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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stone v. State (4/22/2011) sp-6556
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DAVID F. STONE, )
) Supreme Court No. S-13524
Petitioner, ) Court of Appeals No. A-10174
)
v. ) Superior Court No. 3PA-06-01251 CI
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) No. 6556 - April 22, 2011
)
Petition for Hearing from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court, Third Judicial
District, Palmer, Beverly W. Cutler, Judge.
Appearances: Beth Lewis Trimmer, Assistant Public
Advocate, and Rachel Levitt, Acting Director, Office of
Public Advocacy, Anchorage, for Petitioner. Michael Sean
McLaughlin, Assistant Attorney General, Office of Special
Prosecutions & Appeals, Anchorage, and Daniel S. Sullivan,
Attorney General, Juneau, for Respondent.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices. [Christen, Justice, not participating.]
WINFREE, Justice.
I. INTRODUCTION
We granted this petition to consider the narrow question of whether under
the Federal Constitution a criminal defendant's court-appointed counsel must, upon the
defendant's demand after lawful sentencing pursuant to a plea agreement, file a petition
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for discretionary sentence review by this court when AS 12.55.120(a) precludes an
appeal of right to the court of appeals. We now answer "yes" to that question.
II. FACTS AND PROCEEDINGS
David Stone was charged with manslaughter, two counts of assault, and
driving under the influence. Because Stone was already on probation from earlier
unrelated convictions, the State also filed petitions to revoke his probation (PTRs).
Represented by an attorney from the Public Defender Agency, Stone reached an
agreement with the State reducing the manslaughter charge to criminally negligent
homicide and then pleaded no contest to the four charges and the PTRs. The maximum
term for Stone's most serious offense was 10 years of incarceration,1 and the plea
agreement required a composite sentence between 5 and 12 years. The superior court
entered judgment and sentenced Stone to a total of 13 years with 4 years suspended for
the four charges and to an additional 350 days for the PTRs, leaving Stone 9 years and
350 days to serve.
Soon after judgment was entered anotherattorney from the Public Defender
Agency asked Stone if he wished to appeal his conviction or sentence. Stone responded
that he wanted the attorney to file a Criminal Rule 352 motion and to appeal on the
ground that his sentence violatedBlakely v. Washington.3 The attorney reviewed Stone's
1 See AS 11.41.130(b) (categorizing criminally negligent homicide as class
B felony); AS 12.55.125(d) (establishing 10-year maximum sentence for most class B
felonies including criminally negligent homicide).
2 Alaska Criminal Rule 35 allows the court, with certain limitations, to
"modify or reduce a sentence within 180 days of the distribution of the written judgment
upon a motion made in the original criminal case." Alaska R. Crim. P. 35(b)(1).
3 542 U.S. 296, 313-14 (2004) (requiring facts used to increase sentence
(continued...)
-2- 6556
----------------------- Page 3-----------------------
file, spoke with Stone's previous counsel, advised Stone that given the suspended portion
of his sentence it did not exceed his plea agreement cap,4 and concluded, "I do not
believe you can appeal your sentence." The attorney took no further action.
Stone petitioned pro se for post-conviction relief, alleging that his sentence
was illegal and excessive, and that the attorney's failure to object to or appeal from his
sentence constituted ineffective assistance of counsel. But Stone abandoned hisBlakely
argument and instead argued that (1) all of the four charges against him should have
merged into one charge under Whitton v. State,5 thereby precluding his composite
sentence, and (2) the sentence of 13 yearswith 4 suspended was "clearly excessive under
the totality of the circumstances" of his case. Stone also argued that his attorney had
been ineffective for failing to contest his sentence in the superior court and for failing to
appeal the sentence after it was imposed.
An attorney was appointed to represent Stone, and Stone amended his
petition. In this petition Stone abandoned his Whittonargument and instead argued that
his composite sentence exceeded both the plea agreement range and the maximum 10-
year sentence he could have received for the most serious charge against him, the latter
3 (...continued)
above statutory maximum to be determined by jury).
4 The attorney mistakenly considered only three out of the four counts against
Stone. However, the analysis would be the same even if the attorney had considered all
four counts because the four-year suspension brings the sentence below the plea
agreement cap.
5 479 P.2d 302, 314 (Alaska 1970) (merging robbery and robbery with
firearm into single offense for double jeopardy purposes).
-3- 6556
----------------------- Page 4-----------------------
of which violatedMutschler v. State.6 The State answered the petition by pointing to the
four-year suspended portion of Stone's sentence and arguing that Stone was not
sentenced in excess of either the plea agreement range or the statutory maximum for the
most serious charge against him. Stone replied that it was nonetheless ineffective
assistance of counsel to fail to appeal the sentence when Stone requested it, regardless
of his arguments' merits.
The superior court denied Stone's application for post-conviction relief.
