared that Wiggins told him "that the
prosecutor had made an oral commitment to seek a sentence of six years with one
suspended" [sic], but that "there was some sort of ban on the arrangement [that] he had
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----------------------- Page 7-----------------------
reached with the state", so "the arrangement could not be put on paper", and Harvey
"[was] not [to] mention the agreement in court, even if [he] was specifically asked about
'promises' when [he] entered his plea."
At the evidentiary hearing in the post-conviction relief litigation, Harvey
took the stand and re-affirmed the assertions in his affidavit. He testified that Wiggins
instructed him not to tell the judge about Gernat's promise to recommend no more than
6 years to serve. According to Harvey, Wiggins told him that he should remain silent on
this issue because Gernat's promise was just a verbal promise, and not part of the formal
plea agreement.
When Wiggins was questioned at the evidentiary hearing as to whether he
instructed Harvey not to tell the judge about the purported under-the-table sentencing
agreement, Wiggins denied that he had done this - but then he conceded that Harvey
might reasonably have inferred, from what Wiggins told him, that he should not tell the
judge about Gernat's promise if he wanted the judge to accept the plea bargain:
Post-Conviction Relief Attorney : Mr. Wiggins, did
you ever tell Mr. Harvey, at the change-of-plea hearing, to
keep silent aboutMs. Gernat's [promise that] she [was] going
to recommend 6 years?
Wiggins: No, I - I never told him to keep silent about
it. But ... he may have [inferred] from what I told him that he
shouldn't say anything. Because I made it very clear to him
that [this] was not part of the plea agreement.
PCR Attorney : Okay.
Wiggins: And I may have had a discussion with him
that when he tells the judge that he agrees to [the plea
agreement], and he's doing it knowingly and voluntarily,
[and] that if he [expresses] any doubt ... , or the court even
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----------------------- Page 8-----------------------
senses some doubt, then we may not [be able to] go through
with it.
Gernat, for her part, offered a very different account of her conversation
with Wiggins. Gernat flatly denied that she had promised Wiggins that she would limit
her sentencing recommendation to 6 years to serve. She declared that "[she] would not
have made a secret agreement behind Mr. Kalytiak's back", nor would she have said to
Wiggins, "This is our agreement - wink, wink - [even though] I'm not going to put
it in writing."
Regardless of exactly what was said between Wiggins and Gernat, and
regardless of exactly what Gernat promised or did not promise, two things are not
disputed.
First, when Harvey appeared before Superior Court Judge Beverly W.
Cutler on September 12, 2003 to formally confirm the plea bargain, and to enter a guilty
plea to the reduced charge of attempted first-degree sexual abuse, neither Harvey nor
Wiggins told Judge Cutler that Gernat had made a promise to them concerning the
State's sentencing recommendation - even though Judge Cutler pressed the parties to
put every aspect of their agreement on the record. (Gernat was not present at this
change-of-plea hearing; it was handled by another attorney in her office.)
Second, when Harveylaterappearedforsentencing in frontofJudgeCutler,
Gernat recommended a sentence of 7 years to serve (10 years' imprisonment with 3 years
suspended). Judge Cutler ultimately followed Gernat's recommendation and sentenced
Harvey to serve 7 years.
At the evidentiary hearing in the post-conviction relief litigation, Wiggins
testified that he was "surprised and upset" when Gernat recommended that the court
sentence Harvey to serve 7 years. Wiggins's testimony on this issue is corroborated by
the audio record of the sentencing hearing itself. This audio record shows that, shortly
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after Gernat recommended a sentence of 7 years to serve, Wiggins and Harvey engaged
in the following whispered conversation at counsel table:
Wiggins: She [is] recommending 7 years to serve. I
may have grounds for appeal on that. I've got to go look at
something.
Harvey : I heard her say 7 years.
Wiggins: I know. That's what she said. And I've got
notes from her that she wouldn't ask for more than 6, even
though she couldn't make it part of the agreement.
Underlying facts, Part 2: after Harvey's sentencing
As we just explained, shortly after Gernat recommended a sentence of
7 years to serve, Wiggins held a whispered conversation with Harvey at counsel table.
In this conversation, Wiggins reiterated that Gernat had promised not to recommend
more than 6 years to serve - and that Harvey "[might] have grounds for appeal on that".
