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Ronald Dean Sackett v. State of Alaska (9/23/2022) ap-2733

Ronald Dean Sackett v. State of Alaska (9/23/2022) ap-2733

                                                                         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:  



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                       IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



RONALD DEAN SACKETT,  

                                                                                              Court of Appeals No. A-13716  

                                                  Appellant,                              Trial Court No. 3KN-10-01858 CR  



                                     v.  

                                                                                                             O P I N I O N  

STATE OF ALASKA,  



                                                  Appellee.                                  No. 2733 - September 23, 2022  



                         Appeal from the Superior Court, Third Judicial District, Kenai,  

                                                 

                         Jason M. Gist, Judge.  



                         Appearances:  Elizabeth D. Friedman, Law Office of Elizabeth  

                                                                                                                         

                         D. Friedman, Prineville, Oregon, under contract with the Office  

                         of  Public  Advocacy,  Anchorage,  for  the  Appellant.                                           Ann  B.  

                                                                                                                            

                         Black, Assistant Attorney General, Office of Criminal Appeals,  

                                                                                                         

                         Anchorage, and Treg R. Taylor, Attorney General, Juneau, for  

                                                                                                     

                         the Appellee.  



                         Before:   Allard, Chief Judge, and Wollenberg and Harbison,  

                                                                    

                         Judges.  



                         Judge HARBISON.  



                         Ronald Dean Sackett appeals the trial court's denial ofhis motion to correct                                                               



an illegal sentence.  Sackett argues that he was denied the right to counsel.  We agree,                


----------------------- Page 2-----------------------

and we therefore vacate the trial court's order denying Sackett's motion and remand this                                                                                                                  



case to the trial court for renewed consideration of the motion.                                                                      



                Background facts   



                                 Sackett was convicted, following a guilty plea, of one count of attempted                                                                                



first-degree sexual abuse of a minor.                                                        The trial court imposed a sentence of 30 years'                                                       



incarceration. Sackett subsequently filed a motion to correct an illegal sentence, arguing                                                                                                      



inter alia             , that the sentence imposed by the trial court exceeded the maximum sentence                                                                                           



                                              1                                                                                                                               2  

authorized by law.                                                                                                                                         

                                                  He also filed a motion for court-appointed counsel. 



                                                                                                                                                                                                   

                                In response, the trial court issued an order appointing the Alaska Public  



                                                                                                                                                                                                                     

Defender Agency to represent Sackett and holding the underlying motion in abeyance.  



                                                                                                                                                                                                              

The court ordered Sackett's attorney to file, within sixty days, "a statement of intent to  



                                                                                                                                                                                                            

adopt Sackett's Motion [to Correct an Illegal Sentence] as is, an amended motion on  



                                                                                                                                                                                                3  

                                                                                                                                                                               

Sackett's behalf, or a rule 35(e) certificate that Sackett is not entitled to relief." 



                                                                                                                                                                                                              

                                After a period of delay during which the Public Defender Agency failed to  



                                                                                                                                                                                                             

comply with this order, the trial court scheduled a hearing and ordered the Agency to  



                                                                                                                                                                                                    4  

                                                                                                                                                                                                         

appear and show cause as to why it should not be held in contempt of court.                                                                                                                               An  



        1       See  Alaska R. Crim. P. 35(a) (allowing  a  court to correct an illegal sentence at any  



time).  



        2       See Alaska R. Crim. P. 35(e).  



        3       See id.  



        4       This was the second time the trial court ordered the Public Defender Agency  to show  



cause.  At the outset, the Agency  did not comply  with the court's order to file a  statement of  

intent within sixty   days, and the court therefore   scheduled   a show cause hearing.  At the  

hearing, a representative of the Agency stated that the Agency  might not have received the  

appointment paperwork.  After this, the trial court reissued the appointment paperwork and  

                                                                                                                                                                                   (continued...)  