The court first rejected Stone's Mutschler argument, concluding that the suspended
portion of a sentence is not counted when measuring a composite sentence against a
statutory maximum - only time served is considered. The court then concluded it was
"unwilling to find that an attorney is ineffective on the sole basis that the attorney did not
advance a meritless argument" because attorneys have an "ethical duty not to file
frivolous pleadings."
Stone appealed to the court of appeals, arguing that it was ineffective
assistance per se for his attorney to fail to file the requested appeal after entry of his
sentence, and it was error for the superior court to deny his petition based on the merits
of the arguments that would have been raised on appeal. Stone requested the restoration
of his right to appeal his sentence.
The State argued that because Stone no longer questioned the legality of his
sentence, it could not have been ineffective assistance of counsel to fail to appeal his
sentence on that basis. But the State itself then raised a somewhat different question -
6 560 P.2d 377, 380 (Alaska 1977) (citing Cleary v. State, 845 P.2d 952, 956
(Alaska 1976) (precluding imposition of consecutive sentences totaling more than
maximum sentence for most serious offense without specifically finding extended
confinement was necessary to protect public from further criminal conduct by
defendant)).
-4- 6556
----------------------- Page 5-----------------------
whether, aside from questions about the legality of a sentence, it would be ineffective
assistance of counsel to fail to file a sentence appeal limited narrowly to a claim of
excessiveness. The State first noted that because Stone's sentence was entered under the
terms of a plea agreement and the sentence was less than a specified maximum sentence,
under AS 12.55.120(a) Stone had no right to appeal his sentence on the ground of
excessiveness.7 The State conceded that Stone could have petitioned this court for our
discretionary review of his sentence for excessiveness,8 but argued that (1) whether to file
a petition for discretionary sentence review was a decision left to counsel, not the client,
and (2) Stone had not shown that the failure to file a petition for discretionary sentence
review rose to the level of ineffective assistance of counsel.
Stone replied by acknowledging the difference between the right to appeal
and the right to petition, but claimed he was entitled to appellate review regardless of the
terminology that he had used. He further countered that the decision whether to seek
appellate review belonged to the client, not the attorney.
7 AS 12.55.120(a) provides in part:
A sentence of imprisonment lawfully imposed by the superior
court for a term or for aggregate terms exceeding two years
of unsuspended incarceration for a felony offense or
exceeding 120 days for a misdemeanor offense may be
appealed to the court of appeals by the defendant on the
ground that the sentence is excessive, unless the sentence was
imposed in accordance with a plea agreement under the
applicable Alaska Rules of Criminal Procedure and that
agreement provided for imposition of a specific sentence or
a sentence equal to or less than a specified maximum
sentence.
8 See Alaska R. App. P. 215(a)(5) (allowing discretionary review by supreme
court of sentence's excessiveness if not appealable to court of appeals).
-5- 6556
----------------------- Page 6-----------------------
The court of appeals affirmed the superior court's decision, noting that
throughout the course of the post-conviction-relief proceedings Stone had relied on, and
then abandoned, a number of different substantive challenges to the legality of his
sentence. The court also noted that Stone lacked the right to appeal the alleged
excessiveness of his sentence because under AS 12.55.120(a), defendants who plead no
contest and are sentenced according to a plea agreement "often lose" that right.9 The
court declined to decide whether any and all appellate attacks on the severity of a
sentence imposed under a plea agreement are foreclosed, holding only that reasonable
judges and attorneys could have concluded that Stone had no right to appeal his sentence
on the ground of excessiveness.10 Taking up the issue of a possible petition for
discretionary review, the court likewise held that because it was reasonably debatable
whether all competent judges and attorneys would have known that Stone's attorney had
no right to refuse Stone's request for appellate review of his sentence, it was not
incompetence per se to do so. It concluded that Stone "failed to establish that the Public
Defender Agency acted incompetently or otherwise violated its professional duty to
Stone merely because the Agency declined to file the petition for sentence review that
Stone requested."11
9 See note 7, above.
10 See Risher v. State, 523 P.2d 421, 424 (Alaska 1974) ("All that is required
of counsel is that [counsel's] decisions, when viewed in the framework of the trial
pressures, be within the range of reasonable actions which might have been taken by an
attorney skilled in the criminal law, regardless of the outcome of such decisions.").
11 See id. at 424-25 (describing standard for ineffective assistance of counsel
claims).
-6- 6556
----------------------- Page 7-----------------------
Stone petitioned us for hearing, arguing that a petition for discretionary
sentence review by this court is first-tier appellate review invoking the federal
constitutional right to appointed counsel and the related right to require counsel to seek
appellate review. We granted Stone's petition to consider that narrow issue without
deciding whether the court of appeals correctly applied the ineffective assistance of
counsel standards to Stone's case.