Wiggins then told Harvey that he "[had] to go look at something" in order to investigate
this possible appeal issue.
But according to Wiggins's testimony at the post-conviction relief eviden-
tiary hearing, he never engaged in follow-up discussions with Harvey on this issue.
Wiggins simply let the matter die.
WhenWigginswasasked (atthepost-conviction reliefevidentiaryhearing)
how he perceived his responsibility to Harvey following the sentencing, Wiggins
testified that he was not required to assist Harvey with respect to any potential appeal.
Rather, his only obligation was "to inform [Harvey that] he [had] a right to an appeal."
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When Harvey's post-conviction relief attorney pressed Wiggins regarding
Harvey's potential grounds for seeking some form of post-judgement relief, Wiggins's
answers suggest that he gave the matter little thought:
Post-Conviction Relief Attorney : Was it your
understanding [that] Mr. Harvey had a right to something
more than a sentence appeal [under these circumstances]?
Wiggins: I don't know what he had a right to.
I honestly don't - because I don't know what his arguments
are on appeal. And [in] my discussions with Mr. Harvey, I
don't think the word "appeal" was [ever] used. ... The only
thing I think I've ever heard [about] was [this action for]
post-conviction relief.
According to Wiggins, Harvey never directly asked him to file an appeal.
But Wiggins also testified that, in any event, he believed he was powerless to seek
judicial enforcement of Gernat's promise - because Gernat had refused to put the
promise in writing, or to otherwise make the promise a formal part of the plea agreement:
Post-Conviction Relief Attorney : Do you remember
any discussion of taking an appeal on that [i.e., the issue of
Gernat's alleged promise regarding the State's sentencing
recommendation]? Do you remember discussing an appeal
that day?
Wiggins: No.
PCRAttorney : Do you remember discussingan appeal
[at] any time in the 30 days following [the imposition of] that
sentence?
Wiggins: I never discussed an appeal.
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PCR Attorney : You never discussed an appeal? Do
you ...
Wiggins: I - I discussed that he certainly had the
possibility for an appeal, [and] I did have a discussion with
him about what I was going to do, but it wasn't along the
lines of an appeal.
PCR Attorney : What was it along the lines of?
Wiggins: I was going to go talk to [the district
attorney,] Roman Kalytiak, and find out what was going on.
First - the whole idea of the [State's] withdrawing of the
[initial] plea [offer]. I'd already had that discussion with
him. And now, I have representations from an assistant D.A.,
and they're not standing by it, and - even though it was not
part of the deal. But at the same time, I knew that I didn't
have anything that I could argue on, because it was - it was
not part of a plea agreement.
In other words, Wiggins apparently reached the conclusion that, even
though Gernat had made a promise to him, that promise was unenforceable. Wiggins
reached this conclusion even though he knew that Harvey had relied on this promise -
or, more precisely, that Harvey had relied on Wiggins's description of the alleged
promise - when Harvey changed his plea to guilty:
Wiggins: I know that [Harvey] was relying on what I
had told him that Ms. Gernat had told me - that she was
going to ask for [no more] than 6 years. But it was very clear
- it had to be very clear[, because] I put it in writing to him
- ... that [this promise] was not part of the plea agreement.
Harvey, for his part, presented a significantly different version of his post-
sentencing discussions with Wiggins. Harvey testified that he and Wiggins repeatedly
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discussed the possibility of filing an appeal based on the fact that Gernat had
recommended more than 6 years to serve - but, according to Harvey, Wiggins
ultimately refused to do anything:
Harvey : I had numerous discussions with [Wiggins].
I called him, and we talked about the appeal issue. I mean,
he was ... starting to prepare [the appeal]. As the weeks
progressed, he assured me he was working on it, and getting
it ready. Finally, within the last week [before the deadline]
- because I knew that it was due within 30 days - and
within the last week before the deadline, he informed me that
... he wasn't going to do it, that he didn't think it was in my
best interest. ... I asked him to go forward anyway, and he
refused [to do] it.