                                                                                                   - 2 -                                                                                                2733
  


----------------------- Page 3-----------------------

 attorney from the Agency appeared at this hearing.                                                                                                                                                                                                                                                              This attorney told the court that the                                                                                                                                                              



Agency had a conflict of interest and would be withdrawing from representing Sackett.                                                                                                                                                                                                                                                                                                                                                                                                                                                     



 The lawyer noted that the case would be sent to the Office of Public Advocacy (OPA),                                                                                                                                                                                                                                                                                                                                                                                                     



but that he did not know whether the matter would be handled by one of OPA's staff                                                                                                                                                                                                                                                                                                                                                                                                                          



 attorneys or a conflict counsel.                                                                                                     



                                                                                Hearing this, the court announced that once a new attorney was appointed,                                                                                                                                                                                                                                                                                                               



it would "re-issue the order [it] issued before, just to . . . tell counsel to meet with Mr.                                                                                                                                                                                                                                                                                                                                                                                                                    



 Sackett to review the filings and . . . figure out where we're going to go on any of this."                                                                                                                                                                                                                                                                                                                                                                                                                                               



 The   court   scheduled   another   status   hearing   for   approximately   one   month   later,  



 explaining, "[I]f I just waited for OPA to have somebody enter an appearance, [the case]                                                                                                                                                                                                                                                                                                                                                                                                                



would fall off the radar . . . .                                                                                                                       So I'm going to set [the status hearing] for March 20th.                                                                                                                                                                                                                                                                                                                           



Hopefully, OPA will have entered their appearance by then and then we can get OPA up                                                                                                                                                                                                                                                                                                                                                                                                                                     



to speed on what needs to be done."                                                                                                                                             



                                                                                But no substitute attorney filed an entry of appearance on behalf of Sackett,                                                                                                                                                                                                                                                                                                                             



 and no defense attorney appeared at the March 20 hearing. Sackett was also absent. The                                                                                                                                                                                                                                                                                                                                                                                                                        



 court nevertheless conducted an                                                                                                                                                              ex parte                                          hearing, telling the district attorney that Sackett                                                                                                                                                                                        



had filed an application for post-conviction relief which raised the same claims that were                                                                                                                                                                                                                                                                                                                                                                                                                



 at issue in the pending motion to correct an illegal sentence.                                                                                                                                                                                                                                                                                                        The court explained that it                                                                                                                             



was inclined to consolidate the pending motion to correct an illegal sentence into the                                                                                                                                                                                                                                                                                                                                                                                                                              



post-conviction relief action.                                                                                                     



                                                                                 In response, thedistrict                                                                                                                attorney asked thecourtto instead                                                                                                                                                                        deny the pending                                        



motion to correct an illegal sentence, but to note in its denial order that the issues raised                                                                                                                                                                                                                                                                                                                                                                                                      



in the motion could be litigated in the post-conviction relief action.                                                                                                                                                                                                                                                                                                                                          The court agreed to                                                                                        



                    4                    (...continued)  



 scheduled  a  status  hearing.    But  at  the  status  hearing,  no  representative  of   the  Agency  

 appeared, and the court issued the second order to show cause.  



                                                                                                                                                                                                                                                      -  3 -                                                                                                                                                                                                                                                   2733
  


----------------------- Page 4-----------------------

this course of action.                   The court subsequently issued a written order denying Sackett's                                        



motion   to   correct   an   illegal   sentence,   noting   that   Sackett  was   not   precluded   from  



litigating his illegal sentence claim in the post-conviction relief case.                                              



                         This  appeal  followed.  



             Why  we  reverse  the  trial  court's  order  denying  Sackett's  motion  



                         Sackett  has  framed  his  appeal  as  a  challenge  to  the  trial  court's  decision  to  



deny  his  motion  before  his  court-appointed  attorney  had  reviewed  his  case  or  entered  an  



appearance.    As   we   are   about   to   explain,   we   agree   with Sackett   that   the   trial   court  



violated  his  right  to  counsel  in  this  case.   But  we  are  also  troubled  by  a  second  aspect  of  



this case:   the  trial  court's  decision to proceed with a substantive hearing on March 20  



                                                                                                           5  

                                                                                                                                                         

even though neither   Sackett  nor  his  counsel  was  present.                                                We conclude that the trial  



                                                                                                                                                              

court should not have  discussed  Sackett's motion with the district attorney during a  



                                                                                                                                                             

hearing  that  was  conducted  outside the  presence  of  Sackett and his  counsel,  and  it  



                                                                                                                                                            

similarly should not have then denied Sackett's motion without giving him notice of its  



                                                                                 

intention to do so and an opportunity to be heard.  



