You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Amos v. State (5/10/2002) sp-5563
Amos v. State (5/10/2002) sp-5563
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
STEVE E. AMOS, )
) Supreme Court No. S-9845
Petitioner, )
) Court of Appeals No. A-7226
v. ) Superior Court No. 3PA-S96-
2480 Cr
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) [No. 5563 - May 10, 2002]
________________________________)
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court, Third Judicial
District, Palmer, Eric Smith, Judge.
Appearances: Darrel Gardner, Assistant
Public Advocate, and Brant McGee, Public
Advocate, Anchorage, for Petitioner. Nancy
R. Simel, Assistant Attorney General,
Anchorage, and Bruce M. Botelho, Attorney
General, Juneau, for Respondent.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
EASTAUGH, Justice.
MATTHEWS, Justice, dissenting.
1. What remedy is appropriate if a criminal
defendant's appointed appellate attorney fails to brief and argue
the defendant's intended excessive sentence appeal along with his
merit appeal? Because allowing the sentence appeal to go forward
is the most effective use of judicial resources to correct
counsel's failure, we vacate the order of the court of appeals
denying the defendant's motions seeking an opportunity to brief
his sentence appeal.
2. Steve Amos entered a plea of no contest to one
count of first degree
robbery and one count of first degree sexual assault on January
22, 1998. Several weeks later Amos's newly appointed public
advocate, Darrel Gardner, filed a motion to withdraw Amos's plea.
The superior court denied Amos's motion to withdraw his plea and
sentenced him to twenty-five years in prison, fifteen for the
sexual assault and ten for the robbery.
3. Amos commenced a combined merit and sentence
appeal in the court of appeals on January 4, 1999. The docketing
statement, notice of appeal, and statement of points on appeal
all indicated that Amos intended to appeal the denial of his
motion to withdraw his plea as well as the sentence imposed. But
Amos's brief did not address the sentencing issue. In June 2000
Amos moved for leave to supplement his appeal with an argument
that the sentence was excessive; he supported his argument with
an affidavit from Gardner, who stated that he had neglected to
brief the sentencing issue because he was unaware that his client
wished to appeal his sentence. The court of appeals denied the
motion for leave to supplement Amos's appeal. Gardner filed a
second affidavit to accompany Amos's motion for full-court
reconsideration of the motion for leave to supplement. Gardner's
affidavit revealed that Amos's file showed Amos's intent to
challenge his sentence and admitted that Gardner's own "excusable
neglect" resulted in the failure to brief the sentencing issue.
The court of appeals denied the motion to reconsider.
4. Amos filed a petition for hearing seeking reversal
of the court of appeals's refusal to allow supplemental briefing
on the sentencing issue.
5. We hold that it was an abuse of discretion not to
allow Amos to supplement his merit appeal with briefing on the
sentencing issue.1 Amos made out a colorable claim of
ineffective assistance of appellate counsel when his appellate
attorney admitted that he had failed to submit a sentence appeal
as his client expected him to. Ineffective assistance claims must
include evidence sufficient to overcome the strong presumption
that the alleged error was a sound tactical decision.2 In this
case, the appellate attorney's second affidavit is conclusive
evidence that his failure to brief the sentence appeal was the
result of negligence, not tactics. The attorney admitted that
upon reviewing his files, the docketing statement, the notice of
appeal, the statement of points on appeal, the designation of
transcript, the clerk's opening notice, and his own
correspondence with Amos, Amos's intention to appeal his sentence
was clear. The attorney further admitted that he "somehow failed
to recognize that the brief should have included a sentencing
argument." He concluded that
the failure to brief the sentence issue on
appeal resulted from counsel's excusable
neglect. I certainly intended to brief the
sentencing issue at the outset, and I never
intended to abandon the issue by failing to
brief the argument. Although in retrospect I
understand how the error arose, I recognize
the seriousness of the mistake and assume
full responsibility for its occurrence.
It is evident from the affidavit that Amos's appellate counsel
was ineffective. It was therefore an abuse of discretion not to
allow supplemental briefing.
6. The only remaining issue is whether appellate
counsel's ineffective assistance prejudiced Amos. Because that
issue requires consideration of the merits of Amos's would-be
sentence appeal, the best use of judicial resources is to remand
to the court of appeals to allow Amos to present his sentence
appeal, rather than to consign the issue to a separate post-
conviction relief proceeding asserting ineffective assistance.
We consequently GRANT the petition for hearing and VACATE the
order denying Amos's motion seeking an opportunity to brief the
sentence appeal and REMAND to the court of appeals.
Matthews, Justice, dissenting.
Amos appealed on a merit issue and on the grounds that
his sentence was excessive. His statement of points on appeal
raised the same two issues. But his brief before the court of
appeals only argued the merit issue. It met with partial
success, for the court of appeals remanded the merit issue for
further findings by the superior court while retaining
jurisdiction of the appeal. After the superior court made
findings on remand that were adverse to Amos, he sought leave in
the court of appeals to brief the sentencing issue. The court
denied this motion. I believe that the court did not abuse its
discretion in doing so.
The appellate rules require that briefs actually
discuss points raised on appeal; points that are not discussed
are considered to be abandoned.3 While a court in its discretion
might allow an appellant to present an unbriefed point in a
supplemental brief filed before a case is submitted for decision,
I think the more usual action would be to deny such a request,
especially if it were made after the appellee had prepared a
responding brief. Here the request was made not only after the
appellee had filed a responding brief, but after the case had
been submitted for decision, after it was actually decided, and,
for that matter, after it was decided on remand. Refusing to
grant a request for supplemental briefing at this late stage, in
my opinion, cannot be an abuse of discretion.
The court of appeals decision did not leave Amos
without a remedy on his claim of ineffective assistance of
counsel. That claim can be litigated in an orderly fashion in
collateral proceedings as is normally done in claims of
ineffective assistance.4 I would therefore either affirm the
decision of the court of appeals or dismiss the petition as
improvidently granted.
_______________________________
1 We will determine that there was an abuse of discretion if,
after considering the entire record, we are left with a definite
and firm conviction that the lower court erred in its ruling.
See Hallam v. Holland America Line, Inc., 27 P.3d 751, 753
(Alaska 2001) (reviewing denial of leave to amend); see also C.L.
v. P.C.S., 17 P.3d 769, 771 (Alaska 2001) (reviewing motion to
consolidate); Reese v. Geiermann, 574 P.2d 445, 446-47 (Alaska
1978) (reviewing motion for continuance).
2 State v. Jones, 759 P.2d 558, 569-70 (Alaska App. 1988)
(citation omitted).
3 Appellate Rule 212(c)(1)(i). See also West v. Buchanan,
981 P.2d 1065, 1075 n.29 (Alaska 1999); Gates v. City of Tenakee
Springs, 822 P.2d 455, 460 (Alaska 1991); Petersen v. Mutual Life
Ins. Co., 803 P.2d 406, 411 n.8 (Alaska 1990); Lewis v. State,
469 P.2d 689, 691-92 n.2 (Alaska 1970).
4 See Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App.
1984).