In sum, Wiggins and Harvey offered starkly contradictory versions of their
discussions following Harvey's sentencing. Wiggins testified that he never held
substantive discussions with Harvey about whether Harvey should appeal or should seek
some alternative kind of post-judgement relief. Harvey testified that he and Wiggins had
repeated discussions concerning the possibility of an appeal (based on the fact that
Gernat recommended more than 6 years to serve), and that Wiggins assured Harvey that
he was "working on it" - but Wiggins ultimately refused to file the appeal because he
concluded (apparently unilaterally) that an appeal would not be in Harvey's best
interests.
When Harvey litigated this issue in his petition for post-conviction relief,
Superior Court Judge Beverly W. Cutler rejected Harvey's claimthat Wiggins had failed
to provide effective assistance of counsel in connection with a potential appeal. Judge
Cutler declared that Harvey had "[no] reasonable expectation or reasonable belief that
Mr. Wiggins would file an appeal for him" - because Wiggins's retainer agreement
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with Harvey specified that Wiggins did not do appeals, and that he would represent
Harvey only in the trial court proceedings.
Judge Cutler later added that Harvey had failed to prove that "[he]
reasonably believed that [he] had some contractual relationship with Mr. Wiggins that
included him filing an appeal ... for [Harvey], as opposed to being willing as an attorney
to give [Harvey] his two cents' worth about what might be able to be done in regard to
an appeal, but not by him."
As we explain in the next section of this opinion, these findings are
premised on a misunderstanding of the applicable law. Regardless of whether one
creditsWiggins'stestimony orHarvey'stestimony, Wiggins violatedhis duty to Harvey:
either by failing to meaningfully consult with Harvey concerning his potential post-
judgement remedies, or by failing to abide by Harvey's decision concerning whether to
appeal. 2
JudgeCutler certainly had amplegroundsfor concluding that Harvey could
not reasonably expect Wiggins to represent him on appeal. But as we explain in the next
section of this opinion, thefiling of an appeal - i.e., the filing of a notice of appeal, or
the filing of a motion to extend the time for filing an appeal, so that a client's right of
appeal is preserved - is part of a trial attorney's duties if the attorney is aware that the
client might want to appeal, and that the client will otherwise not be able to obtain and
consult with substitute counsel before the filing deadline.
Moreover, with regard to advising Harvey about a potential appeal or other
post-judgement litigation, Wiggins was obligated to give Harvey more than simply
"his two cents' worth". Rather, Wiggins was obligated to provide Harvey with
2 See Alaska Professional Conduct Rule 1.2(a); McLaughlin v. State , 173 P.3d 1014,
1015-16 (Alaska App. 2007); Coffman v. State, 172 P.3d 804, 807 (Alaska App. 2007);
Simeon v. State, 90 P.3d 181, 184 (Alaska App. 2004).
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----------------------- Page 14-----------------------
meaningful consultation concerning Harvey's post-judgement options: the claims that
Harvey might pursue, Harvey's likelihood of success, and the consequences of pursuing
this post-judgement litigation.
A trial attorney's duty to advise a criminal defendant regarding potential
post-judgement remedies, and the attorney's duty to take action to protect
the defendant's rights before stopping work on the case
Most criminal defendants in this state are represented by court-appointed
counsel who provide their services at public expense through either the Public Defender
Agency or the Office of Public Advocacy. For these defendants, Alaska law clearly
states that their trial attorneys have a continuing obligation to represent them after the
trial court has entered its judgement.
Under AlaskaAppellateRule209(b)(4),when thePublicDefender Agency
or the Office of Public Advocacy (either through a salaried attorney or through contract
counsel) has represented a defendant in the trial court, the agency "shall remain as
appointed counsel throughout an appeal or petition for review at public expense ... and
shall not be permitted to withdraw except upon the grounds authorized in [Alaska]
Administrative Rule 12." Moreover, even when the defendant's trial counsel is justified
in withdrawing, no withdrawal is permitted until the defendant's appellate rights are
preserved: "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
[Appellate] Rule 204 have been accepted for filing by the clerk of the appellate courts."
Ibid.
But the foregoing rule does not apply to Harvey's case. Harvey was not
represented by court-appointed counsel, but rather by a privately retained attorney, and
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this attorney's retainer agreement with Harvey specified that the attorney would
represent Harvey only in the trial court proceedings, and not on appeal.