                                                                                                                                                       

                         In his briefing to this court, rather than focusing on the improper ex parte  



                                                                                                                                                  

nature of the court's order, Sackett argues that the trial court violated his right to counsel.  



                                                                                                                                                     

Sackett contends that he was entitled to the assistance of counsel to litigate his illegal  



                                                                                                                                                     

sentence motion and that this right was violated when the trial court appointed the Public  



                                                                                                                                                        

Defender Agency to represent him but then denied his motion before an attorney from  



      5     See   Alaska   Code   of   Judicial  Conduct  Canon  3B(7)  (generally   barring  ex  parte  



communications regarding pending litigation);  see also  State v. Dussault, 245 P.3d 436, 440  

(Alaska App. 2011) (noting that, as a general rule, it is improper for a judge to communicate  

about pending litigation outside the presence of the parties).  



                                                                            - 4 -                                                                       2733
  


----------------------- Page 5-----------------------

the Agency or OPA reviewed his case, conferred with him, or made an appearance on   



his behalf.   



                         The State does not dispute that Sackett had a right to court-appointed                                      



                                                                                      6 

                                                                                                                                                  

counsel to litigate his illegal sentence motion.                                          Instead, the State claims that Sackett's  



                                                                                                                                                     

right to counsel was satisfied when the trial court appointed the Public Defender Agency  



                                                                                                                                                              

to represent him, and then transferred the case to OPA when the Agency informed the  



                                                                                                                                                  

court that it had a conflict.  Under these circumstances, the State contends, Sackett's  



                                                                                                                                                      

constitutional right to counsel was satisfied, and, if Sackett takes issue with the quality  



                                                                                                                                                               

of his representation (i.e., the fact that neither agency ever assigned an attorney to  



                                                                                                                                      

represent Sackett or review his case), he must file an application for post-conviction  



                                                                                                                                                           

relief  arguing  that  his  "attorney"  (i.e.,  the  agency  assigned  to  represent  him)  was  

ineffective.7  



                                                                                                                                                             

                         But Sackett was completely denied the right to counsel. While it is true that  



                                                                                                                                                              

a claim of ineffective assistance of counsel must generally be raised in an application for  



                                                                                                                                                               

post-conviction  relief, a claim that a defendant was completely denied the right to  



                                                                                                                                                                

counsel can be raised on direct appeal and, if successful, requires reversal regardless of  



                   8  

prejudice.     



                                                                                                                                                           

                         As the United States Supreme Court wrote more than eighty years ago,  



                                                                                                                                                       

"TheConstitution's guaranteeofassistanceofcounsel cannotbesatisfiedbymereformal  



      6      See Alaska R. Crim. P. 35(e); Belknap v. State,  426 P.3d 1156, 1160 (Alaska App.  



2018) (holding that the right to counsel in a criminal case extends to post-judgment motions).  



      7      See  Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App.1984) (noting that ineffective  



assistance of counsel claims generally cannot be effectively reviewed on direct appeal).  



      8      See Weaver v. Massachusetts,   137 S. Ct. 1899, 1908 (2017) (explaining   that   it is  



structural  error  when  an  indigent  defendant  is  denied  an  attorney   (citing  Gideon  v.  

 Wainwright, 373 U.S. 335, 343-45 (1963))).  



                                                                             - 5 -                                                                         2733
  


----------------------- Page 6-----------------------

                         9  

appointment."   Thus, a trial court's duty to appoint counsel "is not discharged by an                                                            



assignment at such a time or under such circumstances as to preclude the giving of                                                                



                                                                                           10  

effective aid in the preparation and trial of the case."                                                                                        

                                                                                               Denying appointed counsel the  



                                                                                                                                                

opportunity to consult with the accused and to prepare a defense may "convert the  



                                                                                                                                                 

appointment of counsel into a sham and nothing more than a formal compliance with the  



                                                                                                                                        11  

                                                                                                                                              

Constitution's requirement that an accused be given the assistance of counsel." 