III. STANDARD OF REVIEW
We apply our independent judgment to constitutional questions12 including
questions about the extent of a criminal defendant's right to counsel.13 We interpret
Alaska Appellate Rules de novo.14 We adopt "the rule of law most persuasive in light
of precedent, reason, and policy."15
IV. DISCUSSION
The federal constitution affords criminal defendants the right to counsel for
first-tier appellate review.16 "[F]irst-tier review differs from subsequent appellate stages
'at which the claims have once been presented by [appellate counsel] and passed upon
12 Diaz v. State, Dep't of Corr., 239 P.3d 723, 727 (Alaska 2010).
13 See Risher, 523 P.2d at 423 (discussing federal right to counsel as
constitutional right).
14 Cameron v. Hughes, 825 P.2d 882, 884 n.2 (Alaska 1992) (holding
interpretation of appellate rule is "a purely legal question" reviewed "de novo").
15 Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
177 P.3d 1181, 1184 (Alaska 2008) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6
(Alaska 1979)).
16 Halbert v. Michigan, 545 U.S. 605, 609-10 (2005).
-7- 6556
----------------------- Page 8-----------------------
by an appellate court.' "17 Defendants have no federal right to counsel for subsequent
appellate proceedings.18
Alaska Statute 12.55.120(a) provides that when a criminal defendant enters
into a plea agreement and receives a sentence in accordance with that agreement, the
defendant may not appeal the sentence as excessive. Consistent with that statute, Alaska
Appellate Rule 215(a)(1) takes away a defendant's right to appeal felony sentences
exceeding two years if "the sentence was imposed in accordance with a plea agreement
that provided for imposition of a specific sentence or a sentence equal to or less than a
specified maximum sentence." But Appellate Rule 215(a)(5) allows a defendant to seek
discretionary review by this court "for any sentence not appealable under Appellate Rule
215(a)(1)." A petition under Rule 215(a)(5) is a defendant's first chance to have an
appellate court "pass upon" the superior court's sentence, even if we deny the petition,
and therefore review of that petition is first-tier appellate review.
Because Stone pleaded no contest and his sentence was within the
agreement's maximum range, the appellate review available to him for his excessive
sentence claim was to petition this court under Appellate Rule 215(a)(5). Stone therefore
had a right under the Federal Constitution to the assistance of counsel in filing such a
petition.19 The right to counsel "requires that [an attorney] support [a] client's appeal to
the best of [the attorney's] ability."20 If after receiving the attorney's advice the client
is not convinced to give up the right to petition for sentence review, the attorney must file
17 Id. at 611 (quoting Douglas v. California, 372 U.S. 353, 356 (1963)).
18 Ross v. Moffitt, 417 U.S. 600, 610, 618-19 (1974).
19 See Halbert, 545 U.S.76 at 610 (holding criminal defendants have right to
counsel for first-tier appellate procedures).
20 Anders v. California, 386 U.S. 738, 744 (1976).
-8- 6556
----------------------- Page 9-----------------------
the petition. An attorney who refuses to file a petition for review at the client's request
essentially denies that client the assistance of counsel for the client's first-tier appellate
procedure.21 If the attorney believes the client's requested petition only raises issues that
are "wholly frivolous," the attorney may file a brief with the court and seek permission
to withdraw.22
Stone's attorney neither filed a petition nor took any precautionary
procedures. Stone did have the benefit of counsel in filing his petition for post-
conviction relief and therefore had the opportunity to raise all of his specific claims that
his sentence was illegal both in the superior court and in the court of appeals. But at no
time did the superior court or court of appeals consider whether Stone's sentence,
although within the plea agreement range, was excessive. Stone is therefore entitled to
require his court-appointed counsel to file a petition for our discretionary review of his
sentence for examination.23
21 This is unlike when the attorney decides not to raise selected issues on
appeal in order to pursue a different appellate strategy. See Jones v. Barnes, 463 U.S.
745, 751-53 (1983) (holding appellate counsel may elect to ignore potential issues on
appeal to focus court's attention on other arguments).
22 SeeAnders, 386 U.S. at 744 (outlining procedures for attorney's withdrawal
when issues on appeal are wholly frivolous). We do not need to decide here whether the
attorney has other options.
23 Earlier in this case the State took the position that if Stone files a petition
for our review of his sentence, the State will have the right to file a cross-petition on a
number of issues, such as (1) whether seeking review would be a breach allowing the
State to repudiate the plea agreement and prosecute Stone on the original charges, or
(2) whether the sentence was too lenient. These issues are not before us at this time.
-9- 6556
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V. CONCLUSION
Having answered the question raised by the petition and clarified Stone's
federal constitutional right to require his court-appointed counsel to file a petition under
Alaska Appellate Rule 215(a)(5) for our review of his sentence for excessiveness, we
GRANT Stone leave to file such a petition within 30 days. No further proceedings on
Stone's petition for post-conviction relief are necessary.
-10- 6556
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