Thus, Harvey's casepresents theissue of whether, in the days following the
sentencing, Harvey's trial attorney, Wiggins, had a duty to meaningfully advise Harvey
about his potential post-judgement remedies, and a duty to take steps to protect Harvey's
ability to pursue those remedies, even though Wiggins had agreed only to represent
Harvey in the trial court.
(a) Harvey's proposal: a rule of universal application
Harvey asks us to adopt the rule that attorneys in this situation (whether
privately retained or court-appointed) must always engage in meaningful consultation
with their convicted client about the possibility of pursuing an appeal or seeking other
post-judgement remedies. Under this proposed rule, a defense attorney whose client was
convicted would always be required to advise the client regarding their potential grounds
for appeal, the likelihood of success, and the potential consequences of seeking or
obtaining post-judgement relief.
Harvey'sposition is supportedby AlaskaProfessional ConductRule1.2(a)
and the American Bar Association's standards relating to the defense attorney's function
in criminal prosecutions.
TheABAstandards recognizethataprivatelyretainedlawyermaystructure
their retainer agreement so that the lawyer's obligation to the client extends only through
the trial court proceedings - so that the defendant must either negotiate a new retainer
with the lawyer for the appeal, or the defendant must seek another attorney to handle the
appeal. Indeed, under ABA Defense Function Standard 4-3.1(a), one of the things that
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a defense attorney should discuss with a client at the outset of their relationship is
"whether ... counsel will continue to represent the accused if there is an appeal."
But even so, if a lawyer's client is convicted, both Alaska Professional
Conduct Rule 1.2(a) and the ABA Standards require the lawyer to engage in meaningful
consultation with the defendant about the possibilities for an appeal, and the likely
outcomes of an appeal.
Professional Conduct Rule 1.2(a) declares that an attorney representing a
defendant in a criminal prosecution "shall abide by the client's decision, after
consultation with the lawyer, as to ... whether to take an appeal." This italicized
language implicitly requires the trial lawyer to fully advise the defendant about the
defendant's options for appeal, as well as the likely success and potential consequences
of those options, so that the defendant can make an informed decision.
We note that Alaska's Professional Conduct Rule 1.2(a) is based on the
corresponding provision of the ABA Model Rules of Professional Conduct - rules
crafted for nationwide applicability. In most American jurisdictions, the notice of appeal
is among the last pleadings filed in the trial court. Before the summer of 1995, it used
to be that way in Alaska, too. 3 Under current Alaska procedure, the notice of appeal is
an appellate court pleading rather than a trial court pleading. See Criminal Rule 32.5(a).
However,this procedurewas apparently amended purely for administrativeconvenience
3 Until July 15, 1995, Alaska Criminal Rule 32.1(a) stated that when a defendant was
convicted of a crime, the judge or magistrate who entered the judgement was to advise the
defendant that "he [had] the right to appeal ... by filing a notice of appeal with the clerk of
court" - that is, the clerk of the trial court. This provision was superseded by current
Criminal Rule 32.5(a), which states that the judge or magistrate shall advise the defendant
that they have the right to appeal "by filing a notice of appeal with the clerk of the appellate
courts". See Supreme Court Order No. 1184, issued December 16, 1994, and effective July
15, 1995.
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- because, in Alaska (as opposed to most states), the appellate courts and the trial courts
are all part of one unified court system.
The obligation of a trial attorney to meaningfully advise their convicted
client about a potential appeal is echoed in ABA Defense Function Standard 4-5.2.
Subsection (a)(v) of this standard declares that the decision whether to appeal is "[among
the] decisions which are to be made by the accused after full consultation with counsel".
The accompanying Commentary emphasizes that "the accused should have the full and
careful advice of counsel" on this matter.
This obligation of the trial attorney, described generally in Professional
Conduct Rule 1.2(a) and ABA Defense Function Standard 4-5.2, is described in greater
detail in ABA Defense Function Standard 4-8.2, "Appeal":
(a) After conviction, defensecounselshould explain to
the defendant the meaning and consequences of the court's
judgment and the defendant's right of appeal. Defense
counsel should give the defendant his or her professional
judgment as to whether there are meritorious grounds for
appeal [as well as] the probable results of an appeal. Defense
counsel should also explain to the defendant the advantages
and disadvantages of an appeal. The decision whether to
appeal must be the defendant's own choice.