                                                                                                                                          

                       In this case, the trial court denied Sackett's motion to correct an illegal  



                                                                                                                                               

sentence at an ex parte hearing - after the Public Defender Agency told the court that  



                                                                                                                                         

OPA would be substituting as counsel for Sackett and before any attorney had entered  



                                                                                                                                         

an appearance on Sackett's behalf.   Although the court stated that it would require  



                                                                                                                                                 

Sackett's new attorney to meet with Sackett to review the filings and determine an  



                                                                                                                                                  

appropriate course of action, the court instead denied the motion without any notice to  



                                                                                                                                                  

Sackett or his new attorney.  This was nothing more than "mere formal appointment" of  



                                                                                                                                                

counsel.  In fact, given the ex parte nature of the hearing, it barely qualifies as that.  We  



                                                                                                        

accordingly must vacate the trial court's denial of Sackett's motion.  



                                                                                                                                                  

                       As we have explained, this would be necessary even in the absence of  



                                                                                                                                         

prejudice to Sackett.   But here, there was the potential for prejudice.   Under Alaska  



                                                                                                                                          

Criminal  Rule  35(e),  an  attorney  appointed  to  represent  a  defendant  on  an  illegal  



                                                                                                                                                

sentence motion must either pursue the motion or certify to the court that the attorney has  



                                                                                                                                         

reviewed the facts and law related to the sentence and has determined that a motion  



      9    Avery v. Alabama , 308 U.S. 444, 446 (1940).  



      10   Powell v. Alabama, 287 U.S. 45, 71 (1932).  



      11   Avery , 308 U.S. at 446.  Thus, the Alaska Supreme Court has determined that the right  



to assistance of  counsel of  necessity  includes the concomitant right for counsel "to have a  

reasonable time   in  which  to prepare."   Klockenbrink v. State,  472 P.2d 958, 965 (Alaska  

 1970).  



                                                                      -  6 -                                                                 2733
  


----------------------- Page 7-----------------------

would not warrant relief by the court.                                                                                      By contrast, Criminal Rule 35.1(e)(2) allows a                                                                                                      



court-appointed   attorney   to   file   an   amended   application   for   post-conviction   relief,  



abandoning any or all claims identified by the client and substituting any stronger claims                                                                                                                                                                      



that have been identified by the attorney.                                                                                           



                                           Thus, the attorney appointed to represent Sackett in his post-conviction                                                                                                              



relief claim is free to abandon his illegal sentence claims in favor of other stronger                                                                                                                                                                   



claims, while an attorney appointed to represent him for purposes of pursuing an illegal                                                                                                                                                                        



sentence claim under Criminal Rule 35(a) would not have been free to abandon any and                                                                                                                                                                                     



all illegal sentence claims without preparing a no-merit certificate.                                                                                                                                                 In other words, the                                 



trial   court's   denial   of   Sackett's   motion   to   correct   an   illegal   sentence   could   have  

prevented Sackett from obtaining a ruling on the merits of an illegal sentence claim.                                                                                                                                                                                        12  



                                                                                                                                                                                                                                                      

                                           For  these  reasons,  we  conclude  that  the  trial  court's  actions  deprived  



                                                                                                                                                                                                                                                    

 Sackett of his right to counsel, and we accordingly vacate the trial court's order and  



                                                             

remand for further proceedings.  



                      Conclusion  



                                                                                                                                                                                                                                                                             

                                           We VACATE the trial court's order denying Sackett's motion to correct an  



                                                                                                                                                                                                                                                                          

illegal sentence and closing the case, and we REMAND this case to the trial court for  



                                                                                                                                                                                                                      

renewed consideration of Sackett's motion in conformity with this opinion.  



           12        While at least one of  the claims Sackett raises in his pro se  motion appears to be an  



illegal sentence claim  properly  brought under Criminal Rule 35(a), several of  his claims may  

not  fall  within  the  this  rule  and  instead  should  be  pursued  in  a  post-conviction  relief  

proceeding.  Because we are remanding this matter for further proceedings, the question of  

which of  Sackett's claims may  be pursued under Criminal Rule 35(a) may  be litigated during  

the trial court proceedings.  



                                                                                                                                   - 7 -                                                                                                                              2733
  

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