(b) Defense counsel should take whatever steps are
necessary to protect the defendant's rights of appeal.
The accompanying Commentary explains that the duty of meaningfully
advising the defendant about potential post-judgement remedies falls to the trialattorney
because "[a] defendant needs effective representation and advice in the relatively short
period immediately following conviction[,] when the decision whether to appeal must
be made."
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The ABA Commentary notes that, in cases where the trial attorney is not
obligated to represent the defendant on appeal, there can be a gap in the defendant's legal
representation, "sometimes for months", at a time when the defendant's right of appeal
is at stake. For this reason, the trial attorney should not be permitted to walk away from
thecasewithoutgivingthedefendant meaningfuladviceabout post-judgementremedies:
Lawyers, whether retained or assigned [only for] trial,
sometimes take the view that their responsibilities end with
the final judgment of the trial court[,] and communication
between defendant and attorney frequently ceases. ... To
make the right to counsel meaningful, representation must be
continuous throughout the criminal process. [Further,
because] of the intimate familiarity with the record of the trial
court proceedings, trial counsel is in the best position to
advise the defendant concerning the factors to be weighed in
reaching the decision whether to appeal.
[C]ounsel [must] discuss frankly and objectively ... the
possible errors that could be [raised] on appeal, their relative
strengths and weaknesses, and the probable outcome of an
appeal. ... To make the defendant's ultimate choice a
meaningful one, counsel's evaluation of the case must be
communicated in a comprehensible manner. ... [The
defendant's] decision is a critical one[,] since claims of trial
error are ordinarily lost if they are not raised on appeal.
Because of the importance of [this] decision, trial counsel
should always consult promptly with the defendant[.]
Commentary to ABA Defense Function Standard 4-8.2, "Advising Defendant
Concerning Appeal".
For this same reason (the need for speedy action to preserve a defendant's
post-judgement rights), ABA Defense Function Standard 4-8.2(b) requires the trial
attorney to take the steps necessary to preserve the defendant's right of appeal - steps
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such as filing a notice of appeal, or filing a motion for an extension of time to file the
appeal - if it appears that the defendant will not otherwise have an attorney to do this.
As the accompanying Commentary explains, "Frequently, this [obligation] may include
perfecting the appeal itself, even though arrangements [will] have to be made for other
counsel to represent the defendant before the appellate court."
This duty to take action to preserve the defendant's post-judgement rights
is echoed in the Commentary to ABA Sentencing Standard 18-5.19, which declares that
"defense counsel, even if retained ... only for the trial court phase of a prosecution, ...
[has] the minimal professional responsibility to take the necessary steps to protect the
[defendant's] right to appeal [if the defendant decides to appeal]."
(b) The current law: the United States Supreme Court's decision in
Roe v. Flores-Ortega
In Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985
(2000), the United States Supreme Court addressed the scope of a trial attorney's
obligation to discuss a potential appeal with a defendant when the defendant has not
affirmatively indicated, one way or another, whether they wish to appeal. The Supreme
Court rejected the rule that defense attorneys must always discuss a potential appeal with
their client in these circumstances - because (as the Court explained), under Strickland
v. Washington,4 the question of whether a defendant received ineffective assistance of
counsel must be answered based on the specific facts of the case. Flores-Ortega, 528
U.S. at 479-480, 120 S.Ct. at 1035-36.
In other words, even though it might be preferable for defense attorneys to
engage in these discussions whenever their client is convicted, and even if defense
4 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
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attorneys might be ethically bound to engage in these discussions with every convicted
client, an attorney's failure to perform this task in a particular case does not necessarily
amount to ineffective assistance of counsel, if there is no reason to believe that the
defendant was disadvantaged by the lack of legal consultation.
However, the Supreme Court held that a defense attorney does violate a
defendant's right to effective assistance of counsel if the attorney fails to engage in
meaningful discussions with the defendant about the possibility of an appeal in either of
two situations: (1) when the defendant has given the attorney a reasonable indication
that they are interested in appealing, or (2) when there are objective reasons to think that
a rational person in the defendant's position might want to appeal. Id., 528 U.S. at 480,
120 S.Ct. at 1036.
Under the Flores-Ortega rule, Harvey's attorney, Wiggins, was obligated
to engage in meaningful consultation with Harvey about the possibility of seeking post-
judgement remedies. This is true regardless of whether one credits Harvey's testimony
or, alternatively, Wiggins's testimony at the post-conviction relief evidentiary hearing.
According to Harvey, he affirmatively asked Wiggins to pursue an appeal,
and Wiggins refused. This satisfies the first of the Flores-Ortega criteria: that the
defendant indicated an interest in appealing.
According to Wiggins, he and Harvey never engaged in substantive
discussions of a potential appeal, and Harvey never directly told him that he was
interested in pursuing an appeal. But even under Wiggins's version of events, the fact
remains that the prosecutor recommended 7 years to serve at Harvey's sentencing
hearing when, according to Wiggins, she had earlier promised to recommend no more
than 6 years to serve.
Viewing the evidence in the light most favorable to Harvey, the
prosecutor's promise concerning the sentencing recommendation may have been
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enforceable against the State, and Harvey may have been entitled either to withdraw his
plea or to demand specific performance of that promise (in the form of a new sentencing
hearing where the State could recommend no more than 6 years to serve). See
Santobello v. New York, 404 U.S. 257, 261-63; 92 S.Ct. 495, 498-99; 30 L.Ed.2d 427
(1971), holding that a defendant's right to due process is violated when the government
induces the defendant to accept a plea bargain by promising to recommend a particular
type of sentence, or to refrain from making any sentencing recommendation, and then
the government fails to abide by its promise. See also Puckett v. United States, 556 U.S.
129, 137; 129 S.Ct. 1423, 1430; 173 L.Ed.2d 266 (2009).
Moreover,Wiggins'swhisperedconversationwithHarveyatthesentencing
hearing - a conversation on this very issue - demonstrates that Wiggins immediately
recognized that this was a potential ground for post-judgement litigation. (Wiggins told
Harvey, "I may have grounds for appeal on that.") Thus, Wiggins knew that there were
objective reasons to think that a rational person in Harvey's situation might want to
appeal or to seek some other post-judgement remedy.
Accordingly, under either version of the facts, Wiggins was obligated by
the Flores-Ortega rule to engagein meaningful consultation with Harvey about potential
post-judgement remedies. And because this is so, we have no need to decide whether
to adopt the universal rule that Harvey proposes.
(c) Does Flores-Ortega apply to privately retained attorneys?
In its brief to this Court, the State suggests that the Flores-Ortega rule does
not apply, and that Wiggins had a lesser obligation to Harvey, because Wiggins was a
privately retained attorney rather than a court-appointed attorney. (Remember that,
under AlaskaAppellateRule209(b)(4),court-appointed attorneys aregenerally required
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to continue representing a defendant on appeal, but the rule does not impose a similar
obligation on privately retained attorneys.)
We note, at the outset, that the State's suggestion appears to be inconsistent
with both Alaska Professional Conduct Rule 1.2(a) and the two ABA Defense Function
Standards we have been discussing, Standards 4-5.2(a)(v) and 4-8.2. Under
Professional Conduct Rule 1.2(a), all attorneys who represent criminal defendants
must provide their convicted clients with meaningful consultation regarding a potential
appeal. And the ABA's Defense Function standards likewise apply to all trial attorneys,
whether court-appointed or privately retained.
It is true that, in Flores-Ortega, the Supreme Court rejected a rule that
defense attorneys would automatically be deemed ineffective if, following their client's
conviction, they failed to consult with the client about a possible appeal. Instead, the
Supreme Court held that, under the federal constitution, a court must engage in a fact-
specific inquiry in order to determine whether a defense attorney's failureto consult with
their client about a potential appeal amounted to ineffective assistance of counsel. But
the Supreme Court never suggested that one of the facts to be considered is whether the
attorney was privately retained. Instead, the two-part Flores-Ortega test focuses on
whether the attorney knew, or had reason to know, that the defendant might potentially
be interested in pursuing an appeal.
Subsequent court decisions on this topic support the proposition that
privately retained attorneys have the same duty as court-appointed attorneys to
meaningfully advise their clients about a possible appeal, and a duty to take any
necessary steps to preserve their clients' right of appeal. As the Supreme Court of
Kentucky explained in Hiatt v. Clark, 194 S.W.3d 324, 330 (Ky. 2006),
Although the ABA Standards contemplate that [not all]
defense attorneys may represent the same client at trial and
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throughout the appeals process, ... the resounding message is
that defense attorneys, because of their intimate knowledge
of the trial proceedings and their possession of unique
information regarding possible post-conviction claims, have
an obligation to cooperate with their clients' attempts to
challenge their convictions.
A trial attorney's duty to protect the client's right of appeal "may include
perfecting the appeal, even though arrangements may have been made for other counsel
to represent the defendant before the appellate court." Commonwealth v. Ross, 432 A.2d
1073, 1075 (Penn. App. 1981), quoting the Commentary to ABA Defense Function
Standard 4-8.2. See also United States v. Ruth, 768 F.Supp. 1428, 1435 (D. Kan. 1991).
For other cases where courts have applied the Flores-Ortega standard to
privately retained counsel who informed their clients that they would not continue to
represent them on appeal, see Raney v. State, 986 So.2d 468 (Ala. Crim. App. 2007);
Esters v. State, 894 So.2d 755 (Ala. Crim. App. 2003); and Wallace v. State, 121 S.W.3d
652 (Tenn. 2003); Cabinatan v. United States, unpublished, 2011 WL 255691, *5 (D.
Haw. 2011) (rejecting the contention that, because the defendant'strial attorney "was not
retained or paid to prosecute an appeal, he therefore owed no duty to Cabinatan to file
a notice of appeal."); Richardson v. United States, 612 F.Supp.2d 709, 715-16 (N.D.
W.Va. 2009) (holding that trial counsel owes a criminal defendant a duty to file a notice
of appeal, regardless of whether the attorney was retained for the appeal or not); Schaefer
v. United States, unpublished, 2008 WL 6138029, *1, *3 (S.D. Ga. 2008) (finding
ineffective assistance of counsel when, following sentencing, the defendant expressed
a desire to appeal and his retained counsel told him, "Don't drag me into it; you're on
your own.").
We thereforeconclude that Flores-Ortega governstheconductof privately
retained attorneys. And as we have already explained, the Flores-Ortega test was met
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in Harvey's case, regardless of whether one accepts Harvey's or Wiggins's version of
events. Accordingly, Wiggins had an obligation to engage in meaningful consultation
with Harvey about his potential post-judgement remedies, and an obligation to take
action to preserve Harvey's appellate rights.
Application of this law to Harvey's case
The evidence presented during Harvey's post-conviction relief litigation
shows that Harvey had at least one plausible post-judgement claim, and that either
Wiggins refused to file an appeal despite Harvey's request (Harvey's version of events),
or Wiggins failed to meaningfully advise Harvey concerning his post-judgement options
(Wiggins's version of events). Under either version of events, Wiggins failed to honor
his post-judgement obligations to Harvey, and Harvey was denied the effective
assistance of counsel in this regard. Accordingly, this portion of the superior court's
ruling is REVERSED.
We conclude that Harvey is entitled to return to the status quo ante. That
is, Harvey should be placed in the same situation he was in following the superior court's
entry of judgement against him in his underlying criminal case. Harvey must be given
the opportunity to consult with an attorney concerning his post-judgement options
(including the likely success and potential consequences of post-judgement litigation),
and then decide what he wishes to do.
We wish to make it clear, both to the superior court and the parties, that we
express no opinion on the other disputes in this case - in particular, the factual dispute
as to whether Gernat made a promise to Wiggins concerning the State's sentencing
recommendation, and the legal dispute as to whether that promise (if made) would be
enforceable against the State under Santobello v. New York, 404 U.S. 257, 261-63;
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92 S.Ct. 495, 498-99; 30 L.Ed.2d 427 (1971), andPuckett v. United States, 556 U.S. 129,
137; 129 S.Ct. 1423, 1430; 173 L.Ed.2d 266 (2009), either by allowing Harvey to
withdraw his plea or by requiring specific performance.
Harvey shall have 60 days from the issuance of this opinion to consult an
attorney and to file an appeal in his underlying criminal case or to pursue other remedies
as he may see fit.
We do not retain jurisdiction over this case.
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